Author(s): Talha Syed
Abstract: Each year, roughly nine million people in the developing world die from infectious diseases. The large proportion of those deaths could be prevented, either by making existing drugs available at low prices in developing countries, or by augmenting the resources devoted to the creation of new vaccines and treatments for the diseases in question. Several legal and social circumstances contribute to this outrage. In this Article, we focus on two. First, the majority of the most effective drugs are covered by patents, and the patentees typically pursue pricing strategies designed to maximize their profits. Second, pharmaceutical firms concentrate their research and development (“R & D”) resources on diseases prevalent in Europe, the United States, and Japan — areas from which they receive 90-95% of their revenues — and most of the diseases that afflict developing countries are uncommon in those regions.
In a forthcoming book, we substantiate the foregoing assertions — some of which are controversial — and then consider several ways in which the legal system might be modified to overcome the two obstacles and thus help alleviate the crisis. Some of the possible reforms we examine involve providing pharmaceutical firms financial incentives to modify their pricing practices or R & D policies; others would use various legal levers to force the firms to modify their behavior; still others would increase the roles of governments in the development and distribution of pharmaceutical products. We then attempt to identify a politically palatable package of reforms that would both result in lower prices in developing countries for existing drugs and accelerate the production of new drugs that address the health crises in those areas.
Our analysis gives rise to an ethical problem: most of the legal reforms we consider would increase the already significant extent to which the cost of developing new drugs — including some whose principal function is to alleviate suffering in the developing world — is borne by the residents of the developed world, either as consumers purchasing patent-protected drugs or as taxpayers. Why should the law be organized in this fashion The goal of this Article is to answer that question.
The analysis proceeds in two stages. In Part I, we consider several possible reasons why developed country residents should help alleviate the health crisis in the developing world. We begin by canvassing, briefly, considerations from national self-interest. Finding these implausible and unattractive, we then consider several arguments grounded in considerations of justice, or in sentiments of mutual concern and well-wishing, that extend beyond national borders. These include arguments from historical equity, social utility, and deontological and teleological theories of distributive justice. We show that each of these frameworks or perspectives provides support for our proposals. Further, we contend that, not only do the arguments individually support our goals, but, suitably qualified, each tends to reinforce, or at least converge or “overlap” with, the others.
In the course of our analysis in Part I, we address several criticisms that have been or might be made of particular arguments we offer in support of our proposals. In Part II, we confront the following more sweeping objections to our approach: that full acceptance of the commitments we identify would impose intolerable moral burdens on the citizens of developed countries; that questions of distributive justice are properly limited to the level of individual polities; that recognition of the insights of communitarianism requires privileging the claims of the nation over the claims of the globe; that adoption of our proposals would disrupt the operation of the patent system and prevent us from achieving the important objectives it serves; and that interference with the free market in pharmaceutical products is either illegitimate or likely to do more harm than good. We contend that none of the objections, closely examined, holds up.
Keywords: access to knowledge, health crisis