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COPYRIGHT 2002 Health Law Institute
On May 9, 2002, Canadian Health Minister Anne McLellan introduced Bill C-56, An Act Respecting Assisted Human Reproduction (the "AHR Act"), (1) in the House of Commons. The Bill was then re-introduced in the House on October 9, 2002 as Bill C-13. This proposed legislation strives to deal with the moral and ethical concerns that surround research and science associated with reproductive technologies. At the same time, the AER Act strives to balance these concerns with the objective of promoting scientific and medical inquiry, which ultimately could lead to finding treatments for many of the illnesses that continue to plague humanity.
In an effort to harmonize these goals, the AHR Act enumerates a series of activities that are altogether prohibited, and lists other practices that are subject to tight regulatory measures. Activities banned by the proposed legislation include: human cloning for any purpose, creating a human embryo for any purpose except reproduction, maintaining an embryo outside a women's body after its fourteenth day of development, gender determination and selection of a human embryo, paying for surrogacy services and brokering or arranging surrogacy services. (2)
Other activities, though not prohibited, would be subject to regulatory control. Provisions concerning controlled activities regulate: the collection, retention and dissemination of personal information collected from sperm, ova and embryo donors; (3) the reimbursement of these donors and surrogate mothers for expenditures incurred by their donations or surrogacy; (4) the combination of human and non-human genomes; (5) and the use, storage and transport of sperm, ova or embryos. (6) Controlled activities are subject to licensing provisions, and may not be carried out in the absence of a license granted by the Assisted Human Reproduction Agency of Canada, a new administrative body that would be created by Bill C-13. (7)
The development of the AHR Act as a law that merges prohibited and regulated activities results from its prolonged and difficult history. An initial step in its evolution occurred with the formation of the Royal Commission on New Reproductive Technologies in 1989, and the completion of its final report. (8) This report recommended that the federal government ban certain activities (such as human cloning, creating animal-human hybrids and commercial surrogacy), and establish an independent regulatory body to govern other permissible activities related to reproductive technology.
The Royal Commission Report was followed by a voluntary moratorium in 1995 on many activities that the Royal Commission found unethical and unacceptable, and later by the introduction of Bill C-47, the Human Reproductive and Genetic Technologies Act. (9) Bill C-47 was heavily criticized for the fact that it prohibited and criminalized problematic reproductive technologies, and failed to create a regulatory body that would monitor and control permitted activities. (10) However, when Bill C-47 was tabled, Health Canada also published Setting Boundaries, Enhancing Health (11) which outlined the federal government's intention to establish a regulatory framework for monitoring reproductive technologies that had not been banned by Bill C-47.
Although a parliamentary sub-committee was constituted to hear evidence on Bill C-47 in early 1997, the Bill died on the order paper on April28, 1997, when a federal election was called. Since that time, Health Canada has set to work on creating a Bill that amalgamates criminal and regulatory approaches to human reproductive and genetic technologies. To this date, the end result is the proposed AHR Act, which delineates prohibited and controlled activities, and distinguishes each from the other.
Even though this new legislation incorporates the regulatory strategy that critics claimed was lacking from its predecessor, Bill C-47, the AHR Act has, since its inception, been subject to debate and controversy. Once again, the sticking point is the prohibition and criminalization of activities that Parliament has deemed unacceptable within our social and moral culture. While some commentators (12) endorse the prohibitions formulated by the AHR Act and by the earlier draft of this new law, (13) others have criticized them, marshaling a host of rationales as to why regulation of the impugned activities is preferable to their criminalization. (14)
In this paper, I address the primary concerns raised by critics, and maintain that none of them is compelling enough to exclude criminal law from legislation governing human reproductive and genetic science. This response to critics will form the first part of this work. The second part examines the justifications for extending and applying criminal prohibitions and sanctions to the realm of science and biotechnology involving human health, safety and integrity. Ultimately, I conclude that Parliament must articulate more explicitly and transparently the policy rationales underlying its decision to legislate these matters through the exercise of its criminal law power. Absent such a policy explanation, use of the criminal law in this context will remain open to valid scrutiny and challenge. (15)
Criminal Law and Human Reproductive Technologies: What the Critics are Saying
Commentators who take issue with the criminal prohibitions in the proposed legislation governing assisted human reproduction have cited several concerns. The most prominent arguments voiced are: (1) that members of Canadian society do not agree on the criminalization of these technologies; (2) that criminal law is too blunt and rigid a tool to wield in this domain; and (3) that criminalization could preclude viable scientific and medical breakthroughs, which could ultimately alleviate human suffering.
In the discussion that follows, I consider each of these arguments in turn. This analysis demonstrates that, whether these arguments are considered individually or collectively, they lack the persuasion necessary to convince legislators and policy makers that criminal law should not be brought to bear on human genetic arid reproductive science and medicine.
(a) Lack of Social Consensus
Several critics have argued that the controversy surrounding reproductive science and research make it an improper target of the criminal law. According to Harvison Young and Wasunna, the Royal Commission Report and subsequent initiatives by the Canadian government have exaggerated the level of social consensus in Canada on the issue of reproductive technologies. Given this divergence in views, they take the position that criminal law is ill-suited to regulate in this area. More specifically, they argue that the absence of social consensus will not prevent controversial activities from being carried out, even if they are criminalized. Rather, they will be forced underground, where their control and regulation will be much more difficult, if not impossible. (16)
Although Harvison Young and Wasunna raised these concerns with respect to the AHR Act's predecessor, Bill C-47, similar arguments were voiced following Health Canada's introduction of Proposals for Legislation Governing Assisted Human Reproduction in May 2001, (17) and again after the introduction of the AHR Act itself in May 2002. This is exemplified in the Canadian Bar Association (CBA)'s National Health Law and Family Law Sections' "Submission on Draft Legislation". This paper emphasizes that the only activities targeted by the Proposals for Legislation that Canadians agree should be prohibited are commercialized surrogacy and reproductive cloning. Thus, because "[c]riminal law should be reserved for those areas where there is a high degree of social consensus," these are the only activities that should be criminalized. In contrast, other activities dealt with in the draft legislation should be controlled through a regulatory, rather than a criminal, scheme. (18)
Caulfield takes a similar view in his commentary on the Proposals for Legislation. Like the CBA's Health and Family Law Sections, Caulfield maintains that criminal law should be restrictively applied and only to areas where there is a high degree of social consensus. In this connection, he refers to various academic writings that debate the morality of the prohibited activities, as well as surveys that reflect the public's divergent perceptions and opinions regarding these activities. Caulfield thus maintains that there is no consensus, either in Canada or internationally, on how to address a number of the activities that the Proposals for Legislation (and now, the AHR Act) would crintinalize. Further, because social attitudes with respect to reproductive technologies are in a constant and rapid state of flux, it is unlikely that there will ever be significant social agreement on this topic. As such, a regulatory framework is preferable to criminal prohibitions, since it is more flexible, and thus better abl e to keep up with and reflect changing social views and understandings. (19)
Caulfield's more recent article on the AHR Act again emphasizes the lack of social consensus on this issue. He maintains that absent strong public agreement regarding how reproductive technologies should be regulated, Parliament should refrain from criminalizing activities associated with this area of science and research. This remains the case unless legislators can articulate strong policy grounds to support criminal prohibitions. (20)
Arguments related to social consensus also resound in Daar et al.'s editorial on the proposed legislation, written just prior to the AHR Act's introduction in the House of Commons last May. The authors' comments are directed specifically at the technique of "therapeutic cloning." This practice involves transferring the genetic material of one cell into an egg cell whose own genetic material has been removed. The new cell then divides and stem cells can be removed from the newly created cells and made into cells or tissue to be placed again into the individual who donated the original cell. Some members of the scientific and medical communities believe that this technique has the capacity to treat various diseases. (21) Daar et al. note that a PricewaterhouseCoopers poll found that over 75 per cent of Canadians approve of cloning human tissue for medical purposes, thereby suggesting their acceptance of therapeutic cloning. As such, Daar et al. argue against the criminal prohibition of this technique, which is banned by the AHR Act. (22)
Criticisms premised on the absence of social consensus are important to consider and, at first glance, quite compelling. Parliament is proposing to enact legislation that arguably fails to reflect the will of most of the citizens it has been elected to represent. Surely this must be problematic in a liberal democracy such as ours in Canada?
However, a closer look at the way criminal law figures into Canadian society reflects that social consensus is not always a necessary precondition to the implementation of a legally valid criminal prohibition. A quick flip through the Criminal Code (23) reveals a number of activities that are criminally banned in Canada - such as bigamy, prostitution or assisted suicide - which might not be viewed as morally blameworthy by all Canadians, and which arguably could be dealt with more effectively through other means, such as social, cultural or institutional norms, policies and practices.
In raising the examples of bigamy, prostitution and assisted suicide, I do not wish to insinuate or comment on the legal or social propriety of criminalizing these activities. Rather, I use them to highlight that unanimity in social views is not, in every case, necessary before Parliament can enact a valid criminal...
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