Feminist Perspectives on the Draft Federal Assisted Human Reproduction Act

Posted 2002-02-16 | Jurisfemme Publications – Volume 21, No. 1, Winter 2002

In May 2001, former Health Minister Allan Rock publicized draft federal legislation on assisted human reproduction (AHR) (Health Canada documents on AHR, including the draft Act, can be found at: http://www.hc-sc.gc.ca/english/pro-tection/biologics_genetics/reproduction/index.htm).

The draft Act represents the culmination of a lengthy movement toward the regulation of reproductive technology in Canada. In 1989, the Royal Commission on Reproductive Genetic Technologies was mandated by Health Canada to engage in a nation-wide consultation. In 1993 the Royal Commission released its report containing 293 recommendations, including a call for legislation. A voluntary moratorium was declared by Health Canada in 1995. The moratorium still stands and prohibits substantially the same practices that would be prohibited under the draft Act. In 1996, Bill C-47, An Act Respecting Human Reproductive Technologies and Commercial Transactions Relating to Human Reproduction was introduced, however it died on the order paper in 1997 with the dissolution of Parliament.

Rather than introducing the Bill to the House of Commons for first reading, draft legislation was sent directly to the Standing Committee on Health to analyze the document and to lead "a non-partisan dialogue with Canadians." The Standing Committee held hearings on the draft Act and released its report in December 2001 (available online at: http://www.parl.gc.ca/InfoCom/CommitteeReport.asp?Language=E&Parliament=8&Joint=0&CommitteeID=147).

Reproductive technologies raise several issues for women since the technologies are primarily applied to women's bodies. NAWL, the National Action Committee on the Status of Women, the DisAbled Women's Network of Canada, and the Feminist Alliance had the opportunity to make submissions to the Standing Committee in 1996-1997 regarding Bill C-47, and the Lesbian Mothers Association of Quebec, the Canadian Women's Health Network, and the National Council of Women of Canada made submissions on the current draft Act. Along with testimony on the current draft Act, feedback on Bill C-47 is also referred to below where the issues raised by the two documents are substantially similar.

A description of the Act is outlined below, followed by a brief discussion of some key issues it raises for women.

Structure of the Act

The draft Act prohibits 11 activities on threat of criminal sanction, including the cloning of human beings, creating an embryo solely for research purposes, sex selection processes, and commercial surrogacy arrangements.

The draft Act would control the following activities (i. e. one would need a licence to do them):

1. Alter, manipulate or treat any human reproductive material for the purpose of creating an embryo or facilitating human reproduction;

2. Make use of any in vitro (outside of the woman's body) embryo or part of one for the purpose of research or the prevention, diagnosis or treatment of a disease, injury, or disability;

3. Collect, store, transfer, destroy, import or export any sperm, ovum, or embryo for a purpose referred to in (1), or an embryo for a purpose referred to in (2);

4. Create chimeras (an organism derived from the mixture of human and animal cells), or combine animal and human genes;

5. Reimburse a donor of sperm, eggs, cells, or genes; reimburse someone for expenses incurred in the creation or maintenance or transfer of an in vitro embryo; reimburse a surrogate mother for expenses incurred in relation to her pregnancy.

The draft Act also provides for the development of a registry to collect information on sperm, egg and embryo donations in order to make it possible for children conceived with donated reproductive material to learn about their medical history.

Health Canada contemplates the development of regulations with respect to several issues, including informed consent, safety and counselling requirements, the number of embryos that may be transplanted into a woman after in-vitro fertilization, and rules governing research activities.

Health Canada anticipates that a regulatory body will be set up to implement the proposed legislative regime. The Royal Commission recommended that the regulatory body operate at arms length from government, be comprised predominantly of women, and include diverse representation.

Criminalization of Women

The proposed Act would prohibit the following activities on threat of criminal sanction:

1. Cloning of human beings
2. Germ-line genetic alteration (changing the genetic code such that the modification is passed on to descendants)
3. Development of an embryo outside a woman's body beyond the accepted 14-day limit
4. Creation of embryos solely for research purposes
5. Creating an embryo from another embryo or fetus
6. Transplanting reproductive material from animals into humans
7. Use of human reproductive material previously transplanted into an animal
8. Gender preference (i. e. action taken to increase the probability of a particular sex)
9. Sale and purchase of human embryos
10. Purchase, barter or exchange of human gametes (sperm or eggs)
11. Commercial surrogacy arrangements

Not only does the Act prohibit doing any of the activities listed in numbers 1-8, it also prohibits a person from paying or offering to pay for those activities. The penalty for these offences, if the Crown proceeds by way of indictment, is a maximum $500,000 fine or a 10-year prison term, or both.

Bill C-47 criminalized many of the same activities that are criminalized under the draft Act. In their submissions on Bill C-47, NAWL and other feminist groups objected to the criminalization of surrogacy, the sale of gametes and embryos, and sex selection, as these could be used to restrict women's autonomy, and to criminalize women already under social and relationship pressure.( available online at: http://www.parl.gc.ca/committees352/srta/evidence/07_97-04-10/srta07_ blk101.html)

NAWL argued that the criminalization provisions are inflexible and invasive and create the danger that these practices will go underground. In addition, the criminal law tends to be more harshly used against disadvantaged members of society. NAWL agreed that these practices should be prevented, but suggested that this be accomplished through the regulatory licensing system.

In its submissions on the draft Act, the Lesbian Mothers Association of Quebec (LMA) explained that all fertility and sperm donor clinics in Quebec serve married women only. This means that lesbians and single women are precluded from accessing these services. Because of the difficulty in finding a Quebec doctor to assist, and the expense of shipping frozen sperm from another province, many lesbians turn to "known" donors. "Known" can mean anything from a trusted friend to an acquaintance, to a complete stranger contacted through personal ads.

Although the LMA did not object to criminalization, nor did any women's organization who testified regarding the draft Act, it is difficult to overlook the fact that if the draft Act is passed, a lesbian who pays to obtain sperm could be sentenced to up to ten years in prison. The same harsh penalty could be invoked against a woman who pays to undergo a sex-selection process such as sperm sorting, potentially without regard to the social and relationship context in which she makes such a decision.

In its testimony in response to the draft Act, the Canadian Women's Health Network (CWHN) strongly concurred with the complete prohibition of commercial use of human beings or their body parts.

Although it is important to discourage sexist practices and the commodification and exploitation of women, it is clearly questionable whether criminal sanctions should be invoked to penalize women for exercising reproductive autonomy within the current social context.

Discrimination

Despite the fact that the Royal Commission Report recognized that many clinics engage in discriminatory practices, the draft Act does not prohibit discrimination. Although human rights legislation prohibits discrimination, the resolution of a human rights complaint can be a lengthy process and is not proactive, but rather, is primarily complaint-driven.

The fact that discriminatory trends continue today is evidenced by the testimony of the LMA who recommended that the legislation include a specific provision stating that all women must have equal access to fertility clinics and sperm banks regardless of sexual orientation, marital status, or fertility status. However, the Standing Committee did not take up this recommendation in its report.

Surrogacy

The draft Act prohibits commercial surrogacy arrangements, but provides that a surrogate mother can be reimbursed for expenses incurred in relation to her pregnancy. The Royal Commission, on the other hand, recommended that surrogacy arrangements be prohibited under all circumstances.

As Martha Jackman, a law professor at the University of Ottawa, indicated in her testimony regarding the draft Act:

Non-commercial surrogacy arrangements have the same potential for preying upon the vulnerability of gestational mothers as commercial arrangements do. Women are under social, economic, and family pressures to enter into these types of arrangementsé[ and all surrogacy arrangements should therefore] be discouraged at all costs.

(Professor Jackman's testimony is available online at: http://www.parl.gc.ca/InfoComDoc/37/1/HEAL/Meetings/Evidence/healev43-e.htm.) The CWHN makes the same observation and urges that a moratorium on non-commercial surrogacy arrangements be put in place.

The Standing Committee recommends that provinces and territories amend legislation to recognize the birth mother as the legal mother. If acted on, such changes could afford significant protection to birth mothers and would make it clear that surrogacy arrangements have no legal force, as was held in the 1988 United States case of Re. Baby M (1988 109 NJ. 396,537 A2d 1227, online at: http://plague.law.umkc.edu/cases/cloning/baby_m.htm). In that case, the court held the surrogacy contract was invalid because it was essentially an attempt to circumvent the adoption regime. The court also noted that surro-gacy contracts require a mother to commit to surrendering her child before she knows the strength of her bond with her child.

Eugenics

Although the draft Act specifically prohibits sex selection, it is silent with respect to selection on the basis of (dis) ability. Indeed, the Royal Commission was quite harshly criticized for taking an antidisability approach and the Standing Committee report does not speak to the issue of eugenics.

The DisAbled Women's Network (DAWN), NAWL, and other women's organizations raised concerns about the lack of attention to eugenics in Bill C-47 (DAWN testimony online at: http://www.parl.gc.ca/committees352/srta/evidence/06_97-04-09/srta06_blk101.html) In its testimony in response to the draft Act, the CWHN recommended restrictions on pre-implantation diagnosis until questions associated with such diagnoses have had full and open public discussion, and guidelines for regulation are firmly in place.

Informed Choice

The issue of informed choice has been raised by most women's organizations in their comments around Bill C-47 and the draft Act. This issue is central because of the apparent lack of information that may be offered to women who undergo AHR procedures. For instance, there is a need for the provision of information and obtaining consent for the use of "left over" gametes (and embryos) for research purposes. In addition, there is lack of standardization in the reported "success" of in vitro fertilization (IVF), resulting in a lack of clarity around whether a clinic is reporting the percentage of conceptions, or the percentage of live births, and also a lack of information around which types of infertility IVF is most appropriate for (many women undergo the invasive procedure of IVF in response to male factor infertility). In fact, concerns around the use of the technologies have led the CWHN to suggest what one would think would be an obvious approach to health care: that AHR operate under the precautionary principle so that when there is uncertainty about an activity, the onus is on the provider to demonstrate lack of harm before engaging in the procedure.

The CWHN emphasized that regulations to the Act must ensure that informed choice is a fundamental principle. The CWHN also recommended that counseling by a neutral third party be a condition of informed consent, and that individuals be advised of any potential or future commercial use of an embryo or its cells.

Conclusion

Reproductive technologies raise both opportunities and concerns for women. Legislation in this area would clearly offer necessary protections for women who access these services. However, legislation may also threaten women's reproductive autonomy.

As the CWHN points out, there are critical policy, social, and resource issues that cannot be addressed by legislation. Questions remain as to why adoption is not a feasible option in various circumstances for a number of reasons, including financial reasons. Who will be able to afford access to reproductive technologies since many clinics are run on a for-profit basis? Why is the demand for fertility treatment so strong, and what does this tell us about the need for attention to prevention of infertility, or more specifically, the allocation of resources for the maintenance of good health?