Bill C-13, the Assisted Human Reproduction Act: examining the arguments against a regulatory approach.

• Author: Caulfield, Timothy
• Position: Canada

The temptation to respond to emerging social problems or sensational but atypical events through the vehicle of the generally-applicable criminal law must therefore be resisted according to this approach [of restraint], and a dispassionate assessment made of the validity of employing the criminal law, as opposed to other, less intrusive or more specialized means. (1)

The public tends to demand prohibition of conduct that is universally opposed, but expects issues of moral ambiguity to be regulated. (2)

1. Introduction

   In large part, Bill C-13, The Assisted Human Reproduction Act, (3) provides a framework for a reasonable regulatory scheme. It creates the Assisted Human Reproduction Agency of Canada and gives it a broad mandate to "protect and promote the health and safety, and the human dignity and human rights, of Canadians, and to foster the application of ethical principles" in relation to reproductive technologies and to issue licences for a variety of "controlled activities." (4) As I have argued elsewhere, the adoption of this flexible scheme is an entirely sensible way to regulate reproductive genetics. (5)

   However, the bill also prohibits a number of activities, including: reproductive and therapeutic cloning, the creation of embryos for research purposes, germ line alterations, non-medical sex selection and commercial surrogacy. The continued use of rigid statutory prohibitions has been criticized, to varying degrees, by a variety of commentators, myself included. (6)

   In this brief article, I will not revisit the arguments for the adoption of a regulatory approach. Rather, I address three of the main criticisms of the use of a regulatory scheme. The following discussion borrows from and builds on two recently published articles. (7)

2. Claim: Statutory Prohibitions are Flexible and Responsive

   A number of commentators have suggested that statutory prohibitions are, in fact, flexible enough to handle this dynamic area, noting that, technically, Parliament can enact and amend laws relatively quickly. (8) Indeed, it has been suggested that Parliament can create a new law or amend an old one in as short as 24 days. (9) The recent terrorism laws illustrate the potential speed of Parliamentary action. (10) But, in reality, Parliament rarely moves so quickly. To cite the most obvious example, the Canadian government has been trying to enact legislation in the area of reproductive technology for almost ten years. There is little reason to believe that Parliament will be inclined to move more quickly in the future. And once the laws are enacted, they may be difficult to alter in response to new scientific developments or new social concerns. As noted in the Government of Canada's The Criminal Law in Canadian Society:

   The practice of a century in Canada has shown that Parliament can, and has, found it relatively easy to subject conduct to criminal sanctions, m response to specific problems or particular demands. But once an act has been made criminal, it is difficult to remove or lessen criminal penalties, even in response to changes in public attitudes, perceived inconsistencies in application, or emerging experience demonstrating that use of the criminal law might be excessive... (11)

   One can argue that this is an area that warrants continued Parliamentary oversight and that, within that context, the Parliamentary process is fast enough. Fair enough. Such an argument, however, goes to the issue of democratic accountability, (12) to be covered below, and not to speed of legislative action. Given the pace at which Parliament typically moves to enact or amend legislation, it clearly does not have the flexibility and responsiveness that would characterize a regulatory body. Indeed, the need for flexibility and responsiveness are among the accepted justifications for the very existence of regulatory schemes generally. As noted by Jones and de Villars:

   There are a variety of reasons for subordinate legislation, including:... c) The power to delegate to an administrator allows greater flexibility in applying statutory provisions to changing circumstances; d) The need for rapid governmental action may require faster administrative response than can be achieved by amending parent legislation; [and] e) Innovation and experimentation in solving social problems may not be possible if parent legislation must be amended. (13)

   It should not be forgotten that by creating the Agency the federal government has largely recognized the value of using a regulatory approach in this context. There is not, then, resistance to the regulatory approach per se, but to the use of a regulatory approach for the listed prohibited activities. But what is gained by handling these activities through statutory prohibitions instead of placing them in the jurisdiction of the Agency? Why are statutory prohibitions believed to be needed?

3. Claim: There is a Consensus that Prohibitions are Required

   It has been suggested that statutory prohibitions are justified because the prohibited activities are major social concerns and that, therefore, statutory bans are warranted. For example, the Standing Committee on Health stated that: "[t]he use of the statutory ban also signals that these activities are of such concern to Canadians that their status as a prohibited activity may not be altered except with the approval of Parliament." (14)

   But is there evidence that all of the prohibited activities are a major social concern? As I have noted in several past publications, other than for reproductive cloning, there is little or no social consensus about the relevant issues. (15) In fact, given available evidence, it seems clear that there is currently no public consensus or agreement within the academic, religious or, even, scientific communities about the risks and benefits of many of the...