Donate a definition.

• Author: Herder, Matthew
• Position: Assisted Human Reproduction Act - Canada

Statutes employ definitions to give content to the law. Bill C-13, the Assisted Human Reproduction Act, (1) is no exception. Definitions, by definition, give meaning to terms, explain their scope, clarify, or fix with precision. (2) Definitions are especially critical for research with novel genetic technologies such as embryonic stem cell research. Bill C-13 prohibits the conduct of research with an in vitro embryo without the consent of the embryo "donor." (3) But the meaning of this term is deferred to the regulations. (4) While this move is straightforward from a legislative drafting perspective, it is not clear that this is an appropriate policy choice. The wisdom of this choice is analysed below.

1. Who Are the Embryo Donors?

   Section 8(3) of Bill C-13 declares that,

   No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose.

   Breach of this would-be statutory prohibition incurs a maximum fine of $500,000 and/or a maximum often years in prison. (5) Section 3 of the bill defines "donor" as follows:

   "donor" means

   (a) in relation to human reproductive material, the individual from whose body it was obtained, whether for consideration or not; and

   (b) in relation to an in vitro embryo, a donor as defined in the regulations

   Only part (b) of this definition is relevant to s. 8(3).6 The identity of the embryo donor is unknown within the four comers of this bill. Therefore, a huge gap in the prohibition against the use of an in vitro embryo for research without the "written consent" of the donor remains. (7) The Governor-in-Council could clarify this definitional omission by enacting regulations. However, s/he is not obligated to do so. Arguably, because Bill C-13 is apt to be characterized as a public interest statute of considerable import, any failure to provide a definition of this term would not necessarily render s. 8(3) a nullity. Rather, some meaning could be implied when and if the matter came before the courts. Essentially, the precise meaning of the term embryo donor would be open for debate.

2. Who Could Be the Embryo Donors?

   No one is, without question, an embryo donor under Bill C13, as it is currently written. But the answer to this question of identity is not indeterminate. True, there are several possibilities to take into account. An embryo donor may be an individual who either alone or with another individual, has requested IVF services, in the course of which the gametes of that individual (or both individuals) are used for the creation of embryos. That is, the embryo donors are the individuals who have utilised IVF services and who have provided their own gametes during the course of those services. Alternatively, an individual or individuals who make use of IVF services may not be able to use their own gametes for embryo production. Gametes donated by other individuals for reproductive purposes will be necessary. In that case then, the embryo donor(s) and the gamete donor(s) are not one and the same individual(s). Thus, the embryo donors can be the individuals participating in the IVF services, the individuals who provid ed their gametes for the use in IVF services, or both. Conceivably, the clinic itself, or other third parties who are charged with storing, transferring, importing or exporting embryos, (8) could also be deemed embryo donors. This is perhaps most likely where a couple, which had enlisted IVF services in the past, has abandoned excess embryos remaining from treatment.

3. Why Not Choose a Definition?

   In light of all these possibilities, the federal government may hold the view that it is better to leave the definition open-ended by making the definition a regulatory matter. This policy decision may be premised upon at least two rationales.

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