Defining a policy rationale for the criminal regulation of reproductive technologies.

• Author: Campbell, Angela
• Position: Canada

On the heels of extensive public and political debate, controversy and criticism, Bill C-56, An Act respecting assisted human reproduction, (1) was introduced in the House of Commons on May 9,2002. (2) Through this bill, Parliament has proposed to regulate practices associated with reproductive technologies by relying on its criminal law jurisdiction. Certain scientific activities are altogether prohibited, while others are subject to regulatory control. Those who breach such prohibitions or regulations can be subject to criminal sanctions--namely, a maximum fine of $500,000 and/or a maximum ten-year prison term for prohibited activities, and a maximum $250,000 fine and/or five years imprisonment for regulated and licensed activities. (3)

In this brief paper, (4) I maintain that the criminal law is an appropriate legislative mechanism for dealing with reproductive technologies in Canada. At the same time, I underscore that Parliament must provide a clear, principled and transparent rationale for the legislative framework it has proposed in Bill C-13. Such a rationale has yet to be articulated by our legislators. Unless and until that occurs, use of the criminal law in this context will remain open to valid scrutiny and challenge. (5)

Part I - Response to Critics

The history of Bill C-13 is long and turbulent, notably marked by controversy over whether certain techniques and practices associated with reproductive science--in particular, various forms of human cloning--should be subject to a criminal ban. Strong voices have marshalled several grounds for opposing such a ban, among which three arguments are most prominent: (1) the lack of social consensus in Canada regarding the criminalization of certain reproductive technologies; (6) (2) the criminal law is too severe and rigid to regulate this area effectively, given that reproductive and genetic science are characterized by rapid development and change; (7) and (3) criminalizing reproductive science could deprive us of the benefits of medical and scientific progress. (8)

In my view, none of these arguments is compelling enough to justify the exclusion of the criminal law from the regulation of reproductive technologies.

(a) Absence of Social Consensus

In response to arguments regarding the absence of social consensus over the propriety of certain reproductive technologies, it is important to begin by noting that unanimous public views on the wrongfulness of an act is not necessarily a requirement for such act to be validly prohibited by Parliament. There are many acts in our society that legislators have chosen to criminalize, even though Canadians as a whole do not agree on their moral blameworthiness.

Moreover, public opinion in and of itself cannot be the sole driving force behind legislative decision making in this area. Reproductive technologies implicate the potential creation, pragmatic use, manipulation, destruction and commercialization of human life forms. Thus, in making choices about how to legislate in this domain, Parliament must consult and consider views held by Canadians, but it must also ask whether the scientific practices at issue respect the values integral to our social and cultural fabric. While these values are not always easy to discern, they are illuminated by the Canadian Charter of Rights and Freedoms. (9)

Two values enshrined within the Charter that are of particular relevance to the regulation of reproductive technologies are: (1) the sanctity and inviolability of human life, which a majority of the Supreme Court of Canada in Rodriguez v. British Columbia (Attorney-General) (10) interpreted as flowing from s. 7 of the Charter; and (2) human dignity which, pursuant to the Supreme Court's decision in Law v. Canada (Minister of Employment and Immigration), (11) is encompassed by s. 15 of the Charter.

The values of dignity and human inviolability also lie at the root of international perspectives on health and human rights. Pursuant to a worldwide review of reports, bills and legislation regarding assisted human reproduction, Knoppers and LeBris found that certain core principles consistently emerged from legislative and policy initiatives in this area.

In examination of the general tendencies and differences revealed in the reports of commissions, as well as in the limited legislation that exists, common normative values that transcend cultural and jurisdictional differences emerge. These values take the form of common bioethical principles: the inherent dignity of the human person, the security of human genetic material, the quality of services and the inviolability and inalienability of the human person. (12)

These two values--the inviolability of human life and human dignity--are potentially threatened by certain reproductive technologies and practices associated with these technologies. For example, the creation of human embryos for use in research devalues this form of human life by allowing the embryo to be objectified and pragmatically used as a means to a separate goal. Payment for surrogacy also threatens human dignity, as it boils down to economic trade in women's bodies, in their fertility, and in their children. Given the significance of these issues, the legislative framework devised to deal with them must be premised on something more than public opinion. Rather, it must underscore the importance of values fundamental to Canadian society, and ensure that these values are not undermined by scientific activity.

(b) Severity and Inflexibility of the Criminal Law

While it is true that reproductive technologies are characterized by rapid development and change, this does not oust the possibility of regulating them through the use of the criminal law. First, criminal prohibitions are subject to change and can be amended by Parliament where this is deemed necessary to meet the ends of justice. Some have argued that such amendments will take too long, and it is thus preferable to subject reproductive technologies to the control of an administrative agency that could implement change more swiftly. (13)

However, given the importance of the issues raised by this area of science--in particular, the extent to which we are able to create, manipulate or commodify...