Regulating a revolution: the extent of reproductive rights in Canada.

• Author: Washenfelder, Chantelle
• Position: Cameron v. Nova Scotia

The most basic instinct of all creatures is to survive and propagate. The social concepts of love, family, community and mortality strengthen the biological drive for genetic procreation. Reproductive liberty is most often described as a negative right: a guaranteed right to be free from state interference in procreative choice. (1) Few theorists in the developed world would contradict the negative right to be free from state interference in procreation. (2) A fundamental distinction is made between negative rights and positive rights. Negative rights consist of the freedom to be left alone while positive rights, the right to something or to do something, require the provision of resources to fulfill the expression of the right. (3) The freedom to control one's fertility has become a widely recognized human right; (4) however, does this right by implication include a right to access the services necessary to procreate? (5)

Recent medical advances and genomic research breakthroughs have initiated a reproductive revolution. (6) In the context of this revolution, rising infertility rates have caused a new resort to medical intervention in procreation (7) through assisted reproductive technologies like in vitro fertilization (IVF). (8) The Canadian government is in the process of developing regulations for assisted reproductive technologies. (9) As the government has not yet enacted all-encompassing legislation in the area, the reproductive rights of Canadians are uncertain. A broad landscape of rights can be sketched out with reference to three sources: international law, the Charter of Rights and Freedoms, and Canadian jurisprudence.

The purpose of this paper is to examine sources of reproductive rights for Canadians and to establish the extent of the right to procreate by assisted means in Canada. Although the variety of reproductive technologies is expanding at an incredible rate, this paper will focus on IVF as an established and widely practiced treatment that is not currently insured by the vast majority of provincial health care schemes. (10) To this end, the Nova Scotia Court of Appeal decision in Cameron v. Nova Scotia (11) will be dealt with in greater detail than the body of Canadian jurisprudence on reproductive rights. The issues of abortion, sterilization and cloning will not be dealt with directly by this paper as its focus is access to existing assisted reproductive technologies. (12)

The Right to Procreate

International Law

The international community has established several conventions detailing inalienable human rights. The means to achieve or avoid procreation are viewed as integral to concepts of human dignity, personal identity and community. (13) The significance of reproductive rights is evident in its entrenchment in international law under four broad health-related categories: the right to found a family; the right to decide the number and spacing of children; the right to family planning information and services; and the right to benefit from scientific advancement. The bundle of human rights provided in international law suggests a right to access assisted reproductive technologies.

Universal Declaration of Human Rights

The first comprehensive elucidation of human rights by the United Nations was the General Assembly's declaration in 1948. The Universal Declaration of Human Rights includes the right to establish a family in Article 16:

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.... The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. (14) The UDHR provides protection for families once formed, but has not been expanded to justify a positive right to procreate. (15) The right to found a family must be considered in the context of the other rights in the UDHR. The right to privacy or non-interference in Article 12 has been interpreted as protecting the individual's rights to determine the number and spacing of their children. (16) Articles 19, 25 and 26 set out the right to information, health and education rights, and they have been interpreted to give protection to the rights to family-planning information and services. (17) Reproductive technologies can be categorized as a component of family planning. Article 27 recognizes the right to benefit from the advancements of science. (18) Reproductive technologies, as a result of the advancement of science, can also fall under Article 27. Articles 12, 16, 19, 25, 26, and 27 of the UDHR taken together support access to assisted reproductive services.

International Covenant on Civil and Political Rights

Article 23 of the International Covenant on Civil and Political Rights provides protection for the right to found a family. (19) The Human Rights Committee, the adjudicative body for enforcement of the ICCPR, states that Article 23 should be interpreted not only to protect the right to cohabit and procreate, but also as a codification of national obligations to enact non-discriminatory family-planning policies. (20) Article 17(1) provides that no person shall be subject to illegal or arbitary interference. The privacy provisions in Article 17(1) can be interpreted as protecting family autonomy and the right to decide on the number and spacing of children. Article 19(2) can be interpreted as protecting the rights to family planning information under the rubric of the freedoms of expression and information. The right to access family-planning services is not included in the ICCPR The interpretation of Article 23 provided by the Human Rights Committee confirms a positive right to non-discriminatory access to reproductive technologies. The ICCPR highlights the importance of personal autonomy and access to reproductive information as first stated in the UDHR. These rights were also affirmed by the International Covenant on Economic, Social and Cultural Rights.

International Covenant on Economic, Social and Cultural Rights

Article 12(1) of the ICESCR grants the "right to everyone to the enjoyment of the highest attainable standard of physical and mental health." (21) The right was expanded by subsection 2, which specifically includes the rights to treatment for maternal and infant mortality and the promotion of children's health within the rights to medical treatment for illness. (22) The right to decide the number and spacing of children and the right to access family-planning services has been found to exist in Article 12. (23) The right to education and personal development stated in Article 13(1) has been interpreted to contain rights to the provision of family planning information and education. (24) Article 15(1)(b) of the ICESCR states that all persons have the right "to enjoy the benefits of scientific progress and its applications." (25) Article 15(3) lists a state's duty to "respect the freedom indispensable for scientific research" (26) to facilitate the development of technological advancements. The rights to health, education and scientific advancements can be jointly interpreted to form a claim to reproductive technologies because the technologies benefit health, require access to family-planning information and education, and are a benefit of scientific advancements in fertility treatments. The Convention on the Elimination of All Forms of Discrimination Against Women more specifically addresses women's reproductive health rights.

The Convention on the Elimination of All Forms of Discrimination Against Women

The Convention on the Elimination of All Forms of Discrimination Against Women, (27) adopted by the General Assembly in 1979, recognized the procreative rights of individuals to determine the nature and size of their families, and the necessity of providing medical care to ensure female reproductive health. (28) Article 16 implies the right to found a family, sets out protections for individuals to "freely and responsibly" determine the number and spacing of their children, and obliges government to provide the requisite access to information and education for family planning. Access to family-planning services is addressed in Articles 12(1) and 14(2)(b), which set out the rights to adequate health care services and facilities. Essentially the Women's Convention supports a right of "reproductive self-determination". (29) Following on the Women's Convention, the Cairo Conference Platform for Action and the Beijing Declaration and Platform for Action speak to the importance of infertility treatment and reproductive health within a right to health. (30)

A Holistic Interpretation of International Human Rights Law

Do the international...