Test tubes, clones & federal regulation.

• Author: Nelson, Erin

On October 25, 1989, the government of Canada appointed a Royal Commission on New Reproductive Technologies. The Commission's mandate was to "... inquire into and report on current and potential medical and scientific developments related to new reproductive technologies, considering in particular their social, ethical, health, research, legal and economic implications and the public interest."

Over the course of the Commission's four-year mandate, it consulted with more than 40,000 Canadians, commissioned fifteen volumes of research studies and came up with over 290 recommendations, all at a cost of approximately $28 million according to Canadian Press.

The Commission's Final Report spans over 1300 pages in two volumes. Obviously, a thorough review of the Commission's findings and recommendations is beyond the scope of this article. Instead, I propose to consider a selection of the Commission's recommendations, including the need for federal government regulation over new reproductive technologies (NRTs) and the use of the criminal law power in respect to some of the technologies. In addition, the federal government's first attempt at responding to the Commission's report will be examined.

The Commission's Findings and Recommendations

The first of the Commission's 293 recommendations encourages the federal government to create an independent regulatory commission whose role would be to ensure that "new reproductive technologies are developed and applied in the public interest"; indeed, it would be fair to say that the theme of federal regulation is one which recurs throughout the Commission's report, Proceed with Care. The reasons given by the Commissioners in support of their recommendation for federal action include, among others, the perceived need for a swift, integrated response to rapidly emerging technologies, the fact that a national body would permit the establishment of `coherent, comprehensive and effective' national standards, and the fact that a national, coordinated regulatory agency could reduce existing disparities among the provinces in relation to services and standards.

A great deal of criticism has been levelled at the Commission, for its strong encouragement of federal action. The criticism tends to relate to one of two themes: (i) the lack of justification for unilateral federal regulation, and (ii) the question whether the federal government has the constitutional authority to regulate new reproductive technologies. These arguments certainly seem to hold some sway, particularly given the Commission's recognition of and emphasis on the importance of federalprovincial cooperation in regulating new technologies. If some or all of the provinces take the view...