A Place for Criminal Law in the Regulation of Reproductive Technologies

Abstract

The CBA's National Health Law and Family Law Sections take a similar position. They underscore that reproductive technologies are characterized by their quick pace of change. The legislation created for dealing with these technologies thus must be able to respond to the emerging and changing social concerns, public opinions and scientific developments that arise in this area. Creating a regulatory body responsible for defining, interpreting and amending a list of prohibited reproductive technologies is thus preferable to criminally banning these activities, as a regulatory approach could respond quickly and effectively to scientific and social change.

Relying on the broader, collective notion of "harm" that [M. McTeer] has described and relied on in her analysis of the state's intervention in reproductive technologies, it becomes easier to identify and understand the harm that these technologies could inflict. Such harm could be experienced not only by individuals who make choices about assisted reproduction, but also by society more generally, given that these activities touch upon core social values. In addition, the importance of these values and the extent to which they could be affected by reproductive technologies reflect the severity - both in nature and degree - of the potential harm that we may incur as a result.

Yet, while the criminal prohibitions that Parliament has proposed in the AHR Act are appropriate from both a legal and ethical standpoint, a difficulty arises when we search for a policy justification for these prohibitions. Right now, Parliament has failed to provide us with any such justification. Bill C-13 does not contain any clear statement of policy or principle, and contains no preamble. Until a clear and frank justification is provided, this legislation will remain open to criticism. There is also a possibility that it will not withstand a Charter challenge. In setting out to articulate a policy rationale for the new AHR Act, legislators must keep in mind that any contention that there is a social consensus in Canada about the criminalization of reproductive technologies is unpersuasive. More convincing is the argument that the AHR Act must be consonant with, and based upon the fundamental values of Canadian society. It is imperative that Parliament voice this point and articulate the real impetus underlying the proposed legislation. Absent such a statement, the new law will remain subject to ongoing scrutiny and challenge, thereby giving us less time and opportunity to think about the benefits of the new law, and the way it should develop in the future as inevitable scientific changes unfold.