Does a Patient Have a Constitutional Right to the Freedom of Medical Research? Regenerative Medicine and Therapeutic Cloning Research in Canada

McGill Journal of Law & Health, Vol. 6, No. 2, 2012

53 Pages Posted: 30 Jun 2012

See all articles by Jennifer A. Chandler

Jennifer A. Chandler

University of Ottawa - Common Law Section

Date Written: June 29, 2012

Abstract

Constitutional arguments regarding the freedom of scientific research often focus on the freedom of speech of researchers, with much less attention to the potential constitutional claims that could be made on behalf of patients who may one day benefit from the fruits of that research.

This article explores whether patients have a claim to unimpeded medical research under the Canadian Charter of Rights and Freedoms, using as a case study the Canadian federal prohibition on human cloning –– including ““therapeutic cloning”” (or the derivation of stem cells that are immunologically compatible with the recipient patient for use in regenerative medicine).

The conclusion drawn in this case study is that a constitutional claim can be made in this context and ought to be available as an argument more broadly, although the speculativeness of the eventual benefits of therapeutic cloning research is a significant weakness. The concern over harm to women due to the demand for human oocytes for research and eventual therapy is a credible and compelling one that would justify some restrictions on the research under section 1 of the Charter. Nonetheless, the prohibition of all therapeutic cloning research is vulnerable to the argument that it is overbroad in that it forecloses lines of therapeutic cloning research that do not endanger women.

Keywords: therapeutic cloning, stem cells, regenerative medicine, constitutional law, Canada, freedom of scientific inquiry, patients' rights

Suggested Citation

Chandler, Jennifer A., Does a Patient Have a Constitutional Right to the Freedom of Medical Research? Regenerative Medicine and Therapeutic Cloning Research in Canada (June 29, 2012). McGill Journal of Law & Health, Vol. 6, No. 2, 2012, Available at SSRN: https://ssrn.com/abstract=2096344

Jennifer A. Chandler (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada
613-562-5800 ext. 3286 (Phone)
613-562-5124 (Fax)

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