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
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
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