Manipulating the Stuff of Life: Making Babies in the 21st Century

Our federal government announced in their recent budget that funding for Assisted Reproduction Canada, an agency set up in 2006 to provide oversight of fertility treatments and assisted reproduction would be terminated, freeing up $10 million a year.

There has been little, if any, hue and cry over this cut, mainly because the legal, ethical and health issues arising from assisted reproductive technology are a mystery to most Canadians.

As well, those who have a personal, professional, or academic interest in these topics recognize that the agency has been largely ineffective in providing oversight of the 2004 Assisted Human Reproduction Act, a long-awaited statute that saw the light of day after years of debate and controversy arising from the release of the 1990 Report from the federal government’s Royal Commission on New Reproductive Technology, chaired by University of British Columbia professor Dr. Patricia Baird.

It also didn’t help when in December 2010 the Supreme Court of Canada struck down certain provisions of the statute as unconstitutional because the regulation of medical issues arising from assisted reproduction were not within the jurisdiction of the federal government, but rather fell to the provinces to oversee and legislate.

The majority of the Supreme Court of Canada found no merit in the government lawyers’ arguments that the legislation ought to be upheld as it addressed important moral, safety and public health matters.

Bioethicist and Dalhousie University professor, Dr. Francois Bayliss, an expert witness during earlier proceedings before the Quebec Court of Appeal, opined that the “ever-increasing ability to manipulate human reproductive material raises unique ethical issues warranting federal attention”. She has coined a phrase that is apropos, “Manipulating the stuff of life”, an apt description of the reality of these issues.

There can be no doubt that the practical ramifications of the dismantling of the agency and the gutting of the statute raises important ethical issues that legislators have been dodging for decades.

Some of the difficult questions include:

1. Can the sperm of a terminally ill or recently deceased male be harvested to be used by his marital partner?

2. When a same-sex couple terminate their relationship and have “banked” frozen sperm, is that sperm” property” and can it be divided in accordance with the law of property?

3. Can a man deposit sperm for future use and bequeath the sperm to a beneficiary?

4. Can the human genome be combined with the genome from an animal?

5. What parameters should be placed on research and experimentation with respect to gametes (sperm or ova) and embryos?

6. Should doctors be allowed to implant several embryos resulting in multiple births in the fashion of California’s “Octomom”, Nadya Suleman, who gave birth to eight children after the implantation of twelve embryos? Her California doctor’s license to practice medicine was revoked in the wake of the controversy.

7. Should anonymous sperm donation be permitted in Canada? Is it contrary to the best interests of donor offspring to be cut-off from a biological parent?

As the law now stands, Canada has no procedures in place to collect data and information regarding assisted reproduction, and thus, no way to determine success, failures or its impact on Canadian society.

The federal government suggests that Health Canada will step in however, it is now more important than ever that our provincial legislators debate and create law in this area, which is woefully behind advances in science and technology.

Will our elected lawmakers be brave enough to do so and when?

Lawdiva aka Georgialee Lang