Journals of the Senate
53 Elizabeth II, A.D. 2004, Canada
Journals of the Senate
3rd Session, 37th Parliament
Issue 18 - Appendix
Tuesday, March 9, 2004
2:00 p.m.
The Honourable Daniel Hays, Speaker
OBSERVATIONS
to the Second Report of the
Standing Senate Committee on Social Affairs,
Science and Technology
The Standing Senate Committee on Social Affairs, Science and Technology (The Committee) heard from 54 witnesses during 18 hours of testimony on Bill C-6, The Assisted Human Reproduction Act. Members struggled with the diverse opinions that witnesses expressed. One witness summed up the contentiousness of this bill very effectively by saying:
'This is not a flawed bill. This is a controversial bill, and it will never NOT be a controversial bill. There will never be unanimity.'
The Committee passed the bill without amendment but would like to take the opportunity to make the Senate aware of several issues, which ought to be addressed when regulations are being drafted and during the three-year review, which is mandated in the bill.
The Legislative Framework
The Committee heard from several witnesses broad concerns over the bill in its entirety. These concerns pertained to splitting the bill and to the use of criminal prohibitions.
First, with respect to splitting the bill, the Committee heard from some witnesses that this bill would be better split into a bill dealing with prohibited activities on the one hand (an anti-cloning bill) and a separate bill for controlled activities. Despite views that the activities are distinct and lend themselves to separate legislation, members were aware that separate legislation was not successful in the past (Bill C-47 in 1996) and accepted the view that the bill addresses complex ethical, medical and scientific issues that are inextricably intertwined and splitting it could undermine its objectives.
With respect to the use of criminal prohibitions, the Committee heard testimony from a number of witnesses who expressed concern over the Government's use of its 'biggest regulatory hammer' to enforce the provisions of the bill. Witnesses expressed the view that criminal bans should be an instrument of last resort, reserved for conduct which is culpable, seriously harmful and generally conceived of as deserving punishment. They expressed the position that once an activity has been made criminal, it is difficult to remove or lessen criminal penalties, even in response to changes in public attitudes. Professional organizations were of the opinion that certain activities should be prohibited, however they suggested that it is inappropriate to use criminal sanctions. Witnesses suggested that public opinion could change with respect to their views on at least some of the prohibitions and that criminal prohibitions should be restricted to activities where public opinion is unlikely to change.
The response provided by Health Canada regarding the use of criminal sanctions describes the constitutional powers of the Government and the rationale behind the use of the criminal law power. Health Canada indicated that a legislative regime is necessary in order to ensure mandatory compliance with health and safety standards. Legislation requires a constitutional head of power, and in the case of Bill C-6 it is the criminal law power. Health Canada suggests that, of the other heads of power, only the Peace, Order and Good Government power could be considered an appropriate one but using it would result in the bill having a less secure and weaker constitutional basis. Health Canada also emphasized that the criminal law power forms the constitutional basis for federal health protection legislation, including the Food and Drugs Act, the Hazardous Products Act and the Pest Control Products Act
Some witnesses suggested that it would be better not to have any criminal prohibitions as set out in clauses 5 through 9 but instead to allow the prohibitions to be enforced at the regulatory level by the Agency, which is to be set up under the bill. Health Canada maintains, however, that it would less responsible for the government to have prohibitions enforced at a bureaucratic level than at a legislative level.
After considering the evidence and the responses provided by Health Canada, the Committee is satisfied that it would be inappropriate to split the bill and that the use of criminal sanctions is acceptable in this initial piece of legislation on assisted human reproduction. However, the Committee would like to make the observation that the considerable concern over the use of criminal sanctions means that this issue should be addressed in depth during the three-year review.
Therapeutic Cloning
The issue of therapeutic cloning was raised by a number of witnesses. Many feel that this is an activity that should not be prohibited and they quoted recent public opinion polls that suggest a majority of the Canadian public is also supportive. While some witnesses argued that the prohibition is unwarranted on the grounds of either safety or ethics and morality, scientists suggested that it would unjustifiably limit the scope of medical research.
The Committee is sensitive to these arguments. However it is comfortable with the provisions as set out in the bill after considering evidence offered by some scientists. Their evidence suggested that research could proceed adequately with the provisions as currently set out. The Committee would like to offer the observation that the prohibition on therapeutic cloning is another that warrants a thorough study when this legislation is eligible for legislative review.
Embryo Research
The Committee recognizes and is sensitive to the issue of embryo research. The Committee recognizes that the research and medical communities have a responsibility to properly validate fertility techniques. Some witnesses testified that this can require the use, and ultimate destruction of existing embryos. Such research may be necessary to ensure the health of resulting children as well as the health of the women being treated. Witnesses acknowledged that such research has been ongoing since 1987 in an unregulated environment. Witnesses who expressed strong opposition to embryo research were faced with the choice of supporting the bill, which permits embryo research, or not supporting the bill and thereby, in all likelihood, continuing the current unregulated environment for embryo research, since the bill would die on the Order Paper. In this context many opponents of embryo research would prefer to limit the harm as they see it, if such research cannot be realistically prohibited. Hence they grudgingly supported passage of the bill in its current form.
Embryonic stem cell research (ESC) has recently become another area of embryo research. However, stem cell research is being done using adult stem cells. This parallel method of research does not exist in the other areas of embryo research. While the Committee heard from some witnesses who felt strongly that ESC research is unnecessary given the adult source alternative, others testified that both avenues should be pursued. Some testimony suggested that the knowledge that can be acquired through the study of ESC can then be applied to adult stem cell research potentially to increase their plasticity.
The Committee agrees that embryo research, including ESC research, should not be a unregulated activity. Members feel that in the absence of defining its moral status, the embryo is, as defined by the bill, a human organism and as such research that involves embryos must be dealt with in a stringently regulated manner. The Committee therefore would like to make the observation that the Agency must provide exemplary oversight to all embryo research. It would like to emphasize clause 33(1) of the bill, which states that advisory panels may be established to advise the Board on any issue referred to it. The Committee feels that a permanent embryo research advisory panel should be established that would include at least some representation from the faith community. This advisory panel should be a priority for the Agency. In addition the Committee is of the opinion that the Agency must keep abreast of all adult stem cell research and its advances in order that it may best measure the necessity of embryonic stem cell research proposals.
Genetic Alteration and Embryos Created for Research
Along the lines of the concerns over therapeutic cloning and embryo research described above, disagreement was voiced by some witnesses over the prohibitions on germ-line genetic alteration (Clause 5(1)(f)) and creation of embryos for research purposes (Clause 5(1)(b)). Although the Committee is in agreement with these prohibitions, they are somewhat sympathetic to the arguments put forward by these witnesses. The Committee offers the observation that these may be issues on which the views of Canadian society could change over time and therefore they should be carefully examined when the legislation is reviewed within three years.
Identifiable Donation
Some of the most compelling testimony given to the Committee addressed identifiable gamete donation. Several witnesses, including ethicists, the offspring of these reproductive techniques, as well as individuals who had been through the fertility process, spoke eloquently and passionately about the need for mandatory donor identification. It was their position that offspring are entitled to identifying information regarding their biological origins.
Medical professionals, gamete collectors and other individuals who struggle with infertility expressed equally passionate positions that mandatory donor identification would effectively eliminate all gamete donations, especially in the absence of reasonable compensation for the donations. These witnesses testified that currently under family law in all but two provinces and one territory, a non-anonymous sperm donor is deemed to be the father of any child(ren) born as the consequence of his sperm. The Committee was told that the anonymity provision cannot change until family law is changed in all jurisdictions. Additionally, family law does not assign maternity to egg donors currently in any Canadian jurisdiction. The position was clearly expressed that Canada should not make donor identification mandatory before family law has been appropriately addressed to protect the donors.
The Committee understands the difficulty in requiring donor identification at this time. However, we would observe that this issue should be carefully examined when this legislation is reviewed within three years.
Permissible Compensation
Several witnesses testified to the Committee that the restrictions on compensation are excessive. Their position is that this prohibition will essentially reduce the choices available to the infertile community by significantly reducing the amount of gamete donations and surrogate services that will be offered. They also speculated that the non- commercialization provisions would drive the practice underground or cause Canadians travel to other jurisdictions to seek treatments unavailable in Canada because of the non-commercialization provisions in the bill.
Also compelling was the testimony that human beings cannot be reduced to a commercial transaction, as some witnesses would argue is the current situation with commercialized gamete donation. The Committee heard that Canadians do not accept the commercialization of other human tissues or organs such as blood, bone marrow or kidneys, and that it is inconsistent and contrary to the views of Canadian society that payment or compensation be offered for reproductive material, embryos and surrogacy services.
The Committee supports the non-commercialization provisions of the bill but is nevertheless concerned about the effect this will have on donations. The Agency has a responsibility via clause 24(1)(f) to inform the public about fertility issues and the risk factors involved. This responsibility should include awareness and sensitizing campaigns that could inform the public about the need for gamete donations and thereby, hopefully, minimize the negative impact on availability. In addition, the Committee would like to offer the observation that the Agency should establish a national system of altruistic sperm and egg donation/ banking similar to that which exists for blood and blood products.
Further, the Committee wants the Agency to study the actions of those countries that also prohibit commercialization in order to identify the strategies that have ensured access to donor gametes by the infertile community.
Surrogacy
Bill C-6 proposes to prohibit surrogacy for profit, or compensation for surrogacy services. Witnesses who represented faith communities did not support the practice at all, not only the commercial aspect of it. One of the reasons for their adamant opposition of the practice of surrogacy is the interpretation of the term 'mother'. Although supporters of surrogacy maintain that the mother is only the social mother, others disagree and insist the 'mother' needs to be properly defined in legal terms.
While your Committee heard arguments against the prohibition on payment for surrogacy services, we are in general agreement with those witnesses who are in support of such a ban. None the less we have a number of observations that should be made pertaining to the practice of surrogacy. Members feel strongly that the best interests of the child should not be overshadowed by the desire for a child, and some witnesses felt that surrogacy may not be in the best interests of the child. We are all of the opinion that data must be collected so that sound evidence-based decisions can be made. Some of the crucial information that could be obtained through an-depth outcomes study includes:
the type of counselling that is appropriate and necessary;
the effects (physical, emotional) on the children and their families as well as the surrogates and their families;
the level of compensation that is appropriate (receipted expenses, or more); and,
the profiles (socio-economic, demographic, etc.) of the women who offer surrogate services.
Agency
Overall, there was considerable support for the creation of the Assisted Human Reproduction Agency of Canada. Witnesses applauded the creation of both a public registry, for access to Agency information, and a private registry, for health reporting information.
The intent of the Bill is clear with respect to the transparency that the Agency is to respect, as specified in clause 19. The Committee is concerned, however, that there is no clear obligation for the work of the Board's advisory panels to be made public. The Committee would like to make the observation that the intent of the Bill as it pertains to Agency transparency must be respected also by the advisory panels it establishes. The Committee feels that clause 19(f), which states that the public should have access to information and observations provided to the Agency, should be interpreted to include the work of such advisory panels.
The composition of the Agency's Board of Directors was also addressed by a number of witnesses. Many feel that the bill is not specific enough in defining eligibility for the Board and suggested that this lack of specificity would leave room for members who would have a conflict of financial interest. We offer the observation that the intent of the eligibility clause 26(8) must be respected when appointing individuals to the Board and that there must not be any conflicts of interest, real or perceived.
Finally, composition of the Board should be reflective of the principles of the Bill as set out in clause 2. This clause states that women more than men are directly and significantly affected by assisted reproduction technologies. As such the Committee would offer the observation that the Board must be composed of at least 50% women.
In order for this Agency to gain the trust and confidence of Canadians, the Committee feels that these observations must be addressed.
Review of Legislation
The diversity of views, disparity between public opinion polls and the rapid pace of change in the fields of reproductive medicine and related research lead the Committee to make the observation that careful review of this legislation is essential at the earliest reasonable time
The views of Canadians may change even in the near future. The prohibitions on therapeutic cloning, creation of embryos for research, germ-line genetic alteration, compensation for gamete donation and surrogacy as well as the mandatory identification of donors should all be carefully reviewed within three years following the creation of the Agency.
In addition, your Committee would like to make the observation that medicine and science will continue to evolve, as will the views of society, following the initial review of this Act. For this reason we are of the opinion that subsequent three year reviews of the Act should also be required.
Drafting of Regulations
With respect to the drafting of regulations, concern was expressed that the processes for appeal should also be outlined in equal detail in the regulations to the processes surrounding issuance, amendment, renewal and suspension of licenses. Finally, some witnesses suggested that any regulatory framework should incorporate accreditation into inspection and build upon the accomplishments of regulatory authorities in Canada, the Provinces and Territories. The Committee would like to make the observation that drafting of the regulations by Health Canada must not only include extensive consultation with the professional organizations involved but must also be sensitive to the issues that have been raised repeatedly by those affected by infertility as well as by donor offspring. Moreover, these regulations must be drafted on a priority basis and tabled in both Houses as soon as they become available. There should not be an inappropriately long period between the creation of the Agency and the tabling of the first set of regulations.
Conclusion
The Committee has carefully listened to and weighed the testimony of all the witnesses. Overall, most of the witnesses wanted the bill passed without amendment, despite their perception of shortcomings, since legislation in this area is long overdue. The Committee is particularly sensitive to the support that this bill has received by some individuals and organizations notwithstanding their careful enumeration of amendments they would like to see made.
Your Committee views Bill C-6, The Assisted Human Reproduction Act, as an important piece of legislation for the health and safety of infertile Canadians who seek assistance in building their families as well as the children born as a result of these technologies. It is also an extremely complex bill comprising a number of controversial issues. It is not perfect. Nevertheless the Committee is unanimously of the view that Bill C-6 is an enormous improvement over the current unregulated situation. Given the number of divisive topics that have little chance of ever satisfying everyone, the Committee concludes these observations by reiterating the sentiment of one of the witnesses:
'Pass Bill C-6 now. If that does not happen, then the good that could be done will not have been done, and we will be responsible for any ill consequences that result from the continuing void that is now the status of the law.'...'Should we pursue the desire for the perfect to the exclusion of attaining the good'?
Given the sensitive issues covered in this bill, 'attaining the good' is a significant achievement for the first piece of legislation in this area.