The Supreme Court of Canada today released a 4-4-1 split decision in Attorney General of Canada vs. Attorney General of Quebec, Reference re: Assisted Human Reproduction Act.
The Evangelical Fellowship of Canada (“EFC”) is disappointed with the mixed decision that found select provisions of the Assisted Human Reproduction Act (“Act”) unconstitutional.
“This is a regrettable decision,” stated Don Hutchinson, vice-president and general legal counsel with the EFC. “Maintaining the integrity of the Act would have ensured a strong and consistent national standard across the country. We will now have to wait and see how each province and territory will choose to respond to this decision. Will they or won’t they choose to regulate in these areas as the province of Quebec has started to do? In the interim, the court has created confusion and a virtual open season on certain aspects of human-animal genome experimentation and embryo importing, exporting, research and destruction by deeming unconstitutional sections 10 and 11 of the Act along with much of section 40.”
“The Chief Justice noted very clearly that Parliament could have ‘prohibited absolutely’ the practices of altering, manipulation and treatment of human genetic material rather than imposing a selective regulation as they did in the Act. In light of the resulting provincial checkerboard of regulation – and lack of regulation – in this area, the EFC encourages Parliament to move quickly on the absolute prohibition mentioned by the Chief Justice and then to again engage in national consultation with the provinces and territories to ensure a consistent national standard for treatment of the artificial creation of human life,” added Hutchinson, who also noted what he described as words of wisdom to the nation from Chief Justice McLachlin:
“Playing God” with genetic manipulation engages moral concerns that my colleagues’ example of risky cardiac bypass surgery does not. Different medical experiments and treatments will raise different issues. Few will raise “moral” issues of an order approaching those inherent in reproductive technologies.
The Evangelical Fellowship of Canada and the Canadian Conference of Catholic Bishops jointly intervened in the case, which was sparked by a constitutional challenge to the federal Act by the Government of Quebec. The province disputed the legitimacy of the federal government to enact legislation criminalizing experimentation with human genetic materials and, as a necessary related matter regulating assisted human reproduction and related genetic research with a consistent national standard. Quebec argued that such regulation was a health matter, and therefore provincial jurisdiction under the Constitution Act, 1867.
The EFC/CCCB intervention argued that the uniqueness and dignity of human life established a foundation of public interest that requires a single Canadian standard for the regulation of the artificial creation of human life.
“The Assisted Human Reproduction Act was one of the most researched and consulted on pieces of legislation in Canadian history,” explains Hutchinson. “A Royal Commission received submissions from 1989 to 1993 before issuing a report recommending this type of legislation. Parliament engaged in a consultation process with the provinces and other interested parties from 1993 to 1995 before drafting the legislation, which subsequently became the subject of Parliamentary committee hearings before ultimately being passed into law in 2004. This decision shows disdain for that process.”
As Chief Justice McLachlin stated in her reasons, “ What is at stake is not merely two competing health schemes, but Parliament’s power to enact general norms for the whole of Canada to meet the pressing moral concerns raised by the techniques of assisted reproduction.”
Hutchinson concluded, “It seems the court heard our arguments concerning the moral nature of assisted human reproduction. While concerned about much in the decision, we are relieved that the elements of the Act dealing with the commodification of human reproductive materials remain illegal along with severe restrictions on the harvesting of genetic material from minors and deceased people.”
The EFC is somewhat encouraged by the court’s decision to keep certain practices in federal jurisdiction, practices like the ban on commercial surrogacy. However, we believe the court should have gone further and retained the integrity of the legislation so that for moral issues like those involved in assisted human reproduction there are consistent national standards.
For more information on the EFC’s position or the Assisted Human Reproduction Act, visit www.theEFC.ca/genetic.