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Assisted Human Reproduction Act

2004, c. 2

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The Technologies

cloning

genetic screening

sex selection

artificial placentas

gene therapy

post-post-menopausal menopausal motherhoodmotherhood

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Origin of Assisted Human Reproduction Act

Act based on Proceed With Care: Report of the Royal Commission on New Reproductive Technologies

Hearings held by parliamentary committees

Committee acceptance of Commission's position

Ignored CMA submission to Commission

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Types of Considerations Central to Parliament’s and Royal Commission’s Reasoning

Beneficence and the social order

Respect for Persons

Children as Commodities

The Position of Women

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Beneficence and the social order Rejection of for-profit surrogacy is essential

under beneficence and for good social order Disruption of normal parent-child relationship Spectre of women as “brood mares”

Analysis No scientific evidence that social order would be

disrupted or threatened Inconsistent position on allowing other potentially

harmful activities No evidence of psycho-social harm. Violates autonomy and right to self-determination

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Autonomy & Respect for Persons

Cautionary position of Commission: “Could a prospective surrogate

mother ever be in a position to make a free and competed decision ?”

Lawyers sometimes act as surrogacy brokers Perceived conflict of interest

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Stated Purpose of Act

“tak(e) appropriate measures for the protection and promotion of human health, safety, dignity and rights in the use of these technologies and in related research” and

avoid “the exploitation of children, women and men for commercial ends”

ensure informed consent in these areas; Preserve and protect “human individuality and

diversity, and the integrity of the human genome.”

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Tools Available to Parliament

Constitution makes health care a matter of provincial jurisdiction.

Therefore claimed that only tools available to Parliament are Transfer payments Criminal Code

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List of Prohibited Activities

For-profit surrogacy Reproductive cloning Germ-line genetic

modification Creation of chimeras Inter-species implantation Sex selection for non-

therapeutic reasons

Using gametes of deceased without their prior consent

Maintaining embryos outside human body longer than 14 days

Sale, barter, etc. of gametes, zygotes or embryos.

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Required Activities

Establishment of an Assisted Human Reproduction Agency

Licensing (professional and institutional) Informed consent to donation and/or use Ensuring donor confidentiality Ensuring access to statistical data Retaining records in a central agency Prosecution only with AG’s consent

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On the positive side

The law provides some much-needed control in the area of reproductive technologies.

It stipulates an oversight mechanism, and promises to fund it.

It has the potential for ensuring national standardization in the area.

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General Problems

Notion of human dignity elusive and undefined.

Inconsistent approach to commercialization of reproduction.

Based on few hard data about risks. Not consistent with other health care

related position.

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Specific Ethical Problems

Disregard of equality and justice. Indifference towards suffering of future

generations. Paternalism towards women. Stigmatization of naturally occurring process. Shortsighted re gametes/embryos of deceased Knee-jerk reaction on sex selection.

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For-profit Surrogacy

6. (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid.

(2) No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.

(3) No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.

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For-profit Surrogacy (cont.)

(4) No person shall counsel or induce a female person to become a surrogate mother, or perform any medical procedure to assist a female person to become a surrogate mother, knowing or having reason to believe that the female person is under 21 years of age.

(5) This section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.

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Claims against for-profit surrogacy advanced in debate of Act

Harmful to women because it defines women by their reproductive capacity

Alienate women from what should be inalienable from them

Reduces women to slaves Turn children into products Psycho-social harm for children Contrary to public policy and social order

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Analysis

Some women do have enough information to make informed decision Prospective parents in greater ignorance

than surrogate Aspersions cast on lawyers unwarranted Position of Ontario Law Reform

Commission Violates autonomy

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Children as Commodities

Surrogacy for a fee amounts to selling babies.

This turns babies into commodities.

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Analysis

Different types of surrogacy Gestational Gestational + ovum

If paid for both ovum and services Ovum is not fetus Ovum is not potential child

If paid merely for gestational services Child is not sold

Must be adopted by contracting parents Not invalidated by differential payments for birth as

opposed to miscarriage Reduction in payment reflects differential view of

Incomplete service Quality of service

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The Position of Women

Claim: gestation contracts devalue

women and deny their status as an ends-in-themselves

‘brood mares’ disruption of social structures

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Analysis

Right to choose any activity consistent with nature as person

Values must not denigrate individual as person Worker must not become identical with work Therefore terms of contract are central Fact that labourer and contractor have divergent

interests does not turn the labourer into a tool or identify labourer with work

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Alienation from work In gestational surrogacy

mother is mother by convention, not biologically No biological link (parasite) No genetic link

Argument requires subsidiary premises Woman can never give up child

false Such close connection to gestation that to sell services is

to sell self. false Requires morally repugnant subsidiary premise:

Viz., that women are identical with their reproductive function.

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Compare Royal Commission’s own statement in Proceed With CareAlittle is known about the

psycho-social effects of these arrangements on the participants and the resulting children.@ (at 685)

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Non-medical Sex Selection

5.(1) No person shall knowingly (e) for the purpose of creating a human being, perform any procedure or provide, prescribe or administer any thing that would ensure or increase the probability that an embryo will be of a particular sex, or that would identify the sex of an in vitro embryo, except to prevent, diagnose or treat a sex-linked disorder or disease;

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Standard Position on the Ethics of Sex Selection:

Sex selection is ethically acceptable for medical reasons

Beneficence non-Malfeasance

Sex selection is ethically unacceptable for all other reasons

Sexist values are unethical because they violate

Human dignity Equality of persons

Directed at condition, not sex; therefore species of medical care

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But: there are also some standard objections to medically based sex selection Interference in human reproduction

Donum vitae

Instrumentalistic view of human life Human beings viewed as manipulable objects

Mistaken view of parenthood Only conditional acceptance of children

Negative valuation of differently-abled persons

Deaf culture and the case of cochlear implants

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Ethics of Sex Selection:The non-standard version

Political correctness is not ethics Consensus is not ethics

“A consensus means that everyone agrees to say collectively what no one believes individually.”

attributed to Abba Eban

Inconsistent ethics is unethical in its implications.

Ethics that ignores facts is politics in another guise.

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Some ethically relevant facts

Preferences are logically different from values

Social policy that ignores material facts is

unworkable unethical

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Values vs. Preferences Values accord worth to what one values

Sexist values accord greater worth to the members of a particular sex

Therefore they are discriminatory they violate equality and dignity of persons

Preferences do not accord greater worth to what one prefers

Preferential social associations are not unethical friendships clubs, etc.

Therefore they do not violate equality and dignity of the person

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Conclusions # 1

Sex selection based on preference is not subject to the same ethical critique as sex selection based on sexist values

Christine Overall 1987, 1993 Murphy, 1990 Society of Obstetricians and Gynaecologist of

Canada, 1991 CMA, 1991

Therefore value-based reasons against sex selection do not apply to preference-based sex selection

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Data on sex preference

Canadians do not want more children of one sex than of another

Proceed With Care: Final Report of the Royal Commission on New Reproductive Technologies (1993)

Most Western Countries do not want more children of one sex rather than another

Jain, Missmer, Gupta and Hornstein. Preimplanttion sex selection demand and preferences in an infertility population Fertility and

Sterility, 2005;83:649-58 Dahl, Beutel, Brosig and Hinsch. Preconception sex selection for

non-medical reasons: a representative survey from Germany. Human Reproduction , 2003;18(10): 2231-2234

General position: “We want matched pairs.”

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Conclusion # 2

Data do not show that in Western (and especially Canadian) society, sex selection would be based on sexist values

Therefore, to be ethically defensible, prohibition of non-medical sex-selection in Western countries must have some other justification

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Ethics and public policy The purpose of public policy is to

prohibit unethical acts encourage ethical behaviour encourage ethical values

Public policy must be enforceable consistent

Cooper v. Hobart [2001] 3 S.C.R. 537

Rights may be curtailed only to the least degree necessary to achieve legitimate end

R. v. Oakes [1986] 1 S.C.R. 103

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“There is ... a need for judicial restraint in the development of ... law as it pertains to sensitive and far-reaching issues of public policy.” (Supreme Court of Canada: Dobson v. Dobson, 1999)

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Some more ethically relevant facts that have been ignored in the sex

selection debate

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Sex Distribution at BirthSurprise, Surprise!

Male to female birth ration was 51.4% in favour of males

Male to female birth ratio currently is 60% in favour of females

Davis, Gottlieb and Stampnitzky. 1998; Møller, 1998; Mocarelli, Gerthoux, Ferrari, Petterson, Kieszak, Brambilla, Vincoli, Signorini, Tramacere, Carreri, Sampson, Turner and Needham, 2000; Martuzzi, Di Tanno and Bertollini, 2001; Ryan, Amirova and Carrier, 2002; del Rio, Marshall, Tsai, Shao and Guo, 2002.

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Reasons

Long-lasting environmental pollutants Dioxins Polychlorinated biphenyls

They are found globally In some locations, their effects are

extreme In some Canadian locations, they have

resulted in a male/female birth ratio of .35 to 1

Mackenzie, Lockridge and Keith, 2005.

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Conclusion # 4

Sex selection is pragmatically necessary for species survival if polygyny, etc. are not to be institutionalized.

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Modest Proposal

Allow sex selection for sex-balance Institute sex selection lottery

Only for every second child Adjust chances relative to existing sex

distribution of fertile members of society

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Won’t this contradict the desideratum of population reduction that underlies the claim that responsible reproductive behaviour limits children to 1 per family?

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Some other ignored facts

Responsible reproductive policy cannot be national but must be global

Sustainability of species requires more than one child

general estimate is 2.05 and 2.1 per couple Espinshade, Guzman and Westoff, 2003 Australian Academy of Science, 2006.

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OKNow What?