Part III: The Canadian Situation
2. The Assisted Human Reproduction Act

Royal Commission on Reproductive Technologies
Canada began to examine the ethics and legalities of the artificial reproduction industry, already flourishing commercially, in 1989 when the government issued an order-in-council to establish the Royal Commission on Reproductive Technologies.

In 1993, the Commission issued its findings in a report titled, “Proceed with Caution.” The report made 293 recommendations, including the establishment of a National Reproductive Technologies Commission; restricting access to in vitro fertilization; allowing embryos to be experimented upon for up to 14 days post-fertilisation; regulating donor insemination and oocyte donations; requiring licensing for assisted conception services; and permitting only non-commercial services. The report also recommended that research on ectogenesis (the creation of mammalian life outside the womb) , cloning, animal/human hybrids, collection and maturation of oocytes from aborted human foetuses and some other practices be prohibited under the Criminal Code.

An Act Respecting Assisted Human Reproduction
After a previous bill on new reproductive technologies died on the order paper in 1997, in May 2001 the federal (Liberal) government tabled new legislation, C-56, that it claimed will ban human cloning. Health Minister Allan Rock (a Catholic) told the Parliamentary Health Committee that research using what he called “human reproductive materials” has the potential to bring “significant benefits to Canadians and, therefore, this research should be encouraged."

From the outset, pro-life advocates were sceptical, knowing the bill allowed:
• research on the extra embryos created for in-vitro fertilization with the donors' consent at any time during the first 14 days of development;
• the use in experimentation of stem cells derived from existing embryos;
• surrogate motherhood or so-called rent-a-wombs;
• the creation of chimeras, "a human embryo into which a cell of a non-human life form has been introduced";
• research involving specified combinations of human and animal DNA.

In May 2002 noted U.S. bioethics expert and scientist, Dr. Dianne Irving PhD, contacted Canadian pro-life lobbyists warning that the bill was full of deceptive language and failed to ban cloning. It was at this point that concerted opposition to C-56, shortly to be renamed C-13, began in the pro-life community.

In Dr. Dianne Irving’s submitted testimony to the House Committee, she wrote:
By default, this bill would allow most unethical research addressed particularly because of the use of contradictory scientific definitions, the use of erroneous scientific definitions (Section 3 of the bill), the absence of necessary and relevant accurate scientific definitions, the application of those erroneous scientific definitions to both "Prohibited" (Section 5 - 9) and "Controlled" activities (Section 10 - 13), and the various linguistic loopholes which advance these problems and inadequacies, this Bill would in fact allow:

1) In vitro fertilization (IVF)
2) Almost all forms of human embryo research, including:
a) IVF research
b) Human embryonic stem cell research
c) Prenatal "selection" (eugenics)
d) Both "therapeutic" and "reproductive" cloning of human beings by means of all cloning techniques, including the following cloning techniques:
• Somatic cell nuclear transfer (SCNT)
• Germ line cell nuclear transfer (GLCNT)
• "Twinning", or "embryo multiplication" (e.g., blastomere separation and blastocyst splitting)
• Mitochondrial transfer
• Pronuclear transfer
• Parthenogenesis
• Formation of chimeras, mosaics, hybrids
• Any "demethylation" research involving the [asexual] production of a human embryo (properly defined) (demethylation is the genetic “reprogramming” of a cell to render it totipotent. In other words, the creation of an embryo from a somatic cell)
• "Cloning through the generations", i.e., the use of DNA-recombinant gene transfer with pronuclei, germ line cells, gametes, embryos, etc. (eugenics)

Irving’s critique of the bill’s terminology includes:
Omitted Definitions:
“Human Being”: “Human” must include the human embryo, defined as beginning to exist from the beginning of penetration of the oocyte by the sperm (sexual reproduction) or as the immediate product of a-sexual reproduction. The Canadian Criminal Code states that a human being does not come into existence until it has completely left the mother’s body. The term human being is used throughout the Bill but nowhere is it defined.

“Person”/ “Human person”: Some bioethicists feel that great apes and higher animals are “persons”.

“Ethics”: There are many different forms of ethics. To which one does the Bill adhere?

“Ethically Acceptable/Unacceptable”: What is acceptable varies depending on the definition of “ethics.”

“Human Mosaic”: The bill does not include a definition of “mosaic.” Thus mosaic research would not be covered by this Bill. Again, if the entity is not specified in the Bill there is no reason to think it will be prohibited.

“Children”: The Bill refers only to “children born.” The child before birth is not included.

“Free and Informed Consent”: Consent can be neither free nor informed if accurate definitions are not given. This is of special importance to vulnerable persons.

“Individuality”: Some bioethicists make “delayed personhood” arguments which claim that before “X” biological marker event there is no human “individual” and therefore the human embryo or foetus has a reduced moral status.

“Cloning”: At least eight varieties and techniques are not mentioned and are therefore not prohibited. The one technique that is mentioned is inaccurately described.

Inaccurate Definitions:
“Clone” : The only cloning procedure, Somatic Cell Nuclear Transfer (SCNT), referred to in the Bill is inaccurately defined. It is the opinion of the author that the real process of SCNT, accurately defined would therefore not be prohibited. The Bill therefore can be interpreted as prohibiting no form of human cloning at all.

“Chimera” : The definition given in the bill does not adequately distinguish between chimeras and hybrids. Other forms of human/non-human life are either omitted or mis-defined. These entities are often used in eugenic research.

“Embryo”: The definition given does not include a single-cell zygote. Again, no mention means no restrictions on research or other activities. The legislation also includes in the definition of “embryo,” a “totipotent” cell. A “totipotent” cell is a stem cell derived from an early embryo. To define the cell as an embryo is a gross scientific error.

“In Vitro Embryo”: The Bill excludes protection for the embryo in a frozen or otherwise suspended state of development.

“Gene”: The legislation does not distinguish between RNA nucleotide sequences and DNA nucleotide sequences. Both are used in cell research.

“Genome”: as defined in the Bill does not include any RNA, especially that of non-human entities such as bacteria and viruses in which RNA is the only kind of genetic material found and which are used in cell research.

Campaign Life Coalition Critique:
In December 2003, Campaign Life Coalition issued a copy of its 22-page clause-by-clause examination, “A Final Critique of C-13,” to Senators.
The Final Critique summarised the bill’s essential philosophical flaw:
The bill is founded upon a materialistic philosophy that assumes a human being is no more than a biological machine, a collection of cells and biochemical functions. It presents a utilitarian concept of the value of an individual human being: that value derives from his or her usefulness to another, whether it be for disease therapies or the enjoyment of parenthood. Such a utilitarian ethics therefore misdefines “the common good” as the “greatest good (utility) for the greatest number in society.” It is not only a mistake, but it is academically incorrect for people to assume that utilitarianism, even in its bioethics form, is somehow “neutral”, and for that reason should be used in a multicultural, pluralistic, democratic society. It is not “neutral”; it is a normative ethics. Therefore, how can the Canadian government justify its use in public policy decision-making?

Under this utilitarian ethic, the bill sanctions, and in places mandates the objectification of the human person. No other legislation has so concretely proposed a normative Canadian ethics based on an extreme form of materialistic utilitarianism as the accepted philosophy of our nation. This bill represents an event horizon in political philosophy.

Points brought forward by the Final Critique:
The legislation
• fails to affirm the rights of the child to be naturally conceived and born within the context of marriage.

• fails to acknowledge the primacy of the family as the fundamental unit of society.

• fails to acknowledge the humanity or even the existence of the child before birth.

• only mentions the well-being of children born; the child before birth is disregarded as is the well-being of future generations of children yet to be conceived.

• fails to define the terms “health,” “safety,” “dignity,” or “rights”.

• fails to regulate intracytoplasmic sperm injection which has been shown to be connected to genetic abnormalities in the child.

• fails to identify the role of parents with regard to assisted reproduction technologies or to recognize the rights of the father. It is not simply “persons” as individuals who are affected by the use of reproductive technologies, but families and therefore society as a whole.

• fails to recognize the primacy of the so-called, “traditional” family as the fundamental unit of society.

The Final Critique concluded:
In vitro fertilization has come upon Canadian society quietly and has grown into a multimillion dollar industry in a very short time. In that time there has been little public debate on the ethics of any of the procedures of artificial reproduction, and, until the introduction of C-13, no debate in Parliament. The many other ancillary procedures, such as cloning, developed by IVF research have also brought us to the point of a massive re-imagining of what it means to be human. IVF research has brought us cloning, genetic selection of children for desired traits, genetic manipulation of human beings through recombinant gene “therapy,” rent-a-womb surrogacy, the manufacture of children as a luxury commodity for the wealthy. It has given impetus to the so-called New Eugenics in the foreseen ability to control the future of the human species. By its intrusion into the sanctuary of marriage, IVF has contributed to the disintegration of the family as the foundation of society.

Bill C-13 encourages the growing perception that there is such a thing as a right to parenthood. If this idea is accepted, it necessitates the reduction of the child to the position of property. If a person has a right to be a parent, the withholding of any means, no matter how immoral, to become a parent, can be seen as an injustice. If there is a right to be a parent there must be a right to have a child upon whom to exercise the right to parenthood. If the child can be demanded as a right, then she is no longer a sovereign person with rights of her own; she is a thing upon whom another person’s rights are exercised.

By accepting IVF as a given in Canadian society, Bill C-13 gives the governmental stamp of approval to the reduction of the human person to a thing that may be demanded as a right, donated as research material, purchased, experimented upon, bought, sold or destroyed at will. It effectively abolishes the notion of personhood in Canadian law. It accepts as the law of the land the idea that a human being’s moral status can be granted or withheld at the whim of another. Once C-13 has established that there is no such thing as a person in the embryonic stage, what is to stop the progress of this logic to abolish personhood, and therefore protection under the law, of a human being at any other stage of development, from childhood through to old age?

Bill C-13 fails spectacularly, even in its stated intention of prohibiting human cloning. What is not often understood is that the same research that has perfected IVF has brought us the spectre of human cloning. The two are inseparable and wherever IVF is allowed, cloning is sure to follow. The bill’s evasiveness, ambiguity and scientific inaccuracy on the subject of cloning and the creation of embryos exclusively for experimentation, has opened the door to human cloning. What is worse, is that once the bill is passed the public perception of urgency to prohibit cloning will pass. The procedures used to create clones will quietly go on in research labs protected by the bill’s faulty definitions and unhindered by any further calls for prohibition. In its attempts to regulate the IVF industry, it fails even to identify any of the grave ethical or
medical problems associated with artificial methods of human procreation. It assumes a nationwide acceptance of its increasing mechanization and commodification.

Political authority must be obligated to protect the institution of the family upon which society is based. Civil law cannot grant approval to techniques of artificial procreation which, for the benefit of third parties (doctors, biologists, economic or governmental powers), takes away what is a right inherent in the relationship between spouses.

Law does more than merely create rules. The law is a teacher and the philosophy that is assumed and taught by bill C-13 is one that represents a danger to the sovereign rights, and the very lives, of all persons at any stage of human development, from the embryo, to the child, to sick and disabled, to the vulnerable elderly.