Prohibitions infringing on Charter Rights Examining the Logic defending Commercial Reproductive Labour and Medical Assistance in Dying Kathryn Morrison The University of Waterloo
Prohibitions infringing on Charter Rights
Examining the Logic defending Commercial Reproductive Labour and Medical Assistance in Dying
Kathryn Morrison The University of
Waterloo
Disclosure
I have no actual or potential conflict of interest in relation to this topic or presentation.
The Issue • Recent Supreme Court decision decriminalizing
Medical Assistance in Dying (MAID) • Change in approach to protecting vulnerable persons • Examination of Vulnerability in…
• Assisted reproduction • Health law and policy more broadly
Prohibitions Vulnerable Groups ?
Structure • Purpose: Explore effectiveness of absolute
bans/prohibitions in protecting the vulnerable… • Carter decision • Assisted reproduction
• Background: The Carter decision and the Assisted Human Reproduction Act (AHRA)
• Part A: Compare Carter Decision and AHRA • prioritize protection of vulnerable, problem of illegal
arrangements • Part B: Speculate section 7 charter challenges to the AHRA • Part C: How the AHRA misses the mark on vulnerability
The Carter Decision
The question: Should patients have access to MAID?
The Carter Decision
• MAID: consists of assisted suicide and voluntary euthanasia
• Criminal Code
• Section 241(b): aiding or abetting person committing suicide is an indictable offence
• Section 14: no person may consent to death being inflicted on them
The Carter Decision
• Case on appeal from British Columbia • The trial judge: 241(b) violates section 7 rights, not
saved by section 1 • Appeal: trial judge is bound to Rodriguez v. British
Columbia
• (2015) Supreme Court: sections 241(b) & 14 unjustifiably infringe section 7 of Charter • competent adult person • clearly consents to termination of life • grievous and irremediable medical condition causing
intolerable suffering
The Carter Decision • Rationale for prohibition: protect vulnerable
persons from committing suicide at a time of weakness
• Rodriguez: total ban on MAID protects vulnerable persons • Not arbitrary deprivation of rights
• Carter: prohibition catches people outside group it is meant to protect • Deprivation of rights not connected to the objective of
prohibition in some cases • The way forward: regulation
The Debate on Assisted Reproduction
The question: Should surrogates and egg donors receive payment for their services?
http://www.selectivf.com/surrogacy/egg-donor-surrogacy-india.php
The Debate on Assisted Reproduction
• Commercialization – compensating surrogacy and egg donation as a service
• Re-imbursement – covering costs of incurred expenses related to surrogacy or egg donation
Commercial Re-imbursement
Payment
The Debate on Assisted Reproduction • Currently illegal under Section 6 of the Assisted
Human Reproduction Act
• Currently illegal under Section 7 of the Assisted
Human Reproduction Act
• Paying surrogate mother for services
• Paying/offering to pay/placing an advertisement to arrange the services of a surrogate mother
• Surrogacy under the age of 21 • Advising a woman under the
age of 21 to become a surrogate mother
• Egg and sperm donors must be altruistic (cannot be paid)
• Any commercial transaction involving an in vitro embryo is a crime.
http://ivfinindia.in/surrogate-mother-mumbai-india
The Debate on Assisted Reproduction
• Currently Illegal under Section 12 of the Assisted Human Reproduction Act
• The prohibitions in AHRA motivated by guiding principles • Protect women’s choice autonomy (a woman’s right to
choose what happens to her body) • Prevent exploitation • Protect the integrity of the human genome
• Reimbursement of a surrogate mother for an expenditure incurred by her in relation to her surrogacy
• Reimbursement of a surrogate mother for loss of work-related income incurred during pregnancy
Part A • Both AHRA and sections 241(b) and 14 of
criminal code aim to protect vulnerable persons • AHRA protect vulnerable persons at risk of exploitation • 241(b) and 14 protect vulnerable persons from being
induced to suicide at time of weakness
• Now measures to protect vulnerable persons diverge • Blanket prohibition v. regulation
Part A • Commercial reproductive surrogacy/egg
donation and MAID confront similar issues • MAID: concern for premature suicide, medical
tourism • Surrogacy/egg donation: concern for illegal
arrangements, trans-national surrogacy
Part A • Should there be consistency between the two
strategies to protect the vulnerable?
• Does the prohibition of commercial reproduction also overreach the class of vulnerable groups legislation is meant to protect? • In each case, no formal definition of vulnerability
is provided • Paragraph 14 Carter v. Canada • Rodriguez?
Part B • AHRA: suppose a regulatory approach is
sought instead of absolute ban
• How might one make a charter challenge against the AHRA?
Part B • Section 7 – right to life liberty and security of the
person
• Infringement of • Right to liberty
• denies women the opportunity to make decisions about their reproductive labour
Part B • Section 7 – right to life liberty and security of
the person
• Infringement of • Right to security of the person
• Potential for harm in cases of illegal arrangements • Threaten health and bodily integrity
“I understand not being paid or having your phone bill not covered, but if nothing is, I definitely wouldn’t… I’m not doing it for the reimbursement, but having security for my family is very important.” - Alexandria Faith Carter, surrogate
“I’m donating my time and body… If this [enforcing section 12] were the case, I’d be paying to have someone else’s baby . . . how does that make sense?”
Part B • Violate principles of fundamental justice • Runs afoul of our basic values (Canada (Attorney
General) v. Bedford) – slippery slope? • Arbitrariness: no connection between cause of
challenge and limits on section 7 rights X • Overbreadth: law goes to far, arbitrary interference
with other conduct • Gross disproportionality: seriousness of effects
disproportionate relative to objective
Part C • Pregnancy chances favored over egg donor health
• Ideally between six and twelve eggs per cycle • Overstimulation: produce a large number of eggs, increase
chances of recipient pregnancy
• Anecdotal reports • Informed typical harvest somewhere between 10 and 15
eggs • In reality >35 eggs, 45 eggs, 60 eggs
Part C • Payment arbitrary? Commercial interests already play a
role in assisted reproduction • No mechanism record/monitor the treatment and
experience of egg donors • To track their health and safety
• Low awareness among egg donors of physical risks associated with egg production • Unprepared for the intense physical and emotional experiences
during and after procedure • Little information about long-term risks of ovarian stimulation
and egg retrieval
• Ovarian, endometrial, breast cancers
• Pelvic pain • Ovarian cysts
• Fibroids • Thyroid disorders
Part C
• IVF clinics are profit orientated - no financial incentive to conduct follow-up research? • Surrogates/Egg donors promised benefits for consent, not
provided • Lack of follow-up – referrals to own gynaecologist upon new
symptoms
Part C • How to understand who falls into vulnerable groups?
• Multiple vulnerable groups • Surrogate/Donor, Intended Parents, Child
• Distinguishing exploitation and vulnerability • Exploitation is not well defined in the Assisted Human
Reproduction Act • Canada (A.G.) v. Bedford
• Could other legislation be affected? • Health Care Consent Act • Youth Criminal Justice Act
References • Bill C-6. An Act respecting assisted human reproduction and related research.
2004. 37th Parliament, 3rd Session. • Canada (Attorney General) v. Bedford. 2013 SCC 72. The Supreme Court of
Canada. 2013. Retrieved From: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do
• Canadian Charter of Rights and Freedoms. 1982. Part I of the Constitution Act, being Schedule B to the Canada Act 1982 (UK), c11.Retrieved from: http://laws-lois.justice.gc.ca/eng/const/page-15.html
• Carter v Canada. 2015 SCC 5. The Supreme Court of Canada. 2015. Retrieved from: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.doc
• Cribb R, Jarratt E. 2016. Attempts to clarify surrogacy rules could hurt altruistic surrogates in Canada. The Toronto Star. Retrieved from: https://www.thestar.com/news/world/2016/10/09/attempts-to-clarify-surrogacy-rules-could-hurt-altruistic-surrogates-in-canada.html
• Gruben, V. 2013. Women as Patients, Not Spare Parts: Examining the Relationship between the Physician and Women Egg Providers. Canadian Journal of Women and the Law. Vol. 25; No. 2. pp. 249. Retrieved from: http://www.utpjournals.press/doi/pdf/10.3138/cjwl.25.2.249
• Rodriguez v British Columbia (Attorney General). 1993 SCR 3. Supreme Court of Canada. 1993. Retrieved from: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1054/index.do