- Timothy Caulfield, LL.M.
Research Director and Assistant Professor
Health Law Institute, Faculty of Law
University of Alberta, Canada
Eubios Journal of Asian and International Bioethics 7 (1997), 108.
Had the law been passed in its proposed form, it would have been one of the most prohibitive in the world, using only criminal sanctions to address a variety of reproductive and genetic procedures (e.g., cloning, animal/human hybrids, buying and selling of sperm and ovum, germ-line therapy and research, sex selection, embryo research and ectogenesis, and commercial surrogacy). Suggested penalties were severe, up to ten years imprisonment, and were the same for all the enumerated offenses.
Despite the fact that most stakeholders in Canada agree that some form of government regulation of reproductive and genetic technologies is necessary, Bill C-47 received a great deal of criticism (e.g., from the Canadian Medical Association, the Canadian Bar Association, the National Association of Women and the Law, to name but a few). In general, there appeared to be a consensus among these commentators that: 1) criminal law is not the best mechanism to use in this context - particularly as the first step in a broader regulatory process; 2) that the law may have had an unwanted chilling affect on useful genetic and reproductive research; and 3) that a comprehensive national policy and a regulatory agency, one which would be more flexible than the proposed criminal approach, should be developed prior to the enactment of punitive legislation such as Bill C-47.
The use of criminal sanctions in this context is particularly troubling given the lack of consensus which exists around many, if not most, of the procedures addressed by the law. Indeed, as noted in the federal government's background document to the Bill: "Opinion is divided on many of these issues, and consensus had not yet fully emerged on their appropriate place in Canadian society." For example, one of the specific and most roundly criticized provisions was the prohibition against the sale of sperm. Although few would disagree with the need to ensure that a commercial market is avoided, Bill C-47 would make it illegal to even provide reimbursement for expenses incurred by gamete donors. There was fear that this would lead to a shortage in the supply of sperm.
The goals as stated in the preamble of Bill C-47 are laudable - to "protect and promote human dignity and equality and the best interests of children in relation to such technologies and transactions." Likewise, the government is to be complemented for taking much needed action in this controversial area. Nevertheless, it is hoped that the federal government uses the opportunity presented by the early election call to re-think their approach to the regulation of genetic and reproductive technologies.