McGill Law Journal ~ Revue de droit de McGill
LEGISLATING RESPECT: A PRO-CHOICE FEMINIST
ANALYSIS OF EMBRYO RESEARCH RESTRICTIONS IN
CANADA
Maneesha Deckha*
This article investigates the impact of legis-
lating respect and dignity for the embryo in vitro
on the legal and cultural status of the embryo in
utero. It evaluates the restrictions on embryo re-
search in Canadas Assisted Human Reproduction
Act (AHRA) to consider whether they should re-
ceive pro-choice feminist support. Specifically, the
article explores whether it is possible for feminists
to accord respect to the in vitro embryo, as the
AHRA attempts to do, without jeopardizing sup-
port for abortion. The article canvasses the theoret-
ical possibilities of this position by comparing the
compatibility of feminist articulations of a right to
abortion (bodily integrity and equality) with femi-
nist arguments against the expansive use of em-
bryos in research (commodification and exploita-
tion). The article argues that it is logically compat-
ible for feminists to promote respect and dignity
for in vitro embryos while maintaining a pro-choice
position on abortion. The article nevertheless cau-
tions against feminist support for AHRA as it cur-
rently stands given that, on a practical basis, a
feminist understanding of the AHRAs restricted
embryo research regime is difficult to achieve in
the public sphere. The article explains why the
more likely result for the public sphere will be an
unqualified discourse of respect and dignity for
embryos in general, which could then problemati-
cally revive the abortion debate and destabilize the
non-personhood status of the in utero embryo. As a
remedy, the article provides recommendations for
how AHRA should be amended so as to better en-
sure that legislative restrictions on embryo re-
search signal a legislative intent that respects
womens reproductive autonomy.
Cet article tudie l’impact de lgifrer sur la
question du respect et de la dignit dun embryon in
vitro et sur les statuts juridique et culturel de l’em-
bryon dans l’utrus. Il value les restrictions aux re-
cherches sur les embryons prvues au Canada dans la
Loi sur la procration assiste (LPA) pour dterminer
si elles doivent recevoir un soutien des pro-choix fmi-
nistes. Plus prcisment, l’article examine s’il est pos-
sible pour les fministes de respecter l’embryon in vi-
tro, ce que tente de faire la LPA, sans mettre en pril
le soutien l’avortement. L’article examine les possi-
bilits thoriques de cette position en comparant la
compatibilit des articulations fministes d’un droit
l’avortement (intgrit corporelle et galit) avec des
arguments fministes contre l’utilisation large des
embryons dans la recherche (marchandisation et ex-
ploitation). L’article soutient qu’il est logiquement
compatible pour les fministes de promouvoir la foi
respect et dignit pour les embryons in vitro
tout en conservant une position pro-choix en matire
d’avortement. L’article met nanmoins en garde
contre le soutien fministe pour la LPA sous sa forme
actuelle tant donn que, sur le plan pratique, une
comprhension fministe des restrictions sur les re-
cherches sur les embryons prvues dans la LPA est
difficile raliser dans la sphre publique. Cet article
explique pourquoi le rsultat le plus probable pour la
sphre publique sera un discours sans rserve de res-
pect et de dignit pour les embryons en gnral, ce qui
pourrait alors savrer problmatique en relanant le
dbat sur l’avortement et en dstabilisant le statut de
non-personnalit de l’embryon dans lutrus. Pour y
remdier, l’article fournit des recommandations sur la
faon dont la LPA doit tre modifie afin de mieux ga-
rantir que les restrictions lgislatives sur la recherche
sur l’embryon refltent une intention du lgislateur
qui respecte l’autonomie reproductive des femmes.
* I would like to thank the Canadian Institutes of Health Research for research support
for this article. I am grateful for the excellent research assistance provided by Diana
Backhouse and Michelle Chan, particularly on Parts II and IV respectively.
Citation: (2012) 58:1 McGill LJ 199 ~ Rfrence : (2012) 58 : 1 RD McGill 199
Maneesha Deckha 2012
200 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
III.
IV.
V.
The Disconnect
ESCR RationalesA Discourse of Respect and/or Dignity
or Something Else?
Respecting Embryos and Abortion RightsTheoretically
Possible?
A. Feminist Pro-choice Arguments that Ethically Advert
to the Embryo
B. Feminist Critiques of Reproductive Technologies that
Advert to the Embryo
C. Philosophical Compatibility
Respecting Embryos and Abortion RightsPractically
Possible?
A. Inactive Regulator
B. Rise of Pro-life Initiatives at the Federal Level
C. Rationales for Embryo Research Restrictions in
Mainstream Media
D. Embodying Embryos in Law
Recommendations for Reform
A. Articulate the Feminist Reasons to be Concerned about
the In Vitro Embryo
B. Affirm Womens Rights to Bodily Integrity and the
Need for Abortion
C. Distinguish Between the In Vitro and In Utero
Context in Terms of the Ethics Raised
Conclusion
201
204
208
214
215
217
221
221
222
223
225
229
230
231
233
233
235
EMBRYO RESEARCH RESTRICTIONS IN CANADA 201
Introduction
Canada is one of the few countries worldwide without a specific piece
of legislation directly regulating abortion.1 When positioned along a global
spectrum, Canada may be said to occupy an extreme position in its
(dis)regard for the in utero embryo or fetus, and its (high) value for the in-
tegrity of womens bodies and their reproductive lives.2 But the abortion
debate is not the only venue where questions and arguments regarding
the moral status of the human embryo circulate. Embryonic stem cell re-
search and the miracles it portends have caught the imagination of scien-
tists, politicians, and the public alike, for reasons not the least of which
involves the fate of in vitro embryos, which are vital to this form of stem
cell research. Although this area is not as ubiquitously regulated as abor-
tion, a substantial number of countries have passed legislation specifying
the scope of embryonic stem cell research that they find acceptable. Cana-
da is among these countries and, interestingly, as discussed below, has
adopted a middle position when compared to its peers, generally permit-
ting research on existing embryos under certain conditions, but not the
creation of new ones.
While Canadas tempered position in the debate may appear to be a
sensible compromise, further query gives reason for pause. If the rationale
for the midway position is indeed a desire to afford human embryo life
some respect and dignity, it is a striking one since Canadian law has (1)
held that the fetus and thus, presumably, the embryo, which is even fur-
ther removed from the moment of birth, is not a person and therefore is
denied the rights and ethical significance that that legal status entails;3
and (2) not acknowledged that embryos, while not persons, are nonethe-
less to be respected.4 A restrictive stem cell regime is understandable in
jurisdictions where restrictive abortion regimes also exist, or where, if not
personhood, there is at least some explicit legal recognition of the value of
human embryonic life. It seems discordant in a country where pro-life dis-
1 See Maneesha Deckha, The Gendered Politics of Embryonic Stem Cell Research in the
USA and Canada: An American Overlap and Canadian Disconnect (2008) 16:1 Med L
Rev 52 at 74, n 136.
2 In making this observation about Canadas position on the legality of abortion, I am
mindful that serious impediments to accessing abortion, notwithstanding the permis-
sive legal landscape, still exist. See Jocelyn Downie & Carla Nassar, Barriers to Access
to Abortion Through A Legal Lens (2007) 15 Health LJ 143.
3 See Winnipeg Child and Family Services (Northwest Area) v DFG, 3 SCR 925, 152 DLR
(4th) 193.
4 France is an example of the position that, although embryos are not persons, they de-
serve respect. See Stephanie Hennette-Vauchez, Words Count: How Interest in Stem
Cells Has Made the Embryo AvailableA Look at the French Law of Bioethics (2009)
17:1 Med L Rev 52 at 53-54.
202 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
course is not predominant in public discourse and the criminalization or
even targeted regulation of abortion is not a live political issue.5
The main goal of this article is to investigate the extent and impact of
such a discourse of respect and dignity for the embryo in the stem cell de-
bate on the legal and cultural discourse surrounding the embryo when
abortion and womens bodies are in issue. The paper is thus aimed at
evaluating the current restrictions on embryo research in the Assisted
Human Reproduction Act6 and whether they should receive pro-choice
feminist support. Of course, whether the AHRA fortifies a pro-life position
is but just one measure by which to calibrate the benefits of assistive re-
productive technologies and embryo research in general. There are other
reasons for pro-choice feminists to withhold or apply support that do not
focus on the human embryos moral status and that should be considered
in any exhaustive feminist inquiry into the ethics of embryo research.7 I
have narrowed my focus by considering whether pro-choice feminists in
5 See Bruce Campion-Smith, Abortion Will Never Be Eliminated, Tory MP Says, The
Star (26 April 2012), online: The Star
Framing Reproductive Rights: The Politics of Abortion Access and Citizenship in a
Post-Morgentaler Era (2010), online: Canadian Political Science Association
6 SC 2004, c 2 [AHRA].
7 For example, some feminists have objected to the nature of the discourse surrounding
reproductive technologies as focusing on the concerns of first-world citizens while, for
the majority of the worlds women, such technologies have been used to address con-
cerns about population control. As Navsharan Singh puts it, Whereas, in the West,
dominant discourse around new reproductive technologies focused on the enhancement
of womens choice, in the Third World, new reproductive technologies were clearly
aimed at placing the fight against fertility on a war footing (Of Victim Women and
Surplus Peoples: Reproductive Technologies and the Representation of Third World
Women (1997) 52 Studies in Political Economy 155 at 156). Other feminists have ana-
lyzed the way reproductive technologies reflect and reinforce heteronormative ideals of
the nuclear family (see e.g. Angela Cameron, Regulating the Queer Family: The Assist-
ed Human Reproduction Act (2008) 24:1 Can J Fam L 101), while others have critically
questioned the fact that such technologies are accessible to, and used almost exclusively
by, white people (see e.g. Dorothy E Roberts, Race and the New Reproduction (1996)
47:4 Hastings LJ 935). Others have impugned these technologies for their pathologiza-
tion of disability (see e.g. Shelley Tremain, Biopower, Styles of Reasoning, and Whats
Still Missing from the Stem Cell Debates (2010) 25:3 Hypatia 577). Still others have
objected to the exploitation of animals in the genesis and practice of embryo research
(see e.g. Maneesha Deckha & Yunwei Xie, The Stem Cell Debate: Why Should It Mat-
ter to Animal Advocates? (2008) 1 Stan J Animal L & Poly 69. Finally, some feminists
worry about government deference to scientific and medical authorities in these debates
(see e.g. Marie Fox, The Human Fertilisation and Embryology Act 2008: Tinkering at
the Margins (2009) 17 Fem Legal Stud 333 at 341 [Fox, Embryology Act]). In the end,
as Fox emphasizes, whether regulation is permissive or prohibitive of a certain form of
research or assistive reproductive technology, feminist input should be at the fore-
ground in deliberations (ibid at 342).
EMBRYO RESEARCH RESTRICTIONS IN CANADA 203
Canada, who are generally cautious about reproductive technologies due
to the perceived threats these technologies pose to womens bodies, should
welcome the embryo research restrictions the AHRA now provides. Given
the strong feminist involvement at the early stages of lobbying for regula-
tion of new reproductive technologies,8 should feminists view the current
legislation as a victory in feminist advocacy on this issue? Or, instead,
should these feminists be cautious about the AHRA restrictions on em-
bryo research due to AHRAs cohesion with pro-life views regarding the
value and meaning of the human embryo?
Part I sketches the disconnect animating this query and provides
some background on the debate surrounding embryonic stem cell re-
search. Part II, drawing from government and media discourse, briefly
sets out the various rationales for the restrictions on the embryo provi-
sions and the shifting influence of feminist interpretations of a restricted
embryo research regime.
This background being laid out, Part III begins to take up the main
query of the article to explore whether it is possible for pro-choice femi-
nists to accord respect to the in vitro embryo. This part canvasses the the-
oretical possibilities of this position by comparing the compatibility of fem-
inist articulations of a right to abortion (bodily integrity, equality, etc.)
with possible feminist arguments against the expansive use of embryos in
research (commodification, exploitation, and the scientific instrumentali-
zation of life in general). Part III then moves into a consideration of
whether the level of respect and dignity for embryos ascertained earli-
er in Part II is logically compatible with liberal abortion regimes, such as
the Canadian regime, and argues that it is.
With the theoretical possibilities charted of how feminist views on
abortion may coexist with respect and dignity for the in vitro embryo,
Part IV proceeds to explore the viability of a feminist understanding of a
restricted embryo research regime permeating public consciousness, even
though this understanding is theoretically possible. This part explains
why the more likely result for the public sphere will be an unqualified
discourse of respect and dignity for embryos in general, which could then
problematically seep into abortion politics. Part IV revisits the discourse
analysis in Part II to distill how public commentary about the AHRA fails
to draw a sharp boundary between the in vitro and in utero embryos to
assist the public in seeing the issues as distinct (such that giving respect
to one would not entail giving respect to the other). The conclusion in Part
IV is that pro-choice feminists need to be concerned with the embryocen-
8 Mavis Jones & Brian Salter, Proceeding Carefully: Assisted Human Reproduction Pol-
icy in Canada (2010) 19:4 Public Understanding of Science 420 at 421.
204 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tric discourse generated by the public commentary about the AHRAs em-
bryo research restrictions and need to revisit their theoretical support for
the statute in its current form in light of this contrary public reading. Part
V concludes with recommendations of how the AHRA should be revised to
align with a pro-choice feminist position and ensure that restrictions on
embryo research are interpreted in a manner supportive of a womans
right to choose.
I. The Disconnect
Stem cells are cells that have the ability to regenerate and turn into,
upon the correct signal, virtually every type of tissue and organ within the
body.9 Scientists hope to use stem cells to cultivate stem cell lines that
would generate an abundance of healthy and genetically compatible tissue
to replace diseased or damaged tissue characterizing an array of human
disorders. They also hope such research will enhance knowledge of these
disorders and human development in general.10 Embryonic stem cells, as
opposed to adult stem cells, are credited with having more research poten-
tial due to their unique capacities to turn into many types of tissue.11
Embryonic stem cell research, however, is especially controversial be-
cause of the importance of the human embryoa symbol caught in cul-
tural politics over the origins and meaning of life, gender roles, and what
it is to be humanwhich is destroyed in this research.12 The debate over
embryonic stem cell research thus involves deeply contested ethical
claims, many animated by religious values that human embryos are legal
and moral persons and thus should not be treated instrumentally, let
alone destroyed.13 Religious voices have prominently opposed such re-
9 See Nancy E Snow, ed, Stem Cell Research: New Frontiers in Science and Ethics (Notre
Dame: University of Notre Dame Press, 2003) at 198.
10 See Nancy E Snow, Introduction: Stem Cell Research; New Frontiers in Science and
Ethics in ibid, 1 at 4; Angela Campbell, Ethos and Economics: Examining the Ra-
tionale Underlying Stem Cell and Cloning Research Policies in the United States, Ger-
many, and Japan (2005) 31:1 Am J L & Med 47 at 49; National Bioethics Advisory
Committee, Ethical Issues in Human Stem Cell Research, vol 1 (Rockville: National Bi-
oethics Advisory Commission, 1999) at 1-2; Kenneth J Ryan, The Politics and Ethics of
Human Embryo and Stem Cell Research (2000) 10:3 Womens Health Issues 105.
11 For an articulation of both views on the relative benefits of stem cells from embryos ver-
sus those from adults, see David Cameron, Life, Death, and Stem Cells, Paradigm
(Fall 2004) 14 at 18.
12 See Janet L Dolgin, Embryonic Discourse: Abortion, Stem Cells and Cloning (2004)
19:3 Issues L & Med 203.
13 New research on mice embryos indicates the possibility, described by some at this stage
as speculative, of conducting embryonic stem cell research without destroying the
human embryo (Nicholas Wade, Scientists Devise New Stem Cell Methods to Ease
EMBRYO RESEARCH RESTRICTIONS IN CANADA 205
search while scientists, those interested in biotechnological enterprises,
and some persons with disabilities have vocally supported it.14 An inter-
mediate position between complete prohibition and complete support of all
embryo research is to favour embryonic research carried out on existing
embryos only, that is, those left over from in vitro fertilization proce-
dures, since these embryos would very likely be discarded anyway.15 The
religious and pro-life imprint of the debate is perhaps best elucidated by
the American federal position under President George W. Bush, who
blocked federal funds to create new embryos but allowed continuing work
with existing ones because, for these, a life and death decision has al-
ready been made.16 The complexity of the issue materializes, however,
when one realizes that many religious and pro-life Republicans support
embryonic stem cell research.17
Canadas legislated response to this difficult ethical debate came in
March 2004 through the enactment of the AHRA, which is generally in-
tended to facilitate responsible reproduction by promoting human health,
safety, and dignity.18 The AHRA governs a wide range of practices and
procedures, prohibiting things like animal-human chimeras and hybrids,
commercial surrogacy, and sex selection, while regulating other assisted
Concerns, The New York Times (16 October 2005), online: The New York Times
14 See generally Brent Waters & Ronald Cole-Turner, eds, God and the Embryo: Religious
Voices on Stem Cells and Cloning (Washington, DC: Georgetown University Press,
2003); Jean Reith Schroedel, Is the Fetus a Person? A Comparison of Policies Across the
Fifty States (Ithaca: Cornell University Press, 2000); John Cloud, Bushs No-Win
Choice: Why the Presidents Stem-Cell Decision Could Define His Term Time 158:3 (23
July 2001) 22.
15 See Arthur L Caplan & Pasquale Patrizio, The Art of Medicine: The Beginning of the
End of the Embryo Wars, The Lancet 373:9669 (28 March 2009) 1074 at 1075.
16 Dolgin, supra note 12 at 243.
17 See ibid at 250-51.
18 AHRA, supra note 6, s 2. Guidelines from Canadas main funding agencies (Canadian
Institutes of Health Research, Natural Sciences and Engineering Research Council of
Canada & Social Sciences and Humanities Research Council of Canada, Tri-council
Policy Statement: Ethical Conduct for Research Involving Humans, 2d ed, December
2010, online: Panel on Research Ethics
an impact on federally funded embryo research; they predated the legislation and con-
tinue today. Franoise Baylis and Matthew Herder explain the interrelation between
the TCPS and the AHRA: Where the TCPS and the AHR Act overlap, the AHR Act
takes precedence; where the AHR Act is silent, the TCPS sets the standard for federal-
ly-funded researchthat is, all research conducted by individuals or in institutions that
receive funding from one or more of the federal research Agencies (Policy Design for
Human Embryo Research in Canada: A History (Part 1 of 2) (2009) 6:1 Bioethical In-
quiry 109 at 110).
206 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
human reproductive practices used in fertility clinics and beyond.19 With
respect to stem cell research, the AHRA permits research on existing em-
bryos, but only where the research occurs during the first fourteen days of
the embryo’s life, and performed with the written consent of the gamete
donor.20 The deliberate creation of embryos for purposes not related to re-
production is prohibited.21 An overall assessment indicates that Canada
has adopted an intermediate position by permitting research on existing
embryos, but not the creation of embryos purely for research.22 That only
19 AHRA, supra note 6, ss 5-9. Certain provisions were successfully challenged in 2010 on
federalism grounds in a reference to the Supreme Court of Canada brought by the Que-
bec government (Reference Re Assisted Human Reproduction Act, 2010 SCC 61, [2010]
3 SCR 457 [Re AHRA]). Quebec had objected to the jurisdiction of the federal govern-
ment to regulate in what should properly be seen as health-related regulation (provin-
cial) rather than a criminal law area (federal). The provisions invalidated through the
reference do not affect the discussion here.
20 AHRA, supra note 6, ss 5(1)(b), 5(1)(d), 8. Currently, the provisions impacting embryo
research in section 5 read:
5. (1) No person shall knowingly …
(b) create an in vitro embryo for any purpose other than creating a
human being or improving or providing instruction in assisted re-
production procedures;
(c) for the purpose of creating a human being, create an embryo from
a cell or part of a cell taken from an embryo or foetus or transplant
an embryo so created into a human being;
(d) maintain an embryo outside the body of a female person after the
fourteenth day of its development following fertilization or creation,
excluding any time during which its development has been suspend-
ed …
21 See ibid, s 10.
22 The nature of legislation around the world governing embryonic research is complex.
Three general positions exist, however, regarding the use of embryonic stem cells for re-
search purposes: permissive, restrictive, and prohibitive. Nations that adopt a permis-
sive position, such as Australia (Prohibition of Human Cloning for Reproduction and
the Regulation of Human Embryo Research Amendment Act 2006 (Cth), amending Pro-
hibition of Human Cloning Act 2002 (Cth), Research Involving Human Embryos Act
2002 (Cth)), the United Kingdom (Human Fertilisation and Embryology Act 1990 (UK),
c 37; Human Fertilisation and Embryology (Research Purposes) Regulations 2001 (UK),
SI 2001/188), Belgium (Loi relative la recherche sur les embryons in vitro (Belg) of 11
May 2003, MB, 28 May 2003, online: http://www.staatsblad/be), South Korea (Bioethics
and Safety Act (S Kor), Act No 9100, 6 December 2008), Spain (Ley 14/2007, de 3 de
julio, de Investigatin biomedical [Law 14/2007, of 3 July 2004, on Biomedical Research]
(Spain), (BOE 2007, 159)), Sweden (Lag om genetisk integritet [Law on Genetic Integri-
ty] (Swed), SFS 2006:351), India (Department of Biotechnology & Indian Council of
Medical Research, Guidelines for Stem Cell Research and Therapy (New Delhi: Director
General, Indian Council of Medical Research, 2007)), and Israel (Prohibition of Genetic
Intervention Law (Isr), 5759-1999, SH No 1697, 47 as amended by Prohibition of Genet-
ic Intervention (Human Cloning and Genetic Change in Multiplying Cells) (2nd
Amendment) Law (Isr), 5770-2009, SH No 2212, 232), allow the use of existing embryos
EMBRYO RESEARCH RESTRICTIONS IN CANADA 207
carefully circumscribed uses may be made of these perceived surplus
embryos (i.e., those discarded after in vitro fertilization) is suggestive of
the AHRAs acceptance of the principle that the human embryo is due
some form of respect and retains a level of dignity and moral status.23 The
next part uncovers the reasons behind this legislative stance.
for research, hESC lines derived from supernumerary IVF embryos, and the creation of
human embryos for research use, by methods such as therapeutic cloning by somatic-
cell nuclear transfer. Many other countries adopt a prohibitive position by severely re-
stricting or outright banning the use of human embryos for research, such as Germany
(Gesetz zur Sicherstellung des Embryonenschutzes im Zusammenhang mit Einfuhr und
Verwendung menschlicher embryonaler Stammzellen [Stammzellgesetz] [StZG] [Stem
Cell Act] (Ger), 28 June 2002, BGBl I, online: Gesetz im Internet
tions
in Stem Cell Research, online: Department of Health
Global Regulation of Human Embryonic Stem Cell Research, online: Australian Stem
Cell Centre
23 See Deckha, supra note 1 at 72.
208 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
II. Embryonic Stem Cell Research RationalesA Discourse of Respect
and/or Dignity or Something Else?
An examination of the long legislative history preceding the enact-
ment of Canadas assisted human reproduction legislation identifies more
than one possible source of support for the restrictions on the embryo re-
search provisions found in the AHRA. The AHRAs early history reveals
the prominence of feminist arguments and critiques, which were focused
on the implications of new reproductive technologies for womens health.24
Feminists drew particular attention to the many risks faced by women
who underwent in vitro fertilization (IVF) procedures.25 Feminists de-
manded that the government, not just the medical and research commu-
nities, take control of the regulation of these procedures in order to ensure
womens safety.26 On the subject of human embryo research, many femi-
nists articulated a concern that, as the need for embryos (and, by implica-
tion, womens eggs) with which to conduct research increased, exploitation
of womens bodies would follow.27
24 See generally Diana Backhouse & Maneesha Deckha, Shifting Rationales: The Waning
Influence of Feminism on Canadas Embryo Research Restrictions (2009) 21:2 CJWL
229 at 234-37.
25 For an in-depth discussion of the risks to womens health posed by in vitro fertilization
procedures, see Kay Lazar, Medical Miracle Turns Nightmare: Wonder Drug for Men
Alleged to Cause Harm in Women, Boston Herald (22 August 1999) 1; Judy Norsigian,
Egg Donation for IVF and Stem Cell Research: Time to Weigh the Risks to Womens
Health, DifferenTakes, Issue Paper No 33, (Spring 2005), online: Pop Dev
search After Seoul; Examination Exploitation, Fraud and Ethical Problems in the Re-
search: Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human
Resources of the House Committee on Government Reform, 109th Cong (Washington,
DC: United States Government Printing Office, 2006) at 84 ff. (Dr Diane Beeson) [Hu-
man Cloning Hearing ]; Renate Klein, Dangers of Harvesting Human Eggs Clouded in
Cloning Debate, The Canberra Times (8 November 2006) ; IVF Treatment Killed my
Daughter, BBC News (30 June 2005), online: BBC News
ter from Suzanne Parisian (February 2005) in Human Cloning Hearing, supra note 25
at 100 ff.
26 See ric Montpetit, Francesca Scala & Isabelle Fortier, The Paradox of Deliberative
Democracy: The National Action Committee on the Status of Women and Canadas Pol-
icy on Reproductive Technology (2004) 37:2 Policy Sciences 137 at 144.
27 See e.g. Penni Mitchell, Keep your Hands Off Our Ovaries! Herizons (Fall 2006) 10
(discussing the dangers of allowing fresh, as opposed to frozen, human embryos to be
used for research purposes). Summing up the position of Professor Abby Lippman, a
feminist expert on reproductive technology, Mitchell notes that allowing research on
fresh embryos is a move not envisioned when Canadas Assisted Human Reproduction
Act was passed in 2004, and that the relaxing of Canadas scientific rules on human
embryo research may mark the beginning of a slippery slope that could put young
womens health at risk in order to provide raw materials, including human eggs, for
embryonic stem cell research (ibid at 10). See also the project Hands Off Our Ovaries,
EMBRYO RESEARCH RESTRICTIONS IN CANADA 209
Even in the early stages of the assisted human reproduction debate,
feminist concern for womens health was not the sole basis of overall op-
position to this research. The 1993 report of the Royal Commission on
New Reproductive Technologies (Commission), Proceed with Care, largely
framed the acceptability of human embryo research in terms of the moral
status of the embryo and respect for human life.28 This is interesting as
the Commission was appointed by the government in response to feminist
lobbying, and feminist voices are considered to be influential throughout
the Commissions report, often referred to in the literature as the Baird
Report after the Commissions (embattled) chair.29 Despite the great deal
of attention paid by the Commission to issues of womens reproductive
health and freedom, the section entitled The Ethical Uses of Human Zy-
gotes in Research ultimately sought to assess what research, if any,
would be compatible with the level of respect owed to the embryo by vir-
tue of its connections to the human community.30 Proceed with Care em-
phasized the diversity of Canadians views on the moral status of the em-
bryo.31 It recognized important questions, such as the distinction between
in vitro and in utero embryos, and acknowledged that affording a particu-
lar status to the in vitro embryo might affect the status of the in utero
embryo.32 In the end, the Commission stated its view that the moral sta-
tus of the embryo before day 14 after fertilization does not preclude re-
search under certain defined conditions.33 The fourteenth day reflects the
scientific consensus that prior to the fourteenth day individuation has not
occurred.34 The Commission defended its view as a morally acceptable
online:
Board of Directors of Hands Off Our Ovaries, there have been too many instances of
coercion and deception, and violations of informed consent. … Left uncontrolled, embry-
onic stem cell (cloning) research demands will place undue burdens on young, poor
women (cited in Mitchell, supra note 27).
28 Canada, Proceed with Care: Final Report of the Royal Commission on New Reproductive
Technologies, vol 2 (Ottawa: Communications Group, 1993) at 631-38 (Chair: Patricia
Baird) [Proceed with Care].
29 See e.g. Annette Burfoot, In-appropriation: A Critique of Proceed with Care: Final Re-
port of the Royal Commission on New Reproductive Technologies (1995) 18:4 Womens
Studies International Forum 499; Jones & Salter, supra note 8 at 423-24. Jones and
Salter also discuss how and why the Commission was plagued with problems from the
outset and how the presence and personality of the chair, Patricia Baird, contributed to
the situation (ibid at 424-25).
30 Proceed with Care, supra note 28 at 636.
31 Ibid at 631.
32 Ibid at 608.
33 Ibid at 632.
34 As Shai Lavi writes, This regulation is based on the scientific finding that up to that
stage of the embryos development individuation has not yet taken place and the em-
210 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
compromise in a pluralistic society.35 In choosing to ascribe significance
to the fourteenth day in the eventual statute, Canada follows several oth-
er Western liberal democracies.36 It is critical to note, however, that Can-
adas counterparts regulate abortion in ways that Canada does not.37
Despite the Commissions attention to the moral status of the em-
bryo line of reasoning as a basis of support for restricted embryo research
regimes, this was by no means the dominant argument made during the
early stages of debate in Canada. It was not until the discovery of a tech-
nique to isolate and grow stem cells in 1998 by Dr. James Thomson that
religious and pro-life arguments in defence of the embryo began to come
to the fore.38 Thomsons discovery initiated the almost immediate takeoff
of embryonic stem cell research (ESCR)research that entails the de-
struction of the embryo. It was not long before religious and pro-life
groups began to outnumber those feminist organizations being invited to
speak during government stakeholder consultations on ESCR.39 In De-
bryo may divide into twins (From Bioethics to Bio-optics: The Case of the Embryonic
Stem Cell (2008) 4:3 Law, Culture and the Humanities 339 at 349.
35 Proceed with Care, supra note 28 at 635.
36 Although the policies on the use of embryonic stem cells vary between nations, many
share the same maximum fourteen-day time limit to their use: Australia, Belgium, the
United Kingdom, Denmark, Norway, Sweden, and Canada. For the relevant legislation
see supra note 22.
37 Under the UK Abortion Act 1967 (c 87, s 1), the accessibility of an abortion is restricted
to before the twenty-fourth week if continuance of the pregnancy involves greater risk
than termination. The time limit is lifted if it is necessary to prevent grave permanent
injury to the physical or mental health of the pregnant woman, and if there is a sub-
stantial risk the child will be severely handicapped due to physical or mental abnormal-
ities. Australia shares similar legislation to the United Kingdom, limiting performance
to the twenty-fourth week. After the twenty-fourth week, the Abortion Law Reform Act
2008 ((Cth), s 5(2)) states an abortion will be administered only if the medical practi-
tioner believes it is appropriate in consideration of medical, physical, psychological, and
social circumstances. In Belgium, article 350 of the Code pnal (as amended by Loi rela-
tive l’interruption de grossesse, modifiant les articles 348, 350, 351 et 352 du Code p-
nal et abrogeant l’article 353 du mme Code (Belgium), MB, 3 April 1990, 6379) re-
stricts abortion to the twelfth week if the pregnancy causes a state of distress (ibid
[translated by author]) for the woman. The limit is lifted if continuation poses serious
risk to the woman or if the fetus has an extremely serious and incurable disease. Cana-
da currently has no law restricting abortion.
38 See John A Robertson, Embryo Stem Cell Research: Ten Years of Controversy (2010)
38:2 Journal of Law, Medicine and Ethics 191 at 192.
39 From May to November 2001, the House of Commons Standing Committee on Health
conducted forty-seven meetings and consulted with a range of associations and individ-
uals who had been invited to participate in the deliberations on draft assisted
human reproduction legislation. The number of religious or pro-life organizations
invited to speak during these consultations outnumbered feminist groups. See
Appendix B: List of Witnesses in House of Commons, Standing Committee on
Health, Assisted Human Reproduction: Building Families (December 2001) at 47
EMBRYO RESEARCH RESTRICTIONS IN CANADA 211
cember 2001, after conducting extensive consultations with Canadians on
the subject of assisted human reproduction, the House of Commons
Standing Committee on Health issued a report entitled Building Fami-
lies,40 which recommended that embryo research be strictly regulated
and limited to using only embryos created but not used for IVF.41 Under-
lying this recommendation was the principle of respect for human indi-
viduality, dignity and integrity42an overarching consideration used by
the committee to determine that the embryo has a particular status and
deserves a measure of respect and protection … based on its potential for
personhood.43 Interestingly, the committee justified its view that some
embryo research should be allowed on the basis of its belief that contin-
ued embryo research was necessary to ensure the health of the women be-
ing treated by fertility techniques.44
During the parliamentary debates on the assisted human reproduc-
tion legislation, however, the issue of concern for womens health and
safety was all but invisible. These debates revealed an aggressive pro-life
political agenda on the part of many Canadian Alliance and Liberal Party
members whose voices dominated the debates.45 The arguments presented
in the House were indistinguishable from those that have been made for
decades by the anti-abortion lobby.46 This is of particular concern given
that the intention of Canadas Parliament is often discerned, at least in
part, by making reference to Hansard debates.47 A review of these debates
would suggest that any restrictions on human embryo research found in
(Chair: Bonnie Brown), online: Parliament of Canada
ing Families].
40 Ibid.
41 Ibid at 15.
42 Ibid.
43 Ibid at 5.
44 Ibid at 15.
45 See generally Backhouse & Deckha, supra note 24.
46 See ibid at 256.
47 See e.g. Rizzo v Rizzo Shoes Ltd, [1998] 1 SCR 27 at para 35, 154 DLR (4th) 193 (where
Justice Iacobucci, writing for the Court, stated: [A]lthough the frailties of Hansard evi-
dence are many, this Court has recognized that it can play a limited role in the inter-
pretation of legislation). Justice Iacobucci referred to R v Morgentaler ([1993] 3 SCR
463 at 484, 107 DLR (4th) 537), where Justice Sopinka stated:
[U]ntil recently the courts have balked at admitting evidence of legislative debates
and speeches. … The main criticism of such evidence has been that it cannot repre-
sent the intent of the legislature, an incorporeal body, but that is equally true of
other forms of legislative history. Provided that the court remains mindful of the
limited reliability and weight of Hansard evidence, it should be admitted as rele-
vant to both the background and the purpose of legislation.
212 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the AHRA are the result of a moral concern for the embryos so-called
right to life, no matter what the circumstances and to the subordination of
all other interests.48
The declining presence of feminist concerns about reproductive tech-
nologies in general, compared to the rising visibility of voices expressing
anxiety over embryo treatment in the legislative deliberations, was also
reflected in the communication strategy of the federal government. Be-
tween May 2001 and March 2004, when the AHRA became law, Health
Canada issued a number of press releases providing justification for the
AHRAs provisions. Health Canada consistently appealed to the legisla-
tions two major objectives. First, Health Canada emphasized that the leg-
islation seeks to protect the health and safety of Canadians who use the
technologies.49
Second, Health Canada asserted that the AHRA prohibits those activi-
ties deemed ethically unacceptable by Canadians and creates a regula-
tory framework for other assisted human reproduction technologies.50
Health Canada was careful to single out embryo research from the array
of technologies at stake to declare that the AHRA does not promote em-
bryo research but rather establishes clear boundaries … as to what con-
stitutes acceptable research.51 The government did not provide any indi-
cation of what grounds make some embryo research ethically unaccepta-
ble, nor did the moral status of the embryo argument (or discussion
thereof) arise anywhere in these documents. Ultimately, the AHRA was
justified as a Canadian approach to the issues at stake, and its provisions
were said to enjoy widespread support among Canadians.52 While there
48 See Backhouse & Deckha, supra note 24 at 252 ff.
49 Health Canada, Frequently Asked Questions, online: Health Canada
Canadians (2004), online: Health Canada
Human Reproduction Act, online: Health Canada
50 See ibid.
51 Health Canada, Research Involving the In Vitro Embryo, 2004, online: Health Cana-
da
52 See Franoise Baylis, The Regulation of Assisted Human Reproductive Technologies
and Related Research: A Public Health, Safety and Morality Argument, Expert Report
(August 2006) at 12, 32, online:
Main Estimates, online: Treasury Board of Canada Secretariat
Assisted Human Reproduction Canada
Human-Nonhuman Chimeras: A Regulatory Proposal on the Blurring of Species
Lines (2004) 45 BCL Rev 619 at 645-49; Timothy Caulfield & Tania Bubela, Why a
EMBRYO RESEARCH RESTRICTIONS IN CANADA 213
may well be a consensus among Canadians in terms of the final outcome
(i.e., a restrictive embryo research regime), the two primary lines of rea-
soning underlying the support for this outcome are in stark contrast. Un-
fortunately, the vaguely phrased support for the AHRAs embryo research
provisions provided by Health Canada makes it difficult to decipher the
true basis for the restrictions.
Despite the governments lack of reference to the moral status of the
embryo, the dominant presence of pro-life discourse in the later stages of
the assisted human reproduction debate was not lost on the media. Cana-
dian newspapers interpreted the AHRAs provisions as a compromise
positionmeant to appease (as far as possible) Canadas pro-life move-
ment while simultaneously taking care not to alienate the Canadian sci-
ence and research community.53 A compromise position on this basis is
particularly striking, as serious legal and political contemplation of pro-
life arguments is widely recognized to be something relegated to Canadas
past.54 It is perhaps unsurprising, then, that those media reports that
made reference to the human dignity and respect for human life ar-
guments in defence of restricted embryo research did so with skepticism.55
These reports were quick to point out the remarkable similarities between
these arguments, made in the in vitro context, and those that have long
appeared legally settled in the in utero context.56 A series of articles in the
National Post closely followed, and poked fun at, the most explicit and
outrageous anti-abortion arguments levelled in Parliament by a group of
particularly vocal pro-life members.57 If anything, media reports appeared
Criminal Ban? Analyzing the Arguments Against Somatic Cell Nuclear Transfer in the
Canadian Parliamentary Debate (2007) 7:2 The American Journal of Bioethics 51 at
54; Re AHRA, supra note 19 at para 249, citing Proceed with Care, supra note 28 at 140.
53 See e.g. Michael Citrome, Stem Cell Law Restrains Research, The [Montreal] Gazette
(17 April 2004) J5; A Careful Advance in Medical Science, Times-Colonist (30 October
2003) A10 [A Careful Advance]; Kim Lunman, Senate Passes Historic Bill on Re-
productive Technology, Globe and Mail (12 March 2004) A7.
54 See e.g. Raymond Tatalovich, The Politics of Abortion in the United States and Canada:
A Comparative Study (Armonk, NY: ME Sharpe, 1997). More recently, there has been
concern that Prime Minister Harpers refusal to fund abortions as part of the G8 plan
would re-open the abortion debate that has been long settled. See e.g. Mike Blanchfield,
Harper Defends Tories G8 Abortion Stand, Says Canada Can Fund Other Projects,
CityTV (28 April 2010), online: CityTV
55 See Colby Cosh, The Real Threat to Freedom of Choice, National Post (11 June 2004)
A1.
56 A Careful Advance, supra note 53; Cosh, supra note 55; Reginald Stackhouse, Noth-
ing to Fear but Fear Itself, The Globe and Mail (8 September 2003) A15; Diane Irving,
Embryos, Letter to the Editor, National Post (1 March 2003) A19; Timothy Caulfield,
Give Stem-Cell Research a Chance, The Globe and Mail (20 June 2003) A15.
57 Bill Curry, Vote on Human Cloning Bill Delayed, National Post (4 October 2003) A22.
That this observation was made in the National Post, a paper known for its social con-
214 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
to be more sympathetic to the position of scientists who had advocated
less stringent research restrictions.58
Neither the parliamentary debates nor related media reports address-
ing the AHRA revealed to Canadians that the embryo protections located
in Canadas assisted human reproduction legislation are founded on val-
ues apart from those promoted for decades by the anti-abortion lobby. The
principles of human dignity and respect for human life appear either
to retain strong pro-life associations or to remain largely unpacked within
Canadian consciousness. While this tenor of the debates and reports pre-
ceding the AHRAs enactment is of concern, it is still possible for feminists
to embrace the statute on the original, feminist terms that had prompted
the Royal Commission on New Reproductive Technologies in the first
place. But would such an embrace carry adverse consequences for a pro-
choice position? Part III begins to provide an answer. It canvasses the
possibility of housing feminist respect for in vitro embryo life under some
other feminist principle that does not conflict with the principles of bodily
autonomy and equality that matter to pro-choice actors.
III. Respecting Embryos and Abortion RightsTheoretically Possible?
Many feminist arguments in favour of reproductive rights, including
abortion, frame these rights in the language of choice based on the princi-
ples of equality, liberty, and bodily integrity.59 Legal abortion services are
positioned as crucial within these arguments for women to experience full
and equal individuation, personhood, and citizenship.60 Rarely is the legal
or moral status, or both, of the embryo or fetus recognized in these argu-
servatism, is telling of the widespread perception that pro-life abortion arguments are
outdated in Canada. For more on the conservative slant of the National Post, see Robert
A Hackett & Scott Uzelman, Tracing Corporate Influences on Press Content: A Sum-
mary of Recent NewsWatch Canada Research (2003) 4:3 Journalism Studies 331
58 See e.g. Citrome, supra note 53; Stackhouse, supra note 56; Irving, supra note 56; Caul-
field, supra note 56.
59 See e.g. Melanie Randall, Pregnant Embodiment and Womens Autonomy Rights in
Law: An Analysis of the Language and Politics of Winnipeg Child and Family Services
v. D.F.G. (1999) 62:2 Sask L Rev 515; Elizabeth Reilly, The Jurisprudence of Doubt:
How the Premises of the Supreme Court’s Abortion Jurisprudence Undermine Procrea-
tive Liberty” (1998) 14:4 JL & Pol 757; Reva B Siegel, Sex Equality Arguments for Re-
productive Rights: Their Critical Basis and Evolving Constitutional Expression (2007)
56:4 Emory LJ 815; Reva B Siegel, The New Politics of Abortion: An Equality Analysis
of Woman-Protective Abortion Restrictions [2007] 3 U Ill L Rev 991 [Siegel, New Poli-
tics]; Dolgin, supra note 12.
60 See Drucilla Cornell, The Imaginary Domain: Abortion, Pornography & Sexual Har-
assment (New York: Routledge, 1995) at 33; Elisabeth Porter, Abortion Ethics: Rights
and Responsibilities (1994) 9:3 Hypatia 66 at 78.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 215
ments, with many feminists writing against the rise in visual technologies
that encourage the public to view the fetus as a free-floating entity sepa-
rate from a womans body.61
In addition to this type of rights-based feminist pro-choice scholarship,
a history also exists of feminist pro-choice arguments that include the
embryo or fetus as a separate being due some sort of advertence or regard.
While not explicitly framed in the terms of respect or dignity, these
pro-choice arguments accord the fetus some significance as an entity
whose fate feminists should consider. A classic version of this type of ar-
gument is found in Judith Jarvis Thomsons influential essay A Defense
of Abortion, which allows personhood to the fetus at the outset.62 Thom-
son sought to defuse anti-choice arguments that fetuses are persons by
conceding this point for the sake of argument and then demonstrating
why the value of liberal autonomy still requires the recognition of a wom-
ans right to abort. Newer arguments that acknowledge or permit the be-
ingness of the fetus depart from classic liberal articulations of autonomy
to emphasize the fetuss relationality with the mother and thus use rela-
tional values to defend a pro-choice position. How these newer arguments
arrive at the conclusion that abortion is an ethical outcome and should be
legal will be instructive for our purposes in considering how respecting or
ascribing dignity to the in vitro embryo does not undermine a pro-choice
position.
A. Feminist Pro-choice Arguments that Ethically Advert to the Embryo
Stimulated in part by a desire to avoid the stalemate over abortion
politics that permeates the United States due to entrenched and dichoto-
mous pro-life and pro-choice positions, some feminists have approached
the issue from another angle. This approach is exemplified in arguments
that reject the rights-based model and instead focus on the values of care,
nurturance, need, and responsibility. Critiques of rights-based approaches
are skeptical that justifications for abortion located in the language of
property, privacy, and even equality can capture the social nexus of mul-
tiple elementsfamily and work pressures, cultural and religious tradi-
tions, class identity, social constructions of sexualitythat impact a
womans decision to become and stay pregnant.63 Reconceptualizing re-
61 See e.g. Cornell, supra note 60 at 47-49.
62 Judith Jarvis Thomson, A Defense of Abortion in Joel Feinberg, ed, The Problem of
Abortion, 2d ed (Belmont, CA: Wadsworth, 1984) 173.
63 See Porter, supra note 60 at 78. For a more in-depth discussion of pro-choice feminist
arguments that are grounded in relational-social nexus perspectives rather than auton-
omy-equality ones, see also Janet Farrell Smith, Rights-Conflict, Pregnancy and Abor-
tion in Carol Gould, ed, Beyond Domination: New Perspectives on Women and Philoso-
216 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
productive rights through this social nexus is meant to avoid the pitfalls
of the ideology of the unencumbered liberal citizen.64
These social nexus approaches are moved less by formalistic rights
language than by the pursuit of non-oppressive relationships and condi-
tions for women within their particular community contexts. As such,
these approaches are better positioned to focus on a full range of repro-
ductive freedoms (not just abortion) and demonstrate a deep commitment
to structural change encompassing imperialism, racism, poverty and sex-
ism that influences particular ideologies of motherhood.65 As racialized
feminists have pointed out, for women marginalized by their race,
(dis)ability, and class, their reproductive struggles may lie more in avoid-
ing state sterilization programs rather than in accessing abortion ser-
vices.66 Arguments for reproductive choice that rely on the liberal lan-
guage of my body is my property may too easily place the focus on the
white, middle-class rights claimant whose primary concern may be the le-
gality of abortion, rather than on non-elite women and the material con-
ditions of poverty and oppression restricting their choices.67
In addition to better representing the breadth of reproductive con-
cerns, the focus on context, community, and material needs has brought
the fetus more to the foreground than standard equality, liberty, and bodi-
ly integrity rights articulations. For example, Joan Williams and Shauna
Shames make the case for reproductive choice through a child-centred
paradigm. They argue that access to abortion allows women to make the
best decisions about responsible child rearing, given the economic costs of
motherhood and the inability of many single women to support children.68
They discuss womens hopes to be effective mothers, supported by suffi-
cient resources for high quality care and nurturance. Given prevailing so-
cio-economic conditions affecting and marginalizing nonaffluent women
phy (Totowa: Rowman & Allanheld, 1984) 265; Alison Jaggar, Abortion and a Womans
Right to Decide in Carol C Gould & Marx W Wartofsky, eds, Women and Philosophy:
Toward a Theory of Liberation (New York: GP Putnams Sons, 1976) 347; Elizabeth
Kingdom, Whats Wrong with Rights? Problems for Feminist Politics of Law (Edinburgh:
Edinburgh University Press, 1991); Elisabeth J Porter, Women and Moral Identity
(North Sydney: Allen & Unwin, 1991).
64 Porter, supra note 60 at 71.
65 Rashmi Luthra, Toward a Reconceptualization of Choice: Challenges by Women at
the Margins (1993) 13:1 Feminist Issues 41 at 52.
66 See ibid; Dorothy E Roberts, Racism and Patriarchy in the Meaning of Motherhood
(1993) 1:1 Am U J Gender Soc Poly & L 1.
67 Ibid at 32.
68 Mothers Dreams: Abortion and the High Price of Motherhood (2004) 6:4 U Pa J Const
L 818 at 818-29.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 217
(family-hostile workplace,69 lack of health care, poor maternity leave
provisions, living wage), supportive conditions are not regularly available.
This makes the ability to terminate a pregnancy critical to prevent moth-
ering when adequate supports are lacking.70 This line of pro-choice rea-
soning is clearly contextual and focused on womens desire to act in the
best interests of children.71 At the same time, this analysis dissociates it-
self from the adversarial, individualistic, and abstract orientation said to
characterize rights-based models in order to consider the relationships
that women are striving to create, including those with a current fetus.
These social nexus examples indicate that it is possible for feminists
to grant ethical consideration to fetuses without abandoning a pro-choice
position. It is even possible for this ethical consideration to reach the level
of personhood. More to the point, thinking about abortion ethics need not
be a conflict of two rights asserted by individualist rights claimants, but
instead could be a relational inquiry into the social, political, economic,
and cultural conditions that structure womens decision making around
having children and the need to stop the development of the growing em-
bryos and fetuses inside them. I would like to be clear that I am not advo-
cating here that these approaches that give more status to embryos and
fetuses are to be preferred to those that do not in defending abortion. The
aim of this section has been to reveal the existing feminist arguments that
do not deny the beingness of fetuses and embryos or rule out the applica-
tion of respect and dignity concepts to them, but yet still reach pro-
choice conclusions.
B. Feminist Critiques of Reproductive Technologies that Advert to the
Embryo
Given that respecting embryos and abortion rights need not be a
conceptual impossibility in the abortion context, the same conclusion can
be presumed in the embryo research context where womens bodies are
not required to carry and sustain the embryos and fetuses. Indeed, it is in
the laboratory context where the interests of embryos and women may
seem to be more in alignment. Recall that feminists have long raised con-
cerns about the alienation, exploitation, and commodification of womens
reproductive and genetic labour and material,72 which new reproductive
technologies would foster, as well as the diminished appreciation and re-
69 Ibid at 822.
70 See ibid at 825.
71 See ibid at 829.
72 See Carolyn McLeod & Franoise Baylis, Feminists on the Inalienability of Human
Embryos (2006) 21:1 Hypatia 1 at 1.
218 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
spect for children commodified as potential life.73 Feminists continue to
stress that embryo research requires womens bodies to source the eggs
that will become the embryos on which scientists wish to research and
which biotech companies wish to mine for lucrative genetic information;
although in vitro embryos do not grow inside a uterus, they nonetheless
emanate from an egg harvested from a womans body.74 Feminists have
underscored the need for regulation to monitor such processes closely in
order to give women a fair chance of escaping the many potential sources
of coercion and exploitation surrounding stem cell research involving the
use of eggs, embryos, or fetal tissue.75
More to the point, feminists have also flagged concerns about the em-
bryo involved in reproductive technologies. They have been concerned
with embryo commodification and alienability in biotechnological practic-
es and with the ascent of property rights and property discourse in gen-
eral with respect to human tissue.76 As Carolyn McLeod and Franoise
Baylis have noted, feminists have articulated multiple arguments against
this commodification with respect to the embryo.77 Those objecting to
73 Jennifer Nedelsky, Property in Potential Life? A Relational Approach to Choosing Le-
gal Categories (1993) 6:2 Can JL & Jur 343 at 350-51.
74 See ibid; Franoise Baylis, Animal Eggs for Stem Cell Research: A Path Not Worth
Taking (2008) 8:12 The American Journal of Bioethics 18 at 19, 26-29; Franoise Bay-
lis, Betwixt and Between Human Stem Cell: Guidelines and Legislation (2002) 11:1
Health Law Review 44; Dolgin, supra note 12; Rebecca Dresser, Stem Cell Research:
The Bigger Picture (2005) 48:2 Perspectives in Biology and Medicine 18; Samantha
King, Designer Babies, Stem Cells, and the Market for Genetics: The Limits of the As-
sisted Human Reproduction Act (2007) 32:3-4 Canadian Journal of Communication
613 at 616-17.
75 Franoise Baylis & Carolyn McInnes, Women at Risk: Embryonic and Fetal Stem Cell
Research in Canada (2007) 1:1 McGill JL & Health 53 at 67. This literature includes
those feminists supportive of women being (properly) paid for oocytes and other regen-
erative tissue rather than serving altruistically. See Catherine Waldby & Melinda
Cooper, From Reproductive Work to Regenerative Labour: The Female Body and the
Stem Cell Industries (2010) 11:1 Feminist Theory 3 (where the authors discuss the
ways in which the global community is capitalizing on womens reproductive biology).
Waldby and Cooper explore the stem cell and regenerative medicine industries, empha-
sizing that these industries serve to mobilize female bodily productivity to support bio-
medical research; yet, the economic value involved in these transactional relations
(ibid at 5) remains largely unacknowledged.
76 See Suzanne Holland, Contested Commodities at Both Ends of Life: Buying and Sell-
ing Gametes, Embryos, and Body Tissues (2001) 11:3 Kennedy Institute of Ethics
Journal 263; McLeod & Baylis, supra note 72 at 11 (although noting that an anticom-
modification view of embryos grounded in their personhood violates feminist commit-
ments to reproductive autonomy and otherwise); Bronwyn Parry & Cathy Gere, Con-
tested Bodies: Property Models and the Commodification of Human Biological Arte-
facts (2006) 15:2 Science as Culture 139.
77 Supra note 72 at 1.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 219
commodification on the ground that an embryo is a person or otherwise
intimately connected to or constitutive of personhood or selfhood,
McLeod and Baylis classify as incompatible with a pro-choice position and
relational feminist understandings of autonomy in general.78 Yet, McLeod
and Baylis allow that a feminist concern for reproductive and relational
autonomy does not rule out ethical regard for the embryo in vitro and spe-
cifically state that commodification of human embryos is a legitimate
feminist concern.79
In building their argument, McLeod and Baylis list Cynthia Cohens
five reasons that human gametes are deserving of a derivative dignity:
they (1) originate from humans; (2) are life-giving bodily bits and pieces
integral to a function of special import to human beings, reproduction; (3)
exhibit the genetic distinctiveness of their human originators; (4) are the
medium through which unique human beings are created; and (5) are in-
tegral to our relational lives.80 McLeod and Baylis note that these features
also extend to human embryos.81 While impugning a conclusion of blanket
inalienability based on these features or other considerations,82 McLeod
and Baylis leave open the idea of ascribing embryos with dignity and re-
spect, especially, it would appear, in situations where women involved in
assisted reproductive procedures develop a particular attachment to their
embryos.83
Jennifer Nedelsky echoes this sensibility in her arguments against the
application of a property discourse or property as a legal category for in
vitro embryos. She also worries that selecting property as the legal cate-
gory to describe human potential life such as gametes, zygotes, and em-
78 Ibid at 2. The authors also note other problems with the position from a feminist per-
spective: (1) it is pronatalist; (2) it threatens womens reproductive autonomy; (3) it is
unresponsive to various interpretations of bodily integrity that women may hold; and
(4) it is biologically reductionist in assuming that all body parts are ethically meaning-
ful (ibid at 10).
79 Ibid at 2.
80 Cynthia B Cohen, Selling Bits and Pieces of Humans to Make Babies: The Gift of the
Magi Revisited (1999) 24:3 Journal of Medicine and Philosophy 288 at 296-98.
81 Supra note 72 at 8.
82 See ibid at 10-11.
83 Ibid at 9. The authors point out, however, that these situations in which women retain
a connection to their embryos at most … establish that some persons … may perceive
their embryos as fully or partially inalienable to them. As arguments, they fail to prove
that embryos are inalienable to all persons, or even to all female persons, given a femi-
nist conception of persons as relational embodied beings (ibid at 10). This position also
aligns with feminist literature on pregnancy loss. See e.g. Kate Parsons, Feminist Re-
flections on Miscarriage, in Light of Abortion (2010) 3:1 The International Journal of
Feminist Approaches to Bioethics 1; Linda L Layne, Breaking the Silence: An Agenda
for a Feminist Discourse of Pregnancy Loss (1997) 23:2 Feminist Studies 289.
220 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
bryos would do violence to the sense of attachment that women and men
have to the potential life they have created.84 Nedelsky believes that these
materials of potential life are due a separate legal regard if we are to re-
spect the attachment of persons to them as well as the children ultimately
born from them. She also believes that the common sense flinching at
thinking of a fetus as property … [is] not simply [an] emotional respons[e]
that we should discount.85 She is clear, however, that this nonproperty
treatment should in no way interfere with a womans ability to terminate
her pregnancy, which is an essential ingredient of a relational view, ac-
cording to Nedelsky, of what autonomy requires.86
Marie Fox has also allowed the human embryo an ethical status. She
wishes to step out of paradigms that query whether the human embryo
should be classified as a person or as property, as she finds the embryos
residence in either category to be inappropriate.87 Mindful of the emerg-
ing international consensus on the legal status of the embryo as halfway
between person and property, Fox counsels a different, nondualistic, and
nonanthropocentric paradigm to imagine the embryo.88 She advances the
conceptualization of the human embryo as a cyborg entitypart organism
and part machinenot only to bypass the polarizing choice of designating
it as either property or a person in law, but also to connect it to other
marginal beings in law. As Fox writes:
Designating embryo bodies as cyborgs opens up productive new
ways of thinking in which we can acknowledge that as a technologi-
cal life-form they certainly matter, but leave open for debate the
question of how much they matter … Situating [the cryo-preserved
human embryo] within this complex matrix of biotechnological enti-
ties … forces us to confront the more important question of how
much cyro-preserved embryos matter relative to other creatures.
Thus we are faced with the question whether they matter more than
the women whose eggs produced them or the sentient animals who
were subjected to experimentation to bring them into existence.89
Fox, much like Nedelsky, and McLeod and Baylis, promotes a relational
way of seeing embryos by inviting us to consider the broader relations of
power that animate their existence and the anxiety over their status.
84 Nedelsky, supra note 73 at 357-62.
85 Ibid at 354.
86 Ibid at 364-65.
87 Pre-persons, Commodities or Cyborgs: The Legal Construction and Representation of
the Embryo (2000) 8:2 Health Care Analysis 171 [Fox, Cyborgs].
88 Ibid at 181.
89 Ibid at 182.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 221
C. Philosophical Compatibility
In the feminist arguments canvassed, I do not see widespread applica-
tion of the concepts of respect and dignity for embryos, but rather efforts
to embed and embody the embryo in relation to women and, in the case of
Fox, to nonhuman animals. This renders more understandable the unease
with the commodification of embryos and thus the conclusions that em-
bryos merit some type of ethical regard that distinguishes them from
property or mere thinghood. If anticommodification concerns formed the
rationale for critical scholars to protect human tissue, including embryos
and fetuses, by applying the concepts of respect and dignity to them,
then this ethical move would appear compatible with a pro-choice feminist
position on abortion.
It appears, then, that it is possible to ascribe an ethical regard to em-
bryos amounting to respect and dignity under feminist positionings with-
out investing in sanctity of life or even (nonhuman-unfriendly) human
dignity arguments. But this philosophical compatibility does not address
the question we need to ask to evaluate the impact of feminist support for
something like the AHRAnamely whether, in practice, a discourse of re-
spect for in vitro embryos promotes a feminist understanding of the issues
at stake to the public or whether it imparts, instead, a pro-life viewpoint.
The next part takes up this question.
IV. Respecting Embryos and Abortion RightsPractically Possible?
As Samantha King has noted in discussing the limits of the AHRA,
feminists reviewing limits on embryo research can fall into dualistic
thinking due to a fear that any perceived concern about embryos will cede
territory to anti-choice forces.90 This proclivity to adhere to an absolutist
position may prevail despite theoretical agreement (as per one or more
arguments above) that respect or dignity for both embryos and women
can co-exist. While the dualism is unfortunate, there seems to be real
cause for worry, even in Canada, where the influence of anti-choice forces
is notable in a statute like the AHRA, which does not make any stipula-
tions regarding the in utero embryo, but only the in vitro one. The poten-
tial for competing public discourses to occlude feminist explanations for
the legislation is thus an important element to consider in deciding
whether feminists are able to support the AHRA in its current form. This
part discusses three reasons to be concerned.
90 Supra note 74 at 617. See also Fox, Cyborgs, supra note 87.
222 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
A. Inactive Regulator
On January 12, 2006, nearly two years after the enactment of AHRA,
the Assisted Human Reproduction Agency of Canada (the AHRAC) was
established.91 It was immediately responsible under the AHRA for over-
seeing the regulation of assisted human reproduction activities and en-
forcing prohibitions in the legislation.92 Yet, it was not until almost three
years after the AHRAs enactment that the federal government, led by
Conservative Prime Minister Stephen Harper, announced the appoint-
ments of a president, chair, and eight board members to the AHRAC.93
Canadian media sources heavily criticized the makeup of the board as one
with strongly conservative social ideals in this area, and even a decidedly
anti-abortion agenda.94 Since then, it has been observed that the AHRAC
has not carried out any discernible substantive regulatory work other
than organizing conferences for its staff.95 Interestingly, in its March 2012
budget, the federal government announced that the AHRAC would be
disbanded by March 2013. The provisions in place requiring the licensing
of research facilities would also be disbanded.
Even with the AHRAC scheduled to discontinue in March 2013, some-
one will need to enforce the regulatory framework developed with respect
to the parameters around the use of in vitro embryos for research purpos-
es under section 10 of the AHRA. It is difficult to predict the outcome of
this process, as Health Canada has not yet developed regulations for this
section.96 Health Canada has as of now developed regulations only for sec-
91 See Health Canada, Assisted Human Reproduction, online: Health Canada
92 See ibid.
93 See Paul C Hbert & Amir Attaran, A Plea for Transparency in Canadas New Gov-
ernment (2007) 176:5 Canadian Medical Association Journal 601, online: Canadian
Medical Association Journal
94 See e.g. Regulatory Board Lacks Balance, The [Montreal] Gazette (8 January 2007);
The Fertility Watchdogs Conservative Weighting, The Globe and Mail (29 December
2006) A18; Carolyn Abraham, Critics Troubled by New Fertility Panel, The Globe and
Mail (23 December 2006) A1.
95 See e.g. Laura Eggertson, Demands Made for Inquiry into Operations of Reproductive
Health Agency (2011) 183:1 Canadian Medical Association Journal E21; Tom Black-
well, Government Shutters Agency That Oversees Canadas Fertility and Assisted Re-
production Industry, National Post (30 March 2012), online: National Post
Memo Outlines Plan, National Post (15 October 2010) A9.
96 According to Health Canadas website, Health Canada has decided to delay the pre-
publication of draft regulations in Canada Gazette, Part I, until an opinion is provided
by the Supreme Court of Canada on the constitutionality of parts of the Assisted Hu-
man Reproduction Act (AHR Act). Work continues unabated to develop proposed regu-
lations under the Act (Health Canada, Publication of Proposed Assisted Human Re-
EMBRYO RESEARCH RESTRICTIONS IN CANADA 223
tion 8 of the AHRA, which requires that the consent of donors be obtained
prior to the use of their reproductive material or in vitro embryos.97 Given
Health Canadas low public profile with respect to this issue so far, it is
unlikely that any discourse used to familiarize the public with the scope of
section 10 regulations will materialize to include a conscious distinction
between protection for in vitro embryos, and protection for embryos gen-
erally. The likelihood of this forecast is further supported by the disap-
pointing realization that, to date, neither the AHRAC nor Health Canada
has made any attempt to distinguish between in vitro and in utero em-
bryos in order to help Canadians understand that the basis for providing
protections for one does not automatically translate into protections for
the other. Even if Health Canada were to articulate this distinction to
Canadians, it seems unlikely that it would enjoy political support from the
current federal cabinet, given the latters pro-life leanings.
B. Rise of Pro-life Initiatives at the Federal Level
While Canada is a global leader in legalizing abortion and, as men-
tioned at the onset, one of three countries that do not specifically regulate
the practice, arguments about the sanctity of (human) embryonic life have
become visible again in Canadian public debate. Evidence of this was
found in the more recent consultation and parliamentary debates sur-
rounding embryo research.98 This constituency was also behind the Con-
servative private members bill seeking to introduce an Unborn Victims of
Crime Act.99 Most recently, this issue has gathered public attention
production Regulations Delayed until Supreme Court Appeal is Decided (17 February
2009), online: Health Canada
Supreme Court of Canada rendered a deeply divided decision in Re AHRA (supra note
19), striking down several AHRA provisions. Parliament has yet to respond to the Su-
preme Courts recent pronouncements. Assisted Human Reproduction Canadas
(AHRCs) website, however, acknowledges the recent Supreme Court ruling, points out
the provisions that remain constitutional (AHRC Board of Directors Strategic Plan,
2011-13, online: Assisted Human Reproduction Canada
and emphasizes that the AHRC still maintains its responsibility for the Acts prohibi-
tions and for informing Canadians on all matters relating to assisted human reproduc-
tion, including the risk factors associated with infertility (AHRC Chronology of
Events, online: Assisted Human Reproduction Canada
97 Assisted Human Reproduction (Section 8 Consent) Regulations, SOR/2007-137.
98 See discussion in Part II, above.
99 Bill C-484, An Act to amend the Criminal Code (injuring or causing the death of an un-
born child while committing an offence), 2nd Sess, 39th Parl, 2007 (first reading 21 No-
vember 2007). This bill was introduced by Ken Epp, Member of Parliament for Edmon-
ton-Sherwood Park, Alberat. See Backhouse & Deckha, supra note 24 at 261-64. Fol-
lowing this bill was Bill C-537, An Act to amend the Criminal Code (protection of con-
science rights in the health care profession), 2nd Sess, 39th Parl, 2007-2008, cl 1 (which
proposed to protect health care practitioners by making it a criminal offence to dismiss
224 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
through M-312, a motion introduced by Stephen Woodworth (Kitchener
Centre, CPC) calling for a special committee to debate the definition of
human being in subsection 223(1) of the Criminal Code.100 Pro-life sen-
sibilities have also affected the Governments international policies: wit-
ness its controversial decision to exclude abortion from its G8 health care
initiative regarding maternal and child health.101 Pro-life elements are
even resurfacing and acquiring influence in the more moderate Liberal
Party.102
Despite these legislative and executive initiatives, and the significant
and growing number of MPs that have indicated that they are anti-choice,
the majority of Canadian MPs are not. Thus, the likelihood of the Con-
servative government introducing legislation to regulate abortion and
having it enacted is minimal. Yet, with a politically conservative cabinet
able to influence the main government messages surrounding embryo re-
search,103 it is equally unlikely that articulating a distinction between the
moral status of in vitro and in utero embryos will be a government priori-
ty. It seems that it will be up to civil society voices to provide a more com-
plicated discourse from which the public can grasp the feminist rationales
behind the regulation.
an employee who refused to perform procedures offending the tenets of his or her reli-
gion. Particularly earnest is the definition of human life as an organism at any stage
of development). Similarly, Brent St Denis, Member of Parliament for Algoma-
Manitoulin-Kapuskasing, Ontario, introduced Bill C-543, An Act to amend the Criminal
Code (abuse of pregnant women), 2nd Sess, 39th Parl, 2008 (first reading 14 May 2008)
(which proposed to add pregnancy to the list of aggravating factors for the purpose of
sentencing).
100 RSC 1985, c C-46. Motion M-312 was debated on April 26, 2012, and September 21,
2012. On September 26, 2012, Parliament voted on Motion M-312, and it was defeated
203 to 91. For more information on the motion, including the powers and tasks of the
proposed special committee and a list of members votes, see House of Commons, Jour-
nals, 41st Parl, 1st Sess, No 466 (26 September 2012) [House of Commons, Vote No 466]
(detailed results available online: Parliament of Canada
101 David Akin & Meagan Fitzpatrick, Abortion Left Out of Canadas G8 Maternal Health
Plan, Global News (26 April 2010), online: Global News
Maternal Plan Should Unite Canadians: Harper (27 April 2010), online: CBC News.ca
102 See Joan Bryden, Liberals Fear Pro-lifers Trying to Take Over Weakened Federal Par-
ty, The Globe and Mail (8 February 2012), online: The Globe and Mail
Abortion, The Globe and Mail (25 September 2012), online: The Globe and Mail
from members of the Liberal Party: see House of Commons, Vote No 466, supra note
100.
103 See King, supra note 74 at 614.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 225
C. Rationales for Embryo Research Restrictions in Mainstream Media
A good source for this public education on feminist concerns would be
the mainstream media. It is difficult, however, to find media discussion
outlining feminist rationales for respecting the restrictions on embryo re-
search, let alone other prohibitions in the statute. Indeed, it is difficult to
find material regarding feminist messaging on reproductive freedom in
general or evidence of public scientific and cultural literacy regarding new
reproductive technologies. Since the enactment of the AHRA in 2004, a
wide range of issues affected by the legislation have been debated in
mainstream media.104 While there seems to be much discussion regarding
certain issues, such as the AHRAs impact on cloning research or on fertil-
ity treatment options, there has been much more limited discourse around
the rationales for the embryo research restriction provisions.105 Perhaps
more disconcerting, and as discussed below, this already limited discourse
is predominantly framed in terms of a dichotomy between those advocat-
ing for values that have traditionally been promoted by the anti-abortion
lobby, and scientists working in the field who favour more relaxed re-
strictions.
In fact, there are only a few media voices articulating any concern for
the risk to women and womens health as a reason to support the research
restrictions. A review of online databases of mainstream Canadian media
since the AHRAs enactment106 reveals some public discourse in which
womens bodies are visible in discussions related to the research re-
strictions. In particular, while the AHRA does not differentiate between
the use of fresh (i.e., created specifically for research) versus frozen
104 These issues include, for example, the impact of the AHRA on those seeking donated
egg, sperm, or surrogacy arrangements in order to have children, and related concerns
around fertility tourism due to sperm and egg shortages. There has also been media
discussion of the conservative makeup of the Assisted Human Reproduction Agency of
Canada, as well as the impact of the AHRA on human cloning research. This media
analysis was conducted using three online databases that cover major Canadian news-
papers and periodicals: Canadian Newsstand, CBCA Current Events, and CPIQ Cana-
dian Periodical Index. The search terms used, both alone and in combination, are as fol-
lows: Assisted Human Reproduction Act, AHRA, assisted reproduction, embryo
research, stem cell research, and research restrictions; the search was focused on
media produced after the AHRAs enactment in 2004.
105 For example, using the database CBCA Current Events and the search term Assisted
Human Reproduction Act, 194 results were obtained, with the vast majority dealing
with fertility treatment options and cloning research. Approximately 12 addressed the
research restrictions in some way and 2 made reference to feminist rationales for the
restrictions. Similarly, using the database CPIQ and the search term Assisted Human
Reproduction Act, 33 results were obtained with 15 dealing with fertility treatment is-
sues, 4 addressing the research restrictions in some way, and 2 articles in a feminist
magazine explaining feminist rationales for the restrictions.
106 See supra note 104 for methodology.
226 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
embryos, the debate over whether the use of fresh embryos should now be
expressly prohibited has addressed the issue of womens health. As
Franoise Baylis and her colleagues explain, allowing the use of fresh em-
bryos:
risks harming women because it increase the likelihood they will
need to undergo additional IVF cycles to have children. … [W]omen
who have given away their fresh embryos instead of freezing them
may have to agreeyet againto the risky and painful procedures
of ovarian stimulation and egg collection surgery.107
Baylis has also criticized the unrealistic hopes fostered by advocates
of stem cell research in swaying governments and other funders to divert
or waste intellectual and financial resources, all the while paying little or
no attention to the impact all of this has on the women who are expected
to provide the scientists with the eggs for their cloning research.108 In an-
other commentary, Jeff Nisker and Angela White express similar con-
cerns for the welfare of women if the use of fresh embryos is allowed, and
specifically, if physicians are not explicitly prohibited from asking women
undergoing fertility treatments to donate fresh embryos for stem cell re-
search. The authors believe that IVF patients may comply with this re-
quest because they trust that their physician would act in their best in-
terest, they fear offending the professional on whom they depend to help
them deliver a child, or they are influenced by the media.109 Academics
Baylis and Nisker are two of the few prominent commentators in Canadi-
an news sources articulating concern for womens health in discussions
regarding embryo research.110
Apart from these cases in the fresh embryo debate,111 most of the lim-
ited discussion on the rationales behind the research restrictions ignores
any feminist concerns, instead situating the issue between traditional pro-
107 Franoise Baylis et al, Nothing Extreme About Protecting Fresh Embryos, The Globe
and Mail (16 January 2007) A17.
108 Franoise Baylis, Stem Cell Research Fosters Unrealistic Hopes, The Vancouver Sun
(19 September 2005) A7.
109 The CMA Code of Ethics and the Donation of Fresh Embryos for Stem Cell Research
(2005) 173:6 Canadian Medical Association Journal 621 at 621. See also Donating
Fresh Embryos Should be Stopped: Ethicist, Alberni Valley Times (13 September 2005)
7; Sheryl Ubelacker, Doctors Should be Stopped from Seeking Fresh Embryos for Re-
search: Ethicist, Canadian Press (12 September 2005).
110 See also Franoise Baylis comments in Norma Greenaway, Two Sides Debate Fate of
Fresh Human Embryos, The Ottawa Citizen (3 January 2007) A3.
111 While there is much more nuanced discussion of feminist rationales behind the re-
search restrictions in feminist publications such as Herizons, ultimately, such feminist
media that explicitly work to present ideas outside of the mainstream perspective are
not indicative of the general publics understanding of the reasoning behind the AHRAs
restrictions.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 227
life values and the interests of scientists. For example, in one article enti-
tled Restricting Stem Cell Research Is a Mistake,112 the author notes:
[T]he most troubling aspects of the legislation … are the standards set for
stem cell research in relation to the fact that scientists are only permit-
ted to use existing embryos for research purposes.113 The author believes
this restriction is based on a lack of understanding about the science of
stem cell research and what an embryo really is and goes on to state that
using the moral standards of stem cell research opponents is misguid-
ed.114 Significantly, the author attributes the research restrictions entire-
ly to embryocentric moral issues and displays no understanding that
there may be other reasons to uphold the research restrictions. Indeed,
the embryocentric moral basis for the research restrictions is often as-
sumed. In one editorial piece, the author writes, if it is illegal under the
[AHRA] to produce human embryos for research, on what moral basis is it
acceptable to conduct research upon embryos created for a different pur-
pose, that of possible insemination? They are the same thing.115 The
writer has not only assumed that the prohibitions in the AHRA against
producing embryos purely for research purposes are embryocentric, but
has also extended this morally based rationale to explaining why research
on existing embryos should be prohibited on the same grounds.
Reports in mainstream media seem to have exclusively associated the
research restrictions with traditional anti-abortion values, thereby ren-
dering feminist rationales seeking to protect womens bodies from exploi-
tation invisible in the discussion.116 In several contributions to main-
stream media outlets, prominent bioethicist Margaret Somerville has ar-
ticulated her concern with the research restrictions in terms of respect
for the transmission of human life, which she explains is one of the new
kinds of respect for human life.117 Somerville states, the prohibition in
112 Steven Martinovich, Restricting Stem Cell Research Is a Mistake, Sudbury Star (19
March 2004) A11.
113 Ibid.
114 Ibid.
115 Using Embryo Stem Cells Crosses an Ethical Line, Editorial, The Vancouver Sun (14
August 2006) A8.
116 See also Dan Sparks, Stem Cell Research Fine, Method of Supply in Question, Kam-
loops Daily News (30 November 2004) A6 (in which the author objects to any kind of
embryonic stem cell research solely on the grounds that human life should be respect-
ed and protected from conception to natural death). Not only are feminist concerns
about the health and safety of women and the potential exploitation of women absent as
reasons to support the research restrictions , but also the issue is framed explicitly in
terms of respect for human life and in language reminiscent of the anti-abortion lobby.
117 Margaret Somerville, Respect for Life, Letter to the Editor, The Globe and Mail (17
January 2007) A18.
228 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the [AHRA] on creating embryos other than for in-vitro fertilizationthat
is, allowing their creation only if there is a possibility that they will be
given a chance at lifehelps to establish this kind of respect.118 In a more
disconcerting statement, Somerville states: [the AHRA] reflects the view
that to create embryos other than by sexual reproduction and other than
to help people have children is inherently wrong.119 Not only does this
marginalize feminist rationales for prohibiting the creation of embryos for
research purposes but it also assumes the embryocentric basis of the pro-
hibition.
It would appear that, as with the statute itself, with concern about
the embryo front and centre, womens bodies have become all but invisi-
ble in media discussions.120 This absence is worrisome given that cultural
iconography of the pro-life movement circulates even in Canada.121 While
the ideological power of pro-life messages may be much more resonant
in the United States and elsewhere, the image of the free-floating public
fetus made popular by visual media, pro-life documentaries, and the
routinization of ultrasound technology in obstetrics is also familiar to Ca-
nadians.122 Despite their urgent need, American feminists have not been
118 Ibid.
119 Margaret Somerville, The Ethics of Stem Cells, The National Post (20 August 2004)
A16.
120 King, supra note 74 at 613.
121 See e.g. Heather Mallick, The Role of Media in the Abortion Debate in 20th Anniversary
of Regina v. Morgentaler: Of What Difference? Reflections on the Judgment and Abortion in
Canada Today, Symposium, Toronto, 25 January 2008 (Toronto: National Abortion Fed-
eration & Faculty of Law, University of Toronto, 2008) 54, online: Pro Choice
(in
which Mallick notes, what happens in the United States matters a great deal as well,
largely because they have a lock on our culture and our media. Young people watch Amer-
ican TV shows and American movies; their cultural mores seep in at 55). She contin-
ues, I think if abortion rights disappear in the U.S., there will be a resultant anti-
choice pressure here transmitted via the media (ibid at 56).
122 See e.g.
Fetal Development, online: Abortion
in Canada
played). These images and the phenomenon of the fetishized public fetus (first described
as such by Rosalind Pollack Petchesky) are critically discussed in Janelle S Taylor, The
Public Life of the Fetal Sonogram: Technology, Consumption, and the Politics of Repro-
duction (New Brunswick, NJ: Rutgers University Press, 2008); Valerie Hartouni, Fetal
Exposures: Abortion Politics and the Optics of Allusion in Paula A Treichler, Lisa
Cartwright & Constance Penley, eds, The Visible Woman: Imaging Technologies, Gen-
der, and Science (New York: New York University Press, 1998) 198; Carol Stabile,
Shooting the Mother: Fetal Photography and the Politics of Disappearance in Treich-
ler, Cartwright & Penley, ibid, 171; Rosalind Pollack Petchesky, Foetal Images: The
Power of Visual Culture in the Politics of Reproduction in Michelle Stanworth, ed, Re-
productive Technologies: Gender, Motherhood and Medicine (Minneapolis: University of
Minnesota Press, 1987) 57.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 229
able to counter these messages with their own cultural images.123 Canadi-
an feminists thus do not have ready access to strategies and tactics that
can work to entrench respect for pro-choice positions should a rise in re-
sistance to abortion materialize from this media messaging. Pro-choice
feminists consequently find themselves in the difficult situation of sup-
porting a statute, in theory, due to feminist reasons that are not trans-
parent or accessible to the larger Canadian public and, in fact, have been
displaced by a pro-life reading of the statute.
D. Embodying Embryos in Law
Given this context, it becomes difficult to approve of the AHRA in its
current wording. Nedelskys work, in promoting womens autonomy but
counselling against property as a legal category for embryos implicated in
reproductive technologies, is instructive here. She recognizes the argu-
ments advanced by other feminists as to why a property discourse can be
empowering for women if sufficiently contextualized and rehabilitated from
propertys typical and prevailing exclusive and hierarchical meanings.124
Yet, she is still reluctant to proceed with property as a legal category and
paradigm for embryos, despite its possible recuperation. She writes:
In choosing a legal category perhaps the most important starting
point of inquiry is what the presumptions are, what will require jus-
tification, what norms will have to be argued against, what values
will be taken as given.125
Nedelsky later continues, The choice of legal category is a strategic one.
And the first step of the strategy is to ensure that the category will facili-
tate, rather than obstruct, the outcomes we most care about.126 Nedelsky
worries that classifying embryos as property would ultimately detract
from a relational understanding of autonomy for women and children
born from these technologies.127 Nedelsky articulates the difficulty en-
123 Indeed, Reva Siegel has noted the rising prominence in recent years of the claim that
abortion harms women and of corresponding, woman-protective anti-abortion argu-
ments. As she explains, [T]he antiabortion movement has borrowed core elements of
the pro-choice claim, and produced a woman-protective antiabortion argument that
mixes new ideas about womens rights with some very old ideas about womens roles.
Prohibiting abortion, the movement now emphasizes, protects womens health and
choices as mothers (New Politics, supra note 59 at 992-93).
124 Nedelsky, supra note 73 at 351-52 (discussing the influential work of Petchesky in this
regard). See Rosalind Pollack Petchesky, The Body as Property: A Feminist Re-vision
in Faye D Ginsburg & Rayna Rapp, eds, Conceiving the New World Order: The Global
Politics of Reproduction (Berkeley: University of California Press, 1995) 387.
125 Nedelsky, supra note 73 at 353.
126 Ibid at 354.
127 Ibid at 356.
230 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tailed in undoing a problematic legal category (property) once assigned,
especially one that is hegemonic, given the antecedent presumptions,
norms, and values. But it is for this very reason that feminists must be
alert to how the embryo is framed; in rejecting a property categorization,
they may also have to reject those representations that imply or approach
personhood for fetuses because of personhoods antecedent presumptions,
norms, and values. This is not to reinforce a dualistic property-personhood
framework, as Fox warns against, but to connect and embody the liminal-
ly located human embryo, regardless of its location.128
Thus, despite espousing relational theoretical commitments that may
be more generous to the embryo or fetus, feminists need to be concerned
about how the embryo in the in vitro context is represented and legally
protected because of the pro-life understandings of this protection that
dominate in the public sphere. Womens bodies need to be recentred even
with respect to in vitro embryos; a disembodied representation of the in
vitro embryo fortifies a reading of embryo personhood that imperils what
personhood should mean for women.129 Embodied feminist rationales, ra-
ther than pro-life understandings for the restrictions, need to be better
promoted in order for pro-choice feminists to endorse the AHRA. As it
stands now, feminist endorsement of the AHRA due to compatibility be-
tween feminist commitments and the statute in theory risks supporting in
practice the dominant embryocentric reading of the AHRA at the expense
of women. The final part of this article identifies some regulatory steps
that could help recuperate and promote a feminist reading of the statute
and thus enable pro-choice feminists to support the statute.
V. Recommendations for Reform
The AHRA is overdue for review.130 Revisions proposed by the federal
government so far are (1) to eliminate the AHRAC as of 2013 and (2) to
update the AHRA in light of the recent Supreme Court of Canada refer-
ence that struck down large sections (none pertaining to embryo research)
on federalism grounds after complaints from Quebec that the AHRA in-
truded on provincial jurisdiction in relation to health care.131 None of the-
128 See Fox, Cyborgs, supra note 87.
129 See Isabel Karpin, The Uncanny Embryos: Legal Limits to the Human and Reproduc-
tion Without Women (2006) 28:4 Sydney L Rev 599 at 623.
130 Legislative review was to occur three years after the coming into force of section
21(AHRA, supra note 6, s 70).
131 See Re AHRA, supra note 19. A five-to-four majority held the following provisions un-
constitutional and thus invalid, as they exceeded the ambit of the federal criminal law
power granted under the Constitution Act, 1867 ((UK), 30 & 31 Vict, c 3, s 91(27), re-
printed in RSC 1985, App II, No 5): sections 10 and 11, which prohibited controlled ac-
EMBRYO RESEARCH RESTRICTIONS IN CANADA 231
se proposed revisions, however, would address the concerns that have
been outlined thus far in this article. It is, then, still critical to consider
how the AHRA should be revised by feminists.
Feminist organizations have been working on proposals for revisions
with respect to the entire statute.132 I am unable to address here all the
revisions of the AHRA that could ensue from these feminist deliberations.
As Fox comments in her review of the reform process of parallel UK legis-
lation from 1990 that culminated in an amending statute in 2008, there
were at least three other issues in addition to the regulation of embryo re-
search that attracted feminist attention, and rightfully so: the definition
of the family; access to data held by the regulating authority; and genet-
ic screening of embryos intended for IVF.133 Similar observations can no
doubt be made about the AHRAthat it requires an overhaul beyond its
embryo research provisions and apart from the constitutional issues re-
garding federalism or the elimination of the regulator. This part focuses
on embryo research only, specifically the provisions relating to the
AHRAs restrictions on the use of the in vitro embryo and the problematic
embryo-centred reading they impart. Three changes to the statutory
wording are proposed to undo this centring.
A. Articulate the Feminist Reasons to be Concerned about the In Vitro Embryo
Currently, the ethical principles underlying the AHRA are delineated
in its section 2. This section includes a specific subsection highlighting the
heightened concerns that reproductive technologies present for women. It
reads:
The Parliament of Canada recognizes and declares that
…
tivities carried out contrary to regulations, including the manipulation, storage, and
destruction of human reproductive material, as well as transgenic engineering; section
13, which monitored the premises of the licensed controlled activity; sections 14-18,
which governed the collection, report, disclosure, and access to health reporting infor-
mation; subsections 40(2), 40(3), 40(3.1), 40(4), 40(5), 44(2), and 44(3), which enabled
the Assisted Human Reproduction Agency of Canada, in accordance with the regula-
tions, to issue licenses and inspect facilities. See also Barbara von Tigerstrom, Federal
Health Legislation and the Assisted Human Reproduction Act Reference (2011) 74 Sask
L Rev 33 and John D Whyte, Federalism and Moral Regulation: A Comment on Refer-
ence Re Assisted Human Reproduction Act (2011) 74:1 Sask L Rev 45.
132 I have participated in two workshops, one run by the National Association of Women
and the Law in 2007 and a recent one co-sponsored by the University of Manitoba and
the Canadian Journal of Women and Law.
133 Fox, Embryology Act, supra note 7 at 336-39 (commenting on the recently enacted
Human Fertilisation and Embryology Act 2008 (UK), c 22, amending Human Fertilisa-
tion and Embryology Act 1990 (UK), c 37, Surrogacy Arrangements Act 1985 (UK), c 49).
232 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
(c) while all persons are affected by these technologies, women more
than men are directly and significantly affected by their application
and the health and well-being of women must be protected in the
application of these technologies;
The current wording in subsection 2(c) recognizes that womens bodies are
more involved than mens in assisted reproduction. While this is a promis-
ing statement, it is inadequate to link concerns about health and well-
being to the rationale for embryo-use restrictions. More needs to be in-
serted into the statute to articulate this link and thus preclude the em-
bryocentric reading of the statute that would suggest a moral status has
been ascribed to the embryo.134 Further wording could be inserted directly
into subsection 2(c) as follows:
(c) while all persons are affected by these technologies, women more
than men are directly and significantly affected by their application
and the health and well-being of women must be protected in the ap-
plication of these technologies, especially in relation to the creation
and use of in vitro embryos;
In a statutory environment such as the AHRA, which implements signifi-
cant restrictions on embryo use, including research, the feminist basis for
the restrictions should be made explicit so that embryocentric rationales
do not dominate and obscure the concerns that embryo research raises in
regard to womens bodies.
For greater clarity that embryo research restrictions are adopted to
protect women and are not meant to assign a legal status to the embryo in
vitro due to an embryocentric vision, a provision such as the one that fol-
lows would be useful:
Section 2.1. Nothing in this Act is to be i) interpreted as ascribing
personhood or any other legal status to an in vitro or in utero embryo,
fetus or other unborn entity…
This type of wording does not frustrate a viewpoint that would imbue
the human embryo with dignity and respect. Yet, it bars an interpretation
that the statute is supportive of personhood or any new legal status for
the in vitro embryo and thus, by eventual extension, the in utero embryo.
It pre-empts arguments that would seek to conflate the in vitro embryo
with the in utero embryo and thus attempt to unsettle the jurisprudence
that denies personhood to unborn entities.
134 See Deckha, supra note 1 at 77-78.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 233
B. Affirm Womens Rights to Bodily Integrity and the Need for Abortion
Services Irrespective of the Moral Status of the Embryo
Although the legal status of abortion in Canada appears secure for the
foreseeable future, it is still useful to signal respect for womens reproduc-
tive freedoms in, at the very least, the policies the AHRAC is empowered
to create, if not in the statute itself. While feminists have shown why the
recognition of fetal personhood is not fatal to the defensibility of womens
right to abort,135 a provision affirming abortion rights would clarify the
precise scope of the AHRA. This could be accomplished by adding onto the
recommended provision above as follows:
Section 2.1. Nothing in this Act is to be interpreted as i) ascribing
personhood to an in vitro or in utero embryo, fetus or other unborn
entity; or ii) infringing on a womans right to security of the person
including, in particular, the right to choose whether to terminate her
pregnancy.
Such a provision would clarify that nothing in the AHRA, or in the way it
is interpreted or applied, competes or contradicts with the legal availabil-
ity of abortion. The inclusion of security of the person would signal the
legislative intent that the availability of abortion is protected by womens
section 7 Charter rights and would comply with feminist conclusions dis-
cussed above on how best to locate this right for women (i.e., not in priva-
cy but in bodily autonomy).136
C. Distinguish Between the In Vitro and In Utero Context in Terms of the
Ethics Raised
For clarity as to the AHRAs purpose and scope, the in vitro embryo
and the ethical issues it raises in the context of assisted reproduction
should be identified as distinct to it and not transportable to the in utero
context where other considerations prevail. For example:
Section 2.2. Nothing in this Act suggestive of ethical concerns regard-
ing the creation and use of in vitro embryos extends to embryos creat-
ed in the in utero context, where a womans decision-making capacity
about her body is paramount.
To the extent that the AHRA institutes respect or dignity for the in
vitro embryo, a provision such as this would guard against the extension
of these concepts to the in utero context. While some may still wish to vis-
ualize a separate entity in a womans body as worthy of respect and
dignity, at least the legislative intent would be clearer that it is not nec-
135 See Thomson, supra note 62.
136 See Part III, above. See also Joanna N Erdman, In the Back Alleys of Health Care:
Abortion, Equality, and Community in Canada (2007) 56:4 Emory LJ 1093.
234 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
essary to start thinking of in utero embryos in this fashion; the AHRA
would not serve to jump-start this conceptualization in public discourse.
For in utero embryos, their spatial location inside womens bodies and
their inseparability from this corporeality would be a critical point of ethi-
cal distinction.
Taken together, these three recommendations(1) highlight feminist
rationales for embryo concern; (2) affirm the right to abortion; and (3) dis-
tinguish between in vitro and in utero embryos as to how the AHRA
should be revisedwould make the statute more amenable to pro-choice
feminist support. If the recent reform process with respect to the UK leg-
islation in this area is a model to follow, obtaining these amendments may
well be a difficult task requiring, at the very least, a sustained messaging
campaign to make the feminist impact of these changes more apparent to
the public and Members of Parliament.137 It is instructive to learn from
Fox that feminist input on reforms to embryo research regulation in the
recent UK reform process was largely absent preceding the 2008 amend-
ing statute. This absence occurred despite the fact that embryo research
regulation was an area closely associated with feminist impact in the de-
bate leading to the original statute (as with the AHRA in Canada).138 Fox
observes that the focus on the ethics of embryo research and the status of
the embryo preceding the enactment of the original 1990 UK statute was
displaced by a different anxiety over embryos by the time the 1990 statute
came up for reformthe spectre of human-animal embryonic combina-
tions.139 As Fox notes, Dislodging the human embryo from its central and
problematic role in reprotechnologies has thus created the space for other,
less familiar, embryos to emerge and become the repositories of our hopes
and fears.140
Given the swift pace of reproductive and regenerative technology, by
the time the review process for the AHRA proceeds, the contours of the re-
form debate as compared with those of the debates leading up to the orig-
inal 2004 statute may also shift. Canadian feminists will need to scruti-
nize any new discourses commanding public attention for their feminist
implications. But, at the very least, for all the reasons mentioned here,
feminists will have to make embryo research regulation, and in particu-
lar, the question of the status of the embryo, a part of their contributions.
Adoption of the three steps outlined above would be a welcome feminist
137 See Fox, Embryology Act, supra note 7 at 342.
138 Ibid at 340. See Backhouse & Deckha, supra note 24.
139 Marie Fox, Legislating Interspecies Embryos in Stephen W Smith & Ronan Deazley,
eds, The Legal, Medical and Cultural Regulation of the Body: Transformation and
Transgression (Surrey: Ashgate, 2009) 95 at 98.
140 Ibid.
EMBRYO RESEARCH RESTRICTIONS IN CANADA 235
development to help maintain the current Canadian permissive legal po-
sition on abortion.
Conclusion
In Canada, feminists provided the early catalyst for government delib-
erations that eventually culminated in the enactment of the AHRA in
2004. With respect to regulating in vitro embryo research, feminists sup-
ported restrictions due to concerns about the exploitation of women that
might occur in the pursuit of eggs from which to create research embryos.
Others, however, spoke of the need to respect embryos as a basis for re-
strictions on their use in research. This position raises the theoretical
question of whether it is possible for pro-choice feminists to advocate re-
spect for the in vitro embryo based on rationales that do not imperil pro-
choice arguments. I have argued here that it is possible to do so by locat-
ing this recognition of respect for in vitro embryos in feminist values of
anticommodification, anti-exploitation, and relational thinking.
Despite this theoretical consistency, however, it is unlikely that such a
feminist understanding of the restrictions occupy a marked place in the
minds of the public. Instead, pro-life sensibilities about why embryos de-
serve respect have emerged as dominant, encouraging the discursive con-
nection between pro-life protection of embryos and the current legislation.
Apart from a few contributions in the context of the fresh or research em-
bryo issue, it is difficult to find publicly available reports outlining any
feminist reasons for respecting the embryo research restrictions now leg-
islated in the statute, much less nuanced discussion of these rationales.
Given this void in mainstream media and official government publica-
tions, particularly on the AHRAC website141 and in Hansard debates after
the AHRAs passage, it seems unlikely that the public would understand
feminist rationales for the research restrictions.
Instead, the public is more likely to view the restrictions as a compro-
mise position between scientists and those promoting anti-abortion val-
ues, despite the feminist forces that advocated for such provisions in the
first place. Indeed, this is how the issue was taken up in parliamentary
debates preceding the AHRAs enactment. This distorted understanding
of the rationale for embryo research restrictions may have detrimental ef-
fects on how the public perceives embryos in general and thus affect the
public perception and support of abortion practices. To counter this poten-
tial spillover effect and popularize feminist explanations of the statute
that do no imperil support for abortion, the AHRA should be revised with
provisions that make the connection between embodied feminist ration-
141 Online: Assisted Human Reproduction Agency of Canada
236 (2012) 58:1 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
ales and embryo research restrictions clearer. The change should (1) ar-
ticulate the feminist reasons to be concerned about the in vitro embryo;
(2) affirm womens rights to bodily integrity and the need for abortion ser-
vices irrespective of the moral status of the embryo; and (3) distinguish
between the in vitro and in utero context in terms of the ethics raised.
