Prohibitions infringing on Charter Rights

Examining the Logic defending Commercial Reproductive Labour and Medical Assistance in Dying

Kathryn Morrison The University of

Waterloo

Disclosure

I have no actual or potential conflict of interest in relation to this topic or presentation.

The Issue • Recent Supreme Court decision decriminalizing

Medical Assistance in Dying (MAID) • Change in approach to protecting vulnerable persons • Examination of Vulnerability in…

• Assisted reproduction • Health law and policy more broadly

Prohibitions Vulnerable Groups ?

Structure • Purpose: Explore effectiveness of absolute

bans/prohibitions in protecting the vulnerable… • Carter decision • Assisted reproduction

• Background: The Carter decision and the Assisted Human Reproduction Act (AHRA)

• Part A: Compare Carter Decision and AHRA • prioritize protection of vulnerable, problem of illegal

arrangements • Part B: Speculate section 7 charter challenges to the AHRA • Part C: How the AHRA misses the mark on vulnerability

The Carter Decision

The question: Should patients have access to MAID?

The Carter Decision

• MAID: consists of assisted suicide and voluntary euthanasia

• Criminal Code

• Section 241(b): aiding or abetting person committing suicide is an indictable offence

• Section 14: no person may consent to death being inflicted on them

The Carter Decision

• Case on appeal from British Columbia • The trial judge: 241(b) violates section 7 rights, not

saved by section 1 • Appeal: trial judge is bound to Rodriguez v. British

Columbia

• (2015) Supreme Court: sections 241(b) & 14 unjustifiably infringe section 7 of Charter • competent adult person • clearly consents to termination of life • grievous and irremediable medical condition causing

intolerable suffering

The Carter Decision • Rationale for prohibition: protect vulnerable

persons from committing suicide at a time of weakness

• Rodriguez: total ban on MAID protects vulnerable persons • Not arbitrary deprivation of rights

• Carter: prohibition catches people outside group it is meant to protect • Deprivation of rights not connected to the objective of

prohibition in some cases • The way forward: regulation

The Debate on Assisted Reproduction

The question: Should surrogates and egg donors receive payment for their services?

http://www.selectivf.com/surrogacy/egg-donor-surrogacy-india.php

The Debate on Assisted Reproduction

• Commercialization – compensating surrogacy and egg donation as a service

• Re-imbursement – covering costs of incurred expenses related to surrogacy or egg donation

Commercial Re-imbursement

Payment

The Debate on Assisted Reproduction • Currently illegal under Section 6 of the Assisted

Human Reproduction Act

• Currently illegal under Section 7 of the Assisted

Human Reproduction Act

• Paying surrogate mother for services

• Paying/offering to pay/placing an advertisement to arrange the services of a surrogate mother

• Surrogacy under the age of 21 • Advising a woman under the

age of 21 to become a surrogate mother

• Egg and sperm donors must be altruistic (cannot be paid)

• Any commercial transaction involving an in vitro embryo is a crime.

http://ivfinindia.in/surrogate-mother-mumbai-india

The Debate on Assisted Reproduction

• Currently Illegal under Section 12 of the Assisted Human Reproduction Act

• The prohibitions in AHRA motivated by guiding principles • Protect women’s choice autonomy (a woman’s right to

choose what happens to her body) • Prevent exploitation • Protect the integrity of the human genome

• Reimbursement of a surrogate mother for an expenditure incurred by her in relation to her surrogacy

• Reimbursement of a surrogate mother for loss of work-related income incurred during pregnancy

Part A • Both AHRA and sections 241(b) and 14 of

criminal code aim to protect vulnerable persons • AHRA protect vulnerable persons at risk of exploitation • 241(b) and 14 protect vulnerable persons from being

induced to suicide at time of weakness

• Now measures to protect vulnerable persons diverge • Blanket prohibition v. regulation

Part A • Commercial reproductive surrogacy/egg

donation and MAID confront similar issues • MAID: concern for premature suicide, medical

tourism • Surrogacy/egg donation: concern for illegal

arrangements, trans-national surrogacy

Part A • Should there be consistency between the two

strategies to protect the vulnerable?

• Does the prohibition of commercial reproduction also overreach the class of vulnerable groups legislation is meant to protect? • In each case, no formal definition of vulnerability

is provided • Paragraph 14 Carter v. Canada • Rodriguez?

Part B • AHRA: suppose a regulatory approach is

sought instead of absolute ban

• How might one make a charter challenge against the AHRA?

Part B • Section 7 – right to life liberty and security of the

person

• Infringement of • Right to liberty

• denies women the opportunity to make decisions about their reproductive labour

Part B • Section 7 – right to life liberty and security of

the person

• Infringement of • Right to security of the person

• Potential for harm in cases of illegal arrangements • Threaten health and bodily integrity

“I understand not being paid or having your phone bill not covered, but if nothing is, I definitely wouldn’t… I’m not doing it for the reimbursement, but having security for my family is very important.” - Alexandria Faith Carter, surrogate

“I’m donating my time and body… If this [enforcing section 12] were the case, I’d be paying to have someone else’s baby . . . how does that make sense?”

Part B • Violate principles of fundamental justice • Runs afoul of our basic values (Canada (Attorney

General) v. Bedford) – slippery slope? • Arbitrariness: no connection between cause of

challenge and limits on section 7 rights X • Overbreadth: law goes to far, arbitrary interference

with other conduct • Gross disproportionality: seriousness of effects

disproportionate relative to objective

Part C • Pregnancy chances favored over egg donor health

• Ideally between six and twelve eggs per cycle • Overstimulation: produce a large number of eggs, increase

chances of recipient pregnancy

• Anecdotal reports • Informed typical harvest somewhere between 10 and 15

eggs • In reality >35 eggs, 45 eggs, 60 eggs

Part C • Payment arbitrary? Commercial interests already play a

role in assisted reproduction • No mechanism record/monitor the treatment and

experience of egg donors • To track their health and safety

• Low awareness among egg donors of physical risks associated with egg production • Unprepared for the intense physical and emotional experiences

during and after procedure • Little information about long-term risks of ovarian stimulation

and egg retrieval

• Ovarian, endometrial, breast cancers

• Pelvic pain • Ovarian cysts

• Fibroids • Thyroid disorders

Part C

• IVF clinics are profit orientated - no financial incentive to conduct follow-up research? • Surrogates/Egg donors promised benefits for consent, not

provided • Lack of follow-up – referrals to own gynaecologist upon new

symptoms

Part C • How to understand who falls into vulnerable groups?

• Multiple vulnerable groups • Surrogate/Donor, Intended Parents, Child

• Distinguishing exploitation and vulnerability • Exploitation is not well defined in the Assisted Human

Reproduction Act • Canada (A.G.) v. Bedford

• Could other legislation be affected? • Health Care Consent Act • Youth Criminal Justice Act

References • Bill C-6. An Act respecting assisted human reproduction and related research.

2004. 37th Parliament, 3rd Session. • Canada (Attorney General) v. Bedford. 2013 SCC 72. The Supreme Court of

Canada. 2013. Retrieved From: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do

• Canadian Charter of Rights and Freedoms. 1982. Part I of the Constitution Act, being Schedule B to the Canada Act 1982 (UK), c11.Retrieved from: http://laws-lois.justice.gc.ca/eng/const/page-15.html

• Carter v Canada. 2015 SCC 5. The Supreme Court of Canada. 2015. Retrieved from: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14637/index.doc

• Cribb R, Jarratt E. 2016. Attempts to clarify surrogacy rules could hurt altruistic surrogates in Canada. The Toronto Star. Retrieved from: https://www.thestar.com/news/world/2016/10/09/attempts-to-clarify-surrogacy-rules-could-hurt-altruistic-surrogates-in-canada.html

• Gruben, V. 2013. Women as Patients, Not Spare Parts: Examining the Relationship between the Physician and Women Egg Providers. Canadian Journal of Women and the Law. Vol. 25; No. 2. pp. 249. Retrieved from: http://www.utpjournals.press/doi/pdf/10.3138/cjwl.25.2.249

• Rodriguez v British Columbia (Attorney General). 1993 SCR 3. Supreme Court of Canada. 1993. Retrieved from: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1054/index.do