The Baird Commission has accomplished a huge task in its survey of the multitudinous factors involved in human reproduction and the use of new reproductive technologies. It bases its considerations on an enormous range of information, from minute technological details involved in the new technologies, to the broadest possible range of attitudes towards and social implications of their use, including surveys of policies adopted by other countries. Whether or not one finally agrees with the stance and recommendations of the Commission, the work will remain for a long time a mine of information assembled from myriads of otherwise relatively inaccessible sources, as well as from extensive surveys of opinion, both from experts and from the general population.
In addition to having assembled a huge amount of information, the Commission also takes pains to give a balanced account of the arguments for and against both its underlying assumptions and its specific recommendations. It also gives a careful account of the moral and legal principles on which it bases its recommendations for provision, management and prohibitions in relations to the new technologies. These principles are bound to be controversial in themselves, even for those recommendations with which one might agree on other grounds. Though one cannot but admire the thoroughness and dedication with which the Commission approached its enormous task, some of the applications and ordering of the underlying principles which organise its work nonetheless involve serious threats to the civil liberties of Canadians. It is these principles that I will address first.
The general principles to which the Commission’s Report appeals are the preservation of human dignity, and avoidance of harm to society that would occur were human dignity undermined by the use of these technologies. Furthermore, its arguments for its specific recommendations refer back to those principles, without in each case balancing what it considers to involve harm to society against the costs involved both for individuals and for society in limiting the range of individual choices, and without being specific about the kind of harm it fears society may suffer.
Therefore, though some of the issues raised in the Baird Commission’s Report on reproductive technologies do not fall within the specific mandate of the BCCLA, the general principles and modes of argument on which it is based do, particularly since the Report proposes severe legal restrictions on a whole range of citizen activities without in each case giving an adequate account of how those activities might harm others, or society as a whole. Therefore, it brings into play the traditional Millian civil libertarian concern for preserving reasonable limits to the power of government to infringe upon the private lives of citizens. Furthermore, the basic assumptions and ways of thinking on which the entire Report is based raise serious issues about the role of civil libertarian principles in Canadian law and jurisprudence, and in this way, as well, are deeply relevant to the relation between Canadian citizens and their government.
A. “Ethics of care” & competing social values
As the title of the Commission’s report suggests, the fundamental assumptions are based on the “Ethics of Care”, an ethical conception that has taken shape in recent years under the influence of the women’s movement. The report defines the ethic of care as that which:
holds that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests. Rather, moral wisdom and sensitivity consist, in the first instance, in focusing on how our interests are often interdependent. And moral reasoning involves trying to find creative solutions that can remove or reduce conflict, rather than simply subordinating one person’s interests to another. The priority, therefore, is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community. (52)
This formulation has the virtue of encouraging people to think carefully about reconciling competing interests, when that is possible, rather than deciding among them. However, when all such efforts are exhausted, one still confronts the ordinary ethical predicaments involved in giving priority to one or another value, and precisely in “finding rules to arbitrate between conflicting interests”.
The report uses the language of the ethics of care to assert as its fundamental principle its interest in preserving the dignity of all human life. On these grounds the report objects to any practice that would commodify human life, and in order to guard against such commodification it asserts that dignity and respect must be accorded to the reproductive process in general and to all products, tissues, and components of that process. The report’s reasoning is that if the reproductive process is commodified, human dignity, and particularly the respect for the dignity of women, will be jeopardised, thereby causing harm to society. While the report considers the impact of these technologies on many different groups, it emphasises the impact of these technologies on women, because women’s lives are more intimately involved in reproduction than are men’s, and their reproductive capacities profoundly affect attitudes towards women’s role in society as a whole. In its introductory survey of women’s opinions, it emphasises the fears and objections women’s groups have raised, and summarises this discussion by saying:
In this view, society has a collective responsibility to women, which may require limiting choices by individual women if these choices promote harmful social perceptions of womanhood or detrimental attitudes toward women as a group. (37)
cknowledging that many women look to the new technologies to enhance their well being, from another perspective:
the collective interest of women as a social group should take precedence over the interest of individual women [and ] the interest of society as a whole over the interests of families at risk, (41)
This section concludes with the assertion:
[I]t is clear that these are not separable alternatives: both individual and collective interests must be taken seriously in a humane and caring society. (41)
While the chapters that follow give the impression that they are reconciling individual and collective interests, in fact what is presumed to be the collective interest in preserving human dignity takes precedence over claims for individual autonomy.
For its definition of human dignity, the Commission invokes the Kantian principle that all human beings should treat each other as ends in themselves rather than as merely means to an end. No one in modern times argues against this principle (however frequently it is violated in practice), nor with the related argument for maintaining respect for all human life.
The Commission enters more disputed territory when it takes a questionable, and even irrational, leap of faith in assuming that in order to preserve the dignity of life in general and of therefore of the individual, the sense of the sacred must be extended to human sperm, eggs, zygotes, foetuses, and foetal tissue—in short, to any tissue that is produced by or involved in human reproduction. The Commission’s insistence that human tissues are in themselves deserving of respect, that they in some way deserve to be treated as ends in themselves rather than as means to an end, is not applied consistently. Indeed, were it applied consistently the Commission could not sanction, as it does, in vitro fertilization, artificial insemination, or sperm and egg donation, or the use of foetal tissue in medical research.
There are several questionable aspects of this reasoning.
First, though it raises objections to some aspects of the new technology on the ground that it will reinforce the tendency to equate women with their reproductive capacities, the report itself inadvertently supports this equation by arguing that women’s dignity depends upon the dignity accorded the reproductive process itself. It is by no means clear that a woman who thinks about her reproductive capacities as a way of helping others or of financial gain thereby loses her dignity. Nor does it follow that if one regards a person’s eggs, sperm, or womb as a means to an end that one thereby regards the person as a means to an end, rather than an end in her or himself.
Second, there is no evidence that the capacity of human beings to exercise more control over their reproductive processes than nature has allowed by treating tissues as commodities thereby threatens the dignity of human beings. People who have paid large sums of money to adopt children, who have in that sense been commodified, from third world countries manifest no tendency to treat the child they have adopted with any less dignity and respect because they have bought it.
Third, and most important, the report gives a very partial account of human dignity. It is certainly true that if one is deprived of rights accorded to other citizens, scorned and denigrated by the majority of the population, and rendered a second class citizen, one’s dignity suffers. In this situation, one might well look to the law for protection from the indignity heaped upon one by one’s fellow citizens. In this sense, dignity is something that we accord to each other, rather than something that we assert. However, even in such circumstances, the sense of dignity is deeply related to empowerment.
To be helpless in the power of others is to be undignified, deprived of the capacity to exercise one’s autonomy. Dignity is not merely something that is conferred upon us passively; a central component of dignity consists of an active sense of autonomy, and anything that unnecessarily diminishes one’s sense of autonomy threatens one’s dignity.
In affirming the value of human dignity, the report regularly defines dignity in the passive mode, and overlooks or undervalues the importance of a sense of autonomy, often phrasing individual autonomy as a threat to women’s dignity, inadvertently adopting a modern version of traditional paternalistic attitudes towards them. This neglect of the relation between human dignity and individual autonomy allows for too facile an equation between the good of society and human dignity, and it deflects attention from the harm that can come to society by the loss of individual autonomy. In this way, it obscures the possible conflicts between the goods that accrue to individuals and society from the ensuring that individuals have as broad a range as possible in which to exercise their autonomy and the goods that accrue to both from its limitation.
This mistaken reasoning gives rise to their assumption that the welfare of the community will be jeopardised if the new options made possible by innovations in reproductive technology are allowed to enhance the autonomy of individuals by increasing their range of choice much beyond that allowed by nature. This thinking is taken to an extreme when the Commission equates social good with preventing the new technology from giving rise to novel problems and unforeseen moral dilemmas.
To limit people’s freedom of choice for fear of consequences that might arise in the future, and therefore necessarily without evidence, not only violates individual rights and erodes the foundations of a democratic polity; such thinking if implemented would halt all social progress. Any change brings with it new problems and dilemmas. To design legislation to prevent such dilemmas from arising, rather than dealing with them as they arise, would squelch all enterprise and initiative and result in a static and dreary society.
Another conception fundamental to the report is that all people should have equal access to the new technology. This argument has two aspects. First, and one for which we commend the Commission, is its forceful recommendation that the technology should be available equally to hetero and homosexuals, to married and unmarried women and to the normal and the physically disabled, and to its objection to any standard of fitness being requisite for access to artificial insemination.
The second, ideologically appealing but more problematic, recommendation appears in the report’s insistence that the technologies be available to all Canadians equally, regardless of economic differences. Part of this recommendation claims to based on the Charter of Rightsand human rights codes, which
would prohibit discrimination on the basis of such historically disadvantaging factors as sex, marital status, sexual orientation, and social or economic status. (455).
This inclusion of “economic status” in Charter protections is misleading. Section 6.4 of the Constitution Act affirms provincial rights to legislate in order to ameliorate the “socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada”. The Charter contains no other reference to economic status. (One might think it desirable that it assert that economic factors should not be allowed to interfere with equal access to the law. Such an inclusion would have wide-ranging, and desirable consequences, but it is not there).
The B.C Human Rights Code prohibits discrimination in hiring on the basis of race, gender, sexual orientation, etc., and prohibits real estate covenants, but “economically disadvantaged” is not included as a category of prohibited discrimination.
The report is accurate in asserting that there should not be economic discrimination in the provision of public services, but in so far as the report considers this principle relevant to reproductive technologies, it introduces circular reasoning. That is, on the basis of the principle of equal access, the report opposes the commercialization of any aspect of reproductive technology. It wants all provision of such services to be on the same basis as medical services, even if there are special clinics devoted to reproductive assistance, (with the single exception of assisted insemination, which, it argues cogently can be done at home at less cost, as long as there are protections in place to ensure access to healthy sperm). It then argues against providing tests for gender selection in part on the grounds that the cost of such procedures places undue strain on our medical system, and is not justified as a priority. There may be other cogent grounds for objecting to commercialization, but this reasoning is not legitimate.
The report is undoubtedly correct about the limited resources of our medical system. However, to allow private clinics to test for and provide means to select for gender, or to provide assisted or in vitro fertilization would not be the same as establishing a two tier medical system in general, because these procedures are not medically necessary. While it would be desirable that they be available to all equally, if they cannot be, then no one is harmed by their being available to some people. The total ban on commercialization would then have the effect of depriving everyone in Canada, except those who can afford to go to other countries, most obviously the United States, of these services because all cannot afford them.
The report argues that the Canadians they surveyed placed high priority on the value of equality, even if they chose options for managing reproductive technologies that suggested otherwise. However, one can, without logical inconsistency, value equality and yet not support various means of attaining it. Clearly our society values the principle of equality before the law, but it does not support radical measures to eliminate the economic inequality that in fact limits some people’s access to legal services, and disadvantages the poor in favour of the rich. In this instance those who lack legal services do indeed suffer from the fact that rich people have them.
The same would hold for the availability of medical services in general, for if the rich have better access to the time and resources of doctors, hospitals, testing technology, etc., then there would be less left over for the less economically advantaged, who would thereby suffer. However, in the case of reproductive services, those who cannot afford them are in no worse a position that they otherwise would be if they were available to those who can, and in no better a position if they were available to no one.
Whether or not one would agree with the Commission’s recommendation to criminalize any commercialization of these processes, and to prevent any individuals from profiting by donating to sperm or egg banks, or women from profiting from surrogate motherhood which on other grounds, such as that these practices undermine respect for the dignity of human life, the argument on the basis of equal access does not hold.
In general, our society has rejected those political systems that give first priority to economic equalization because they impose severe limitations on the autonomy of each individual. The Commissions’ recommendations have the same effect, though unlike strategies for economic equalization, which, whether or not they would succeed, are designed to benefit the poor, the total ban, on these grounds, on all profit from reproductive technologies would benefit no one.
A third area in which the report’s reasoning raises concern for the impact on jurisprudence is the report’s description of the relation of its principles and recommendations to Canadian opinion and values.
The Commission supports the authority of its recommendations by its claim to be based on Canadian values. Indeed the Commission is to be commended for having devoted much time and effort to surveying a wide range of opinion, both expert, and that of many groups of the general population. However, the relation between the report’s recommendations and the survey of opinion on which they are purported to be based is problematic.
The Commission reports that some people believe that disastrous harm will come with time from these new technologies, and that some believe that regulation as things occur will suffice. Despite this, the Commission supports its claim that its report balances individual and collective interests by arguing that these diverse groups agreed on basic principles, and that their having done so is evidence that “they capture important ethical considerations”. The principles are those frequently invoked by the report: concern for human dignity and the value of equality. On this basis they justify many specific recommendations, which they say are based on “the kind of society that Canadians want to live in”, even those that the people whom they had interviewed explicitly rejected.
The report says that they were:
guided by and took into consideration what Canadians said about both their fundamental values and their attitudes to specific questions, but they were not the determinant of decision making in these complex areas. Where there was a divergence on specific policy questions, we decided that our moral reasoning should have greater weight if it was in line with fundamental values endorsed by Canadians, because we had spent much time weighing the evidence and thinking through the implications of different policies on such specific questions. (144)
Here the report argues that the basic values people had asserted indicate that they would concur with the specific recommendations if they had thought them through carefully. The problem here is that if people were asked in the abstract whether they value human dignity, respect human life, value equality, and object to the commodification of human beings they would probably assent, but that does not mean that they would necessarily favour pacifism, socialism, or communism. The report claims that its:
aim was neither to mirror the existing views of Canadians nor to transcend them radically. (65)
While quite properly it asserts that its role is to identify ethical issues and encourage debate, it gives the impression that its recommendations support Canadian values whether or not Canadians agree with them, and whether or not the report reflects a majority view.
We do not think the Commission wrong to assert priority for moral principles and pragmatic concerns over the will of the majority. Even if their views were shared by the majority, majorities can be wrong, and democratic societies therefore hedge the power of the majority over individuals and minorities by means such as our Charter of Rights.
However, whether the report’s views are those of the majority of Canadians, or are assumed to be what Canadians ought to, or would “really” believe if they were more thoughtful, our Charter rights become meaningless if they can be overridden in the absence of stronger evidence of substantial harm to society than is implied by their lack of conformity to Canadian values. Apart from the introductory discussion, in which the report claims to override individual rights no more than would be sanctioned by Section 1 of the Charter of Rights, in discussing specific recommendations references to Canadian opinion about human dignity and the dangers of commodification tend to take over. There is little discussion in the body of the report to demonstrate a harm to society sufficient to justify the proposed limitation of individual rights or autonomy. These regularly take second place to the fears of what might emerge from unfettered access to reproductive technologies.
The report’s overriding assumption is that unfettered access to reproductive technologies will harm society. It does not entertain the notion that what John A. Robertson has called “procreative liberty” might, by freeing human beings from some of the constraints of natural biology, enhance society and contribute to the equality of men and women (as in the early seventies Shulamith Firestone maintained in Dialectic of Sex: the Case for Feminist Revolution, a book that seems less bizarre now than it did then). In short, the report does not justify its argument that grievous harm will befall us if we fail to leap through the “window of opportunity”, offered at the present time, before it closes.
It is a matter of serious concern for any civil rights group that public policy is being made on the basis of these faulty arguments about what does and does not jeopardize human dignity. There is in the report little emphasis on the value of autonomy for human dignity that would then entail careful consideration about the consequences of restricting the range of individual choice for each specific recommendation, or of the possible social harm that might ensue were the range of choice allowed. To assume that human dignity and the dignity of human life will be jeopardized if sperm, zygotes, and foetal tissue are commodified is to engage in magical thinking. Slippery slopes certainly exist, but there is no evidence that there is a slippery slope from sperm, eggs, and foetal tissue to human life. Such global and magical thinking avoids the task of making decisions on the appropriate level of action, but at the price of the sense of autonomy without which human dignity is truly jeopardized.
This mode of thought has a close relationship to that on which Justice Sopinka based his decision in the Butler case, which upheld the criminal of obscenity on similar grounds. Both assume that women’s dignity depends on the attitude and practices of others that it is passive and is conferred by others. Both exclude considerations of individual autonomy as a central component of dignity, whether of men or women.
Thus Justice Sopinka comments that a woman’s consent to being involved in obscene representations only makes the representation more obscene, and Katherine MacKinnon, whose views influenced Justice Sopinka, argues that any woman who likes pornography or engages in practices that involve some form of self-surrender to a man is a traitor to the feminist cause and to herself.
This kind of thinking, that would so facilely invalidate individual consent, jeopardizes foundational democratic principles. Similarly, the Commission wants to protect women’s dignity by preventing women from acting as surrogate mothers, by preventing them from choosing the genders of their children, by preventing them from profiting by contributing eggs for fertilization clinics, and even preventing them from donating eggs or foetal tissue to a specified beneficiary.
Even though the Commission’s conclusions are clearly not anti-choice, they are based on anti-choice reasoning in assuming that any human tissues that have been touched with the aura of the reproductive process should be accorded human dignity and treated as ends in themselves rather than means only. This reasoning, if taken to its logical conclusion, and legitimated by being enshrined in legislation, could be used to deprive women of their rights to legal abortion.
Either a foetus is or is not a human being. If it is not, then abortion is morally justified, and if abortion is morally justified, then the tissues that contributed to its formation and those that come from it are not human beings either. They are things, and can be treated instrumentally. The Commission does not attempt to envision a world in which people might take an instrumental view of all human tissues, zygotes, early foetuses, etc. that do not fall within the definition of a human being, and at the same time refrain from commodifying human beings and preserve respect for human dignity. Neither does it consider the social goods that might come out of more unrestricted access to reproductive technology than their recommendations would allow, nor the social harms that might come from overly stringent controls.
For the reasons I have indicated, I think that as a civil libertarian organization we should condemn the reasoning and fundamental assumptions upon which the report is based, whether or not we might concur with some of its specific recommendations.
I have identified six specific recommendations contained in the report that should be rejected or modified in view of the above considerations:
1. Limits on research
The report proposes to criminalize any research into cloning, human-animal hybrids, ectogenesis, and genetically altering human zygotes. It also recommends against any and all non-therapeutic research into DNA alteration. It would allow research on zygotes only within the first 14 days in vitro, and then only under strict regulation and not for profit. The Commission also wants to limit the research into uses of foetal tissue to human functioning or disease, or diagnosis and treatment.
The rationale for these recommendations rests on preventing the commodification of human tissue, and therefore of human beings, and on safeguarding the dignity of the reproductive process.
While freedom of research is not in itself a civil liberty, it is an aspect of academic freedom, which is related to free speech. To criminalize research in order to avoid having to deal with problems that might arise from its results is to place interdictions at too early a point in a chain of possible events.
Other means of regulation are available, such as ethical boards already in place in universities, and criminalizing research activity into specific areas would almost necessarily generate uncertainty and fear in those whose research interests might be seen to border on those areas, and prevent many areas of beneficial research from flourishing in Canada.
Further, the results of research are notoriously unpredictable, and some of the discoveries most beneficial to humanity have been unforeseen byproducts of research directed towards other goals. Such a restriction could depress creative energies in many areas of research in Canada, as well as deprive Canadian universities and other research institutions of many of their best people, who would go elsewhere.
While one might well want to control and regulate research, there are non-legislative ways of doing so that do not carry the dangers to democratic principles that criminalization does. The ethical considerations and the oversight that govern research in universities could well be extended to private research institutions in order to safeguard community well-being.
The ban on research into human-animal hybrids might well be interpreted to include a ban on techniques for getting pigs to produce human insulin. The Report’s list of prohibited categories gives a false sense of clarity about the boundaries of these categories, and a blanket prohibition of research in them overlooks the good that might be lost to human beings as a consequence.
2. Prohibition of sex selection for nonmedical reasons
The report argues that sex selection (whether by ultrasound tests made for the purpose of determining the gender of the foetus, by x/y sperm manipulation, or by zygote selection) should not be offered under medical insurance, and that the principle of respect for human life is offended by giving tacit approval to valuing one gender more than the other. It also argues that it might harm some women whose husbands threaten to leave them unless they produce sons. It would ban use of ultrasound for purposes of sex determination, and refuse information to an expectant mother “except for medical reasons and upon request”.
As argued above, we might well agree that the costs should not be covered by the medical system, But there is no evidence that any disrespect for human life would flow from enabling families who have only sons to have a daughter, or the other way around. As the Commission itself reports, surveys show an almost equal desire for girls as for boys, so there is no evidence that freedom of choice in this area would skew the general ratio of men to women in the population in any way that might damage society.
Should there be evidence that such testing was likely radically to skew the gender ratio of the population, that would be good reason for stopping it.
3. Preconception agreements and surrogate motherhood
The report does not propose to make these illegal, but it aims to prevent women from making use of their wombs in this way by revoking licenses from any institution that knowingly assists conception by any means for this purpose. It argues that surrogate motherhood commodifies women’s reproductive systems if they get money, and if they do not, that they might become subject to pressure from friends or family members.
We should oppose this limitation on women’s freedom of choice. If an impoverished woman wishes to earn money by carrying a child for another, her dignity might well be more enhanced by the payment she receives than it will be jeopardized by her regarding her womb as a commodity. If she does not feel her dignity compromised, it is not for others to decide that it is. That some woman might be subject to overt or covert pressure is to assume that women in general are not capable of looking after their own interests. It is not an adequate reason to curtail the choices of all women.
However, we should concur with the Commission’s recommendation that the gestational mother has custody unless she willingly gives the child for adoption or is judged to be unfit for raising the child, regardless of the terms of a pre-conception contract. That provision, in itself, would sufficiently limit the practice, for the woman wanting the child would be taking a chance on paying money without finally getting a child, and the woman undertaking to carry the child would be taking a chance on having to keep it if the contracting woman decided that she did not want it. Carrying a child to term is sufficiently arduous to make it unlikely that poor women would be pressured to make their living by repeated pregnancies.
4. Post-menopausal women
The report would withhold assisted conception from post menopausal women because it is normal for older women to be infertile, and because it is an inappropriate use of scarce medical resources. We disagree with this recommendation.
Some post menopausal women are fully healthy and capable of looking after children; further, it is unlikely that many such women would want to have children, so the ability to have them would not open any floodgates.
If all assisted inseminations and fertilization is to be offered under the medical system, then the addition of post menopausal woman would make little difference. However, if the medical system cannot afford to provide these services to all who want them, then they should be available privately to those who can afford them, with suitable regulation and inspection arrangements.
5. Specific donation of eggs, sperm, and zygotes
The arguments that the Commission raises against specific donation is that women might come under overt or covert pressure to do something that risks their well-being, and that it might further complicate possible disputes about legal custody. The Commission would also ban woman who have abortions from designating the recipient of foetal tissue. This is to prevent women from getting pregnant in order to save the life of another person, possibly their own child, but if a first trimester foetus is not a human life, then it is hard to see a how this prohibition can rationally be justified.
We should oppose the Commission’s ban on giving reproductive material to specific beneficiaries, and the paternalistic reasoning on which it is based. There is not sufficient evidence of social harm to justify so severe a limit on an individual’s autonomy.
At present people are allowed to donate organs to their kin, a much more extreme sacrifice than is involved in donating eggs, sperm, or zygotes. A mother might want to donate an egg to her infertile daughter in order to provide some genetic connection between her daughter and her daughter’s offspring; an infertile man might want his father’s sperm contributed to his wife for the same reason. The rights of all should not be limited because a few people might be overly responsive to pressure from others, and disputes about custody can and should be settled by other means, such as the one the report recommends, that the gestational mother have prior legal claim to any others.
6. Testing for disease
We agree with the Commission’s recommendation that testing for congenital and early onset diseases be provided under the medical system. We also agree that it would be desirable, as the Commission recommends, that counselling be available to those who seek such testing. However, if the cost of such counselling is prohibitive, its absence should not prevent the medical system from offering the diagnostic services.