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The Ethics, the Law and the Born Alive Rule in Canada

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FOETAL TISSUE TRANSPLANTATION : THE ETHICS, THE LAW AND THE BORN ALIVE RULE IN CANADA BY INDRA 1. MAHARAJ A Thesis Submitted to the Faculty of Graduate Studies In Partial Fulfillment of the Requirements for the Degree of MASTER OF LAWS Department of Law University of Manitoba Winnipeg. Manitoba O August. 2000 National Library Bibliothèque nationale 1*I ofCanada du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395, nie Wellington OttawaON K1AON4 Ottawa ON K1A ON4 Canada Canada The author has granted a non- L'auteur a accorde une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sel1 reproduire, prêter, distribuer ou copies of this thesis in rnicroform, vendre des copies de cette thése sous paper or electronic formats. la forme de rnicrofiche/film, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cene thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. THE UNIVERSITY OF MANITOBA FACULXY OF GRADUATE STUDIES ***** COPYRIGET PERMISSION PAGE Foetal Tissue Transplantation: The Ethics, The Law and the Born Alive Rule in Canada hdra L. Maharaj A Thesis/Practicum subrnitted to the Faculty of Graduate Studies of The University of Manitoba in partiai Nrmment of the reqoirements of the degree of Master of Laws Permission has been granted to the Library of The University of Manitoba to Iend or seil copies of this thesis/practicum, to the National Library of Canada to microfilm this thesidpracticum and to lend or seii copies of the film, and to Dissertations Abstracts International to publlsh an abstmct of this thesislpractictun. The author reserves other publication right., and neither this thesidpracticum nor extensive ertracts from it may be printed or otherwise reproduced without the author's WTItten permission. The advent of antibiotics revolutionized infection management regimes. However, even penicillin was treated with understandable scepticism. Today, itç use is common. Foetal tissue transplantation may be the "penicillinn of Parkinson's Disease treatment. it can be transpiantea into the recipient and produce the missing chemicals that cause the symptoms. It seems like a clear "go forward" proposition but the fact that foetuses are the tissue source has created social resistance. The foetus is unlike any other human tissue. If separated from the pregnant woman prior to viability, it cannot sutvive. However, if left alone, it has the potential to develop into an independent and unique human being. Bearing this in mind, how can abortion and transplantation be justified? In true Canadian style, a balance has been reached. First trimester abortions can be obtained electively. Only first and early second trimester foetal tissue is transplantable. I believe that transplantation is not dependent upon the morality of abortion because abortion and suitable tissue both exist. In this thesis, 1 discuss the various ethical arguments and the legal issues raised by this technology. To put it al1 into perspective, I review the born alive rule in depth and examine its influence in the law generally. After conducting the foregoing analysis, I support the use of first trimester electively aborted foetal tissue for therapeutic transplantation. with appropriate controls to ensure that the pregnant woman is a willing participant with full knowledge of the ultimate of her foetal tissue. ACKNOWLEDGMENTS This project started as an outlet for the intellectual boredom that I anticipated would fiIl my first maternity leave. After all, babies just eat and sleep ... right? After the birth of our son Narayan, I found time to be at a premium and intellectual energy even more scarce. Having failed to compieie my task within the iime allotted for my maternity leave, I continued to try to make time. I continued through many life changes, including the birth of our daughter Savita. Ironically. I thought that my second maternity leave would be an ideal time to pursue another acadernic project. After all, the kids will play together ...right? As dear friends of ours advised us - one child is easy ... two is like having twenty! They were right. However, at long last, this project has been completed. I would like to thank my thesis supervisors, Professors Barney Sneiderman and DeLloyd Guth, for their patience and quiet faith that I would complete my task. Together, they understood that sometimes you can push and sometimes you can't. 1 would like to thank Tim Caulfield for "adopting" me after my rnove to Alberta. Finally, I would like to recognize, with thanks, the late Samuel Freedman, whose family has been generous in the endowment of a scholarship to encourage students in the pursuit of their Master of Laws degree. I would be remiss if I failed to thank rny parents for the unwavering support that they have given me in this, and every, project that I have undertaken. In their own very different ways, they have each provided me with the confidence, momentum and encouragement to produce. Thank you for being the spark (Dad) and the steadily burning flame (Mom) upon which I have drawn for strength al1 these years. Lastly, and most importantly, I must thank the Maestro - my husband Richard. Richard has been everything for me: my biggest fan, my computer wizard, my reality check, rny quiet supporter and rny "frozen boo! In the behind" throughout this endeavour. Richard has been a true Maestro, playing whichever tune was required to motivate me. I could not have finished this thesis without his steady hand on the baton. Through al1 of the ups and downs, you have never said "1 wish you had not taken on thiç project". Thanks for understanding why I need to do what I do. Thank you ail. I have been tavght that we exist on this earth to seek a true understanding of Our souk. To do so, we must pursue knowledge in al1 of its forms. It is Our duty to learn and to educate others. This thesis represents a srnall par! of my search. I hope that it is of some value to others who will study in this area. ABSTRACT ...........................................................................................................................................................i .. ACKNOWLEDGMENTS...................................................................................................................................... II TABLE OF CONTENTS .................................................................................................................................... i INTRODUCTION............................................................................................................................................ 1 THE SCOPE OF THIS THESIS ................................ ........................................................................................... 8 L -4 WORD.A BOLT WORDS........................................................................................................................................ S 2 THEQUESTION MD THE AWSWER ...................... ... ........................................................................................... 13 3 THESTRL~RE OFTHIS XVALYS IS .THE Lrxr rrs .......................................................................................... 13 WHAT IS FOETAL TISSUE? ............................................................................................................................ 19 DISCUSSION OF THE FRAMEWORKS FOR ANALYSIS .......................................................................... ..36 1 I,XIRODL~CT~ON..................................................................................................................................................... 36 2 FRLVEWORK1 . THE FOETUS IS r\ FULLYE~ITLED PERSON FROM CONCE~ONOMVARD .............................. 37 3 FRLLCIEWORKII -THE FOETUS Hc\s SOXIE ST.ATL~SDURGVG GEST.ATION ............................................................ 39 3 FR~LCIEWORKIII - THE FOETUS US NO STATUS UNTIL .AFER IT IS BOW ....................................................... 42 5 CONCLUSION ......................................................................................................................................................... 43 CHOICE OF A FRAMEWORK FOR THE ANALYSIS OF THE PROBLEM ..................................................44 AREAS OF THE LAW THAT ADDRESS THE LEGAL STATUS OF THE FOETUS ....................................48 1 ~ODUCTION...................................................................................................................................................... 48 2 CR~MNALCODE OF CAXADA................................................................................................................................ 52 3 HUMANRIG~ LEGISUTION ............................................................................................................................ 57 J CHILDPROTECTION LEGISUTION ........................................................................................................................ 62 6) Carrada: ........................................................................................................................................................
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