THE IMPACT OF THE ABORTION LAW CONTROVERSY ON NORTH AMERICAN HUMAN EMBRYO RESEARCH POLlCY

David M. Kaplan

A thesis submitted in conformity with the requirements for the degree of Master of Science Graduate Department of Community Health (Health Administration) Joint Centre for Bioethics University of Toronto

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THE IMPACT OF THE ABORTION LAW CONTROVERSY ON NORTH AMERICAN HUMAN EMBRYO RESEARCH POLlCY

Master of Science, 1997, David M. Kaplan, Graduate Department of Community Health (Health Administration), University of Toronto

This exploratory study examines why Canada and the United States of America have adopted different policies regarding research on human emb~yos.One possibIe explanation may rest in an examination of the hstory and the values eupressed in the respective landmark abortion decisions. Before explicating the benefits of conducting research on embryos and the concerns that such research eiicits, rhe moral statu of the pre-embryo and its biological development are outlined. The relevant cases and policy documents are analyzed by wedding a neo-institutional approach to policy analysis with Dworlun's tlieory of judicial review. Whde a right to abortion exists in United States, the Canadian judiciary has not identified such a right. Moreover, 'protection of (potemial) human life' was found to be a hghly institutionalized value in bath countrics; 'protection of reproductive health' was not as highly institutionalized. Tliese differences lnap have differentiaiiy constrained the policymakers mhen contemplating human emblyo research options. ACKNOWLEDGMENTS

". . . Çrom ail my teachers, I have gained wisdom." (Proverbs. The Hebrew Bible)

Over my year in the Departmcnt of Health Administration and Joint Centre for

Bioethics, 1 met people, bot. Çaculty and feliow students, who made my studies interesting

and chailenpg - to ail of you, my thanks and best wishes. Specifically, 1wish to

acknowledgc my appreciation to Professor Bi11 Harvcy who taught me to question what 1 do, and to Professor Raisa Deber who taught me how to ask the right questions. 1 wish to thank

Professor Bernard Dickens, my supervisor, and Profcssor Roger Hutchson for rhcir

encouragement and constructive criticism thxoughout the duration of this study.

Raymond Buchowski. You were my frrst instructor in the law. Thank-you for instilling me mith an understanding and love of ail things legal. Natalie, with out you this work would not be as intelligible as it is. As aIways, your perspective and humour were most appreciated. 1 also wish to thank Shaul Tarek for his comments, criticisms and advice and

Sharissa Ellyn for her help in understanding discourse analysis. Finaily, 1 extend a thank-pou to my wholc farnily, cspcciaily to my inothcr, for their motivation and constant encouragement. TABLE OF CONTENTS

INTRODUCTION 1 Scope and Relevancy Inferulity

CHAPTER 1 : MORAL AND BlOLOGlCAL BACKGROUND: PHILOSOPHICAL AND FACTUAL FRAMEWORK 5 Moral Status And Biological Deveiopment Of The Embryo The Moral Status of the Pre-Implantation Embtyo Embryonic Developmcnt Factors in Human Embryo Research Policy The potential benefits arising from non-thetapeutic embryo researcli Wliy is state intervention necessary? McCormick-Robertson Debate on Human Embryo Research

CHAPTER 2: HISTORY OF STATE INVENTION IN HUMAN EMBRYO RESEARCH American Historical Background Canadian Historical Background

CHAPTER 3: THEORETICAL FOUNDATION AND METHODS Theoretical Foundation for this study Institutionalism Historical Institutionalism The implication of entrenched cons~h~tionalrights on public policy Methods Overview Why hbortion? Research Model Data Collection Research Method %%y An American And Canadian Comparative Policy Study? CHAPTER 4: THE ABORTION LAW CONTROVERSY 58 Roe v. Wade- The American Landmark Case Case Overvicw Privacy Rights in United States Constitutional Law Judicial Opinions in Roe v. IVude Important Case Law Subsequent to Rue v. IVde R. v. Morgentaier- The Canadian Landrnark Case Case Overview Rights to Life, Liberty and Security of the Person in Canadian Consututional Law Judicial Opinions in R. v. Morgentaler

CHAPTER 5: ANALYSE OF THE DEClSlONS IN THE LANDMARK ABORTION CASES The right to Abortion and State lnterest in Women's Health American Context Canadian Context The State interest in pcotecting potentiat life American Context Canadian Context

CHAPTER 6: DISCUSSION AND IMPLICATIONS Discussion Human Embryo Research Poiicy in the United Statcs of hmerica Human Embryo Rescarch Policy in Canada Implications Methodological Innovation Limitations Pohcy Impiications Conclusion

Appendix A: Attitudes towards Abortion: Gallup US and Canada, 1983 Attitudes towards Abortion: Gallup US and Canada, 1992 Attitudes towards Abortion: US and Canadian Responses to Four Abortion Questions Appendix B: Section 251 of the Criminal Code Appendix C: questions of Law in R. v. Morgentaler [1988]

WORKS AND CASE LAW ClTED Works Cited Cases Cited GLOSSARY

The fouowving is a glossary of ail the biological terms used in the text of this study.' embryonic disc the disc of tissue that separates the amniotic cavity from the yolk sac in the zygote bIastocyst the zygotic entity at around the fourth post-fertilrzation day; a hoilow bail with a fluid-fiued space. blastocoele the fluid fded space of the blastocyst diffetentiation the process by which ceils become destined to perform a specific function and form a specific type of tissue embryo the developing entity from the third to die eighth week aftcr fertilizationifi; "that small part of the pre-embryo or conceptus, fust distinguishable at the primitive streak stage, that later develops into the fetus." ectodem the outermost of the three prUnary germ layers in animal embryos; gves nse to the outer covcring, the ncrvous system, inner ear and lens of the eye* endoderm the innermost of the thrce primary germs Iayers in animal embryos . . . gives rise to liver, pancreas, lungs, and the luiuig of the digestive tract* endometrium the inner king of the uterus, wvhich is richly supplied wvith blood vessels that provide the matemal part of the placenta and nourish the developing embryo* fetus the developing entity from the ninth week after fertilization und determination is made following delivery that it is viable or possibly viable. gamete haploid egg or sperm ceils that unite during sexual reproduction to produce a dploid zygote*

1 Entries marked witb * are takcn from Campeu, Neil II.(1990) Biolom: Second Ediùon. The Benjamin Cummings Publishing Company: Don Wls. Enuics markéd with xre taken from Royal Commission on New Reproducùve Technologies (1893). Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies. (Vol. 1).Ottawa: Canada Con~municationsGroups, Printing Services. TI-ic cntry marked with mm is as defined by the United St~tesDepartment of Health, Education and 1Vetfarc in Etlucs Advisory Board, Department of Health, Education md 1Vclfarc pthics Advisory Board]. (1979). Report and Conclusions: HELV Sutmort of Rescarch in vol vin^ Human In Vitro Fcrtilization and Embnfo Transfer. The entry marked \vit11 iF is taken from Drovc, P. B. cd. (1980) \Vebstcr's TI~irdNcw International Dictionary, p. 1801. genome the complete complement of an organism's genes; an organism's genetic macerial* laparoscopy a proccdure by which ova are surgicaily removed from the ovary mesoderm the rniddle priiary germ layer of an early embryo that develops into the notochord, the lining of the coelom, muscles, skeleton, gonads, hdneys, and most of the circulatory system* pre-embryo the zygote. The term pre-embryo was suggested in 1986 by Anne McLaren. lt is the shortened form of pre-implantation embryo and is the hurnan form prior to the fourteenth day after conception. pregnancy primitive node the frrst element of the nenrous systcm around whch the neural tube develops primitive streak an opaque band which appears in the newly fertilized egg in the axial line of the embryo which represents the begirining of neural developmenr for the embryo - the beginning of the embryo's ability 4 to sense even primitive sensations such as pain the process though which the 23 chromosomes of an egg celi and the 23 chromosomes of a sperm ceii combine so that the new ceii has 46 chromosomesB yolk sac the primitive digestive and respiratory system of the embryo zygote the diploid product of the union of haploid gametes in conception;* the fertilized egg und two weeks after fertilization, when the embryo proper and the surrounding structures supporting it being to form. ** INTRODUCTION

Sincc thc bkth of Louise Brown, the Fust 'test-tube' baby in 1978, a myriad of research projects have becn undertaken to unprooe thc success of itl vitro ferulization2 [NF] and embryo transfer procedures. Some of thesc pïojects have focused on understanding thc proccss of implantation and on increasing the probability of embryo implantation in the womb foiiowing IVF. To cari7 out this research, invcstigators require human pre-cnibryos and embryos. Canada and the United States of America have adopted different policies of intervention vis-à-vis human embiyo researcli. Why?

It is contended that one possible exphnation for the ciifferences in Canadian and

American human embiyo research policy rests in an esamination of the values expïessed in thc landtnack abottion dccisions in cacli country. A comparative analysis of the jurisprudcncc siirtounciing the abortion issue tnay nccount for these differences in i\rncrican and Canadian policy. LVhile other Çorms of Icga1 institutioilalism liavc been asscrted (Elack

1997), this study wdi rcly on a mariage of neo-institutionalkt theoiy and Ronald Dwoïkin's

?NF,tlic proccdurc by wliich the union of sperin and ovum is accoinpiislicd outsidc of tlic womb, involvcs fivc stagcs. First, the collection of ripe cggs (acnially preovulatosy oocytes) is accomplislicd via Iaproscopy or transvagilial ultrasound-diïected oocytc retricval (TUDOR). Ncst, healthy spcrni tliat are rcady to fcrtikc musc L-ic collcctcd fi.0111 thc malt partner or spcrm-donor. In the tliird stcp, the fcrtilization of the ova must occur in niedi~tmtliac closcly rnimics tlic fcnialc rcproductivc tract. l'lie ferulizcd ova arc then transferrcd into a groivth mcdium for two-day incubation. In thc final stage of IVF, the incubatcd ova arc iinplantcd into thc utcrus (I

SCOPE AND RELEVANCY Rescarch on human embsyos can Le divided into hvo categories. Einbsyo researcli that focuses on producing 'healthier' babies has a therapeutic intent; the embryo under clinical research could directly benefit from rlic study and intenrenuon. Other researcli, svliich einphasizes improving embryo hansfer siiccess rates following IVF, lias a non- therapeutic intent; the embryo wiii see no direct bcnefit from the reseaïch being done on it.

For the remainder of dis discussion, references to huinan embryo rcscarch refer solely to non-therapeutic liuman embiyo researcli, unless othenvise indicated. lnfertility The availability of artificial reproductive technologies has social, economic and psychological impact for the fifteen to hventy percent olNoïth American couples who are clinicaliy diagnosed as infertile" (Kaplan Lt Tong 1994). Nuinerous causcs of infcrlllity have been documented. They include: anovulation (an ovulatoiy problem soinetimes associated with athletes and intense dieters), su-ucturnl problems widl thc endocrine glands (\vluch secïctc thc hor~nonesnecessary for contïohng the fcmalc rcproductive cyclc), pïcmature ovarian failure, defcctivc mucus in the femalc rcproductivc tract, antibodics against spcrm present in the seininal fluid or within the fernalc reproductive hact, tcsticular abnormalitics,

An iiifertilc couplc is defined a couple w11o are "unable to achievc s pregnancy within one ycar of unprotcctcd scs." Tlic Royal Coniniissioti (1994) defines an infertile couplc as onc that cannot achievc a pregnancy wvithin hvo ycars of unprotccted intcrcourse. This terin is applicd to couplcs and not individuals. (Kaplan 1994, 188) scsualiy ttransrnittcd diseases and iinpoteilce [ICaplan Kr Tong 1994). IVF is thc last choicc for many infcrule couples after inwauterinc insemination procedures fail to rcsult in pregnancy. It has been sliown to be effective in producing prcgnancics in womcn with biiateral fallopian tube blockage, scvcrc cndomcuiosis, unexplaincd inferulity, and scverc male factor inferulity (Society of Obsteuicians and Gynaecologists [SOGC] 1996). Currcntiy, the success rate of IVF in producing pregnancies ïirals that of spontaneous conception in tlx natural mensuual cycle (SOGC 1996). This procedure and the drug therapy that accompanies it posc many har~nsro the couples undergoing it (Collins 1995; Rcnare 1991;

Seamark 8: Robinson 1995). Excessive govcrnment regulation of this procedure may result in a lirnited abdity to execute research in this area (IVF Canada 1996; and Ikonomidis &

Lowy 1994). Yet, reseaïch in the aforemciltioncd arcas may makc this procedure bot11 safer for the women undergoing it and more succcssful for resuIting in pregnancy.

IVF is performed in Canada and the United States. Women and thek spouses acccpt substanual emotional, financial and physical risks whcn tliey enter an IVF trial. I'hysicians who practice IVF have a responsibility both to dccrease the safety risks associatcd with the pcoccdure and to increase its success rate. If the North Amcrican goveïnments and medical professions have condoned the practice of IVF they rnust be wilhg to condiict tbc nccessary rcscarcli to meet the aforernentioncd goals. The qucstions are how much rcscarch and of what type? It is the duty of social policy makers to answer thcse qucstions.

Aftcr rcviewing thc implications and justifications of availablc courscs of action, thc governments of Canada and the Unitcd States of Amcrica cach adoptcd cbffcrcnt policics of intervention vis-à-vis emb~yorcscarch. This st~tdy\dl probc ivhy Canada and the Unitcd 4 States of Arncrica have adopted suc11 diffcrcnt policies by carqing out a legral-institutional investigation. Scicntific knowledge is not restricted by geography. Canada may wish to prohbit scsearch that lier citizens find crhicaiiy repugnant, but slie cannot deny her citizens the possible benefits of human emb~yoresearcli. Thc scientific community is emiched from work cilrried out around the globe. Surely the future fruits of huinaii cmbrpo research will cross the United States-Canada border. If, at the end of the day, tbis is the case, then

Canadian policymakers need to esamine the goals tliey are attempting to achievc and why what the. wish to accomplis11 by ïcaching thein. MORAL AND BlOLOGlCAL BACKGROUND: PHILOSOPHICAL AND FACTUAL FRAMEWORK

MORAL STATUS AND BlOLOGlCAL DEVELOPMENT OF THE EMBRYO

The Moral Status of the Pre-Implantation Embryo The embryo is liuman and alive; therefore, it is not merely an olject. The distinction individuals make benveen its moral worth and tl~cmoral worth of other human tissues rests on its potential for independent life (Discussion Group on Emb~yoResearch [DNTIJ-J~O/~

Gmrrp] 1995).4 This point needs some further clarification due to recent advances in the cloning and nvining5 of mammals. To clah thet an embryo is the only tissue that lias potenth1 for human life is not correct. Witli recent advances in cloning, one can replace the

DNA of a new ferdized ovum of a species with the DNA of an adult of that species (even

from highly specialized ceus). The new orgmism will be genetically identical to the adult. llather, the spoken distinctiveness of embryonic tissue rests in its is potential for independent life under natural biological processcs.

The discussion of tlic cmbryo's moral distinctivcncss can be Icgally, socially, biologicallp, and religiously lased. The Tcnnessec Suprctnc Court (Dulis P. Dmis, (1992) 842

S.W. 688.) found that embryos aïe not legal peïsons (i.e. tliey do not havc die lcgal ïight th

Sorne emblyos, howeveï, are non-viable and thercforc do [lot have the potcntial for independent li le. T'wi~mingrefcrs to tbc practisc of inducing thc clcavage of a biastorzicïe form the rcst of the dcveloping zygotic cclls prior to the 16-cc11 stage. The single blastomerc develops sirnultancously into a gcnetically identical organism. 6 are afforded to live-born bumans). The Suprcmc Court of Canada has dcclined to dccidc whctlier the enibryo oï fetus has legal status (R. v. Moryen/r~/er;(1 988) 1 S.C.R. 30; 13orowsX?i P.

Cmtrrh (54.G.) il9891 1 S.C.R. 342; and Tmblry v. Dr~igle,(1989) 2 S.C.R. 530)

Tlie moral status that individuals nwaïd the human embryo results from diffcrent conceptions of whenper~oirhoorlbegins. The status of personhood confers on an entity the moral rights, obligaaons and claims of a fully formed human. Some indmiduals believe that a pre-cmblyo is truly a person from the moment of ferulization; the clairn, religious or sccul;iï, is that a deveIoping Iiurnan is ensouled at conception. Otliers liold that an embryo is a human life at some point after feïulization Lut before birtli; this view is known as a vitdist, or developmental approach. Stdi others assert tl~ata pre-embryo is not a human life.

Hamilton (1973) wvrites, "1 don't know wlictlicr a blastocyst is a 'tlung,' but 1 do know that it is not a peïson, not a human being." Numerous developmcntal stagcs have been understood as junctions at which thc unborn liuman being bccomes a liuman pcrson. They include ferkation, syngamy, appcarancc of the primitive streak, viabiiity, and birth (Buclde et al. 1993; Kaplan C(c Song 1994).

t7er/i/i~c~/iwnmi Sju'gaq Fertilization and syngamy are two stages at which some individuals zwrd the unborn human thc stntus of peïsonhood. Thc traditional bclicf that humali lifc begins at fcrtilizauon is hcld by thc Catholic Cliurcli and othcï natural-law tlicorists. 'Thc point at wliich the spcrin coines into contact witli the ovum is important bccausc: Wlicii the nvo inembrancs [i.c., of sperin and o~win]open to one anotlicr and thc contents of sperm are relcased into the Ovum, the sperm loses its scparate identity and tlie omm gains a capacity it dld not have whilc simply an orum, that of dcveloping as a liuman indridual. . . .The t\vo cells (sperm and ovum) have become a single ceil containmg many interacting componcnts which by tlieir interaction have die capacity for organizing all the development. (St. Vincent Bioetliics Centre 1987, p. 4) Proponents of this view hold that the point at which the entity becomes a person is wlien the mking of the sperm and ovum into a single ccll occurs. The zygote or pre-embiyo and fetus have the moral right not to be lded from the 'instant' of fertilization, or at conccption.

It is unclear whether this moral right includes the right to Le saved from spontaneous death.

Proponents of this view claim that one shoiild not inteïfere with die natuïal process in a manncr that damages or desttoys an embiyo or fetus.

Ferulization is a process that lasts 24 hows. It bcgins when the sperm penetrates the ovum's zona peliucida, and ends with syngamy, when the male and female genetic material comc togcther to form the new genotypc, (I3ucldc et al. 1993). This last stagc of the fertilization is the process tliough which thc 23 chromosomes of an egg cell and the 23 chrornosomcs of a sperm cell combine so that the new cc11 has 46 chrornosomcs. Somc individuals usc syngainy as a biological maïkcr of distincuveness - the new entity has tlie fuU complemcnt of gcnctic material that inakcs ir a mcmbcr of Flotno slqieils. Individuals mlio hold [lis position bclicvc that prc-cmbryos have thc samc moral rights as adult humans. 'l'hc

&stinction bctwecn a n/et.e b~/t~/n)tIieitg and ajMhrimn~pet.so)l is not a distinction that counts

(Icaplan & Tong 1994). Accorchgly, thcsc individuals would also nccd to award the satne moral status to cloned embiyos since they too have thc fuII compIement of thc Iiuman 8 gcnorne."y virtue of the fact that the einbryo is a mcnîbcr of Hotwu ~.rpler/sit is mole than a mere human. It is a potential liuman person who possesses tlie capacity for senuence, self- consciousncss, communication and rationality. It is this capacity that makes a Iiuman being worthy of respect and moral considerauon.

L'ddig The point of viability is also used to mark the unborn child's passage to the status O€ personhood. Viability refers to the unborn child's ability to survive as an independent entity outside of the womb, albeit with aruficial support.' Viability is placed roughly at the 24th weck of gestation. Proponents of this vicw argue that sincc the fcnis can survive tx ittern without irs muthcr, it warrants the same moral status as a fully developed human.

Opponcnts of the viability argument asseït that fctal dcvclopment is smooth and continuous. There is a difference between an 8 day-old embiyo and an 8 day-old newborn baby, but it is arbitra. to makc a particular point such as viability thc marker of pcïsonhood; the viablc fetus has alrnost the same physical qualities as the week bcforc it was 'viablc'. This argument against using viability is dubious. It is not arbiuary to selcct a particular point in a fetus's development as the junctuïe for marking personhood. If after 24 meeks a fetus can support itself, whereas after 23 weeks it could not, thcn theïc is a qualitative diffcrcncc bcmccn a 23 weck-oid fetus and one that 24 week-old fctus.

"et, man!. propoiients of this view would arguc that borh twiiling and cloning arc inorally wroiig; tlicrefore, tlicy would ncver have to inakc this clailn rcgarding tlic moral status of cloncd cinbi-yos.

7 Viability can also be viavcd as a sociaiiy constructcd dctcrtnination with a contcsnial conipoiicnt. Early and latc term abortioiis iuay elicit a differciit hiid of line-drawing than if the qucslion at liarid has fetal rcsenrch. Since tlie resenrch oii prc-embryos docs not involvc 'viablc' unboïn humans this tlieiuc is not picked up in this discussioii. Ithv-es/A tylf/~t?~z/s Joseph Fletclicr (1979) holds that enlbsyos and fetuses do not deser-vc the moral considerations one affords to human persons. He rejects the view chat "the mere fact of fertilizauon results directly in a truly hrmzruz being or at least a irtrscM liuman being." (Flctchcr

1979,82) This clairn parallels Micliael 'loolcy's justification of infanticide undes somc conditions. Tooley (1972) argues that infanticide is as jiistified as abortion because only self- aware human beings are the human persons with the right to life. Teil-day-old infants, fetuses, and consequently embryos do not posses self-a\vareness, and therefore do not liavc a right to life.

Bonnie Steinbock (1992) ssserts an independently plausible theory of moral status called 'interest tlieory.' Only entities with interests have mord worth. For esnmple, plants, even though they are alivc, do not have inoral stahis bccause tliey do not carc what is bcing donc to tlicm. "Without a welfare of tlieir own, notliing can be dotie for their sake."

(Steinbock 1992, 6) She believes that policy makers can use 'interest dieor).' to develop a comprehcnsive and consistent legal and moral conception of the unborn.

the protections awardcd to live-born Iiuinan individuals. In ordcr to do so, they must deal with tlie chim tliat the argument froin tlie principle of potcntiality can be cxtcndcd to absurdity. Petes Singcr (1 985) States tliat:

If tlic potcntial of tlic embiyo is so crucial, wliy do all sidcs agscc tliat tlicy would not objcct to disposiiig of the egg aiid tlie spcrm bcfosc they havc bccn combincd? An egg and a drop of semiml fluid, vicwcd collcctively, also have the potential to develop into a maturc human bcing (p. 27). 10 The principle of 'the potcntial person' ïesults in disallowing thc destruction of a two, four, or eight-ce11blastocyst. If so,pl.inzo Jiiie it is also prolably wrong to prevent the union of egg and spcrm. This idea seems prepostcrous (Icass 1973). To this end, some proponents of the potcntiality argument distinguish between non-sentient human materials that have no remonable prospect of developing awarcness and humans that are sentient (Grobstein 1978).

Others distinguish behvcen entities that are individuals from a biological standpoint, and those that lack developmental individuaiization. The former entities in bot11 cases deselve

ïcspect, wldc thc latter deseivc the respcct and moral consideration affoïded to human persons.

Tlius, some people argue that while emblyos do not have the same moral starus as infants and chddren they warrant serious moral consideïations as a developing form of human life. This conclusion is based on the embryo's lack of developmental indwidualization, lack of possibility of sentience and high mortality rate (National Institutes of Health Human Embiyo Research Panel [NIH MER], 1995). The point of developmental individuaiization has been identified as the point the primitive ssheak appears in the devcloping zygotc. Thc brief ovei-vicw of einbryonic dcvclopmcnt: that Çoilows wiil iiiustrarc, fïom a biological standpoint, why tlic appearancc of the primitive streak and implantation into the uterus is a coinpelling tnarker for personhood.

Embryonic Development O~ictvieiv In natiiral human reproduction Çollowing fertilization of an ovurn by a spcrm, thc genetic matcrial begins a developmciital proccss lcading from zygotc to bktli. About hvciity- 11 four hours aftcr fertilization syngiimy occurs; this proccss lasts about nvo hours (Jones LY:

Telfer 1995). The nuclear membranes that surround the geneuc material in the sperm and the ovum bcgin to disappear and the cliromosoincs froin die respective cclls comc togcthcr to give the zygote its full human genolne (Royal Coirimission on New IRepïoductive

Teclinologies [RCNRT] 1993). From this point forwaïd the zygote possess the entire genetic coding of 1-/OMOqûietl~: Of tliese zygotes, nvcnty-five percent wdl not implant into thc endometriuin of the uteïus; fifty-percent of t'ose tliat are able to implant result in no livc birth (RCNIIT 1993). Cleavage occurïing at eighteen-hou intervals begins as the zygotc undergoes scvcral rnitotic divisions. At this stage, the zygotic ccUs arc called b/m~on~emThc blastomeres at the eight-cell stage are only loosely associated mitli each other. The individual blastomeres have the ability to develop into separate complete individuals if thcy are separated at this stage. This would suggest tliat blastomeres at this stage have the developmental potential of the zygote (Jones& Telfer 1995). As weil, at the eiglit-cell stagc, thc zygotc's genes bcgin conuolling development; und tliis point, devclopmcnt occurrcd solely as a result of the ovum's genes (RCNRT 1993). ?'lit clump of blastomcrcs rcmains thc satnc size until implantation; the products of cach subsequent cleavage are lialf thc sizc of thc mother ccii (Jones& Telfer 1995). As this zygote bcgins its tlirce day journey through the ovid~ictto the uteriis, it divides scvernl morc timcs to produce a solid ball of sixtecn cclls called the mor./tb (Joncs& Tclfcr 1995). In thc uterine cavity the morula, whicli is now floahg in the fluid of the uterus, continues to devclop. Yct, oncc thc thit-ty-hvo-ccll stagc is rcachcd, it begins to possess thc charactcristics of a multi-cciiular cntity (Campbell 1990). It is herc at around thc fourth post-ferultzation day that the morula is ~ansforincdvia ccllular rearrangement to the b/m/oty~./,a hollow bail with a fl~ud-fdedspacc (joncs & Tclfcr 1995). 12 At appsoshmtely seven days following conception, rllc 60-100 ceil blastocyst consists of three layers: the outeï layeï, the trophoblast (made of trophcctodermal ceils) wiü Iriecome die cmblyonic membranes; the inner cell inass will become the embryo; and the cavity cailed rhc b/c~~~/ome/e.At around the seventh post-feruhzation day the trophoblast makes contact mith the uterinc waii and, by an enzyinatic process, encapsulates itsclf into the women's uterus

(Jones Pc Telfer 1995). By the end of tliis sccond week of devclopmcnt ir/lp/mfa~io)/is complete; pregnancy has begun.

I'lnce~ltcr, I're-enhyo n)d the I'rirzifive Sfreuk Witli this general knowledge of pre-implantatioii embiyonic development one can now esarninc the transfoïmauon from pïe-embryo to einbryo in grcatcr detail. The fist distinction to bc made is at the blastocyst stage. By the mid-blastocyst stage, thc trophectodermal cells arc irreversibly differentiated - that is, they no longer havc the potential to form any type of cell (non-totipotential cells); they are destined to become the tissue tliat gives risc to uteroplacental circulation. In conwast, the ceils composing the inncr inass of the blastocyst are sull totipotenual. Of these ceils, some wdi form die fetus and the balance of thc cells will form parts of the estracmb~yonicplacenta (those parts of the placenta forined from the pre-embryo). What is interesting hcre is the discsepancy bctwecn the number of ceiis that comprise the trophoblast and the inner ccil mass. Accorcbng to a study by AT. Hcrtig et al. (1954), only five of a sisty-ceiied blastocyst bclonged to the inricr mas In another blastocyst, only eight of 107 cells comprised the inneï mass (Jones & Telfer

1995). Approsiinately nincty-nine perccnt of thc zygote docs not form thc embryo propcr

(IKNRT 1993). 13 The second point of detail to Le esamined is the spLt of the inner ce11 inass of the blestocyst at the beginning of the second post-fcrulization week. At this junctuïe, the inner mass becomcs the enrl>ryomi di.~,wlich is compriscd of the epiblast and the Iiypoblast. The epiblast gives rise to the en&yo/~ic e~~oderrz,msorlem~ otd edohïn. The Iiypoblast becornes tlic exhrwul~o~~i~~tdotierw; most of these cells are destined to an estrac~nbryonicfate by the fourteen to fifteen days after ferulization (Jones 8: lelfer 1995). At the end of the second post-ferthzation week, the zygote consists of two fluid-fded masses separated bg the embryonic disc; one fluid-füled cavity being the yolk sac and the othcr Leing thc amniotic cavity (Campbell 1990). This entity has a mass ten Urnes greater than the single ferlilized ove

(RCNRT 1990). h localized increase occurs at what would be die head of the hypoblast, the pmcborddplrie; this gives the embtyo an orientation (Jones Sr Telfer 1995). At fifteen to si~teendays, the epiblast consists of a few thousand cells that migrate to the midline of the zygote to forin the primitive streak, which is a Linear band in the embiyonic &SC (Joncs Pc

Telfer 1995). The significance of ths formation is that from this point of development fonvard the einbiyonic disc is cornrnitted to form only one individual. No twlining is possible unless hvo primitive streaks aïe formcd oones & Tclfer 1995). The streak elongatcs by the addition of cells at one end; at the head end, the strcak thcliens to form thc prinlizve ilode. At this point the pïe-embryo is no longer called such, ratlier it is now the embryo proper (Jones& Telfer 1995).X Now that the moral status and biological developinent of tl~c

Solne inclwidunls place the transition of terrninology from prc-cinbryo to c~nb~yoat 6-7 days (US Congress, l988), 10 days 0. Glovcr, 198<)), and 21 days (KViltiams and \Vendell-Smith, 1969). Howcver, the rnajority places the sliift in stahis at tlic 14-16 day mark (Ethics Colninittee of thc rlmerican Fcrulity Society). This is the gencrally acceptcd juncture at wl1ic1-i thc transition from thc prc-cmbryonic to tlic cmbryonic stage occurs Uolics and ï'clfcr, 1995). 14 pre-cmbryo have been outiined, tliese and other influcnccs on liuman embryo research policy wdl be addressed.

FACTORS IN HUMAN EMBRYO RESEARCH POLlCY

The potential benefits arising from non-therapeutic embryo research l'roponents of human embiyo research suggcst rhat ïcsearch on human embqosyis nceded to irnprove tl~creproductive liealth of women. If cmbryo rescarch helps scientists to better understand tlie nahiml process of pregnancy, applications of cmbryo research Inight

Iielp to reduce the rate of spontaneous abortions. l3y esarnining the embryo and the esua embiyonic tissue fïom an early spontaneous abortion, researchers iniglir be able to diagnose the cause of the abortion and better understand the proccss of implantation. This howledgc could be used to prevent further spontancous abortions in this woman and in 0thwomen

(McLaren 1393). Before one notes other possible benefits of embi-yo research for 'infertility research' one must comment on the important role research on embiyo could have on prevention and treatment of genetic and congenital defects.

Rescarch on emb~yoshas implications for the scicntific and mcdical comrnunitics' understanding of genetic diseases. For csamplc, comparative research on pre-cmb~yoscouId be carried out to understand the diffcrenccs in gcnc esprcssion in pïe-embtyos carrying tlie

Duchenne muscular dysaophy1° gene signaturc and thosc that do not. More prornising,

'j Uiiless othcnvise notcd, rcfercnccs to 'human cnibryo rcscarch' refcrs only to rescarch on prc- etnbryos, and does riot include rescarch on etnbryos aftcr thc appcararicc of tlic priliütivc strcak.

IlLDMD is a hcrcditai-y disease tliat causcs gradua1 wasting of musclcs. It is occurs onIy in males, often inlieritcd from a mother wlio is a carrier of the DMD gene. Tlie sons of woriieti wlio cary tlic geiie have a 50 percent chance of being affectcd witli DMD. This disorder affects about 1 in 3,700 boys. Symptoins bcgin in carly cliildhood (agcs 2-6). Children arc slow to lcarn to sit up and walk. 1)rogrcssive wcakcning of the muscles rcsuits in frcqucnt falls and difficulty ciinibing stairs. 15 pcrliaps, arc the iniplications of embryo rcsearch foï congenital spinal t~hcdefects. Neural tubc defects occur in one out of every 1000 birtl~s.lliese defects can bc detected prenatally via an alpha-fetoprotein test at the skteen week of gestation (CaroIa ct al. 1990). Ncural dcfects are indicated when abnormaily high levels of this protein are prcscnt in matcrnal blood. Basic research on embryos could clarify early embryonic physiological and anatornical devclopment, cspccially abnormal development, and codd project thc succcss of tising embiyonic neural tissue latcr to correct neural defects occurring later in dcvelopment

(McLaren 1993). By conducting rcsearch on devcloping pïc-cmbryos CS //lem scicntisrs could tïacc the naturc of thc gcnetic defect. liesearch on huinan emtryos could give scientists a clearer understanding of the etiology of these congenitai defects.

As mentioned, one of the objectives of human embi-yo rcsearch is to improve the reproductive health of women. Traditional western society highly values reproduction and reinforces the importance of the farnily unit. In that regard, reproductive health has biological, emotional and social implications for tlic woinen undergoing JVF treatrncnt.

Reproductive hcalth has been asserted as a social right of both womcn and men. Thc World

Health Organization [WHO] (1986) dcfmes health as a "state of co~nplctephysical, mental and social wcil-bcing and not inercly tlic absencc of discasc or infumity." Wldc a moral right to hcalth may not csist, several autkors havc argucd for a ïight to hcalth carc (Danicls,

1988) LVithin rccent pirs, two international confcrcnccs liavc dcfincd reproductive licalth.

By carly-adolcsccncc, affcctcd boys losc tlicir ability to wafk. ïrcatments includc physical thcrapy, braccs, and coïrcctive surgery. Tlicïc is no cure for this disordcr. Childrcii with DMD arc ruIricrablc to chcst infections and Iicart disorcicrs. The Programme of Action of the Unitcd Nations International Confcrcncc on Population Kc

Developmcrit [UN ICPD] in Cairo stated that:

7.2. Reproductive health is a state of complete physical, mental and social weil-being and not merely the absence of diseasc or infirmity, in ail matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe ses life and diat they have the capability to reproducc and the freedom to decide if, when and how often to do so. Implicit in dis last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as weli as other methods of theu choice for regulation of ferulity whch are not against the law, and the right of access to appropriate health-care services that will enable women to go safely through pregnancy and clddbirtli and provide couples with the best chance of having a healthy infant. In line with the above defrnition of reproductive health, reproductive health caïc is defmed as the constellation of methods, techniques and senrices that contribute to reproductive health and wcil-being through prcventing and solving reproductive liealth problems. It also includes sesual health, the purpose of whch is the enhancement of life and persona1 relations, and not inerely counseliing and care related to reproduction and sesuaily uansmitted diseases. Proponents of human embryo research argue that tlieir research focuses iinproving the

't rigl.it. of access ro appropriate health-care services that \vdl enable women to go safely through pregnancy and c1ddbirtl.i and provide couples with the bcst chance of having a healthy infant." (idem) They also clah tliat liuman emb~yoïesearch is necessary to irnprove those "inethods, techniques and serviccs thar contïibutc to rcproductivc hcaltli and wcil- being through preventing and soliring rcproductivc health problems" (idem) which are ciicompassed by this dcfinition of reproductive hcalth.

Tlic licport of tlic Fourth World Conhrencc on Woincn from the United Nations

Fourth World Confercnce of Womcn in Ucijing, China cspandcd on this notion of reproductive heath. While it agreed with thc definition of UNICI'D, the Report asscrted: 95. Beaïing in mind the above definition, reproductive rights embrace certain human rights that are alreadp recopzed in national laws, international human rights documents and other consensus documents. These riglits rest on the recognition of the basic right of all couples and individuals to decide freely and responsibly the number, spacing and timing of their chddren and to have the information and means to do so, and the right to attain the higliest standard of sesual and reproductive health. . . . The promotion of the responsible exercise of chese riglits for ali people should be the fundamental basis for government- and community-supported policies and programmes in the area of reproductive health, includuig faidy planning. As part of thek cornmitment, full attention should be given to the promotion of mutually respectful and equitable gender relations and particularly to meeting the educational and service needs of adolescents to enable them to deal in a positive and responsible way with their setuality. . . .

When researchers state the need to carry out embryo research, they point towards the assertion that " the promotion of the responsible exercise of these riglits for all people should be the fundamental basis for government- and coimunity-supported policies and programmes in the area of reproductive health, including Çamily planning." (idem) Tlirough

the advancement of scientific knowledge scientists will be able to provide more effective

therapeutic interventions for women and men expericncing infcrulity. (Animnl models arc htedin dus regard.)

Proposed einblyo research may iyprove on the second part of h vi!m fcrtdization

treatmcnt, einbryo tmnskr. Chicians can ferulize a Iiutnan ovum at a success rate of 87O/1

(KCNRT 1993). Unforhinately, the probability of the ferulized egg implanthg itself in the woinan's womb is only 20% (RCNRT 1993). Tliis low success rate negatively impacts on

women's health in two ways. Soine womcn arc placed on pharinacological agcnts that liypcr-

stimulate tliek ovasies to release more tlian one ovum at a time. 'Slic long-term affect of

tlicsc drugs Ilas not becn csanllned. Furthcïmorc, chicians must tramfer multiple fcrtilized

eggs into the woman undergoing uestmcnt. Increasing the amount of cggs transferred increases the chance of a successful pregnancy. Yet, tlis sometimes ïesults in multiple pregnancies and babies with low birth weights.

One must note that economic factors drive the 'baby business' as weli (I(rirnsky cY:

Hubbard 1995). Most clinics providmg IVF treatment are private. Therefore, individuals must pay for matment costs out-of-pocket. IVF treatment can cost several thousand douars a cycle, escluding drug costs. Given its low succcss rate, multiple cyclcs are often neccssaq before pregnancy results. Higher success rates would increase the marketabiliq of these private climcs. Th,financial considerations also drive the 'need' for rcscarch on itnprovcd embi-yo transfcr procedures.

Why is state intervention necessary? Since pubIic1y funded human and animal research is, generaUy speaking, self- regulated in both countries, why should the case be any different with research on human cmbryos? Ali proposed public scicntific rcscarch protocols undcrgo scicntific and cthical peer review. The fnct that scientific peer review has occurred for over 100 years questions die need for state intervention. One point of contention is that, unlike adult humans, clnbryos cannot givc thelr consent to be rcsearched upon. Yct, accepting the prosy-consent of the gainetc donors easily dispcls this concern." What is qualitativcly diffcrent about human cmbryo rcscaïc1.i that its practicc sliould rcquiïc rcgulation by thc state?

Thc Canadian Discussion Group on Emb~yoResearch [hereinafter, die Diw~~siotr

Gla?/pl (1995) asserted dlat human embiyo rcscarch is "inexwicably linked to the pliysical

1' \Wicthcr thconsent of both gamcte donors (i.e. the feinalc, ovuin donor and the inalc, spcrin donor) is requirrd has been discussed in otlier studies. 19 and cmotional liealth ofinvolved womcn, mcn and clddrcn." In th& 1995 report to Healtli

Canada, the D~SL'IIJ'J'~Grozp claimed that human cmbryo research poses several risks for these inciwiduals, includmg pharmacological oiwian stimulation and invasive medical procedures to rctrieve ova (laparoscopy, the surgicaI removal €rom the ovary and TUDOR, wansvaginal ultrasound-directcd oocyte rctrieval). Moreover, wornen are often left out of thc discussion about what research should occur. The procedure" that this research ivants to pcrfect is invasive to women. Couples with infertility may bc better senred if research focused on empliasizing fertility protection. Lastly, opponents of human embryo research claim that supporting research funchg based on the sociaI value of reproduction rcinforccs pxonataiism.

Womeii of reproductive age, by virtue of their ïelatively lower socio-economic status, are distinctively susceptible to the consequences of these teclinologies. Moreover, it is on women that new reproductive technologics are cliefly performed. Women wcre specificaily identified as being the unknowing subjects of ïeseaïch aimed at perfecthg new reproductive and genetic techniques. Even if they aïe asked to participate in the research triaI, such an 'informed consent' process takes place in a contest with intrinsic power hlbalances, resulting in a coercive rclatioiisliip (D~SL'!~JX#AG~oI,~19%).

Lastly, rcseaïch to improvc IVF technology involves the tatnpcïing with, and destruction of, human embryos. Soinc individuals considcï this tantamount to inurder

(Canadian Confercnce of Catholic Bishops 1996). Othcrs believe that huinan cmbiyos dcscin-.c to bc treatcd with the samc, or siinilar, rcspcct afforded to fully formcd pcrsons. In

12 IVF is not a therapcutic trcatment; it does not curc 2 couple's infcrtility. Tt dlows tliein to have 30 sliort, somc indviduals believe that liuman embryo researcli needs to Le regulated because it compromises "human dignity, the respect for life and the protection of rhe vulnerable."

(Canada. Minister of Supply and Seivices Canada 1996) When the National Institutes of

Health Human Embiyo liescarch Panel [NI-1 HEIIP] madc its rccommendauons for public fundmg of human pre-embryo rcsearch public, bioethicist Danicl Callahan (1995) wrotc:

1 believe that the panel fded to corne even close to making a persuasive case for prc-implantation einbryo research. It failed to teli us why there is a duty to cary out research that requires such techniques, and it failed to peïsuasively esplain how such research is compatible with its espressed respect for the moral starus of the fetus. It is one thng to be wdiing to swaliow one's woriy about the moral status of the fetus Lii order to allow women to lime abortions (as 1 sdwould), but stiii anotlxr to do so to justify embiyo research. 1 suspect rhat the only way succcssfully to make the case for embryo research is not, as this panel tricd to do, by showing that rescarch needs to take precedence oveï the rcspcct that it says is due to the embryo (p. 40) Cailalian in nor the only bioethicist to be concerned with both the validity of the philosophical arguments for, and moral ralidity of, human embiyo research ia. the United

States. In the Fust volume of the Kemzeh Inslihfe oJ'ElhicsJoroï~ulJohn Robertson and Richard

McCor~nickargue o.rrer the values of embiyos and embiyo research. A distilled version of tliis debate and their diferent positions on the values of cmbiyos and cmbiyo research foilows below.

MCCORMICK-ROBERTSON DEBATE ON HUMAN EMBRYO RESEARCH John Robertson (29'91) asscrts tllat embryos only have symbolic worth. That rolxa ducdocs not tïutnp 'rcpïoductive liberty'. Therefore, prc-embiyos can bc thc subjects of

cliildren ïegardlcss of thcir lack of fcrtility. 2 1 esperirnentation for valid scientific and medical reasons. Ths experhentation includes both therepeutic and non-therapeutic studes. Before oudining Robertson's argument, his concept of reproductive liberty must be elucidated.

Rep~odi~cfi~r,eLbeq The theory of 'reproductive liberty' has played a central role in the judiciaiy's understanding of the unborn human's rights ageinst the woman carrying it. In Children of

Choice: Freedom and the New Reoroductive Technolomes Robertson proposes to look at the ctliical problems surrounding the new reproductive technologies [NlITsl througli a 'lens of liberty.' (Robertson 1994) In order to begin his investigation, he lists six possible ethical problems with each NRT:

interference with nature; the minimization or even dispelling of the mystel-yq behind conception respect for prenatiil life; these technologies take a haughty attitude tomard human life welfare of offspring; pliysical or psychological injury as a result of being born in this manner impact on fridy; degradation of nuclear hdy, secrecy and non-disclosure issues effect on women, wlde liberating, these NRTs may act as agents of oppression - 'women as wombs' concept costs, access and consumer protection; high cost results in widening of the liealth gap (in America, die rich gct cake and the poor may get some crumbs)

Robertson argues that the principle of procreative liberty can resolve the cliailciqp to the use and rcgulation of new reproductive and genetic technologies [NIIGTs]. Me defines procreative liberty as "the freedom to decide whetheï or not to have offspring and to control the usc of onc's reproductive capacity." (Robertsoii 1994, 16) Balancing reproductive choice with otiler competing claims can set thc scopc of this

Liberty. Procreative liberty is to be given prcsuniptive priority because it 1s encountered in our social, ethical and legal traditions and because it is of central importance to individual significance, digmty, and individuaiity (Robertson 1994). One can deduce whicli effects on fady, the embryo, and women override this freedom by utilizing dis balancing mcthod. Hc

States thnt the reproductive rights clairned under pocreative liberty are not monoiithic.

Procreative choice wdl not always prcvail, but somc claims are too symbolic or speculative to justify interfcrctice with this liberty. For csample, Robertson argues that deontological claims to protect cnibryos are insufficient to justify state intervention in iir ui,,v fertilization.

Procreative liberty is to be distinguished from ancdlary aspects of pregnancy such as choosing the mode and location of chddbkth. It is subject to hvo qualifications; the liberty is a negative right - that is, while a person vioIates no moral duq in making a reproductive choice and an individual has a moral duty not to interhre with that choice, other individuals havc no duty to providc the means to escrcise that choicc (Robertson 1994).

Constitutionaliy speaking, the state has no right to interfere with the choice of procreating or refraining from procreating; yct, ir hris no duty to provide the resourccs to zissist onc in having or not having chddren.

Robertson speaks of two types of pïocreative Iibcrty: the fïecdom to avoid pregnancy and the freedom to rcproducc. The former includes the freedoms to rcfrain from sesual intercoursc, use conuaceptivcs, witlihold gamctcs for non-coital conccption, and to procure an abortion, whilc thc latter includcs thc frecdoms to rnarly, cngagc in sesual 23 intcrcoursc, conccivc a chdd, cary a fems to tcrm and give birth. Both rliesc frccdoms arc

grounded in an ethic of autonomy and an ethic of cornrnuniry.

From American jurisprudence Robertson cites G,ïs~vo/du. Co/i~rcthxr,where the

Cjnited States Suprenie Court recognized thc right to use contraceptives, and Roc v. Wc~deand

I'/o~t~zedI'cin~z/hoodv.Ca~y, bot11 in wllicli the Court asserted a woman's right to have an

abortion up to tlie point of fera1 viability. He also relies on Justice Brennan's dicta in

Ei~~mtudtu. Baird. "If the righr of privacy means anything, it is the right of the individual,

married or single, to be free of unwarranted governmental intrusion into matters so

fundainentalIy affecting a person as the decision whether to bear or beget a chiid."

(Robertson 1994,37) According to Robertson, it is clcar that American courts have

embraced a notion of procreative liberty.

With specific regard to embryo research Robertson argues that the confusion over

thc embryo rcsearch debate has overshadowed the consensus to perform ccrtain forms of

this ïesearcli. He asserts tliat the central point of contention involves the moral status of thc

embryo aiid tlic obligations to offsprhg (l~obcrtson1990). Tlic widcly held contention is

that embiyos are to be ueated ivith spccial respect but not tlic same rcspcct afforded to human pcrsons (cg. NIH HGliP; Warnoclr lieport). Robertson claitns that the adoption of this approach lcads to a favouïablc view of cmbqo rcscarch. Thc arguments put forth by thc

. , opposition to such rcscarch occupy thc ininoriry position; every autlioritauvc body that lias conteinplated the issue lias rejected a total ban or1 etnbiyo research. Tlic potentiality of tlie cmblyo gives it only symbolic moral sipiticancc tliat is insufficiciit to justiFy a ban on rlie rcscnrcli (ilobcïtson 1990). 24 McCormick (1991) holds tliat errcri if thc pre-embryo is not yet a person, tl~ereniight be reasons for holding that it ought to be ucated as a person "at lcast mosr of the urnc." He statcs that hs conclusion need not be a grcen light for treating the pre-einbryo as disposable human ussuc. First, intcrference with one's potcntial fumrc'bs a mcmber of God's Çamily is wciglity concern for the religiously minded. Second, he invokes the slippery slope argument.

He raises his uncertainty as to hoiv wcll enthusiasm for human pre-ernbryo rcsearch cm bc conaolled. It may cstend into cmbryo rcsearch by trivialking our rcasons for permitting prc- embryo research; inedical technology "has a ~vayof establishng irrevexsiblc dynarnics,"

(îvkCormick 1991b, p. 5) In light of his discussion he argues for a two-pronged public policy. Scicntists and public policy makers have a strongp)ir,iaji/fircie obligation to treat the liuman pre-embryo as ifit was a person. Yet practically speakmg, any csceptions to ths obligation should be based on national criteria.

Robcrtson claims that McCormick's logic is flawed. According to liim, McCoïmick's argument would permit research mith hcct thcrapcuuc bcncfit to tlic cmbryo. He may possibly permit some non-therapeutic rcsearch which liavc ininitnal risk associatcd with thcrn. IEonc views research lcadrng to clic discard or manipulation of pre-cmbryos as liarmful, a lot of ïesearch may be proliibited which otheiwise would be pcrmitted under the generally acccpted guidelines (e.g. Warnock Report). Robertson argucs that McCoimick needs to show why these symbolic costs arc so grcat sincc hs reasons for a p,2111o&ie obligation could be met by a less reswlctivc standard. Legititnatc mcdical and scicntific

'3 Again, reccnt aclavrices in cloning cloud the issuc hcre. Witli cloning, cvcry cc11 in the body has tllc capacity to becomc a full human bcing. Yct, McCorinick's aïgutncnt must be understood to rcfer to tbc natural potcntial of embryoliic tissuc as opposccl to thc potential of 0thUssucs to Liccotnc disuct huiiiati lifc under artificial mcans. 25 csperimcntation cannot harm the pre-etnbryo since it docs not havc intcrests that can Le

infringcd on. If these studies are done for a valid purpose they do not duninish the inhcrcnt

value of the human being. In Robertson's words, embryo research has 'few symboiic costs.'

(Robertson 1991) Morcover, Robertson also disrnisscs hrs call for national standards. Hc

argues that since there is no national consensus on thc basic values that guide our answcrs to

the questions associated midl embryo research (~vlich,lie asserts are the same as those that

drive abortion poiitics), national standards are not politically feasiblc in the United States

(Robertson 1991). Robertson (1991) believes that what McCorrnick 'gave with one hand' he

'took with thc otller.'

It lus been established that infertility is not solely a biological issue, but it is also a

social problem; as such, human reproduction has become an issue of public policy (Canadian

Medical Association, Canada. Speaker of the House of Comrnons 1996; Cohen 1978;

National Action Conmittee on the Status of Women 1991). Now that the impact of both

the different moral States and biological development of the cmbryo on emblyo rescai:cli policy have been esplained, one cati begin investigating the different policies of intervention

Canada and tlie United States have adopted vis-à-vis human einbr-yo research. HISTORY OF STATE INVENTION IN HUMAN EMBRYO RESEARCH

AMERICAN HlSTORlCAL BACKGROUND American legislators have taken an ambivalent attitude to human embqo ïesearch.

In the United States intemention in human embryo rcsearch dates back to 1978. IVP u-eaunent experiments begm in earnest in 1974, witli success in 1978. Foiiowing the succcss of the frrst 'test-tube baby' in thc United States, the National Commission for the Protection of liesearch Subjects of Biomedical and Uehavioral [sic] Research ïecornmended the creation of an Ethics Advisory Board (EAB). The EAB bcgan its activities in 1978. During its meetings, members concluded that IVF and embryo transfeï were ethically acceptable. They stated dut, given certain guidelines, research into these procedures should be federaiiy funded. To be eligible for funding, the research protocols needed to be approved by the

EAB. Moreover, they concluded that "human in vitro ferdization rcsearch without embiyo uamfcr" is ethically acceptable.

Mtcr the elcction of Prcsidcnt Ronald Reagan, thc EAB was not called into scssion.

Wthout approval from the EAU, no elnbryo rescarch pïotocols could be sent to the

National Institutes of Mealtb [NIH] for funding ïcview. Soine may vicw this as a deJido prohibition on human embïyo ïeseaïcli at public rcsearch institutions. The situation, which has remaincd the status quo for tliirtecn ycars, has led to a vacuum in whicli the privatc sector, being given the ethcal green light by the EAB, has gone fonvard with rescarch. 26 In 1993, Corigress chose to Lypass the rieed for the EAB. No one noticecl that, with the passage of the National Institutes of Health Revitaltzation Act (Public Law No. 103-43), the federal government mas back into the human embryo research gaine (Coleman 1996)

The NIH Revitalization Act permitted the NIH to fund research protocols without the approval of the EAB. However, in Februa~y1994, Dr. Harold Varmus, the director of the

NIH, with approval from President Clinton, decided to delay the review of human embryo research protocols until the pertinent moral and ethical issues were esamined (National

Institutes of Health 1995; IUeinex 1994). To this end, the hecto1 stïuck the Human

Einbryo Research Panel [HERP], consisting of 19 people. The panel did not question whcther human emblyo research should bc fundcd. Rather, HERP [vas mandated to comment on lubut iype of research sliould be federaily funded. The deliberations began shortly after its inception in February 1994.

The National Institutes of Health HERP liad advised Prcsident Clinton and

Congrcss on research practices that arc acceptable foï federal hnding, those that warrant additional review and those that arc unacccptable for funding. The panel members decidcd that \vhiie ernbryos do not bave the sme moral status as infants and children tbey warrant serious moral considerations as a dcveloping form of human life. Tbey based tliis conclusion on the embryo's lack of developmental individualization, lack of possibility of sentiencc and high mortality rate (National Institutes of Mcalth 1994). Followinç from ths conclusion, thcy asserted that the foilowing type of rcscarch acceptable for fedcral funding: research on prc- cmblyos left ovcr fïom IVF; prc-iinplantation diagnosis up und the appearance of the primitive sucak at fourceen days; and research on prc-cinblyos creatcd in vitro given a 2s coinpelling ïeason for scientific and tlierapeutic value. Rcscarch on cmbiyos up unul thc beginning of neural tube closure at day twenty-one was dcemed as neehgadditional review.

.1* liose practices and research found to be unacceptable for federal fundmg included cloning by blastomere separation and research beyond the onset of neural tube closure (Parens

1995). On December 1,1994, the same day that the HERP reconimcndations, whcli included the recommendation to proceed with embryological research, I'resident Clinton prohibited the use of federal funds for research invohing the crcation of human embryos

(Superintendent of Documents 1994; Kleiner 1994).

In the rnidst of the budget crisis ofJanuary 1096 (during which the Rcpiiblicans sliut down portions of the US government) President Clinton signed a biü that complctely banned government hnding of human embiyo research as of the end of fiscal year 1996

(Act of Jan. 26, 1996, Public Law No. 104-99, 110 Stat. 26 s. 128; Wadrnan 1996). Tlis movc was a concession aimed at preventing furthcr governmcnt shutdowns by a Rcpublican

Congress. The ban on federal funding \vas f~~thcrtightened when the Senate passed an appropriation bill on Maïch 19, 1996 that included restrictions on hnding cmbryo rcsearch.

On Septcmber 12,1996, the Senate Appropriations Committce approved the FY97 Ldot;

Hedib, aid HeuMi Service~.AppmptIntio~t~~Bi// that also included a provision pnssed by the

Housc of licprcscntativc that cscludcd rcscarch on human cmbi-yos. \Vhile most US statcs permit ïescarch on prc-cmbryos, the fedcral govcrnmcnt, the largcst contributor to coffcrs of American scientific rescarcll, restïictccl its funding to this area. Tt must bc notcd, l~owcveï, that III most statcs privacc individuals or groups are pcrmitted to carry out liuman etnbryo

ïesearch in thc United States of America without the iiced for ctlical and scientific rcview 29 (Zapler 1995). The United States govcrnmcnc's attitude towards human emb~yoresearch is

best described as ambivalent.

CANADIAN HlSTORlCAL BACKGROUND The Government of Canada proposed to criminalize thteen reproductive procedures and areas of research, including a prohibition of research on human embryos after the fourteenth post-conception day. Legislation was to be introduced later in 1997 that would have mandated a national organization, 'possibly' in the form of an agency separate

from Healtli Canada, to govern NRGT pïocedures and rescarch. By the end of this policy process, Canada would have had a comprchensive federal Act with both prohibitions and regulatorry controls for reproductive and genetic rechnologics, including embryo researcl~.

In Canada, much of the conuoversy over human reproductive health has focused on how the government should regulate NF, embryo research and pre-natal genetic diagnosis.

The Consemative Federal Government headed by Prime Minister Brian Mulroney cstablished, by Order in CounciI No. P.C. 1989-2150, a Royal Commission on New

Reproductive Technologies chaired by Dr. l'atricia Baird. Thc government established the

Baird Commission in responsc to pressure €rom the Canadian and Ontario Medical

Associations and R 91-OUFof goveïnmcntal and non-governmental agencics and

orgariizations, which forincd the Canadian Coalition for a Royal Coinnussion on Ncw

Reproductivc Technologies. The Cotntnission was to: Inquire into and report on current and potential medical and scientific developments related to new ïepïoductivc rcchnologies, consideïing in particular their social, etlucal, health, research, legal and econornic implications and the public interest, recommending what policies and safcguards should be applied (Canada. RCNRT 1996, p. 3). After some 40,000 subrnissions, cross-country public hearings and research studies, the

Commission fially reported to the Liberal government in the fall of 1993. As a result of

weigliing this information, the Royal Commission on New Reproductive Technologies

concluded tliat:

First, there is an urgent necd for well-defined bounda~iesaro~ind the use of new reproductive technologies, so tint unethical use of knowledge is not permitted. Second, within these boundaries, accountable regulation is needed to protect the interests of those involved, as weli as those of society as a mhole. Third, given the ongoing and, indeed, increasing pace of knowledge and development, a flexible and continuhg response to evolving technologies rhat involves wide input from Canadians is an essential cornponent of their response delivery. (Canada. RCNRT 1996, p. 19) The lead agency involved with the regulation of IVF was Health Canada. More

specificaily, it was the Policy and Consultation Branch of the I-Ieiilth Policg Division.

Madame Monettc Haché was responsible for al1 correspondence with outside groups in this

matter (persona1 communication, Octobeï 29, 1996). The Iegislative assistant to the Hon.

David Dingvali, the then federal Minister of Hedth, was overseeing the progrcss of J3dl C-

47 through rhc Housc of Cornrnons (Novcinber 22,1996).

Mealth Canada and thc Minisuy of Mcalth took ovcï thc mattcr of rcgulating crnbryo rcscarch and thc NRGTs from the Justicc Department, which had originaily announced the

wiil of the govcrnment to legislate in this area. Under its 'I'eace, Ordcr and Good

Governmcnt P'OGG] Powcr', thc fedcral goveriimcnt has taken thc iniuativc to regulatc

IVF. In doing so, the bureaucrats in Health Cannda wishcd to bcgin a stablc policy proccss 3 1 by atteinpting to forin a crosscutting consensus among involved groups. In the process of conducting a vast rcview of the recommendations of the Baird Commission they consultcd fifty groups, representing women, thc medical profession, researchers, infertile couples, bioethicists, religion, consumers, children and ethno-cultural groups (Canada. Ministcr of

Supply and Services Canada 1996a). On consultation with othcr departments of governmcnt and thcse aforementioned groups of organizations, the Ministry of Hcalth and I-iealth

Canada has gone fonvard with its three-phase approach to regulating NRïs.

1-Ieath Canada believes that it has acted on behalf of Canadians to protcct the health and safcty of aii Canadians. The rationalc of the legishtivc framework is that thc fedcral government has the responsibility to both ensure appropriate trearment of human reproductive measures and protect the dignity and security of Canadians. It has appealed to

Canadians by acting on principles of protecting the vuinerable, accountability and ensuring the appropriate use of medical treatment (Canada. Minister of Supply and Services Canada

1996a). Moreovcr, it has announccd that it is proper for the goveïnment in Siis situation to balance thc rights of the individual and society. It 1s interesung to note that wlde the duty of protecting the vulncrable and human dignity usually falls under the purview of thc Attorncp

General and tlic Justicc Dcparment, the Miriisuy of Health appealed to these principlcs in thck proposcd lcgislation. Healtli Canada sccmcd EO clah diat 'hcalth' can bc proc~ircd througli a morality-centrcd prohibition.

Foilowing the final report of the Ropal Commission on New Rcproductive

Technologies in 1993, Hcalth Canada and the federalJustice Deparunent rcviewed the commission's 293 recoinmendations. Tlicsc rccotnnlendaùons covcïcd all aspects of 3 3 reproductive technologies and reproductive hcalth and were based on 10,000 submissions.

In May 1994, the Evlinister of Justice announced ùiat a bill regulating NRTs would Lie

introduced in the fa1 of that year. The proposed bill was never tabled in Parliament. Instead,

the former Minister of Health imposcd a voluntary inteth moratorium in July 1995. This

moratorium, Canada's fust step to regulation of NRGTs, asked the providers of tliese

services to rehain fïom nine practices. Those relevant to this study are:

tl~esale, purchase or trade of human sperm, ova and embryos free IVF for women unable to afford this service in eschange for ova cytogenesis esperimentation (keeping an embtyo alive in an artificial womb) the use of ova from fenises or cadavers to produce embryos or for researcli purposes (Canada. MLiister of Supply and Services Canada 1996)

In April 1995, Health Canada assembled a multidisciphary Discussion Group oii

Embryo Research chat esamined the human embtyo research in detsil. The Dis~c/~sriooaGmzq reported in November 1995. To monitor the moratorium, an Advisoty Cornmittee on die

Interim Moratorium on New Reproductive and Genetic Technologies was established in

Jnnuary 1996.

After the perceived failurc of the interim moratorium, the Government of Canada intsoduccd legislation in Parliament in Julie 1996 that would havc criminalized thirteen proced~iresand semices. The Government had also introduced a discussion document entitled New Reprodmdive cr,,d Ge~ze~il.Techzologie: Selhg Boz/)iiinm'e~~,E itbmi)'g Hedh (her ein called the Di.r~*z/s~.ioilDo~w~zei~,lJ which ouhed tlie government's plans to regulate NRGTs, including huinan embryo research (Canada. Minister of Supply and Scmiccs Canada 1996). 33 Bi//C-4 7 The H~mzanReprndz/c/ive ond Geirefi Teholo~ie~./ld,Diu C-47, was the second part of the three pronged strategy for regulating NRGTs. Thirteen services and procedures werc to be prohibited by law. The Bill prohibited research on human embryos after fourteen days from conccption. (Canada. Minister of Supply and Services Canada 1396). An indvid~ial who performs tliis or other acts and procedures is liable, on surnmary conviction, to a maximum fine of $250,000 and/or four years of prison; and, on indicment, to a maximum fuie of $500,000 and/or ten years in prison. The relevant portions of Bill C-47 read:

(4 retrieve an ovum or sperrn from a foetus or cadaver with the intention (i) that the ovum mature outside the human body, be fertilized or be irnplanted in a woman, or (ii) that the sperm Le used to fertilize an ovum;

(g) cause an ovum or sperrn retrieved from a foetus or cadaver to mature outside of the human body, or (i) cause the ferlllization of suc11 an ovurn, or fertihzation of an ovum by such a sperrn, or (ii) implant in a woiman such an ovum, or ovum ferulized by such a sperm;

(j) maintain an embiyo outsidc of the human body; or (k) cause the fcrlllization of an ovum outside of the huinan body for purposcs of rcsearch No person sliall offcr to carry out any procedure prohibited by subsection (1). No pcrson sliall offer considcration to any pcrson for carrying out any procedure prohibited by subsection (1). 6. (1) No person shail seil, purcliase, barter or eschange, or offer to scll, purchasc, barter or escliangc, aiiy ovum, spcrin, zygote, cmbryo or foctus. Subscction (1) docs not apply in respect of the reirnbursemcnt of cspenses incurrcd in thc coiicction, storagc or distribution of ova or sperin, escept any such espenses incurred by ch& donor. (Canada. Speaker of the House of Comnons 1996, p. 2-4) Thc rationale for these prohibitions was tliat the ''Parliament of Canada has grave conccrns about the significant threat to human dipty, the risks to human health and safety , . . posed by certain reproductive and genetic technologies." (Canada. Speaker of the House of

Commons 1996, session 1,17946) Biü C-47 was being considered at the subcornmittee level since the spnng of 1997; however, with the call of the election on May 2,1997 the

Parliament of Canada dissolved. Even though the Liberals were re-elected to the Canadian

Puliament to form a slim majority government, whether they plan to re-introduce the Bill into Parliament is unknown.

Regulatoy S/r//chre The Iast stage of human embryo research and other NRGT regulation, legislative measurcs that would actually allow for the crcation of a national regulatory agency, would have been amendments to the enacted 1-lrmm Rep/ah%iveand Cetletic Techt~ologie~-AL%.This lcgislative fraincwork would have established an organization, 'possibly' in the forin of an agency sepaïatc from Health Canada (Canada. Milister of Supply and Scrviccs Canada

1996). It would havc hiid the powcr to govern NRGTs procedures and rcseiirch and it would have oversccn the stoïagc and donation of human eggs, spcrm and emblyos, approvc licenses for chic and research facilitics, inspect these facilities, and ensure compliance with the rcgulatcd and prohibited practices and scnrices. Thc final function of suc11 an organization would be hcalth survcdlancc. The agcncy would havc bot11 collcctcd and analyzcd information about the effect of fcruiity drugs on women and children born ffïom 3 5 assistcd-ïcproducuvc technologies, and would havc cïeatcd a dosor/ofÇspring rcgisay. Thc

Diwt~~io//Do~wmnt claims that any provincc would be permitted to develop its own

cquivalent regulatoq regime. If this process is restarted, its end rcsult would be a

comprehensive act with both prohibitions and ïegulatory controls for reproductive and

genetic technologies, including human embqo researcli.

Of course, Canada and the United States are not alone in having to make social

policy decisions around human embryo research and other assisted reproductive

technologies. The Coiincil~Eumpe,of mhich Canada is a member, declaïed in its

"Convention for The Protection of Human Rights and Dignity of the Human Being with

Regard to the Application of Biology and Medicine: Convention on Human lGght and

Biomedicine" that:

Convinced of the need to respect the human being both as an individual and as a member of the human species and recognizing the importance of enswing the digmty of the human being . . . Resolving to take such measures as are necessary to safeguard human digriity and the fundamental rights and Oeedoms of the individual with rcgard to thc application of biology and medicine; Have agrecd as follo\vs: @. 3-4) Articlc 18. (Reseaïch on embryos in vitro) Whcre the law aiiows research on embryos in vitro, it shall cnsurc adcquatc protection of thc emhyo. The creation of Iiuman cmbryos for rcscarcli purposcs is prohibited. (p. 9) Thc Unitcd Iiingdom, oil advice of the Warnock Co~~miissioii,has cstablislicd a national

regulatory authoïity to oveïsee both rcscarch and clirücal practicc (Warnock 1985). Fïancc

11as prolibired certain practices and lmïcgulated IVF and etnbryo ïcsearch througli its extensive bioctliics Icgislation. Lastiy, Ausaalia lias aUowed its territorics and statcs to cstablish NliT-specific regulatory and liccnsing agcncies (Ruberto tk Del Vallc 1996). 36 This research pïojcct is dïiven in part by a pressing normative question: What shodd be the level of state intervention in embryo research in Canada? If the government rc- introduces BiU. C-47, the Government of Canada may also introduce its second phase of regulation, the establishinent of a national regulatory body. What sort of rcgulation is appropriate in the Canadian contest? More irnportantly, what values define ths contest?

Adopting an institutionalist approach married with Divorkin's philosophy of judicial review dlbe lielpful in esamining why Canada and the United States have adopted differcnt policies of intervention vis-à-vis human embiyo reseilrch. THEORETICAL FOUNDATION AND METHODS

THEORETICAL FOUNDATION FOR THIS STUDY lnstitutionaiism Neo-institutionalist theoiy bears directiy on the puzzling question identified in the introduction of this study and ïeiterated at the end of the last chapter. 1-Iistorical instirurionalisin coupled with Ronald Dworkin's theory of constitutional adjudrcation wdi provide sufficient leverage for supporting this exploratory investigiation.

'Old' rational-choice institutionalists defmed institutions as the rules and procedures that govern the relsitionships between individuals in various components of rhc policy process. They proposed using legd-historical analysis to dcscribe hoïv political institutions influence political action (Laski 1938). Rcsearch rooted in this institutionalist theoiy consistcd mainly of normative comparative studies, which contrasted the effects of different institutional configurations (Thelen and Steinmo 1992). Such theoiy feii into disrepute in the

1950s because it did not espIain the actual behaviour leadmg to distinct policy outcomes.

Historical lnstitutionalism Neo-institutionalists attempt to answeï tl~cquestion of why thesc institutions esist at all. They sce organizations as the pïoducts of human design and thc outcomcs of goal- di-cctcd action by incans-oricntcd individuals. Institutions lcgituniitizc political actors, providc thcin with consistent behaviour ïules, conceptions of redity, and give them the 38 capacity to cari-y out policy. Keohane (1989) esplains institutions as "persistent and connected sets of rules (forinal or informal) that pïesciibe behaviour, constrain activity and shape espectations." (p. 163) Accordingly, not only do institutions lower transaction costs

(Coase 1960) but they also help to formulate preferences and constrain the estent to whch they can be actuahed. Moreover, no presumption is made that any set of international or domestic institutional factors is more important than another in predicting action. An einpiïical reseaïcher must esploïe ber puzzle using an institutionalist approach to fmd out what païticular factors mosc influcnccd a particular policy. (Thelen 8: Steinmo 1992)

Iicasner (1988) provides a useful defillition of institutionalisin in his 'punctuated equihbrium' appïoach to institutional change:

An institutionalist perspective regards enduring institutional structures as the building blocks of social and political life. The preferences, capabhties, and basic self-identities of individuals are conditioned by thesc institutional structures. Historical developmcnts are path-dependent; once certain choices are madc, they constrain future possibilities. The rangc of options available to policymakers ac any given tirne is a fiinction of institutional capabilities that were put in placc at somc carlieï period, possibly in rcsponse to very diffcrent cnvironmenal prcssurcs. (p. 67) Ibasner (1988) argues that institutions do not cause political action. Rather they shape choices, frame questions, and constrain the possiblc solution scr to thcsc questions. It is during crises, which periodicaily 'punct~iate'and disnipt institutional stasis, that major institutional change occurs. Unfortunatcly, bccause IGasner's view csplains so much, it csplains little. Poiicy is the dependent variable to bc csplaincd with rcfcrcnce to tlic independent variables of social, political, and cconoinic institutions. Yet, at some crisis point, thc independcnt variable, institutions, becmes a depcnderit variable. The theoretical lnodcl becolnes cndogenous (Thelen and Steinmo 1992). 39 Atterilpting to sahragc I(rasner7s view of institutions and institutional change would bc prudent since its only major fallacy lies in it esplainhg too inuch. Thclen's model of

'dynainic constraints' may provc to bc useful in this reprd; it is a more parsimonious tileory of institutional change (Thelen and Steinmo 1992). Thelen (1992) argues that institutions do not adapt solely during moments of crisis and institutional breakdown. Rather, political actors can manoeuvre within the constraints of the institutions in whicli they interact.

Moreover, the actors take advantage of crisis within the institution; thcy do not act as bystanders and allow the power dynamics to change by themseIves. Thelen's elaboration of a

'punctuated equilibrium' theoretical model will provide substantial analyticai leverage to esplain the clifference in Arnerican and Canadian human embryo research policy.

Using historical institutionalist theory, one could argue that the ciifferences in embryo research policy could bc explained by esamining the diffeïent institutions tliat esist in thc United States and Canada. Distinct institutional factors may have constrained what policy choices were avdable to legislators in the isvo countries. Within this thcoretical framework, the research question can be revised to read: What institutional factors could esplain why thesc hvo governincnts Iiave cmbarked on very diffcrent policies concerning elnbryo rcsearcli? Furcher explication of chc place of valucs and idcas in institutionalist tlieoi-y wdi bc rcquired bcfore onc's specifics \vht institutional factors need to bc csainincd.

I'etcr Hall's (1986) construction of thc ïelationship behvcen ideas and institutions is quite uscful in this regard. ldia~.cd I~~s/i~r/tions Peter Hall argues (1986) that the idcas and perceptions of political actors form a cornponent of their rational action. Ideas, in general, are inherently powerful, but their social power is augmented when they are einbraced by institutions. One must ask, however, 11ow these ideas arc formed. Ideas are formed bÿ institutions. Replacing one interest with another reallocates power. Political projects are interactions between ideas and interests, in which interests arc formed by ideas. Ideas can make political actors see pïoblems in new ways. In this manner ideas constitute interests (Thelen and Steinmo 1992). As not to risk reifying social structures but instead to espose hem as social consmcts, Jepperson (1991) defmes institutions as "socialiy constïucted, routine procedures, program or rule systems." (p. 149)

Thus, institutionalkm is, in part, the study of norm-based behavioui..

Thc effect of h&hj institutioilalized organitations or rules is oftcn taken for granted.

The hw is such an institution. An analysis of thc values in place in Amçrican and Canadian legal institutions wiii prove fruitful to explaining the research puzzle addïessed by ths study.

Before analyzing my research question in light of this literature, one must show how intcrcsts and idcas play out in the law.

The /ego/ it~s/iMot~ This study wd focus its investigation on the judicial interpretations of the rights guaranteed to individuals by the Cotcs/i/~~/iot/ofCmridd4 and the Co/i~fi~~//ionofthe Utlded S&/es oj'/lr)~e)'~C~P.Both Alnerican and Canadian courts of law are vestcd with the power to dccidc

15 1-Iereinafter the Amenfun COJIJ~/~/II/~OJI.LWien 1 spcak of tlx Constitution without specifjing eitlicr country, 1 mean to rcfcr to thc wïittcn constitution of a Western dcmocracy. 4 1 whether or not the laws enactcd by Parliamcnt, thc legislature or Congress are consistent

\vit11 the Ccidliclit Cons/i#t~fionand its entrenched Chruter o/'R&h/srrnd t7rcedonts'~or the

Ame~zmnCurrs~it~~/iun and its entrenched Ui// ~Righ/.r,respectivcly. T11c paramount idca behind judicial review is the supremacy of the Cori~~/it~~fior/of'Cui~rrr/ri over the legislature and tbc

Cori~~fi~z~~iono//hU/ri/ed Strrte~. ofjlmeri~z over Congress and the l'resident. The majority, represented by elected legishtors, cannot do everytlung it wishes; however, the minority cannot restrict the allowable actions of the majority.

Regulation is the major policy instrument under considcration in tlis study.

Regdatory measures caU for required compliance to obtain certain standards. Accordmg to

Brooks (1995), the state has a "monopoly of legitimate use of physical force in the enforcement of its order." Yet, Madam Justice Bertha Justice Wilson declared in R v.

~tlupntcllw(1988), that in Canada this monopoly is subject to an invisible fence mapped out

by the COIIS/~/UI~O~o/'Catzcldu over which the state cannot pass. The court, through

consatutional adjudcation, determines what thesc allowablc actions are.

Some notions of judicial review assert that thc court must make judgements based

on exteïnal principles, which are Çree fïom Lias. This constitutional theory will Le explicated

beforl: it is demonstïated ro lack cxplanatoiy poweï. lionald Dworkin's thcory of ju&ciaI

rcvicw, wliicli fits into the historical institutional concephiaiization of ideas and intcrcsts

outhed carlier, wiii then be explained. Robcr[ B0l;C 5- Tbcog~af'0ngi11nl It~tet~t Robert Uork (1971) believes that the court must act on some general principles when decihg on constitutional challenges. The theory is bascd on the notion that society consents to be mled 'undemocratically'- the unelected judiciary having the final decision - only if the court makes judgements based on esternal principles which are free from bias.

These principles are found in the test of the Constitution. The role of the court is to interpret the mords of the Constitution in order to fmd the principles based in the test. It may not, liowever, extrapolate from these generd principles. Judges accomplish this duty by attempting to find the intent of the people who composed the Constitution. They searcl-i for the 'core idea' in the words of the document by placing it in a Iiistorical context. In effcct

Bork outlines an argument based on 'original intent.'

There are three main critiques of Bork's argument. First, the idea of finding a core idea in the text is dubious. Bork fecls that one can eliminate judicial bias by not allowing them to interpret the Constitution. Rather they need to fid the meanhg of these ïights that the framers of the Constitution had adopted when drafhg the document. Howcver, on what basis does one conclude what people were thinking? How does one enter into the mind of people who have undergone different socialization processes, mho havc posscsscd different knowledge, and who rnay have been a different gender? Surcly, this is a strong cïiticisin of Bork's tlieoiy.

A second critique of Bork's theory aïiscs from lis themc of "ociginal intent." Froin

Bork's argument one could conclude that the framcrs of thc Constitution arc morc qualificd than judges to impose their wiü on the populacc. Tliis claim sceins prcposterous given that 43 Bork asserrs dmt a miscarriage of justice results tvlien judges make value judgements in deciding cases. When deciding what rights to include, the indtviduals who drafted the Bill oJ'

Rigbf~~and the Chorter surely made judgements based on their own values and aspirations.

Moreover, Bork's view leads to stagnation; the courts would basically never bïeak out of the mould created years earlier. If the judiciary decided that the constitutional framers had made poor value judgeinents, they could never be corrected. The Supreme Court could never, as then Chef Justice Dickson said, "play a major role in shaping the lepl, moral and social contours of our country." (Mandel 1992, p. 61)

The third criticism of Bork's the017 lies in the fact that the Bi// ~J&~~EJJand the

Cbnrter are intentionaliy ambiguous. Bork demands that judges find clear fundamental principles in both documents. Tliis demand is unachievable. No clear principles exist in the

Chorter's phrases "fundamental justice," "unreasonable searcli or seizure7' or "demonstrably justified in a free and democratic society." No lucidity cm be found in the American mantra of "life, liberty and propeïty." Even from a brief esamination of the Charter and thc Bi//oJ'

Rights, one can conclude that its writers intcntionally made them ambiguous documents.

Clearly, the Constitution is a legal document that requires interpretation.

Rotdd DivoikI,/%Tbeoly o[Cot~s/itu~iotralliighf~. Ronald Dworliiri (1378) purs forth a pliilosophy of constitutional adjulcation based on the prcmisc tliat citizens have riglits against rhc state. IZîghts truinp lcgislation. Dwoïkin aïgucs that it is absurd to assert tliat legislatures are best suited to protect minority rights.

Minority groups lack the political power that majorities use to influence elected legislatures.

Neitheï is it fair for the majority to advocate for the rights of the niinority. The couït must 44 rise and defend thcse tights especialiy in cases where the majority is inconvenienced by granting the minorities rights.

Dworkm (1978) believes that the distinction behveen co~zcept~~and corrceplions is at the core of judicial reviewI7. One appeah to a concept, but one app/ie.s a conception. The distinction is a difference in the kind of instruction given. For esample, when John appeals to Jane's concept of justice, John insuucts her to develop and apply her own conception of justice. John sets the standard for her to meet; the concept poses a moral question.

However, if John lays down a conception of justice, his own view is at the heart of the mattcr. The conception answers the moral question. The vague clauses of the Constitution must be understood as concepts and not as specific conceptions of riglits. An activist court is one that goes ahead with undertaking the application of a concept as law.

Dworkin esplains that judicial review under a constitution is a fusion of constitutional lmand moral theory. The court must decide what moral rights people have against the Statc. Law is no more independent from phdosophy as it is from economics and sociology. This iictivist stance, hosvever, tnay be compromiscd for pracucal rcasons or for completing rcasons of principle.

The implication of entrenched constitutional rights on public policy In order to specuiate as to how the Charlerand the Bi//of'lb~ht.~provide a framework for public policymaldng by legislators, one must esamine the power and scope of both documents. I'arhainent and Congress made a comrniment to upholding thc riglits

17 In this fasliion Dworkin's 'concept' is marricd with thc liiscorical iiistitutionalist's 'idea' and his 'conccp tion' with 'intcrest'. 45 guarenteed by the Cbmhand the Bi//oj'Rghrs, respectively. The Constitution is a tool of tlie judicialy and a force that directs Parliament, Congress and the American President in the esecution their legislative and esecutive powers (Hogg 1992; Ratushny & Beaudoin 1989).

Section 52 of the Canadian Constitution affums that a lew that is in discord with any provision of the Char~erisof no force. In Marbtuy 2). n/fmiiiro~l(the Fust instance of judicial review under the Amerilun Cons~if~~tion)the Court asserted that law whcli is not in line with the Ameti~mCons~i~z~h'on is null and void.

An esample of the force of the court's def~tionof constitutional rights in drafting legislation is the death of the Mulroney governrnent's 1991 abortion bili in the Canadian

Senate. In her subrnission to the Standing Cornmittee of the Senate: Legal & Constitution

Affiurs during the 1991 Canadian abortion debate, Weinrib (1991) argued that the proposed abortion Bill C-43 suffered from the same constitutional problems as the old Canadmn abortion bill, whch was stnick down in the landmark R v. Mo~pztaler(1988) decision

(Weinrib 1991). In lier argument she contestualizes the old abortion bill and the judicirl reasoning for suihgit down. The old 1969 Crnhid Code amendment18 worked agiinst women's reproductive health but it also freed physicians from fear of criminal prosecution for perforrning therapeutic abortions. Doctors used their control over the abortion process to impose their moral, political and social values on women. Weinrib was successful in convincing enough senators that the proposed abortion bill suffered from the same constitutional shortcomings as the old amendment.

18 The ainendmcnts were passed by tl~cCanadian Parliament in 1968, but took effect on Jaiiuaiy 1, 1969. 46 Wlde the court may not be able to force government to lcgislatc specific issues, the statc rnay be duty bound to do so by its Constitution. In R$ler/ce Re P~lblilServh~ Entplymt'n/

Relrr/io~~~AL? Canadian Cluef Justice Dickson wrotc that there are "situations where the absence of government intei~rentionmay in effect substantially impcde the enjoyment of fundamental freedoms." (nt 361) It is undear homever, whethcr constitutional documents carry such authority. In any case, the state must be careful that intended legislation does not contravene constitutional rights as defined by the courts. It is clear that Parliament and

Congress must respect the force of their respective Constitutions; they carry enosmous weight in the drafting of new legislation. "Ideaiiy, then, a constitution authorizes the institution and institutions of government, establishes the rules of governance, and, most important, sets forth a vision to be secured through those institutions and rules." (Pilon

1992, 373) By passing the Cowstztz1tio)~-4ct,1982 and obligating itself to uphold the Cbar~er, the federal and provincial Canadian governments have a moral and legal obligation to ensure the rights guaranteed in that enacmenr. The US Congress and thc American csccutivc branch of government must respect the rights outlined in thc A?ueticun Comtid~ftiorî.

Constitutional exegesis is not Iitnited to the courts; thc legislative and csccutivc branchcs of government themselves sliould intcrpret thc clauses of tlic Constitution.

Government has a rcsponsibiiity to discern what the Constitution requires of it. These inteïpretations, lioweves, may be subject to scrutiny by thc judiciary. In this manner, whilc legal precedent sets the fmmework for this application, aii tliree branches of democratic govcrnment arc able to apply spccific conceptions of tlic rights in the Constitution. 47 Yet, the court has the power to challenge the application of these conceptions. This is analogous to Thelen's idea of polirical acrors working within the confines of institutions to accomplis11 change. Jenkins' (1978) definition of public policy can help clarify dus relationshp. He States that policy is:

A set of interrelated decisions taken by a poiitical actor or gïoup of actors concerning the selection of goals and the /ileum ofuchieuing them within a specified situation where those decisions should, in principle, be iviil,irr the power of those actors to achieve. (p. 20) Individuals choose one public policy over another because they iiztencl to achieve a certain outcome. By defition, some poiicy appronches are bound to fail. Institutions house ideas.

The instituuonalization of these ideas by the courts clearly directs policymaking. Yet, political actors are able to maneuver within the constraints of these articulated valences (in that they resuict the range of policy options), define interests and goals, and make specific policy choices. To paraphrase Weir (1992), institutions channel the flow of ideas, create incentives for political actors, and help determine the meaning of poiicy choices.

METHODS

Overview The review of the historical institutionalist and constitutional adjudication literatuïe lm suggested a final fo1-m for my rcsearch question. Onc would spcculate that numcrous political, social and institutionaI factors would account for thc pcrceivcd diffcrcnce in emhyo research policy. Explanarory variablcs otiicr than 'lcgal conceptions' might account for the differenr humin emblyo research policies. 'i'hcse alternative cxplanatory variablcs 4s include poiitical culture, state capacity, and policy agendas. Bcforc outlining the methods of this study, the possible influences of these factors1'-'ivdi be esamined.

Political culture can be defined as a method of describing civic behaviour in the poiitical area. It includes the distinctive customs, sMs and attitudes that people adopt as the shedesperience of their polity. If 'political culture' was used to esplain the differences in liuman embryo research policy in the United States and Canada, one might look at how

Ainericans and Canadians conceptualize the farriily. Exarnining the distinctive role the

'religious right' plays in American policyrnaking would be helpful. Other areas of ciifference could include ideas about spousal and parental consent.

Statc capacity could also be an explanritory variable. It refers to the abihty of the state to irnplement its policy objectives. By referring back to Jenkin's definition of poiicy, one notices that policymakers clioose options that they have the nzeatzsh mhieve (Jenhs 1978).

While the United States will usually not compromise principle for prapatic reasons, this study \viU suggest that if American policymakcrs fclt that die courts would fmd national regulation of human embiyo ïesearch unconstitutional, then they may have not consideïed it as a policy option. Ausualiail policymakers, who coinpromkcd ti~ciïrcgulatory goals and set a less restrictive policy regulating comnlercial surrogacy, used a sirnilar line of reasoning.

Legislators believed tl~atit would be impossible to insure cornpliance with a stricter policy of criminalization; therefore, they adopted a much more permissive rcgulatoiy structure.

1') 1 will not espand on the idea of diffcrent policy agendas. The tlicorctical mode1 of l~istorical iilstitutionalistn outlined carlicr in this chapter includes 'Eraining' withiri thc theoretical model. Fïaming policp issues is a large componcnt of poEtica1 agendas. Leaving a social policy issue off the political agenda is ta frame it as being unimportant. 49 The idea of framing poiicy issues is about setting Loth the agenda and the vocabulaq to be used in the discourse. Framing is a method of presenting the possible contentious poiicies by carefully cloaking them with accepted valences and institutionalized values

(Schattschneider 1960). For esample, in health cmdiscourse a policy maker miglit appeal to concepts of equity, equality, accessibility, and comprehensiveness. The use of accepted values is an efficient way of makmg die proposal attractive to hciividuals because it is easier to bdd on existing valences than to change public attitudes.

Yet, dis study will esplare how the ciifferences in American and Canadian liuinan embryo research policy can be understood through a comparative analysis of the jurisprudence of the abortion issue. Social and political factors will not be put aside. Rather, jurisprudence in the abortion debate wiil serve to capture these political and social forces.

One must be cognizant, however, that ths 'capture' is biased; it ïepresents the perception of these forces through the filter of the judicial rnind.

By Çocussing on how jurists framed thc abortion debate and analyzing the landmark

American and Canadian constitutional decisions, this study will investigate whether the rcspective judiciaries appealed to different concepts in reaching their 'resoluuons'. Moïcovcr, if they appcaled to the same legal concepts, it is suspected that tliey applied different conceptions of thcsc concepts to the abortion question. IHistorical iiistitutionalism suggcsts that by institutionalizing thesc valences, thc respective legal systcms differcntially constraincd tlic Canadian and rlinei-ican policymakers who cxarnined the question ofwhether thc state should regulate human emb~yoresearch. 50 Why Abortion? Aboruon is a good choice as an analogous case for hvo reasons. Many of the issues that polarizc the plilosopliical debate regarding embryo research are reflected in the abortion debate. Robertson asks the questions of who has the decisional authority over the carly stages of human life and what power does the state have to limit that decisional authority in order to protect early embryos and other interests? He concluded "governmcnt restrictions on technological treatments for inferriiity should have to pass the saine demanding test that would apply to restrictions on coin1 reproduction." (Robertson 1994,

117) Sirnilar questions have been addressed by thc courts in both the American and

Canadian abortion debate.

More importantly, not only are parallels in the abortion debate found in the courts and among special interest groups, but sdarities are also found in American and Canadian public opinion. According to research conducted by Neii Nevitte, William P. Brandon and

Lori Davis (1993), there are "striking parallels behveen the politics of aboïtion in the U.S. and Canada." (p. 19) Amcricans and Canadians sharc sidar vicws about abortion cvcn out of legal contest. For esample, over the pcïiod from 1983-1993, public levels of support for lcgalizing abortion in Loth countries havc bccn approsimately thc samc (scc appen&- A).

Attitudes towards abortion remain sdareven when botil health and discïctionaiy dimensions arc exarnined (Nevitte ct al. 1993). A noticcablc drop in the 1990 US approval rating for abortion is noted when the unborn chdd is likely to be born with a handicap. This drop can bc attïibuted to other factors, nameIy the prevalence of issues confronting the physically disablcd following the intïoduction of thc federal Disabililles Act into Congrcss. 5 1 This data illusaates that the effect of public opinion can be conuoilcd in a comparative abortion law study such as this.

As Eva Rubin (1987) noted in Abortion. Politics and the Courts: Roe v. Wade and Its

Aftermath, the role played by the courts cm be as powerful as legislation to instigate social change. One must examine tiie impact that such litigation can have and the ensuing political battles that may follow it. This is the task that this study wdl undertake.

RESEARCH MODEL The research question wili now be defined in terms of dependent and independent variables. The dependent variable to be esplained is the level of state intervention in human embryo research. 'Level of state intervention' can be measured on an ordinal scale. The low ciid of the scalc is 'no state intervention'. 'Level of state intervention' increases as one moves from 'low intervention (cg. self-regulation), though to 'medium regulation' (e.g. national regulato~yagency), to 'hgh intervention' (e.g. criminal law). The values of the dependent variable in both cases are hown. In Canada, there was proposed medium-to-high level of state intervention; a lower level of state intervention exists in tiie United States.

The independent or explanatoiy variables, to be probed are the concepts of

'protection of unborn humans and thcir symbolic value' and 'wornen's autonomy and health'. Examining the pldosopliical debatc concerning human einb~yoresearch has idcntificd thcse concepts. The Robcrtson-McCormick debate, which csarnines differcnt posrtions on the valucs of embiyos and embryo rescarch, will framc the esplanatoiy portion of the study's rcsearcli model. The debate focuses on the conflrct behveen hvo valucs, 5 7 'human dignity' and 'liberty'. John Robertson States that the embiyo's symbolic claims

(human digniry) are overridden by a woman's health interest (liberty applied wid~science).

Richard McCorrnick believes that scientific progress (includmg progress in women's reproductive Iiealth) may not be important enougli to override symbolic claims of the unborn human.

DATA COLLECTION Data coUection proceeded by searching die full-text case citations of the

QUICI(Law Database of Canadian law and WESTLaw, the equivalent Amcrican legal database. The seaïch began from the landmark abortion decisions in the nvo couritries. R. v.

Morgetrtaler (1968), in Canada and Roe v. Wude (1973) in the United States. The databases were searched only for subsequent decisions that either rely on Morgentuler and Roe v. Wde or distinguish themselves from them on relevant points of law, specificaliy definitions of liberty that are relevant to human reproduction.

Next, American and Canadian emb~yoresearcli policy documents were collected.

These included the Disc~~ssioaDOCII~I~~II and the I're~.i~Ie~z/in/rl~~~~o~~t~~~e~~~et~/s found in the IVeekS

Coitpi/~~/ions~Pr~sidenfirilDo~~~n~ent~~. Due to the lirnited scope of this study the debates of the

House of Commons and the debates of the House of Representativcs wiil not be exnmined.

The fust document was available from Health Canada and thc ïest weïe available in elec~onicform via the Internet. 53 RESEARCH METHOD Bot11 the American and Canadtan landmark abortion decisions, R v. ~Marget~/rr/er

(1988) 1 S.C.R. 30 and Rot v. !Vade (1973) 410 US.113, wdl undergo substantive esamination. Using discourse amlysis, the values to which the respective judiciaries appealed wiU be identified. The relevant, subsequent case law coliected through the legal databases wdl be used to 'fie-tune' the values identified in R v. Morgentderand Roe v. Vade. These values and conceptions mill then be compared to the historical account of emb~yoresearch policy put forth in chapter 2 and to documents that explain each government's policies on human embryo research, if svailable. Finally, this study wviii examine the implications of the analysis for hmerican and Canadian policy makers in light of its findings.

The data wvill undergo hvo analyses, a legal-historical analysis and a discourse analysis. The former will attempt to outhe the current state of law in both countries and to identify the historical path that led to that those decisions. The facts of each case and a bïief explanation of the relevant constitutional concepts wdl be given prior to examining the judicial decisions. This portion of the analysis will serve as a legal-hstorical account of the abortion debate before the courts and as an overview of the data of the analysis conducted in the nest chapter.

Then, two tooIs of discourse analysis mdl be uscd to examine thc data. Morc spccificaliy, 1 wdi be using ideological discoursc analysis. Oral and wïirten discouïse is analyzcd for the social indicators of the interests and idcas of the authors. It sccks to identify the underlying biases of the authoï and hghlights power irnbalances and ideologies. (reuii il. van Dijk 1985) The fkst mecl~anism,trutisihi~, ïefers to how thc subject materialiy 53 affects, or seems to affect others (Fowlcr 1985) Wigh levels of rransitivity in a sentence, païagraph or in speech empliasize the conaol of the agent (Fowler 1985; Lind & O'Barr

1979). Transitivity contributes power to the subject to form relations and implies that they are active participants in decision-makrng. Nest, it is necessary to inu-oduce the concept of

/e-\-iirnli~ation,whch refers both to how weli a specific concept can be espressed in a term and to how many terms esist for that concept (Fowleï 1985)."' It is a linguistic feature used to convey ideology. Over/exid&ulioort refers to the phenornenon of many terms being available in one language to express a concept. Conversely, ~îtiderIe~r'~u/iqn~io/trefcrs to the lack of a tcrm, or the lack of a prevalence of terms, tliat would neatly encode a process or concept (Fowler

1985). It must be noted that tiis study is both qualitative and incerpïetative.

Why An American And Canadian Comparative Policy Study? Prior to embarking on this study, a major methodological and design choice that was made must be justified. WMe the research question and tiiesis flow duectly from the puzzle that focussed the author's attention on the American-Canadian dissimilarity in embiyo research, the researcher must justiQ why he selected these cases based on the dependent variable, 'lcvel of state intervention in embiyo research'. To put it simply, one must explain wliy dis study lus chosen to compare Canadtan policy and jurisprudcncc with that of tiic

United States. The weakness of this approach shali bc considcïed first and then its stïcngtlis shall be discusscd.

A coniparison of American and Canadinn jurisprudence must bc done carefully sincc the respective Constitutions caii for diffcïent distribution of powcrs and the counaies

2" No attempt at quantification of this measure was made in this study. Rathcr, discourse analysis was 5 5 embrace different conceptions of riglits. For esample, wlde criminal Iaw is within the

jurisdiction of the Federal government in Canada, it is primady state law in the United

States (save for matters dealing with interstate commerce). The Canadian federal government, therefore, may fmd it easier to legislate national standards vis-à-vis einbryo

research than its American counterpart. Yet, government can enforce regulatory measures

through other measures and not need to resort to criminal law.

A second, more difficult, difference to address is the peculiar conception of rights in

Canada. The Chnrterguarantees rights only to a reasonable kt.Section one of the Ch(rrter reads:

S. 1 The Canadian Charter of Rights and Freedoms parantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic Society. Once a government law is found to infringe on a right protected by the Charter, section one, at the state's request, can be used to Save the offending legislation. The court must ask the following questions (as defined in K. u. 0ake~;26 D.L.R. (4th))Zl:Are tlie legislative means chosen rationaliy connected to the objective? Do they impair the individual's righr iis Little as possible? 1s proportionality srruck between the effects of the mcasures \vliich are rcsponsiblc for luniting the Chnrterïight or freedom, and the objective which has been identified as being sufficiendy important? While botil courts may balance the rights of the individual qainst

used as an interpretative method.

21 In Ir7uit1 TV Llcl v. Q~le.ii/itlort~ty Getred.)), a ncw Ouke~test was established in which differcnt criteria were sct for the 'minimal impairment' test. The court only required that the governinent have a reasonable basis to believc tliat tlicy were restricting rights as Little as possible. Tliis variation of tlie Oukes test is no longer objective, but radier subjective. The court felt ththe legislature was onlg acting as a mcdiator of conflicting and therefore applied tliis weaker standard for the governmen t. 5 6 societal concerns when they frame the scope of a constitutional riglit, no esplicit procedure,

such as s.1 of the Churkr, esists in Ainerican constitutional lam. Because of the court's broad definition of tliese rights and freedoms, the Canadian judiciary has relied heavdy on the

section 1 test as a method for saving governmental legislation.

A comparison of American and Canadian legal institutions within the context of abortion and embryo researcli makes sense. Both countries are western democracies that have accepted judicial review under the Constitution and the doctrine of sfan de~ixi~~.The doctrine of skn de ci ri^. binds lowcr courts by the decisions in Iaw of higher courts (Talos et al,

1990). It ensures continuity and prevents a plethora ofrulings on the same issue (idem). The

Supi:eme Court feels constrained by irs rulings but cm change its mind.

Thus, lower courts in bot11 countries must respect the decisions of higher courts, but

neither Supreme Court is bound by its earlier decisions. Hence, while the executive and

legislative branches of governrnent are bound to respect the conceptions of riglits

purported by the Supremc Court, the Court need not act withiil the constraints of its earlier

decisions. Interestingly, many jurists feared tlmt the US Supreme Court would overturn the

Ibe 11. 1Vuh decision during subsequent abortion cases. It did not. This phenomenon needs

to be addïessed as wcll.

Tliere is an important historical note to bc rnadc as well. Like Germany, wliich lm a

recent sliameful record of human gcnocide" and cultural annildation rooted in social

Danvinisin, die United States and Canada sharcd comparable 'eugenic laws' and have had a

2 Nazi Germany, wliich claimed a high moral scnsitivity, also banned abortion escept for Jews. 57

comparable hstory of 'eugenics by the back door' (Duster 1990; Kevles 1985). 3 These

influences have probably had eqivalent impact on social policy issues that confront issues

of human dignity. The German government has banned all research on human embryos.

'3 The United States, however, has also hiid ii history of unethical researcli on human subjects, most notably, the Tuskegee syphilis es~erimentson Black males. THE ABORTION LAW CONTROVERSY

This chapter wiü examine the landmark abortion decisions in the United Shtes and

Canada. The fxcts of each case and a brief explanation of the relevant constitutionai

concepts wili be given prior to esamining the judicial decisions. This portion of the study

will serve as a legal-historical account of the abortion debate before the courts and as an

overview of the data of the analysis conducted in the next chapter.

ROE V. WADE- THE AMERICAN LANDMARK CASE

Case Overview In 1854, the state of Texas crirninalized abortion (Garnrnel 1898, p. 1502). Later arnendments to the statute modernized the language, but the substance of the prohibition remained the same. The statutes under scrutiny in Roe v. Wade were 1191-1194 and 1196 of

the Texas PerlaLCode. Under these statutes, it was a crime to "procure an abortion," or to attempt one, escept with respect to "an abortion procured or attempted by medical advice

or the putpose of saving the iife of the motlier." Prior to the litigation of Roe v. Wade, simiiar

statutes were in existence in a majority of the States.

An unmarried wornan, Norma McCorvey under the pseudonym Jane Roc, put

together a class action federal suit in Marc11 of 1970. She sought a declaratory judgment 59 against the T.l'eenal Code articles that restrictcd abortion services.74As wcll, she applied

for a court injunction to prevcnt the District Attorney of Dallas County from enforcing

them. Roe clairned that she, as an unmariied and pregnant woman in Texas, could not get a

safe, legal abortion because her life was not in danger from the pregnancy. Lacking the

financial resources, she could not get to another jurisdiction where abortions were legal in

her case. She maintained that the te sr^. Pe~dCodt provisions were unconstitutionally

'~ague'.~Moreover, they infringed on her 4ht to persona1 privacy found in the first, fourth,

fifth, ninth, and fourteenth amendments. Roe asserted that she was suing 'on behalf of

herself and ail orher women' sirnilady siniated (Roe v. 1Pade 410 U.S. 113).

The three-judge distïict Court found that the ninth and fourteenth amendments to

the United States Constitution protected the right of ali women to choose whether to have

children. The Texas abortion statutes were held unconstitutional because they were vague

and infringed too broadly on that ninth amendment right. However, they dismissed the

request for injunctive relief. Roe fded appeal to overturn the latter portion of the decision.

Ar the same tirne, the District Attorney cross-appealed the decision of the trial Court. Since

privacy iights are central to the American abortion issue they wvdi be addressed prior to

examining the judicial reasoiiing in Roe v. 1Vucie.

2.1 According to the head notes of thc case: "A licenscd physician (1-laltford), who had two state abortion prosecutions pending against him, was pcrmitted to intervene. A childless inarried couple (the Does), thc wife not being pregnant, separately attacked the Iaws, basing alleged injury on the Future possibiliiies of coniraceptivc failure, pregnancy, unpreparedness for parenthood, and impairment of the wii'e's heaIth." This study will only focus on the court's decision witli regard to Jane Roe. '5 The 51'1 amendment protects individuals from Iaw thnt are so vaguely written that one can not ascertain \vhether one's actions are lawful. Privacy Rights in United States Constitutional Law

the United States Supreme Court has constmed it as a broad, constitutionally entrenched right. Ths right is grounded in an article written by Louie Bnndeis prior to his appointment to the United States Supreme Court. Justice Brandeis (1890) wrote:

That the individual shall have full protection in person and in property is a principle as old ns the cornmon Iaw; .. . Gradually, the scope of these legal nghts broadened, and now the right to life has corne to mean the right to enjoy life - the ngjt /O be /et alone [emphasis added]; the right to liberty secures the exercise of civil privileges; and the term "property" has grown to compromise every form of possession - intangible as iveU as tangible. (Harvard Law Review; "The Right to Privacy") In 1928,Justice Brandeis applied this notion of privacy in his dissent in Ol~eadv. Uded

Statts 277 US.438 (1928) (5-4). This concept became the basis for a new form of comrnon law action in tort law. Ultimately, the Cowt used privacy in a constitutional sense to define the lunits of state interference with individual autonomy.

'Constitutional privacy' found its origins in Boyd v. UnitedSjates, 116 US.61G. In Bo$, the Court found that a federal statute that required taxpayers to produce th& records or othenvise concede to government tax claims infringed on the fourth and fifth amendments.

According to the Court, the statute unjustly disrupted the "sanctity of a mm's home and the privacies of life." Boyd v. U~ri(enStates, 116 US. 616 at 630) Other case law has expressed sdarveins (Ham'nzan v. ICC, 21 1 US.407; Llmled S~a/esv. Louisville dd"NashvilleR. Co., 236

U.S. 318,335; and .PTC v. Anzem2an 7'obaii.o Co., 264 US. 298 cited in Doe v. Bolha, 410 US. 6 1 In G~iswoidv.Conite~.~i~~~~t, 381 U.S. 479 Justice Douglas developed the 'penumbra' or

'shadosv' doctrine and found dut various enurnerated rights in the BU of fights created zones of privacy. This doctrine stated that new constitutional rights can be found 'in beween the lines' of the rights enurnerated in the Con~~titution.Justice Douglas affmed that the pïivacy of the marital relationship, grounded in thc gaps behveen the frrst, third, fifth and ninth mendrnents, protected the right of a married couple to use contraception. In their concurring opinions, Justices Harlan and White focussed the right to privacy on the due process clause of the fourteenth amendment. Section one of the fourteenth amendment of the Constitution reads:

No state shall make or enforce any law which shail abridge the priviieges or

immunities of citizens of the United States; nor shall any state deny. any. person of life, liberty, or property, without due process of law; nor deny to any person with its jurisdiction the equal protection of the Iasvs (US. Const. amend. XIV, S. 1).

With its decision in Griswoldthe Court renewed the doctrine of substantive due process. The privacy rights found in the penurnbras of the BU of Rights, are therefore subject to regulsition by government in cases where the state has a 'compeliing interest' to do so.

Subsequently to Griswold, the Court held that the freedom of choice in many fundamental life decisions is grounded in numerous penumbïas of the BU of Rights. For example, the right to mmy a person of one's choice was assertcd by the Court in Lviq v.

Virgit~ia,388 U.S. 1. The right to procreate was upheld in Skinlzer u. Oklahoma, 31 6 U.S. 535.

Finaiiy, the rights to use contraception and to privacy in sexual relationships were espanded in Eisemfadt u. Bnird, 405 U.S. 438. The Court held: It is true th,in Griswold, the right of privacy in question inhercd in the marital rclationship. If the right of privacy means anything, it is the tiglit of the individual, married or single, to be frec from unxvaaanted governmental intrusion into matters so fundamentally affecting a person as the decision wherher to bear or beget children. (Eisemtadt u. Baird, 405 US. 438, 453)

The Massacl~usettsstatute that made it a crime for anyone (save doctors) to distribute contraception was found to be unconstitutional by a 6 to 1 margin. Eisenstd v. Baird'set the stage', so to speak, for the Court's decision in Roe v. 1Vade.

Limts on 1)ritay Rights Those privacy rights identified in the penumbra of the fourteenth amendment are fundamental rights. According to the Court's interpretation of the due process clause, fundamental rights can be infringed on by the state only if the offending legislation serves a compehg interest. Two standards for ascertainhg compehg interests have been proposed. Those who hold by the 'strict scnitiny' standard maintain that a govcrnment can constitutionally interfere with a zone of privacy, if the state àraws legislation that is mrïowlg scoped and carefully tailored to serve a compehg interest (Coleman 1996). Others hold by a weaker standard, 'undue burden', which finds regulations that invade fundamental zones of privacy constitutional if fhty are trot ouertly btrrclensonle on the individual's right to privacy. For example, abortion regulations may be invalid under this standard if their purpose and effect is to place a substantial obstacle in the path of a woman wishing to have an abortion. The govcïnment would be, in effect, controiiing a right as to discourage the conduct. In essencc, this standard allows governrnent to regulate a protected area as long as it is not an urneasonable or arbitraly attempt to limt a fundamental right. Ifa law or replation docs not infringe on a fundamental right it stiil must stiil be rationaily related to a legitimate state intcrest. The burden of proof stdl remains with the statc to prove this rational connection. G3 Rcgulations that have no conceivable purpose or that have effects, ïvhich are not rationaily rclated to thc means used, violate this standard.

Judicial Opinions in Roe v. Wade JIISIZL.~Blacknzitn I;oined Ly CbitfJz~sticeBerger, J~rsticesDotlglas, Bwrenna~~,Stewart, Mu~shafad Powell) The majority in Roe v. Wade found the crirninal abortion legislation that denied access to abortion, Save in cases when the mother's life was endangered, riolated the due process of the fourteenth amendment. The fourteenth amendment was found to protect the right to privacy against state action, including a woman's qualified right to terminate her pregnancy.

This was not to Say, according to Justice Blackmun, that the state did not have a legitimate interest in protecting the potentiality of hurnan life and the pregnant woman's heaith. Ratheï, these interests become compeiiing only at various stages of pregnancy.

Justice Blackmun began his decision by outiining the history of abortion Iaw. He noted that numerous criminal abortion laws at work in the United States were of relatively recent oïigin; these laws did nor have cornmon law or ancient orips. Rather, they were derived from social changes in the late nineteenth centuiy. in the common law, abortions performed before quickening (the fist notice of movement in the fetus) were not indictiiblc offences. It is unclear whether even the abortion of a 'quick' fetus was punishable. Lord

Elienborough's Act, England's fist criminal abortion law enacted in 1803, made abortion of a quick fetus a capital crime. The abortion of a fetus before quickening mas punishable less severely. This distinction, dong with the death penalty, was dropped in 1837. After providing an extended history, Justice Ulackmun clairned that abortion was perceived with less disdain at the thne of the adoption of the U)~ifedStdesConstit~t~io~ and throughout most 64 of the nineteenth century than it was in 1973. Women beaefited from a wide right to terrninate pregnancy weU into the nineteenth century. The majoirity in Roc v. EVm'e contendcd that the right to privacy was broad enough to encompass a wornan's decision whether or not to terminate her pregnancy. The Court noted that this right had been estended to marriage, pïocreation, contraception, fady relationslips and child rearing.

According to Justice Blackmun, three reasons accounted for the shift in abortion public policy. Fitst, it may have been the result of a ''Victorian social concern to discourage ilhcit sesual conduct." (Rue u. Wade, 410 U.S. 113, 148) Yet, Texas did not advance this as a justification for its abortion statutes. Even if it had, Jusnce Blackmun stated that no Court has taken this argument seriously. Second, the abortion provisions may have been enacted to protect women from the abortion procedure, which at the tirne was quite hazardous. While the procedure had become relatively safe due to advancements in medical technology and antiseptics, Justice Blackmun stated that "important state interests in the areas of health and medical standards do remain." (Roe u. Wade, 410 U.S. 113, 150) Lastly, abortion may have been crirninalized to protect the sute's interest in the unborn hurnan. This clairn did not to rest on the notion that life, or status of moral personhood, begins at conception. Justice

Blackmun explained that crrecogmtionmay be given to the less rigid clah that as long as at least potential life is involved, the state. may assert interests beyond the protection of the pregnant woman alone." (Roe v. lVade, 410 U.S. 113, 150)

The privacy right identitied in Roe 1). lVde is not absolute. While the Court notcd tliat the right of persona1 privacy includcd the decision whether to have an abortion, it stipulatcd that this right is not unqualified, and must be balanced against the relevant considerations 65 noted above. At some point these considerations (protection of health, medicai standards, and prenatal health) become dominant in this balance; they become compelling state

interests. The state can claim important interests in protecting maternal health and

protecting the potential life of the fetus. By meeting the 'strict scrutiny' standard, whch means that the stnte rn21.1~ show that it has a compehg interest to legislate in this area, state government can regulate access to abortion.

The Court concluded chat the Texas Penal Code statutes were unconstitutional. Yet, the Coutt did not stop at making this declaratory statement. The majority in Roe v. Wade

'wrote7new abortion legislation based on the trirnesters of pregnancy. None of the lawyers suggested this system. Texas would have just re-enacted a new abortion law; the Supreme

Court thetefore set its standards. They stated that before the end of the hst trimester (third mon& of pregnancy), the locus of control for the abortion decision lies solely with the woman and her physician. Beginning with the second trimester of pregnancy, the state may regulate abortion to protect the health of the mother. These regdations would need to be

"reasonably related to maternal health." (Rue v. Wade, 410 U.S. 113, 165) Finaliy, the Court concluded that subsequent to the point of fetal viability (specificaiiy, at the end of the sisth gestational month), it is permissible for the state to regulate or prohibit abortion in order to pïomote its interest in the fetus. This permission to proscribe abortion was rcstricted in

those cases where abortion is medicaiiy necessaly to preserve the life or hcalth of the mother. Jmtice Stewa,% com~rn'ng In his concurring opinion, Justice Stewart asscrted that thc majority of thc Court xvns

right in identifjing a right to abortion services. He agreed that such a right is found in the

penurnbra of the fourteenth amendment. He found that the Texas law directly, and

completely, abridged that right. Justice Stewart maintained that the interests asserted by the

state, the protection of the health and safety of the pregnant woman and the protection of

potential hurnan Iife, were legitirnate objectives. However, these state objectives could not

prohibit access to abortion in the complete manner accompiished by the Texns I'enaf Code.

Justice Stewart concluded his judgrnent by stating that these state interests would bc amply

sufficient to warrant state intervention at the later stages of pregnancy.

Jz~sficeRehnqrrisl, dissenfillg Goiizeii bJy ft~stice White) Justice Rehnquist dissented from the majority opinion based on hvo factors. First,

Justice Rehnquist held that Jane Roe did not have the standing to litigate the issue that was

before the Court. The inajority "decided that a state may impose virtually no restriction on

the performance of abortions during the first &ester of pregnancy." (Roe v. lVude, 410 U.S.

113,172) Pïevious Courts indicated that it would have becn necessaly for the plaintiff to be

in the first trimester ofher pregnancy during the "pendency of her lawsuit." (Roe u. IVacle,

41 0 U.S. 113,172) justice Rehnquist clhcd that the Court did not know from the rccord

that Jane Roe was ever in her fust &ester during the pendency of the Iawsuit.

Even if Jane Roe was capable of litigating this issue, Justice liehnquist asserted that lie would have held opposite to the majority. Citing earlier case law, he clairned that no riglit

to abortion was "so rooted in the traditions and conscience of ouï people as to be ranked as 67 fundamental." (Roe v. [Vade, 410 US. 113, 176) He stated that he could not find a privacy

right involved in this case. Even if the 'right to privacy' that the majority found in rhis case

was merely the right not to have the state intervene in consensual transaction between a

pregnant woman and her physician, Rehnquist held thsit the individual couId sali be

constitutionally deprivcd of such a right. Invoking the 'rational basis' standard, Rehnquist

claimed that he would hwe su-uck down the Iaw only if the Tesas Pend Code had prohibited

abortions in cases where the mother's life was in danger - only then would the law have lacked a rational relation to a state objective. For over hVCnty years subsequent to this

dissent, Justices Rehnquist and White (concurring in dissent) continued to champion the

cause agriins t Roe v. Wade.

Important Case Law Subsequent to Roe v. Wade In ordeï to biing this discussion of American abortion law of rhe Suprcme Court up-

to-date, the case law subsequent to Roe v. LVade identified by the WESTLaw search must be briefly exarnined. The cornpanion case to Roe v. Wade was Doe v. BolLon, 410 U.S. 179 (1973) in which the Court stmck down a 'liberal' Georgia abortion statute. The majority found that

a woman has a constitutional right to abortion even during the last trimester of pregnancy.

The abortion is contingent, however, on the best clinical judgement of her doctor (Doe v.

Bolton, 410 U.S. 179). The physician must fidit a necessary procedure for preserving her physical or rncntd hcalth in light of hcr agc, or othcr physical, cmotional, psycholo~cal[and]

fainilial circums tanccs.

Case law sulsequeiit to Ibe u. IV& and Dac IL Uol~otorllimited the scopc of this abortion right. In Hanir r). MRae, 448 U.S.297 (1980), Justicc Stewart, writing for the Court, 68 stated rhat the state has no obligation to pay for abortions. The right to abortion identified in

Rue IL [Vade is a right to protection from interference. It does not require the state to fachtare esercising that right. While the Court in IVelebster v. Rtpmdticliue Herrlth Senices, 492 U.S. 490

(1989) upheld a statute that identified human life beginning at conception, it did not overturn Roe u. Vade. The statute also prohbited the use of state land for abortion services and required a fetal viabrliv test before abortions were carried out. Four of the five majority justices stated that the state has an interest in the fetus throzlghoz/t pregnancy and dlscarded the trimester approach of Roe v. Wade.Justice O'Connor did not join in the latter part of the majority opinion. She asserted that if the state always has an interest in protecting potential human life, then no therapeutic abortions could be performed based on the reasoning of Roc v. IVade. The Court did not overturn Roe v. EVade, but neither did they fully follow it as precedent.

P/amed P~renthoodv. Cosy, 505 U.S.833 (1 992) has replaced Roe v. Kade as the dominant precedent in United States abortion law; the judgrnent allows for limited state regdation Lut preserves the goal of general access to abortion found in Rue v. IVde. By a five-to-fow margin, the Court upheld a statute that placed a hventy-four hour waiting restriction on procuring abortions. While the Court also upheld the portions of the law that requircd the informed consent of the woman and parental consent for minors, it suuck dom the pïovision that required bot11 spouscs to consent to the abortion. Justice O'Connor, writing for the majority, overturned the trimester approach of Roe v. IVucle and spoke against the 'strict scrutiny' standard that gave risc to it. Instead, O'Connor adopted a new standard of duc process, 'undue burden', and established a floating viability point to mark when the 69 state's interest in the protection of fetal life becomes compekng. Justices Blackmun and

Stevens wanted to uphold more of the Roe ri. Wade approach. In their dissent, Justices

Rehnquist, White, Scalia and Thomas asserted that Roe v. IVode was wong and that a

'rational bnsis' standard for due process needed to be adopted. While much of the Roe v.

Wude approach to limting the scope of an abortion right was laid to the wayside, Casey, the new precedent, still upheld a strong right of general access to abortion services.

R. V. MORGENTALER - THE CANADIAN LANDMARK CASE

Case Overview In 1968, the Parliament of Canada passed amendments to the CriminulCode of

Canada rhat permitted accredited hospitals to perform abortions only when a pregnant woman's health was in danget. The provisions of the Code provided a defense for physicians charged with procuring an unlawful abortion if they followed the correct administrative procedure. Since the administrative structure it sets out is complex, the relevant text7&of section 251 of the Crintit~alCode foliows below.

251. (1) Every one who, with intent to procure the rniscarriage of a female person, whether or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

(2) Every femrile person who, being pregnant, witb intent to procure her own rniscarriage, uses any means or pcrmits any means to be used for the puFose of caïlying out heï intention is gdty of an indictable offence and is liable to imprisonment for tivo years. (4) Subsections (1) and (2) do not apply to

The hii test of scction 251 can be Çound in appendix C. (a) a qualified medical practitioner, other than a membeï of a therapeutic abortion cornmittee for any hospitzl, who in good fait11 uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the rniscarriage of a female person, or (b) a female person who, being pregnant, permits a quaiified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own rniscarriage, if, before the use of those means, the therapeutic abortion cornmittee for that accredited or approved hospital, by a majority of the members of the cornmittee and at a meeting of the cornmittee at which the case of such female person has been reviewed, (c) has by certificate in writing stated that in its opinion the continuation of the prepancy of such female person would or would be iikely to endanger her life or health, and (d) has caused a copy of such certificate to be given to the qualified medical practitioner. hccording to these regulations, a lawful abortion could only take place for reasons associated with protecting the health of the pregnant woman. Only accredited hospitals or those approved by the Minister of Health could conduct iawful abortions. Lastly, an abortion could only be lawfùily performed if a therapeutic abortion cornmittee approved it.

Dr. Henry Morgentaler was jailed during the 1970s for performing abortions in a chic in Quebec. Duïing subsequent prosecutions in the 1970s, Quebec juries rehsed to convict liim (Talos, Liepner, Dickinson 1990). After opening a free-standing clmc in

Toronto, Doctors Henry Morgcntaler, Leslie Smoling and Robert Scott were chargcd with conspiring with each other in order to procure abortions contrary to sections 251 of the

Ch~imICode (R v. Morgenlder 62 C.R. (3d)). The chic they opened in Toronto was not an

'accredited' facility nor did it have a 'therapeutic abortion cornmittee.' 7 1 During pre-trial motions, the defence counsel for the doctors atternpced to quash the indicment on the grounds that section 251 was dtra vire^. (outside of the powers) the federal government and that it violated sections 2(a), 7 and 12 of the Chur~er.The trial judges disrnissed this motion, and the Ontario Court of Appeal later upheld hs mling. The trial proceeded and the jury acquitted the doctors. The Crown appealed the acquittai, and the

Ontario Court of Appeal ordered a new trial. The decision of the Court of Appeal was appealed to the Supreme Court of Canada and judgment was given in 1988. While seven questions were posed to the Supreme Court, only questions 1 and 2 wu be considered in this st~dy'~.They read:

Does section 251 of the Crinnial Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12,15,27 and 28 of the Canadian Churfer of Rtghts and Freedoms? If section 251 of the Criminu/ Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7, 12, 15,27 and 28 of the Canadian Chuder of Rights and Freedoms, is S. 251 justified by S. 1 of the Canadian Chmferof Rights and Freedoms and therefore not inconsistent with the Constitution Act, l982? By focussing solely on questions 1 and 2, this study wiii consider the court's decisions in reference to the abortion provisions being in violation of section 7 of the Ch~~r~er.A defuiition of section 7 of the Charter and an esplanation of the court's method of invesugating section 7 bïeaches will be explained prior to beginning the analysis of

2' 'rhc questions posed to the court can be found in appendis D. Rights to Life, Liberty and Security of the Person in Canadian Constitutional Law DeJinifion Section 7 of the Charter provides that: 'Evelyone has the right to iife, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." ChieEJustice Dickson stated that the judiciary should apply a generous defmition to section 7 of the Chuter.

In general, a particular liberty is a complex combination of rights and duties. Not only does liberty afford the individual the permission to do or not to do something, it requires that government and other people not obsrnicr the individual from pwsuing her goals and aspirations (Rawls 1971). It is also necessary to note that the inability "to take advantage of one's rights and opportunities as a result of poverty and ignorance, and a lack of means generaiiy, is sometimes counted among the constraints definitive of liberty."

(Rads 1971, 204) These rights are equal opportz~nitiesto liberty; they do not ensure ozttc0n1e.s. ilccording to Madam Justice Bertha Justicc Wilson in Morgentaler, liberty is "inestricably ticd to the concept of huinan dignity." (R. v. Morgentaler, 62 C.R. (3d), 101) Section 7 con fers on the individual a measure of autonomy in important decisions concerning his own life. The section 7 right to liberty has been charactelized as a iich freedom.

F/~i~da?~ze~~tff/J~~~~!ice A right to life, liberty or security of the person can bc suspended 'in accordancc with the principles of fundamental justice' (Ratushny and Beaudoin 1989). The issues of deprivation and the principles of fundamental justice, in general, are the second paït of an analysis of S. 7. Canadian courts have defmed fundainental justicc as thc context for the rights guaranteed in section 7. The tcrm is noc synonymous with 'natural justice'. Sincc 73 natural justice refe~sonly to procedural justice, such a definition would lewe the Charfer? liberty provisions in "a sorely emaciated state." (Re: Motor Vehide ReJerence, [1985] 24 D.L.R.,

548) Fundamental justice refers both to procedural and substantive justice. Accordmg to

Madam Justice Bertha Justice Wilson and Justice Antonio Lamer, the principles of fundamental justice cannot be exhaustively defmed. These ideals are found in the 'basic tenets' of the legal system. As such, judges best defme them since they have the greatest understanding of the Anglo-European legal tradition. The principles of fundamental justice are qualifiers of the rights to life, liberry and security of person as affirrned by section 7.

Judicial Opinions in R. v. Morgentaler Chiej7us1iceDickson (wn'tingjr hinrselfandJtrslice Lamer) Chief Justice Dickson, who wrote the majority opinion in Morgei~taler,stated that the principle issue under examination was whether the abortion provisions of the CriminalCode of Canada infringed on a right found in section 7 of the Charter. According to Iim, only the

"security of the person" guarantee of section 7 needed to be considered to hdsuch an infringement. He maintained that section 251 of the Ctinliml Code was a profound interference with the right to security of the person found in the Charter. The Chief Justice explained that state interference with bodily integrity and serious state-irnposed psychological stress constituted a breach of securiq of the person. The abortion provisions under scrutiny took the decision-making powcr away froin the pïegnant woman and subjected her to the wishes and aspirations of others. In this regard, section 251 interfered with a woman's bodily integrity and caused her great psychological apprehension, 74 While a fundamental justice esamination can be both purposive and substantive,

Chef Justice Dickson did not fmd it necessary to look at the substance of the abortion provisions. Relying on the Badgley's and Powell Reports, he stated that the defence to physicians, provided under section 254(4), is iliusory. Under the application of the Code almost twenty-five percent of Canadian hospitals were ineligible to carry out abortions.

Moreover, the defence set out no adequate standard for the therapeutic abortion corninittees to follow. The law itself prevented access to local therapeutic abortion facilities. The Badgley report concluded, "The procedures set out for the operation of the Abortion Law are not working cquitably across Canada." (p.17)

According to the 'basic tenets' of the Canadian legai system, a criminal defence created by Parliament "should not be dusory, or so difficult ro obtain as to be practically iilusory." (R v. MotpttaLer, 62 C.R. (3d), 31) If the defence provided by subsection 251 (4) was not illusory, it was at the very least practically iiiusory. Not only did the Chef Justice find that section 251 interfered with a pregnant woman's right to security of the person, but he also held that it did so withbut regard to the principles of fundamenta1 justice.

In his section one analysis, Chief Justice Dickson concluded that while Parliament's legislative objective in section 251 was pressing and substand, the provision failed ali three parts of the proportionality test. Accordmg to Cliief Justice Dickson, the objective of section

251 of the Crihinul Code was to balance the competing intercsts idcntified by Parliament.

Protection of bot11 the pregnant woman's health and 'foetal interests' \vas a valid legislative

28 The Report of the Comrnittee on the Operation of the Abortion Law was named the "Badgley Report" after its chwperson Prof. Robin Badgley. Likewise the Report on Therapeutic Abortion Services in Ontario was named the "Powell Report" aftcr its chairperson. 75 objcctive. By holding out an dusory defence, howevcr, section 251 (4) irnpaired the righr to

security of the person more than necessary. Moreover, the effect of the lirnits placed on

section 7 right was out of proportion to the stated objective. Even a woman whose health

was in danger could have found it difficult, if not impossible, to procure an abortion. The

'arbitrary' and 'un fair' standards created by the legislation prevented it from receiving

protection under section 1 of the Cb~~rfct.

Jrntice Beetx (Ivritiqfar hihzselfandJt~siiceEJQ) Justice Beetz agreed that the resolution of the Motgentaler case lay in sections 7 and 1 of the Charlet. Yet, he found that the abortion law violated sections 7 and 1 for different reasons than those articulated by the ChiefJustice. Justice Beetz asserted that the right ro security of the person included a "right of access to medical tteatment for a condition representing a danger to life or health without fear of criminal sanction." (p. 101) If a criminal law impeded a person from getwg appropriate medical care when die person's life is in danger, then chat intervention by the state constituted a violation of the Charier's security of the person provisions. Section 251 of the CnhinalCode required a woman to choose between committing a crime or not Fmding adequate and effective medical treatrnent. In this manner the operation of the criininal law caused both physical and psychological harm to pregnant women; thus, it violated the& right to security of the person.

The additional dangers to ïvomen's health were caused by the delays ïesulurig fïom application of section 251. Justice Beetz idcntified these delays as (1) lack ofhospitals ïvith therapeutic abortion cornmittees, (2) delays caused by quotas, and (3) delays caused iy the cornmittee requirement. 76 The dcprivation of a pregnant woman's right to security of the person did not accord with the principles of fundamental justice. Justice Beetz stated that the rules set out by

section 251 for procuring an abortion for health reasons were manifestly unfair. While

Parliament was esercising it power justly in protecting the fetus by requiring an independent medical opinion, the admstrative strucrure, as a whole, thar was set up by the Code was unnecessary in respect to rhis objective.

Justice Beetz did not save rhe abortion provisions under rhe 'reasonable limits' clause of the Charter. He stated that the legislauve object of the Cn'mitld Code was not to balance fetal interests with those of the pregnant women, as the Chief Justice had claimed. The primary objective of Parliament svas to protect its interest in the fetus. The protection of the life and health of the pregnant svoman, possibly balanced against fetal interests, were secondary objectives. When viewed as a whole, section 251's objective was the protection of the fetus. Only when the mother's iife or health is in danger did subsection 251 (4) apply. It is only in subsection 251 (4) that one could Say Parliament wished to strike a 'balance'. Justice

Beetz asserted that the protection of the fetus related to concerns that arc pressing and substantial in a free and democratic society; it has always been an valid objective of Canadian criminal law.

While the protection of the fetus is a pressing and substantial concern, the mles set up by section 251 were not rationaily connected to that purpose. As noted earlier, Justice

Beetz found that the rules in section 251 were, as a whole, unnecessaly for the protection of the state interest in the fetus. Moreover, he maintained that the pmctical effcct of the legislation itself undermines the health of women, the secondary objective of the provisions. 77 Justice Bcetz concluded that removing subsection (4) codd not Save section 251 of the

Crimitta/ Code. The violation of the security of the person would be greater mithout the

esculpatory provision; women whose health is at risk from pregnancy would never be able to

procure an abortion.

Jmti1.e Mh~re,di~'senti?g (1VtiIiigfor himeJ'andJtish.e LForesl) Justices McInuye and Justice LaForest disagreed with the majority in Motgentder, and

found that section 251 of the Giminal Code did not violate section 7 of the Charter. Justice

McIntyre identified the legislative objective of Parliament as an atteinpt to balance the competing clairns of the unborn child and the pregnant woman. He felt that the task of the

Supreme Couïr was to "simply measurc thc content of s.251 against the Churter" and not "to solve what mighc bc calied the abortion issue." (R v. Morgentaler 62 C.K. (3d), 82)

According to Justice IvicIntrye, the doctors, the appeliants in this case, did not show that a right included in the concept of security of the pcrson was infringed. The constitutional text of the Char~ershows no support for the appellants' position. According to

McIntrye, the concept of security of the person does not include the right "not to be compelled to carry the child to completion of her pregnancy." (R v. Morgentaler 62 C.R. (3d),

82) Section 7 was not violated because the legislation did not go beyond interfering with

'priorities and aspkations'. Scaee-imposcd stress does not constitute an infïingement of security of the peïson.

Mmfa??zJ/liti~.e lVi1.so11 (Iwïlit+$r ber~eo Madain Justice Wilson found a ïight to aloïtion in the liberty clause of the Charlet:

Wlde she agreed with the majority's dccision that the abortion provisions of the Cririli~d 75 Code were unconstitutional, she found that they infringed on the Charter for differcnt rcasons.

She idenufied the principle issue before the Court as whether a pregnant woman may be

compeiied by Iaw to carry the fetus to term. Unlike the other judges joining in the majoriq,

she asserted that the primary issue before the Court appealed to the guarantee of liberty.

According to her judgrnent, the section 7 liberty right requires the state to respect choices made by individuals and to avoid subordinating these choices to a specific concept of rhe

'good'. Section 7 guarantees ail individuals the right to make "fundamental persona1 decisions". Justice Wilson declared that the decision to terminate a pregnancy is one such

fundamental decision. It has medical, social and ethical dimensions; it has econornic and social implications as weU. This decision was taken away from a woman by section 251, and the locus of decisional control was shifted to a committee. By taking the control of a woman's reproductive capacity away from her, the abortion provisions violated the right to liberty found in section 7 of the Charter.

Not only did the provisions violate section7 of the Charler, but they also invaded on the right to freedom of conscience. Justice Wilson found that section 251 of the C?itlzitlal

Code took away the liberty right without regard to the principles of fundamental justice. A regulation that infringes on another Charfer right can never be in accord with the principles of fundamcntnl justice. Justice Wilson held that the abortion provisions violate section 2(4 of the Charter.2"As noted earlier, the decision to terminate a pregnancy is not solely a

2' The 'conscience clause' prcsent in s.2(a) guarantees the right to hold non-theological beliefs. The reason for specifically cnunciating tlicse beliefs is tliat tliey may not bc cl~aractcrizedas religious beliefs since tiiey are not reiigiously inotiwtcd; they arc sccn as pcrsonal moïals. Not only docs S. 2 of the Chrterprotect everyone's freedom to hold and practice personal convictions, but it also protects 'everyone' from being Eorccd "to affirm specific religious practices for a sectarian purpose." (R v. Big M. Drq Marr 1985, p. 347) 7 9 medical decision; rather, it has moral dimensions as well. Thus, section 251 viohtes the right to freedom of conscience and religion because it prohibits a decision that, in part, is moïally based.

According to Justice Wilson, the abortion provisions could not be saved under section 1 of the Charter. She asserted the legislative objective of protection of the fetus may be a valid government objective only at samepoint in the development of the unbom human.

She contended that point is viabiiity. The Criminal Code provision fded the minimal impairment test because it took the decision away from the pregnant woman at ali stages of her pregnancy. Prior co viability, the state interest in the protection of the unborn is not pressing enough to warrant the infringement of the Chlrrler right. Moreover, the provisions set out in section 251 were not "tailored" to the lcgislative objective. In this manner, the lm is not rationaly connected to the objective it purports to maintain. Justice Wilson asserted, however, that even if the procedural issues under the law were fured, section 251 would sd violate sections 1 and 7. Section 251 of the Crinzinal Code could not be saved under the

'reasonable limits' clause beczuse it failed both the minimal impairment and rational connection tests.

Section 2 of the Chrferprovides: S. 2 Everyone has the following fundamental freedoms: (a) freedom of conscience and religion (b) freedom of tlîought, belief, opinion and esprcssion, includng freedom of rhc press and other media of communication; . .. ANALYSIS OF THE DEClSlONS IN THE LANDMARK ABORTION CASES

Word choice is never neutral. When written or oral discourse presenrs a reality, it

does so reflecting an ideology. An ideology is a systematic set of beliefs, ideas, assumptions

and values that individuals use to make sense of society. It assists the individual to

systematically organize a presentation of reality to hs of her mind. Public discourse instils values in people when it institutionalizes these valences into society. This chapter wiii begin by exarnining liow the right to abortion and the concepts of 'state interest in women's health' and 'state interest in protection of potential life' were conceptualized and applied by the courts in North Arnerican abortion judicial decisions.

THE RlGHT 70 ABORTION AND STATE INTEREST IN WOMEN'S HEALTH

American Context Seven of thc nine justices in Roe v. Wade identified a right of acccss to abortion services as part of the zone of personal privacy found in the fourteenth amendment of the

United States Constitution. Justice Blackmun presented a lengthy history of abortion in the lmas a device to justify that the 'current' distaste towards abortion was not ïootcd in antiquity. I-Ie wites that: It is tl~usapparent that at comrnon law, at the time of the adoption of our Constitution, and chroughout the major portion of the lYil century, abortion was viewed with less disfiivor than undeï most American statutes currently in effect. (Roe v. Wde, 410 U.S. 113, 141) Justice Blackmun's word choice is noteworthy. Instead of using a positive sentence structure

and stating that "abortion was viewed more favourably in the nineteenth century," he wrote,

"abortion was viewed with less disfavour," a negative structure. This choice of syntas

emphasizes the current attitude of disfvour that Justice Blackmun wishes to caii into question

through his historical review. He clahs that once later term abortions were prohibited, the

laïv still continued to treat early abortions less punitively. This historical oveniew set the

tone for the resr of the majority decision.

The right of access to abortion was found to be a fundamental freedom protected

within the rubric of persona1 privacy rights of the fourteenth amendment. Using the decision

in Griswold as precedent for his hding, Justice Stewart, who wrote a concurring opinion,

asserted that:

.. . the Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the due process clause of the fourteenth amendment. (Roe u. Vade, 41 0 US. 113, 168) The specific use of the modifier 'rationally' to shape the word 'understood' implies that aii

individuals would have corne to this sensible conclusion because al1 people aïe endowed

with ïeason. Justice Stewart labelled the operation of thc current Tesas lmv as an 'invasion'

of liberty to higldight the manifestly dangerous consequences of infringements to dis right

to abortion. State infringement on this fundamental liberty resulted in 'specific and &ect

harm'; it inay have forced a distressful life and psychological harm on a pregnant woman. 82 Justice Steivart espanded the e'rtent of this harm by professing that the nem cMd, when carried to term, would be subject to these dangers.

The majority opinions that found a constitutional right to abortion invoked a high degree of transitivity when discussing women as decision-makers. Transifi~n'tynefers lo how the sdye~tmaterio& ajects, or seems tu aflecf others (Fowler 1985) Justice Blackmun wrote that this capacity is taken away from them in the Texas Statute:

This right of privacy, whether it be founded in the fourteenth amendment's concept of persona1 liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the ninth amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. (Roe v. IVade, 41 0 U.S. 113,153) Ths paragmph illustrates hvo points. First, Justice Blackmun revealed that there are evidently a multitude of ways to hnd a constitutional right to abortion. This theme wili be discussed below. Second,Justice Blackmun decIared thar the decision whether or not to terminate a pregnancy is rightfidy the decision of a woman. Women, and their liberty rights, were at the focus of the majority decisions. Women were not relegated to being merely objects - commodities being acted on by other forces. Rather, they were the active subjects of these sentences. In the majoiity decisions, pregilanc women were chriracterized as decision-makcrs; they were agents whosc actions affect othcrs.

Attcmpting to find a ~ightof acccss to abortion in American constitutional history was extremely contentious. The Court did not claim that it found the only way of identifiing rhis right to abortion. Justice Stewart esphined that: Several decisions of this court make clear tliat freedom of persona1 choice in martcrs of marriagc and farnily iifc is one of the liberties protected by the due process clause of the fourteenth amendment. (Roe v. IVade, 410 U.S. 113,169) Stating that 'several decisions .. . make it clear' instead of \v~iting'in the past this Court decided' bdds the appearance of stronger argument. This use of language increases the level of transitivity in the sentence. It increased the extent to whch the subject, here the previous decisions, seemed to materially support the logic of the Court's claim. Moreover, by focussing on these 'decisions' it highiighted the previous decisions of the Court and took away the focus from the present decision. Justice Stewart wote that the decision in Roe v. lVude is not a Çresh commentary on the Bill oJ'Rzghts,but it is a reaffimation of previous decisions by the Court.

The primary importance of materna1 health was evident in the discussion of the scope of the liberty right identified in Roe v. IVade. The Court stated that while a woman lias a right to making fundamental choices about her lih and body, including the right to abort a fetus, this right is not absolute.

.. . [A] state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life at some point in pregnancy, to sustain regulation of the factors that govern the abortion decision.(Roe v. Wade, 410 U.S. 113, 154) Maintaining medical standards and safeguarding materna1 health were important and legitimate legislative objectives. From thc sequencing of thesc objectives, one can speculate cither that safeguarding a woman's health is more important than pïotccting potential human life or that safeguarding a woman's health bccomcs a prcssing state interest before the protection of the ferus becomes compeiiing. Here, the use of the modalities of this clause, 'may' and 'propcrly', indicate both the uncertainty and cer~~intyof the Court. Like 84 other rnodalities, it iridicates the speaker's attitude toward what he or she is expressing

(Fowler 1985; Lind & O'Barr 1979). Rather than statc clearly that these interests mn legitimately sustain regulatory measures, the use of modifier 'may' implies tliat it might be possible for the state to do so. The Court would go on to narrowly defirie ifmd lvhen these interests can legitimately sustain regulatory measures. On the other hand, the Court esplained that it is 'proper' for the government to exercise its legislative power to protect these interests. The reason for this perceived duality can be explained by esarnining when materna1 health is a pressing objective.

In order to assert the state's proper interest in regulating aboraon, the Court attempted to equate it with other medical procedures. In Roe v. W'ade, the majority following

Justice Blackrnun stated:

Of course, important state interests in the areas of health and medical standards do remain [in light of the right to abortion]. The state has a legithate interest in seeing to it that abortion, like any other medical procedure, is performed under circurnstances that insure maximum safety for the patient. (Roe Y. Wade, 410 U.S. 113, 149-150) The deletion of the term 'pregnant woman' and insertion of 'patient' here is a relevant observation. One can construe from ths choice that the Court wished to subtly equate pregnant woman seeking abortions with other mcdical paticnts, Just as the state can regulate mcdical practice in ways that affect othcr patients, so too it may control aboraon, a mcdical procedure. It has been argued that "a state's real concern in cnacting a c~iminalabortion law was to protect the pregnant woman, that is, to restrain her from submitting to fi procedure that placed her life in serious jeopardy." (Roe v. [Vade, 410 U.S. 113, 149) Only dien the concern is compehg can it infringe on a woman's liberty right to abortion, Justice 8 5 Blackrnun advocated that protection of maternal health was important cnough of a concern

to impinge on the right to abortion after the end of the first trimester of pregnancy. This

foliowed from the fact that und the third month of gestation, the mortality rate during

childbirth is higher than during abortion. At the point where mortality during abortion

becomes a significant concern, maternal health becomes a 'compeiling state interest'.

According to the decision in Roe v. lVude, when maternal health does becomes a compehg interest, the state may place qualifications on who performs abortions, hoiv these individuals

are licensed, and in what facilities they operate.

Canadian Context In Molgenhzler, the majority of the Court, except Madam Justice WiIson, did not identiS a right to abortion in their analysis of section 7 of the Chur~ecrather, they relied on identifying infïingements on the iight to security of the person in order to strike down the

1969 abortion laiv. Chief Justice Dickson asserted at the outset:

In my opinion, it is neither necessary nor wise in this appeal to explore the broadest impIications of S. 7 as counsel would wish us to do. 1 prefer to rest my conc~usionson a narrower analysis than that put fonvard on behalf of the appeliants. 1 do not think it would be appropriate to attempt an all- encompassing explication of so important a provision as S. 7 so early in the history of Charter interpretation. (R. v. Motgenlder 62 C.R. (3d) 16) The Chef Justice made it clear that thc Court, in his opinion, would not consider the

'broadest' scape of section 7, including the right to lifc and the ïight to liberty. His use of

"necessary nor wise" (R v. Morgerrtnler 62 C.R. (3d) 16) is an example of paralielism, the

repetitive use oflanguage. The connotation of tlis remaïk is clear. The Court wished to stay

clcar of necdmg to inteïprct rlic ïights to lifc and libcrry in tliis casc. ChicfJusticc Dickson

claimed that hc chose to construct his argument on a narïow interpretauon in order to moid 86 an improper interpretation section 7 so early in Charter history. Clearly, this aversion to deciding whether a right to abortion esists in the scope of section 7 was a recurring themc in hs discussion.

While explaining why the abortion law interfered mith the security of the pregnant woman he stated that the issue before the Court remains squarely on the constitutionality of subsection 251 (4).

It may well be that constitutional protection of the above interests is specific to, and is only triggered by, the invocation of our system of criminal justice. It musc not be forgotten, however, that S. 251 of the Code, subject ro subs. (4), makes it an indictable offence for a person to procure the rniscarriage and provides a maximum sentence of two years in the case of the woman herself, and a maximum sentence of life irnprisonment in the case of another person. Like Beetz J., 1 do not find it necessary to decide how S. 7 would apply in other cases. (R. v. Morgentaler 62 C.R. (3d) 20) Two choices in argument become clear. First, the use of the modality 'may' indicates that Chief Justice Dickson did not wish to state with complete certainty tliat a right has been infringed only because of the provision's place in crirninal law. But, given that the case at hand was a crirninal matter, he conveniently narrowed the scope of the issue under consideration, namely abortion. Second, he asserted that the provision invaded the secuïity of the person not becausc a wolnan lost the control over irnportzint lifc decisions undcr the

ivi~.be.rntid qbir~tiorrs'tl~atsubsection 251 (4) was in violiition of thc Chnr/er:

It is interesthg to note that ChiefJustice Dickson concentrated on a proccdural esamination of section 251(4)'s violation of hndamental justice. At the outsct of his discussion of fundamental justice, however, he clained: Although the "principles of fundamental justice" referred to in S. 7 have bot11 a SI~IUIII~U~'and aptiî~.edz~r~/cornponcnt(llc B.C. hlotor Vchiclc Act, at p. 499), 1have already indicated that it is /rot necessu? in this appeal to evaluate the srh~.tantivecontent of S. 251 of the Criw/ii~a/Code. My discussion will therefore bc limted to various aspects of the adminrstrative structure and procedure set down in S. 251 for access to therapeutic abortions. [italics added] (R v. Morgentaler 62 C.R. (3d) 26) Chief Justice Dickson purposively lirnited hs discussion of fundamental justice to the procedural consequences of section 251(4). He clairned that "it is not Izecessary in this appeal to evaluate the substantive content of S. 251 of the Cn'nzinal Code." [italics added] (R. v.

Moqentaler 62 C.R. (3d) 26) On the surfacc, the Chief Justice was saying that he could invalidate section 251 (4) on procedural grounds alone. This is an csample of understanding sentence mcaning versus comprehending the speaker or writer's meaning - that is, distinguishmg what was said from what was meant. The denotation of his statement is that section 251 can be found unconstitutional solely on procedural grounds. Yet within the scope of his entire argument, the connotation is that he wished not to address the offendmg section of the CrËminal Code in a substantive analysis.

The foiiowing passage further verifies this claim. Chef Justice Dickson païaphrased

Justice Lamer's (ris he then was)"komrnents in Re: B.C Motor Vehicle Ad, saying that:

. .. any attempt to draw a sharp line between procedurc and substance would be ill-conceived. He suggested further rhat it would not be beneficial in Canada to aUow a debate which is rooted in Unitcd Statcs constitutional dilcmmas to shape our intcrprctation of S. 7 (p. 498) (R. v. Morgen~a/er62 C.11. (34 18) The Chief Justice's choice of words indicated his aversion towards a substantive analysis of the Ctz'n~it~dCode abortion provision. Ilnplicitly referring to Iloe v. lVkie as "a debatc rooted

"Justice Antonio Lainer is currently thc ChiefJustice of the Suprcmc Court of Canada. 88 in United States constitutional dilemmas" (R v. Morgerrtaler62 C.R. (3d) 18) implied that he

would not cary out the same type of judicial examination that was used to examine the

Tesas abortion statutes in 1973. Moreover, hc did not sratc that such a roor would be 'dl-

advised' in the Canadian context. Rather, he clairned that it is 'iii-conceived' - that the basis

of such an argument, Roe Y. LVude, is wrong. Lexical choices like these ailow one to crafdy

impose one's ideology on the reader. It ivas no accident that ChiefJustice Dickson used

these terms. The contention is that he would not look for a constitutional right to abortion."

On the other hand,Justice Beetz, who wrote a second majonty opinion, seemed to

expand the scope of the right to securiry of person. Regarding the regdation of abortion

Justice Beetz stated that:

.. . the interest in the life or health of the pregnant woman takes precedence over the interest in prohibiting aborrions, including the interest of the state in the protection of the foetus, whcn "the continuation of the pregnancy of such female person would or modd be likely to endanger her life or health". In my view, Siis standard in S. 251 (4) became entrenched at least as a minimum when the "right to life, liberty and security of the person" was enshrined in the Carzodian Charter i$Righls md Freedonzs at S. 7. (R v. Mopntnler 62 C.R. (3d) 39) Justice Beetz began his judgment stat.ing that "the life or health of the pregnant woman takes

precedence over the interest in prohibiting abortions . . . when the continuation of the

prcgnancy of such female person would or would be likely to endangcr her Me or health" (Ii.

Y. MorgerrlnlerG2 C.R. (3d) 18) was a IIJ~II~I,~I~Istandard entrenchcd in the Char~erin1982. In

this passnge, thc iifc and health of the woman are at the forefront. Sincc he fclc that section

3' One should also notc that Justice Lamer wu on the Lmv Reforin Coinrnissioil of Canadn during its involvement in drafting the 1968 Cn'n~inulCode amendment tliat produced s. 351 (then s.287). Justice Lamer must 11we thought the law to bc propcr. In 1988, l~owever,he had to consider it in its ncw hctual milieu -in light of the Chorfer. 89

251(4) was a tl~i~ilirnitmright to security of the pregnant svoman's person at the time of the declaration of the Charter, one could expect that Justice Beetz would have expanded the reproductive rights of women under the Charfer. Justice Beetz identified the physical and psychological harrn caused by the operation of the criminal law - but only to the estent that they were caused by subsection 251(4). Narrowing hs focus on this subsection, Justice Beetz wrore:

"Security of the person", within the meaning of S. 7 of the Charter must include a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. If an act of Parliament forces a pregnant woman whose life or health is in danger to choose between, on the one hand, the commission of a crime to obtain effective and tirnely medtcal treatment and, on the other hand, inadequate treatment or no treatment at au, her right to security of the person has been violated. (R v. Mo~entaIer62 C.R. (3d) 39) In this paragraph, Justice Beetz artfully narrowed the scope of conflict to abortion and criminal law. Like the Chief Justice, Justice Beetz wished to focus only on the violation of the Charter caused by section 251 (4). That dis judgment wished to liighlight a technicality is evident through a cursory examination of this test. He spoke of the pregnant woman being subjected to the laws of Puliament. The intransitivity of this paragraph reinforced the notion that she is merely an object undergohg a process. In this partigraph, the pregnant woman is not the active agent; neither is the prohbited action, aboraon, explicirly thc subject of the passage. The focus sull remains on the offendmg Act of Parliament, whch is explicitly made the issue of contention. The security of the person right included the right of access to appropriate medicaI care without fear of criminal prosecution in circurnstances of danger to life or health. 90 Like the Clief Justice, Justice Beetz found it unnecessary to address whether a riglit to abortion exists in the Charler. He explained that the provisions were not solely at odds with a Charler guarantee because the condition of pregnancy made her vulnerable. Justice l3eetz qualified why a pregnant woman's security of person was invaded by the Criminul Code provisions.

If a deof criminal law precludes a person from obtaining appropriate medical treatment when lis or her life or health is in danger, then the state has intervened and this intervention constitutes a violation of that man's or that woman's security of the person. (R 11. Morgetzhder 62 C.R. (3d) 39) The abortion lasv offended the Churteronly because the state actively intcrvened and bccausc this intervention caused additional danger to the pregnant woman's health. This subtly connotes that a pregnant woman does not have special rights under section 7 of the Charler by virtue of the fact that she is with child. This understandmg of the Cburierviolation was centrai when Justice Beetz States that:

. .. S. 7 cannot be invoked simply because a woman's pregnancy amounts to a medicaily dangerous condition. If, howvever, the delays occasioned by S. 251 (4) of the Crimznal Code result in an additional danger to the pregnant woman's health, then the state has intervened and this intervention constitutes a violation of that woman's security of the person. (Rv. Morgentaler 62 C.R. (3d) 54) Justice Beetz did not claim that a liberty right was being offendcd in Morgeder. It is only a criminal law that, without regard to the pïinciplcs of fundamcntal justicc, interfered with the securiry of pcrson of a pïegnant woman. He could not have identified a right of access to abortion becausc hc found it ccsufficient"to invalidate section 251(4) on the basis of violations to sccurity of the person. 6 1 The scope of legitimate statc interest in woinen's health was explored mhen the

Court esamined whether this deprivation of security of the person was in accord with the principles of fundamental justice. The issue of danger to a woman's hedth was the focus of both Chief Justice Dickson and Justice Beetz's respective esaminations. Justice Beetz stated:

These requirements are manifestly unfair in that they are unnecessaq in respect of Parliament's objectives in es tablishing the administrative structure and that they result in additional nsks to the health of pregnant women. (R u. ~Morgeder62C.R. (3d) 69-70) He found that additional dangers to a woman's health, such as those cslused by the requirements of the abortion provision, made these requirements 'manifestly unfair'.

Mun@rt& unfair requirements are those that obviously and unrnistakably can be demonstrated not to be connected to Ibe legislative purpose. Requirements that furthcr endangered a woman's life and health could not accord with a legislative purpose of protecting a woman's health over the clairns of the unborn chdd, as was the intent of subsection 251(4). Clearly, the Court found that protection of women's health \vas, and always was, a valid legislative objective; moreover, securing it takes precedence over protecting the life, or potential life of an unborn child.

Only Justice Wilson, writing for herself, identified a right of access to abortion in section 7. She maintained thac:

...S. 7 encompasses more than the riglir ro security of the pcrson; it speaks also of the right to liberty, and (2) because security of the person may encompass more than physical and psychological sccurity.. . (R v. Morgeurder 62 C.R. (3d) 101) Her use of the modality "inay encoinpass" subtiy attributed qualities over and abovc

"physical and psychological security" to her definition of section 7. Uy using this linguistic 93 fcature, Justice Wilson implied that a section 7 investigation should not be litnited to speaking of the right to securiry of the person. One could Say that she forcshadowcd what was to corne in the rest of her opinion. She believed that "[wlith ail due respect, ... the

Court must tacMe the primary issue first." (R v. Motgetzta!er62 C.R. (3d) 100) She identified the primary issue as whether or not woman can be compeiled by a law to carry their fetus to birth. Justice Wilson espanded the scope of conflict that the Court addressed in A4oqe"~dv and found " in Fer] vicw, rhis right [liberty], propexly constnied, grant[ed] the individual a degree of autonomy in making decisions of fundamental persona1 importance." (R v.

Morgerltaler G2 C.R. (3d) 104) Here the use of the term "properly constmed" cxpressed thc confidence in which Justice Wilson made her claim. She characterized the right of access to abortion as being a clear and legitimate right, which was found to be consistent with principles of interpretation of the Char~er.

Madam Justice Wilson did not examine the offending legislation's impact on woman's health at length. Instead, as noted in the lnst chapter, she reasoned that scction

251 (4) took awy the right to abortion services witbout regard for the principles of

fundamental justice because it also violated the right to 'fïecdom of conscience'.

In sumrnary, nvo distinct issues were addressed in this analysis." Fkst, the United

States Supreme Court struck down the abortion statute in Texas for reasons other than those used by the Supreme Court of Canada in A/logetfta/eel: In Roe v. lVade, the majority of the

Court found a fundamental constitutional right ofaccess to abortion scrvices in the

Q I-ieïe again, it must bc noted thnt thconclusions in tbis stdy are drawi~Çrom intcïprctations aiid not [rom observations. 93 penumbra of the BU of Rights. In Mogentder, four out of the five majority justices found no

such right to abortion. Rather, they struck down the abortion provisions of the CrinlitzalCode

because they unjustly invaded the security of a woman's person. Only Madam Justice Wilson

found a right to abortion rooted in the section 7 guarantee of liberty. It is interesting to note

that the judges who found a right to abortion used a high level of transitive language when discussing women and their decision-making capacity. High levels of transitivity emphasizc the control of the agent (Fowler 1985; Lind & O'Barr 1979). Transitivity contributes power to the subject to form relations and implies that they are active participants in decision-

making. Women, the subjectç of the discussion, were agents who matenally affected others,

instead of being objects affected by actions of others or instruments used to effect others.

Second, reliance on a conceptualization of a constitutional duty that included the

'protection of women's health' was relatively one for both Courts. Here it is necessary to invoke the concept of l~xicali~atior~;that is, how weU a specific concept cm be expressed in a

term and to how many terms exist for that concept (Fowler 1985). It is a linguistic feature used to convey ideology. The concept of 'protection of women's health' was tlrderlexicali;ed

in ali the abortion decisions. This is not to irnply that it mas not appealed to in the decisions;

clearly it was the focus of discussion, especially, in Chief Justice Dickson's and Justice

Beetz's opinions. Rather, under/cx-it-uIi;a~ioi~refers to the lack of a term, or the lack of a

prevalence of terms, that would neatly encode a process or concept (Fowler 1985). In this

case only hvo terms were used: 'safeguardmg the health of pregnant woman' and 'protecting

the health of the pregnant woman (or the prcgnant woman's hcalth).' Vocabulary reflects the

interests of a group or socieq. Thc absence of multiple terins indicates that a specific and 94 neatly conceptualized articulation of thinterest was not a hghly institutionalizcd value in the legal institution of either country.

THE STATE INTEREST IN PROTECTING POTENTIAL LlFE

American Context In Roe Y. Wd, the majority opinions esamined the state's interest in protecting unborn human life. In general, government has a responsibility to safeguard the lives of its citizens. Sorne indtviduals clah that the state has a duty to interfere with access to abortion, cven to prosciibe the procedure. Justification for that opinion has corne from the view that human life begins at conception; therefore, the state's general obligation to protect iife extends prenatalIy. Others justify this claim using a Iess rigid standard. Even if one does not adopt the view that life begins at conception, the state may assert an interest in the protection of the fetus because it is at least potential life. Some proponents of these views acccpt that the state should aliow abortions only when the mother's life would be in danger

Erom carrying the fetus to term. In Roe v. IVade, the Court declares that "In view of all this,

WC do not agïee that, by adopting one theory of life, Tcxas may override the rights of thc prepant woman that are at stakc." (Roe v. W'ncle, 41 0 US.11 3, 162) Without commcnting on when human life begins (i.e. when humans become peïsons), the majority of the Court in

Roe u. IVade maintslined that a state intcrest in protecting unborn humans needs to become compelling if it is to significandy interfeïe with the right to abortion services.

The Court adopted a 'logical and biological' justification for when the state interest in the fetus becoines coinpeiling. The biological point was marked at thc end of the second tïimester, the point ofviability. At viability, the fetus could have a 'meaningful' life outsidc 95

the mother's womb. Moreover, oncc ex ~/ltim,the state must prorect the newborn from harm

because it is a legal person. The Court inaintained tliat the state has an interest in protectmg

the potential life of the viable fetus, becnuse it differs from the ti-v dero viable chiid only in geographic location. It has reached the same stage of biologic development. The Court therefore held that the protection of life, or potential life, becomes compelling at viabdity.

Thus, the woman's right to abortion was not absolute with respect to the state's interest in protecting the fetus.

Yet, in Casy the United States Supreme Court removed the static point of viability

(at the end of the sixth month of gestation) as the standard for marking the 'compelling' claim of the state. They held that state interest in potential life was compehg from the outset of pregnancy. This may give some leel credence to a secular ensoulment argument.

The shift in standard from 'strict scnitiny' to 'undue burden' allows for more constitutional regulation of abortion services. In ordcr for an abortion law to be invalid, its purpose or effect must place a substantial obstacle in the path of a wornaii sceking an abortion before fccal viability.

Canadian Context In the section 1 analysis of Morgentder, it is unclear whether the majoriq of the Court

Lelieved that the state's interest in the fetus tookprinc~jn~léprecedence ovcr dle health of the morher or whether the state's interest in protecting the fetus became a pressing and substantial concern at some point during its development. Cluef Justice Dickson believed that the role of the Court was to evaluate only the particular balance suuck by Parliament in section 251 (4). He wrote: Nor are we required to measuïe the full estent of the state's interest in establishing criteria unrelated to the pregnant woman's own priorities and aspirations. What we must do is evaluate the particular balance stnick by Parliament in S. 251, as it relates to the priorities and aspirations of pregnant women and the governmenc's interests in the protection of the foetus. (R Y. hloqel~taler62 C.R. (3d) 34) Even though he asserted that the Court did not have a duty to assess the measure of state interest in the fetus, he did maintain that the protection of fetal interests was a valid objective. From the following passage, it seems protecting fetal interests is more important than safeguarding maternal health, the other major identified objective in 251 (4).

Like Beetz and Wilson JJ., 1 agree that protection of foetal interests by Parliament is also a valid governmental objective. It follows that balancing these interests, with the lives and health of womcn as a major factor, is clearly an important governmental objective. As the Court of Appeal stated at p. 366, "che contemporq view [is] that abortion is not always socially undesirable bchaviour." (R v. Mozentaler62 C.R. (3d) 34) It is difficult to ascertain the true meaning of this passage. The Chief Justice may have claimed that the objective of section 251 was pressing and substantial only when assessed together with the protection of maternal health. On the other hand, by relying on the sequencing of these interests in this passage, his remarks may mean that the fetal protection interest was paramount. Within the context of Chief Justice Dickson's remarks it is difficult to separate these two interests from each other. The syntax of the last sentence of the passage added to this conhsion. Chief Justice Dickson quoted thc Court of AppeaI noung that "the contcmporary view [is] that abortion is not always socialiy undesirable behaviour."

(R,Y. Moqeiltaler 62 CR. (3d) 34) Alternatively, Chicf Justice Dickson could have noted that,

"the contemporary view is rhat abortion is sometimes socially desirable." In the former structure, the idea of abortion being socially undesirablc was ccntral. Had the Chicf Justice used the latter syntas one might have inferred that abortion was more desirable than not. 97 The deletion of "undeslrable" iii the alternative form would have taken the negative connotation away from the act of abortion. The usage of the former phrasing increased the validiry of state's justification for regulating abortion.

Yet, Chief Justice Dickson struck down section 251, whose intent (according to him) was to protect the state's interest in both the fetus and the mother's health. WMe he found the CrinzimI Code provisions unconstitutional, he sd'left the door open' for Parliament to regulate abortion in order to achieve that objective.

Stace protection of foetal interests may well be deserving of constitutional recognition under S. 1. Stiil, there can be no escape from the fact that Parliament has faiied to establish either a standard or a procedure whereby any such interests rnight prevail over those of the woman in a fair and non- arbitrary fashion. (R v. MorgerdaLer 62 C.R. (3d) 35)

It would seem that fetal interests, accordmg to Chief Justice Dickson, were not absolute. If

Parliament was to legislate to advance those interests, it would be their duty to establish procedures and standards that are both clear and fair. It rnight be possible for Parliament to properly balance these interests against the 'priorities and aspirations' of pregnant women.

Yet, in obiter the Chief Justice said that Parliament was justified to legislate in this area to protect its intcrests in the fetus; this objective is different from that which he identified in hs

section 1 analysis.

At times it seemcd that Justice Bectz bclieved that the statc's intcrest in the fctus tookptin~~/Û&precedence over the health of the mother; however, he also clairned the state's intcrcst in protecting thc fctus only becamc pressing and substantial at somc point during its development. He identified the protection of die state's interest in unborn life to 98 be the primai7 goal of section 251 of the CnnlindCode. In support of the former clairn, he stated:

Parliament is justified in requiring a reliable, independent and medicaUy sound opinion in order to protect the state interest in the foeh~s.This is undoubiedly the objective of a rule which requires an independent venfication of the practising physician's opinion that the iife or health of the pregnant woman is in danger. .. . Parliament decided that it was necessary to ascertain this from a medical point of view before the law would aUow the interest of the pregnant woman to indeed take pxecedence over that of the foetus and permit an abortion to be performed without criminal sanction. (R Y. Morgentder.62 C.R. (3d) 39-40) Not only did Justice Beetz clearly maintain that the state has an interest in die fetus, but he aIso found thar Parliament was justified in requiring a second medical opinion before terrnination of pregnancy. He stated that this is a necessary condition ". ..before the law would aiiow the interest of the pregnant woman to indeed takeprecedence over that of the foetus.. ." [italics added] (R v. Morgentaler 62 C.R. (3d) 62) His justification definitely provided the fetusprimafai!e importance over a woman's health.

On the one hand Justice Beetz claimed that "the protection of the foetus is and, as the Court of Appeal obseived, always has been, a vaiid objective in Canadian criminal Inv."

(R Y. Morgentder 62 C.R. (3d) 72); howevcr, later in his judgrnent he spoke of the inteïest in fetal protection beconzitg compelling. The confusion as to how much weight he attached

'protecting unbom human life' began when lie made the following assertion:

Assurning without deciding that a right of access to abortion can be founded upon the right to "liberty", there would bc a point in theat whch the state interest in the foetus would become compelling. (R. v. hlorgentaler 62 C.R. (34 63) 99 From this claim, it would seem he believed tllat the state's interest in the fetus only becamc compelling at some point in fetal development. According to Justice Beetz, this objective has always been compelling; hence, a requirement for a second medical opinion is always justifiable intervention. Yet, he asserted that if "a right of access to abortion [could have been] founded upon the right to 'liberty,"' (R v. Morge~ztaler62 C.R. (3d) 63); the state's interest in protecting the fetus wodd have also become cornpehg at some "point in cime."

Logicaily, these nvo assertions are at odds wirh each other. In the former case, he adopted a vitalistic view towards unborn human life; in the latter, he embraced a developmental or physicalistic approach to assess the worth of the unborn child's Me. In any event, Justice

Beetz asserted wvithout qualification that he is "of the view that the protection of the foetus is and, as the Court of Appeal observed, akays has been, a valid objective in Canadian criminal law." (R v. Mogetf!a/er62 C.R. (3d) 72)

Madam Justice Wilson found the prirnary objective of section 251, the protection of the ferus, to bc a "perfectly vaiid objective." (R v. Moqentaler 62 C.R. (3d) 115) She stated that the legislation,

undoubtedly has other ancdary objectives, such as the protection of the life and health of pregnant women, but 1 believe that thc main objective advanced to justify a restriction on the pregnant woman's S. 7 right is the protection of the foetus. I tlink tllis is a perfectly valid legislative objective. (R Y. Morgenfnler62 C.R. (3d) 72) Clairning that the protection of the fetus was a valid objective does not indicate that she believed that therc was aprir~ajkieobligation to protect it over a woman's liberty. Rather, by adopting a developmental approacli, she stated that the state objective is not alwvays pressing and substantial. Justice Wilson relies on the "developmental progression [that] takes place in benveen these nvo extremes;" (R v. Morgentah62 C.R. (3d) 72) in her opinion "this

progression has a direct bearing on the value of the foetus as potential life." (IL v. Moqe~~tder

62 C.R. (3d) 72) Thus, Justice Wilson adopted the 'lower standard' of justification of which

Justice Blackrnun spoke in Roe v. lVude. She referred therefore to the developing foetus as

"potential life" and to the state's interest as "the protection of potential life". (R v. Morge~taler

62 C.R. (3d) 72) Once the fetus is viable, the state's interest in protectkg its potential life becomes pressing and substantial.

In summary, one can conclude that in the landmark abortion cases considered in this study the American and Canadian judiciaries found the state interest in protecting life or potential life to be a valid legislative objective. Analysis of the lexical choice in the judicial opinion conf~msthat this objective is deeply rooted in both societies. 0verIe.xii.a~patio11of this concept confirms this inference. As opposed to underlexiaIi~adioion(discussed earlier in this chapter), overIexicaIi~atio~zrefers to the phenornenon of many terms being available h one hnguage to express a concept. Both judiciaries used a plethora of terms to express the concept of a state that acts like a surrogate parent to protect the lives of unborn humans.

The terms used included: 'protection of hurnan life', 'protection of potential human life',

'safeguarding the fetus', 'fetal interests' and 'protecting the fetus'. The presence of multiple terms indicates the prominence and acceptance of this co~iceptby the respective judiciaries.

This study argues tliat history and legal precedent strengthened by both judicial value clioices and the adoption of specific conceptualizations of constitutional concepts (identified

through lexical choices and other linguistic devices) pïedispose policy rnakers to see the world in certain ways. Policy makers not limted to these ways, but these institutionalized 101 ideas and choices acr as constraints to policy clioices. The prcvalence of diffeïcnc values presented in the landmark abortion decisions of each countïy influenced policy makers whcn they esamined social policy options regarding non-therapeutic human embryo research. DISCUSSION AND IMPLICATIONS

DISCUSSION

Human Ernbryo Research Policy in the United States of America In relation to Canada, the United States adopted a lower level of state intervention in hurnan embryo research. While in the late 1970s and early 1980s the Ethics Advisory Board needed to review ail hurnan embryo research protocols requesting fedcral funding, this requirement vas dropped in 1993. Currently, the Republicans have attempted to stop research on human embryos by rightening the purse strings of the federal budget. In the vast majority of the states, private researchers and research institutions may still cary out human embryo research. Those state statutes that prohibit embryo research do so only because the legislation that bans fetal research is vague in its definition and not narrowly drawn. None of the states requke research institutions carrying out embryo research to have special iicensure.

This study claims that the concept of procrcative liberty has been institutionaiizcd in

United States law and this has influcnced Amcrican poiicy makers. The instinitionalization of this valuc by dlc Courts, combhed witli thc low lcgititnatc lcvcl of statc intcrcst in potcntial life prior to embyo implantation in the uterus (i.c. prcgnancy) may have controlled embryo rcscarch policy in the United States.

The analysis of thc Unitcd States abortion decisions in this study suggests that a right to abortion clearly esists in the United States of America. While a rnajority in Casey limited 103 that right, one can still claitn, as Robertson does, that procrcative liberty has played a central role in thc judiciary's understandmg of the abortion issue. In these decisions, women were characterized as active, rational decision-makers. Procrcauve liberty, "the frcedom to decide whether or not to have offspring and to control the use of one's reproductive capacity,"

(Robertson 1994a, 16) has been given presumptive authority in the judicial decisions.

American justices have maintained that other interests limit this right only when they become compehg. According to Robertson (1994a), this value only requires that the state not interfere with the choice of procreating or refrainkg €rom procreating; the state has no duty to provide the resources to assist one in having or not having children.

The second factor that may have shaped embryo research policy in the United States is the 'constitutionally perrnissible' level of state interest in the pre-embryo. In Roe v. LVude, the majority held that the state's interest in protecting potentinl human life becomes compelling at viability (set at the end of the second trimester). In Cosy, this interest was said to be compelling through pregnancy. According to the justices in Cmy this aUowed for more state regulation of abortion than under Roe u. 1Vnde. However, the research on pre-embryos, the subject of this study, involves lruman life before pregnancy. If the state's interest in protecting potential life only begins at prcgnancy, then the state has no legitirnate interest in protecting prc-cmbiyos, which have not yet bcen implanted in a utems. In other words, the pre-embryo has not reached either of the developmental stages that quaiify it for state protection.

This argument clearly played out in the NIH Human Embryo Research Panel's deiiberations. The panel claimed, like the EAB before it, that while embryos do not have the 1O4 same moral status as infants and children they warrant serious moral considerations as a developing form of human iife (National Institutes of Health 1994; Ethics Advisory Board

1979). It based this conclusion on the embryo's lack of developmental indvidualization, lack ofpossibility of sentience and high mortality rate. These three deveIopmenta1 and physical characteristics all change their value at around the tirne of implantation in the uterus

(about the fourteenth post-fertilization day).

It would seem that Robertson's philosophical argument sheds lights on this study's examination of embryo research poiicy in the United States. The potentiality of the pre- embryo seems to give it only symboiic moral significance in iight of the United States abortion dccisions. This symbolic significance is insufficient to justify a ban on research, svhich svodd help women esercise both their righr to choose to procreate and their nght to do so safely. This readhg of United States abortion decisions suggests thar Repubiican legislators, who wislied to ban embryo research, were iunited in their avdable and thcir justified legislative means to do so. After the declaration by the EAB that NF and embryo transfer are ethically acceptable and that "hurnan in vitm fertilization research without embryo transfer" is ethically acceptable as well, an outright federal ban on this research was not in the cards. Moreover, the contemporary state of affairs in the legal institution suggests that such a ban may be unconstitutional (Coleman 1996). Amencan policy makers who wished to prevent research from being carried out on human embiyos could not achievc that objective by legislating an outright ban on human embiyo rcsearcli.

The only remaining policy instrument to effect regulation was rnoney; the

Rcpublicans could lirnit embryo rcscarch by not allocating lederal rnonies to it. Under thc 105 Reagan and Bush administrations, the Republican pro-lifer influence effectively iimited federal funding of embryo research by dissolving the EAB. Without an EAB, tliis research could not receive fedeml funding since research protocols required MBin order to be federaliy funded. The dissolution of the EAB created a de jicto ban on research involving hurnan embryos.

With the election of President Clinton to office, the Democratic Congresss~hoseto bypass the need for the EAB. The National Institutes of Health Revitalization Act pemitted the NIH to fund research protocols without the approval of the EA13 (Annas et al. 1996).

Howcver, folloming the election of a majority of liepublicans to the United States House of

Representatives, control over allocations was passed to the Republicans. During the height of the budget crisis in 1996, conservative Republicans were able to force President Clinton to sign a bill that completely banned government hinding of human embryo research. Those policy makers who wished to prohibit research on human embryos were able to do so by manoeuvring within the institutional constraints of the law and constitution. Control of fiscal resources \vas the only policy instrument that could be jusufkbly used to 'regdate' human embryo research in the United Statcs.

Human Embryo Research Policy in Canada Canadian legislators had attempted to introduce a high level of state intervention in human embiyo ïesearch. The pïoposed Icgislative hamework, Bill C-47, and its Disc/issior/

D0~71??1e/llcalled for the use of crirninal law to prohibit certain procedures and forms of research. Since these prohibitions would have carried stiff penalties, one could assume that

" "This bill was passed in 1993, prior to the Republican domination of the House of Representatives. 1O6 rhc government wished that the penalties would not be accepted as 'a cost of doing business'. It had also called for the establishment of a national authoiity that would license ali fachties wishing to conduct human embryo reseaïch and would review ali research protocols involving human embryos. By esarnining the preamble to the Bdl and the justifications put forth in the Dis~'t/ssiorrDocment one can discover the values that the

Canadian government invoked.

Tlus study proposes that 'the quintessential Canadian compromise' of the Morgenlder decision may have framed this policy regarding embryo research. Canadian policy makers drafted 'highly inteiventionist' legislation ti~atwould have invoked both regdatory and criminal powers. It seems that something sidar to Richard McCormick's philosophical argument was at work here34. The legislation suggesrs that the government identified a duty to potential human life. Four justices of the majority mzlintained that the protection of that interest is a valid objective of criminal law. If scientists wish to override this duty to protect, the research they proposed must be subject to national scrutiny.

The preamble and stated objectives of BU C-47 speak of the government's duty to protect human dignity. The preamble reads:

WHEREAS the Parliament of Canada is gravely concerned about the significant threat to human dignity, thc risks to human health and safety, both known and unknown, and otlier serious social and ethical issues posed bp certain reproductive and genctic technologies.

3.1 Not that Canadian policy making follows McCormick's reiigious ancl moral fraincwork in gencïal. Rather in this case, it scems that Canadian poiicymaking foUows a siniir line of argument. . . . AND WHEREAS the Parliament of Canada recognizes the need for measures to protect and promote human digriity and equalit), and the best interests of children in relations to such technologes and transactions. (Canada. Speaker of the House of Cornmons 1996, p. 1) Mere again, the sequencing of the objectives is noteworthy. It would suggest that the primaq intent is "to protect and promote human dignity and equality" in response to the grave concerns regarding "the significant threat to human dignity . .. posed by certain reproductive and genetic technologies." (Canada. Speaker of the House of Commons 1996, session 1,

17946) The stated objectives of the Bill propose the same justification for the criminalization of research on post-implantation embryos and creation of embryos solely for research purposes. One of the objectives makes reference to 'human dignity,' A second dei-s to safeguarding, or ensuring, the treatrnent of sperm, ova, and exutem embryos because of their

"potential to fom human life."

Thc claim that human embryo research policy reflects the vdues institutionalized in the law following Motgenlder is further supported by the introductory message in the

Dis~~tssionDocrdmei~t by then Health Minister David Dingvall. Dingvall suggested that certain

NRGTs make some Canadians uneasy because they challenge fundamental values. The

Minister suggested that these tcchnologies threaten "human dignity, and treat reproduction, women and children as cornmodities." Thc ordcr of thc articulated 'fundamental' values suggests that the protection of human dignity is rhc focal concern. DingvaU aiicged that:

Opinion is divided on many of these issues, and consensus has not yet fully cinerged 011 thcir appropriatc place in Canadian society. However, Canadians have made it clcar that thcy arc loolung to the fedcral govcïnment to manage these technologies in a way that protects those most affected and reflects our collectivc values. (Canada. Spcaker of the House of Commons 1996, p. 5) 108 The Minister argued that the federal goveïnment invoked Canadian values in rcsponse to a requcst from Canadians to protect those involved and affected by NKGTs.

Moreover, the enumerated guiclmg principles for this legislative framework include the "non-commercialization of reproduction and reproductive materials" and "balancing individual and collective interests." (Canada. Speaker of the House of Commons 1996) The value of non-commercialization is justified as protection of human dignity. Yet, human dignity, or respect for persons, is referred to in the Disrussion Docnment as being "closely related to the principle of individual autonomy." (Canada. Speaker of the House of

Commons 1996, p. 16) The govemment asserted:

Individuals have the right to makc autonomous decisions in ail aspects of their health care, including the right to decide whether or not to reproduce or, in the case of pregnant women, to make decisions regardhg interventions which may affect themselves or their fetuses. Although individual autonomy is central to ethical decisions in the area of NRGTs, each individual is part of a larger society and the actions of the individual may affect that collectivity. (Canada. Speaker of the House of Comrnons 1996, p. 15-16) The interesting observation here is thae human dignity, which the government says is the root of respect for autonomous decision making, is itself used to litnit individual autonomy xvithin the document. The invocation of collective valucs, the need to strike a "balance

[berneen] individual and collective interests" and the need " to protect the interests of those involved, as weli as those of society as a whole" (Canada. Speaker of the House of

Commons 1996, p. 6-12) is used to justify federal state intervention in the NRGTs.

Finally, the Canadian government had justified the proposed ban on the crcation of cmb~yosfor research purposes by invoking the cornmon value of 'human dignity'. In the D~JU/J.J~O~IDocment's definition of "creation of embyos for research purposes only7' it esplained:

Although embryo research has the potential to yield valuable information about the hurnan condrtion, the "need" for embryos for research is not compelling enough to justify their creation and use solely for ths purpose. This practice would commodify human embryos, whch have the potential to become human beings, and undemine human dignity. (Canada. Speaker of the House of Commons 1996, p. 44) The Canadian government has infused the human embryo with symbolic moral worth. The need to create embryos in order to carry out 'enough' research seems not to override that dignity. The repetitive use of human dignity and the positioning human dignity in a second principle of "non-commercialization" illustrates that these values are institutionalized in

Canadian society. As noted in this study's discussion of ideas and institution, policy-makerç appeal to widely accepted valences when trying to find consensus. Moreover, the lack of explaining the benefits of human embryo reseuch denotes that scientific benefit is not a value that &ove this policy.

While the Court maintained that protecting women's health during pregnancy was a pressing and substantial objective, the analysis suggested that the concept of female reproductive health was not hghly institutionalized in the Canadian courts at the tirne of

Morgetrtuler. Howevcr, earliex in this smdy it was clahcd that if the North Amcrican governments and medical professions have condoncd the practicc of IVF thcy must bc wdhng to conduct the nccessaiy rescarch to mcct the aforementioncd goals. If protccting a woman's reproductive health and safeguarding her life are important, why did the Canadian government wish to prohibit, or restrict human embryo research - research that could increase the efficacy of IVF and decrease the safety risks involved with fertiiity treatments? 110 While it is methat Parliament was mercly swikuig a Da/mrce bchvecn competing interests, as it did in the 1969-abortion law, the proposed regdations would have severely restricted the amount of non-therapeutic human embryo research that could have been undertaken in

Canada. The balance that the Canadian government had proposed might have curbed the necessary research to make IVF safer and more effective.

Since the concept of procreative liberty is not an insritutionalized valence it can be assumed not to be a factor in Canadian science policy. Ths claim is made on two counts.

First, John Robertson's concept of procreative liberty is grounded on "the freedom to decide whether or not to have offspring and to control the use of one's reproductive capacity." At the moment no such right exists in Canada. Only Madam Justice Wilson identified such a right within the scope of the right to liberty in her Char~eranalysis of Morgenlaler. It has been argued that the other justices writing for the majority had wished not to identi@ such a right.

Second, while the Court based much of their argument for striking down section 251 on the liarms it caused to women's health, 'protection of women's health' was ody construed as a negative right, or a duty of the state not to interfere. The reading of the Morgentdercase put fonvard in this study suggests that the conceptualization of reproductive health put forth by numerous international gïoups is not yet protectcd as part of the rubric of "life, liberty and the security of person." The UN ICPD identified the posihve aspects of procreative liberty when they asserted that individuals should have access to "the constellation of methods, techniques and services that contribute to reproductive health and weii-being through preventing and solving reproductive health problems." [UN ICPD 1994,7.2] The Report of the UN Conference on Women in Beijing (1994) declared that "the promotion of the 111 responsible exercise of these rights for aii people should be the fundamental basis for

government- and cornrnunity-supporred policies and programmes in the area of

reproductive health.. .." (S. 95) The Churteris a force that Parliament must consider and an

instrument they should utilize when drafting new legislation. As a constitutional document

it "authorizes the institution and institutions of government, establishes the desof governance, and, most important, sets forth a vision to be secured hough those institutions

and ides." (Pilon 1992,373) Thus, the vision that the institution of government svished to

secure may have been compeiled by this Iwiited conceptualization of procreative liberty

coupled with the institutionalized value of protecting potential human life.

IMPLICATIONS This study has both methodological and political implications. The methodological implications wdl be addressed first.

Methodological Innovation From a methodological standpoint, this study introduced a notesvorthy technological innovation. All the data for this study, Save thc Disc~~ssionDucment, was found via large computer databases and acquired elecuonically from the same database. The Canadian case

Iaw was located and rekieved via QUICICAW; WESTLaw vas used to find and rctrieve the

American lepl material. The use of computeï databases saved thc rcscarcher Uinc both during the data coilection and write-up phases of this srudy. Not only did tlis use of technology save Ume but it also contributed to the completeness of the datn set.

QUICIUAW's user interface was not as intuitive as that of its American cousin, WESTLaw.

WESTLaw ailows the user to enter searches in plain English. For example, one could enter 112 the following: "Find all Supreme Court decisions that are disthguished from Rue P. IVade on the basis of liberty interpretations." QUICI(LAW7shck of pagination referenced to legal reporters was even more fnistrating. Given its smaller market, it will take the developers at

QUICIUAW more the to 'upgrade' the search engine to include this type of technology.

Tlüs testual analysis section of this write-up was made easier since there was no need to retype the passages that were to be esarnined. Once the entire data set ivas retrieved, relevant sections of die data could be located using the word processor's 'Find' hnction.

Since data in these databases can be downloaded in ASCII,35 it can be directly imported into content analysis programs such as NUDIST. Other qualitative researchers who analyze large amounts of government documents should take note of the luxuries that electronic data collection offers.

Limitations Before addressing the other implications of this snidy and making some general conclusions, it must be noted that ths study is lunited in its scope. A form of legal institutionalism was used as the theoretical underpinning of this study. By marrying hstorical institutionalism with Dworkin's concept of judicial concepnializations of rights, it was argued the differences in American and Canadian human embryo research policy might be understood through a comparative analysis of thc jurisprudence of the abortion issue. It was argued that by instituhonalizing these mfferent values, the rcspecbvc lepl systcms differentiolly constrained the Canadian and American policymakers who exarnined the question of whether the state should regulate human embiyo research.

35 ASCII stands for the Arnerican Standard Code for Information Interchange. Data in ASCII is pure test wi thou t any formatting, save carriage re turns. 113 The enterprise embarked on in rhis study can be best described as theory building.

The study did not set out to verify a hypothesis. Rather, it attempted to explore the implications of the different resolutions to the legal abortion issue to a related area of policy, human embryo research. Researchers like Julia Black at the London School of Economics and Political Science have proposed sdar theones of legal institutionalism (Black 1997). Tt was impossible in the scope of this Master's study to analyze ali the available data that could shed light on this area of policy. Und more mork is done, includmg elite interviews with both the policy makers and Supreme Court justices in the relevant countries, the conclusions of this study will be no more than glorified hypothescs. Moreover, it would beneficial to examine aU transcripts from cornmittee hearings in the United States Congress and Canadian

Parliament. Once these nvo items are complete, one would be able to assert the conclusions of this study with a higher degree of certainty. This exploratory study could benefit from increased investigation not only in this area but also in otlier policy areas.

Policy Implications Both general and issue specific issues arise from this study. Government legislators and those in opposition govcrnment can discover many lielpful insights into policy malung

€rom dis heoiry of legal institutionalism. Both legislators and opposition members must understand that hisrory, laG and institutionalized values influence policy choices. Lawmakers

must come to understand the power of invoking comrnon values; therefore, in tliek public

eshortation they should appeal to institutionalized valences. It is quite difficult to change

public opinion. Instead, effective politicians should set the political agenda by setting the vocabulary of the discourse. That art form is referred to as frarning. It is a method of presenting the possible contentious policies by carefully disguising them witli accepted 11.1 valences and inçtitutionalized values. Those in opposition to the government's poiicics @oth

elected members of the House and special interest groups) should focus on uncloaking the

policies and exposing them to careful scrutiny.

Policy makers defme confiicts in such a way that they manage the scope of conflict

in order to ensure policy adoption. Scope of conflict is partly defined as the definition of a policy issue. The scope is the area over which the issue extends. Tt is detemiined by three

factors. Visibility, the first factor, is the ease with which individuals can assess the gains or losses in any policy issue. Intcnsity of attachment to policy issue is somehes determined by what seems to be an irrational relevance. Othenvise, one can parallel different levels of

attachment with public/private distinctions. Intensity increases when the "consumption of a good by one person detracts from the enjoyment of that good by another." Direction, the

most important factor, is based on the agenda of the individual. Individuals will be involved in lesser confiicts, only if they are not involved with greater conflicts. Thus, Schattschneider

says that the power rests with those who have the ability to defme the policy alternatives.

The ability to define alternatives lies in the choice of confiicts. One should thereforc limit

rhc scope in a certain way to guarantee a specific set of solutions; the scope of confiict

determines its possible outcomcs. In order to ensure policy adoption, people involved with

policy dcfie confiicts in a inanner that aliows them to manage the scope of the confiict.

Opponents, conversely, will attempt to cxpand thc scopc of conflict. Onc can learn from

legai iinstitutionalist the017 that law, and the values that are incorporated into the legal

tradition, can be used as an instrument to either ensure policy adoption or to ensure that

'offensive' policies are not embraced. 115 While fiscal expenditure and regulations have traditiondy been viewed as distinct

policy instruments, this study has also shown that precise control of expenditure can

sometime acheve 'regulatory' objectives. It has been suggested that the Republicans could

not have used traditional regulatory insrruments to prohibit embryo research in the United

States. Instead, they effectively banned embryo research by restricting the federal hnds

aflocated to it through the NIW.The following analogy wdl serve as a useful illustration:

Sometimes one can persuade a horse not to drink from the lake by regulation. One can also persuade the horse not to drink from the lake without force, if one entices the horse with other rewards. This study has shown that sometime one can force the horse not to drink

from the lake by putting a muzzle on its mouth. One should take precaution, however, when adopting this method of coercion. Horses do not iike being muzzled. In other words, policy makers may have prevented embryo research from being carried out in public institutions, but nothing stops this research from going on, witbout st15ect fo regt/atlion adethidreview, in private laboratories.

Aside from the type of embryo research rhis study specificalIy addressed, the conclusions of diis study have irnpIications for hurnan cloning. Recently, human cloning has received much attention in the world press. In February 1997, Nature reported that researchers at the Rosh Institute outside of Edinburgli had cloned a sheep (Wilmut et al.

1997). Even though they were successful in cloning this sheep, DolIy \vas the only sheep born of 277 attempts. While no one knows how likely cloning in anirnals is to succeed, the cloning of higher mammals, and evcntually of humans, may become a safe and effective procedure. It is necessaïy to mnke the distinction bctsveen cloning and nvhning ngain. In 116 cloning, one replaces the DNA of a new fertilized ovum of a species with the DNA of a ce11 from an adult of that species (even from highly spccialized cclls). The new developing organism will be genetically identical to the adult. TwinnLig refers to the practise of inducing the cleavage of a blastomere form the rest of the developing zygotic cells prior to the 16-ceU stage. The single blastocyst develops sirnultaneously into a genetically identical organism.

In response to this possible realiry, United States President Chton instituted a ban on federal funds to support research that would lead to cloning of humans. President

Chton also instructed a Presidential Ethics Commission to recommend the possible federal actions to prevent the "abuse" of cloning. The Commission, in its letter to the President, recomrnended that legislation be proposed to prohibit private groups, whch receive no federal monies for research, from attempting to clone humans. According to Prof.

Alexander Morgan Capron, a member of the commission and professor of Law at the

University of Southern California, the panel members were divided into hvo extremes. In an interview mith the New York Times, Prof. Capron said that there "are those who stress

'scientific and reproductive Çreedom,"' and "those who emphasize the 'sancaty of life and traditional fady values." (Kolata 1997a) In light of this study, it wiU be interesthg to see if

Congress passes legislation to ban ail research which aims at cloning humans rather than instituting President Clinton's moratorium hothe law books. Another question arises: How would the United States policy treat implantation for gestation and birth of an embryo that has been altered. What would be its policies regarding genetic qualities changed by germ-line

'therapy'? Iceeping with the comparative nature of this study, one necds to note that Bill C-

47 wodd have criminalizcd human cloning and germ-line therapy. Ili The issue turns on the distinction benveen cloning and hvinning. Cloning is a

"politically dirty word." (Kolata 1897b) The recommendations from the Commission do not make the distinction. In some ways, twining does not have the same ethical implications that cloning has. Twining does not involve making a geneticaliy identical copy of an addt organism. Rather, it is merely the araficial induction of a naturaliy occurring process - in hurnans, one that resuits in identical tcvins. Within the rubric of reproductive heaIth, tsvinning would benefit women undergoing IVF treament. Instead of being subject to highly invasive procedures like laproscopy and to ovarian stimulants with unknown long-term effects, women could have one ovum ferdized via IVF. Clinicians could then theoretically induce multiple hvhhgof that fertilized ovum and place the multiple pre-embryos back into the uterus. A second question arises: If a blastocyst is hvinned into hvo or more blastocysts, can a 'min' be used for research provided that at least one potential person is preserved? Of course, this brief gleam cannot replace a full study of cloning and hvinning simiIar to that carried out here for human embryo research policy. Central to this smdy, however, is whether Congress will follow the recomrnendations of the Commission - and if they do, whether the Supremc Court would fuid such legislation constitutional.

One must note that while Canada may artempt to prohibit embryo research from being carried out on her soil, it is being done elsewhere in the world. If, in 1998, the

Democrats win a majority in the House of Representative and/or in the Senate, embryo research may be conducted at American publicly funded research institutions shortly aftenvard. While the NIH HERP has providcd thc NIH with a framework for reviewving

ïescarch protocols, and has endorsed the '14-day limt/primitive streak' on human embryo 118 research, the ethical underpinnings of their argument still beg many questions (Annas et al.

1996). If the United States, or Canada, fmds irself in a position where it is perrnissible and possible for human embryo research to be conducted, policy makers must be sure that it follows appropriate ethical guidelines. For csample, many ethicists, policy makers, and researchers have concluded that research should not occur on embryos after implantation and the appearance of the primitive streak occur at the fourteenth post-fertilization day

(Caiiahan 1995; Parens 1995). Yet, does th distinction rnake mord sense? After all, even proponents of human embryo research assert that pre-embryos warrant seiious moral considerations as a developing form of human life (National Institntes of Health 1994).

Embryo research should not be divorced from the poiitics of abortion. Bu understanding why these moral claims are important to some people and exarnining underlying issues - for example, why the possible comrnodification of hurnan reproductive capacity is an important concern - truiy inclusive and enlightened ethicd discussions may ensue. 119 CONCLUSION This exploratory study examined mhy Canada and the United States of America had adopted different policies regardmg research on human embryos. It was contended that a possible explanation rests in an examination of the history and the values expressed in the respective landmark abortion decisions. The benefits of conducting research on embryos and the concerns that such research elicits were explicated; the moral status of the pre- embryo and its biological development were outlüled. The relevant cases and policy documents were analyzed by weddmg a neo-institutiond approach to policy analysis with

Dworkin's theory of judicial review. While a right to abortion exists in United States, the

Canadian judiciary has not identified such a right. Moreover, 'protection of (potential) human life' was found to be a highly institutionaiized value in Loth countries; 'protection of reproductive health' was not as highly institutionalized. It is concluded that these differences may have differentially constrained the policymakers when contemplating human emb~yo research options. This exploratory study could benefit from increased investigation not only in dis area but also in other policy areas. APPENDIX A: A-TTITUDES TOWARDS ABORTION: GALLUP US AND CANADA , 1983 (Data for the charts in Appendix A was taken from Nevitte et al. (1993) "The American Abortion ~ontroversyLessons fr&n Cross-National Evidence. PLS, 12(1)19-30.) 121 ATTITUDES TOWARDS ABORTION: GALLUP US AND CANADA, 1992

0US ICAN

$'-C a!? V ATTITUDES TOWARDS ABORTION: US AND CANADIAN RESPONSES TO FOUR ABORTION QUESTIONS

Can 1981 hi US 1981 Q Can 1990 .US 1990 APPENDIX B: SECTION 251 OF THE CRiMlNAL CODE 251. (1) Every one who, with intent to procure the miscarnage of a female person, wherher or not she is pregnant, uses any means for the purpose of carrying out his intention is guilty of an indictable offence and is liable to imprisonment for life.

(2) Every female person who, being pregnant, with intent to procure her own miscarriage, uses any means or perrnits any means to be used for the purpose of carrying out her intention is guilty of an indictable offence and is liable to imprisonment for hvo years.

(4) Subsections (1) and (2) do not appIy to

(a) a qualified medical practitioner, other than a member of a therapeutic abortion committee for any hospital, who in good faith uses in an accredited or approved hospital any means for the purpose of carrying out his intention to procure the miscarriage of a female person, or @) a female person who, being pregnant, perrnits a qualified medical practitioner to use in an accredited or approved hospital any means described in paragraph (a) for the purpose of carrying out her intention to procure her own miscarriage, if, before the use of those means, the therapeutic abortion cornmittee for that accredited or approved hospital, by a majority of the members of the committee and at a meeting of the committee at which the case of such female person has been reviewed, (c) has by certificate in writing stated that in its opinion the continuation of the pregnancy of such female person would or would be likely to endanger her life or health, and (d) has caused a copy of such certificate to be given to the qualified medical practitioner.

(5) The Minister of Health of a province may by order

(a) require a therapeutic abortion cornmittee for any hospital in that province, or any member thereof, to furnish to him a copy of any certificate described in paragraph (4)(c) issued, by that cornmittee, together with such orfier information relating to the circumstances surrounding the issue of that certificate as he may requke, or (b) require a medical practitionei- who, h that province, has procured the rniscarriagige of any female person named in a certificate describcd in paragraph (4)(c), to furnish to him a copy of that certificatc, togcthcr witb sucli other information relating to the procuring of the miscarriage as he may reqke.

(6) For thc purposcs of subsectionç (4) and (5) and this subscction "accxedited hospital" means a hospital accredited by the Canadian Council on Hospital Accreditation in which diagnostic services and medical, surgical and obstetrical treatrnent are provided;

"appïoved hospital" means a hospital in a province approvcd for thc purposcs of this section by the Minister of Health of that province; "board" means the board of governors, management or directors, or the trustees, commission or other person or group of persons having the control and management of an accredited or approved hospiral;

"Minister of Health" means

(a) in the Provinces of Ontario, Quebec, New Brunswick, Manitoba, Newfoundland and Prince Edward Island, the Minister of Health, (a.l) in the Province of Alberta, the Minister of Hospitals and Medical Care, @) in the Province of British Columbia, the Minister of Health Services and Hospital Insurance, (c) in the Provinces of Nova Scotia and Saskatchewan, the Minister of Public Health, and (d) in the Yukon Territory and the Northwest Territories, the Minister of National Health and Welfare;

"qualified medical practitioner" means a person entitled to engage in the practice of medicine under the laws of the province in which the hospital referred to in subsection (4) is situaced;

"therapeutic abortion committee" for any hospital means a committee, comprised of not less than three members each of whom is a qualified medical practitioner, appointed by the board of that hospital for the purpose of considering and determining questions relating to terminations of pregnancy wi.vithin that hospital.

(7) Nothing in subsection (4) shali be construed as making unnecessary the obtaining of any authorization or consent that is or may be required, othenvise than under this Act, before any means are used for the purpose of carrying out an intention to procure the rniscarriage of a female person. 125 APPENDIX C: QUESTIONS OF LAW IN R. V. MORGENTALER [1988] The foiiowing questions were posed to the Supremc Court in R. V. Morgentaler [1988] 1 S.C.R 30:

Does section 251 of the Chzinul Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 2(a), 7, 12,15,27 and 28 of the Canadian Charter of Rights and Freedoms? If section 251 of the Cn'minaI Code of Canada infringes or denies the rights and freedoms guaranteed by ss. 2(a), 7,12,15,27 and 28 of the Canadian Charter of Rights and Freedoms, is S. 251 justified by S. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982? 1s section 251 of the CriminalCode of Canada ultra vires the Parliament of Canada? Does section 251 of the Cri~ninalCode of Canada violate S. 96 of the Constitution Act, 1867? Does section 251 of the Criminal Code of Canada unla\vfully delegate federal criniuial power to provincial Ministers of Health or Therapeutic Abortion Cornmittees, and in doing so, has the Federal Govemment abdicated its authority in this area? Do sections 605 and 61 O(3) of the Ctiminal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7, Il(d), 11(0, Il (h) and 24(1) of the Canadian Cbar~erof Rights and Freedoms? If sections 605 and 610(3) of the Cnnlinal Code of Canada infringe or deny the rights and freedoms guaranteed by ss. 7,ll(d) Il(f), 11 (h) and 24(1) of the Canadian Charfer of Rights and Freedoms, are ss. 605 and 610(3) justified by S. 1 of the Canadian Cbarler of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982? WQRKS AND CASE LAW CITED

WORKS ClTED Annas, G. J., Caplan, A., & Elias, S. (1996). The PoIitics of Human-Embyro Research - avoiding ethical gridlock. New Endand Tourna1 of Medicine. 334(20), 1329-1333. Appel, A. (1995). "Embryo Research faces a renewed ban in US." Nature, 376(6538), 1. Austin, C.R. Human Embrvos. Oxford University Press: Oxford. Black, J. (1997). "An Institutionalist Approach to Understanding Regulatory Processes" in publication. Bork, R. (1971). "Neutra1 Principles and Some First Amendment Problems" Indiana Law Journal 47(1). Brooks, S. (1996). Canadian Democracv. Second Edition. Toronto: Oxford University Press. Buckle, S., Dawson, K., & Singer, P. "The Syngamy Debate: When Pnciseb Does a Human Life Begin?' Law. Medicine and Ethics, 1 74-181. Caliahan, D. (1995). "The puzzle of profound respect.'' The Hashinps Center Report, 25(1), 39-40. Campbell, C. S., & Lochvood, M. (1995). "Awe Diminished." The Hastin 1(2), 44. Campeil, Neil A, (1990) 13ioio~~:Second Edition. The Benjamin Cumrnings Publishing Company: Don Mus. Canada. (1996). Comrnons Debates. October 23 & 31 and November 4 & 5,1996 Canada. Minister of Supply and Services Canada. (1936). New Re~roductiveand Genetic Technolo~ies:Settin~ Boundaries. Enhancine Health. Ottawa: Canada Communications Groups, Printing Services. Canada. Minister of Supply and Services Canada. (1996). The Constitution Acts 1867 to 1982. Ottawa: Canada Communications Groups, Prkang Seivices. Canada. Royal Commission on Reproductive Technologies. (1993a). Proceed with Care: Final Reoort of the Roval Commission on New Reoroductive Technoloizies. (Vol. 1). Ottawa: Canada Communications Groups, Printing Services Canada. Royal Commission on Reproductive Technologies. (Ed.). (199313). New Renroductive Technolopies and the Health Care Svstem: The Case for Evidence- Based Medicine. Ottawa: Canada Communications Groups, Printing Seilrices. Canada. Royal Commission on Reproductive Technologies. (Ed.). (1993~).Ethical and Legd issues in New Renroductive Technolo~ies.Ottawa: Canada Communications Groups, Printing Services. Canada. Speaker of the House of Cornmons. (1992). Bdl C-47. Ottawa: Canada Comnunications Groups, Piinting Services. Canadian Charter of lbhts and Freedoms, Part 1 of the Constitz~tionAct, 1982, being Schedule B, to the CanadaAd, 1982 PI<), 1982 c. 11 Canadian Council of Catholic Bishops. (1996). Res~onseof the Canadian Conhrence of Catholic Bisho~sto the Discussion Pa~erreleased bv Health Canada entided New Re~roductiveTechnoloeies - Settinp Boundaries. Enhancinp Health. Canadian Medical Association. (1996). Brief to Health Canada dated Se~tember30. 1996. Carola, R., Harley, J.P. & Noback, C.R. (1990). Human Anatomy and Phvsiology. New York: McGraw-Hiil. Coase, R.H. (1960). "The problem of social cost." Journal of Law and Economics. 3: 1-44. Coleman, June. (1996). "Playing God or plqing scientist: A Constitutional Analysis of State Laws Banhg Embryological Procedures," Pacific Law Tournal, 27,1331 -1399. Congregation for the Doctrine of Faith. (1974). Dechration on Procured Abortion. Cook, R.J. (1 993). "New Reproductive Technologes: International Legal Issues and Instruments." Found in Canada. Royal Commission on Reproductive Technologies. Pd.). (1993). Ethical and Lepal issues in New Re~roductiveTechnoloeies. Ottawa: Canada Communications Groups, Printing Services. Council of Europe, (November 1996). Convention for the Protection of Human Ri~htsand Dimiitv of the Human Being with Regard to the A~~iicationof Bioloq and Medicine: Convention on Human Ri~htsand Biomedicine. Strasbourg: Directorate of Legal A ffairs. Daniels K. & Lalos, 0. (1995) "The Swedish insemination act and the avdability of donors." Human Renroduction. 10(7): 1871-1 874. Dickens, B.M. (1993). "Legal Issues in Embryo and fetal Tissue Research and Therapy." In Canada. Royal Commission on Reproductive Technologies." (Ed.). (1993b). Background and Current Prqctice of Feral Tissue and Embryo Research in Canada. Ottawa: Canada Communications Groups, Printing Services. Discussion Group on Embryo Research. (1995). Research on Human Embrvos in Canada: Final Re~ortof the Discussion Grouri on Embrvo Research. Duster, T. (1990). Backdoor to Eu~enics.New York: Routledge. Dworkin, R. (1978), "Constitutional Cases," Taking Rights Seriouslv. Duckworth:London Ethics Advisory Board, Department of Health Education, and Welfare. (1979). Report and Conclusions: HEW Sumort of Research Involvinp Human In Vitro in Fcrtilization and Embrvo Transfer. Evans, Robert G. and Law, Maureen M. (1991)."The Canada Health Act, 1984." Canadian Heath Cari: Svstem. Vancouver: University of British Columbia. Fletcher, J. (1979). Humanhood: Essavs in Bioinedical Ethics Prometheus Books: Buffalo. Fowleï, R. (1985). "Power." In T. Van Dijk (Ed.),Handbook of Discourse Analvsis. Orlando: Academic Press. Garnmel, W. (1 898). The Laws of Texas. Boston, Gould, Kendall and Lincoln. Goeree, R., Labelle, R., Jarrell, J., & Milner, R. (1993). "Cost-effectiveness of an In Vitro Feralization Program and the Costs of Associsited Hospitalizations and Other Infertlhty Treatments." In Canada. Royal Commission on Reproductive Technologies. (Ed.). (1993b). New Reproductive Technoloizies and the Health Care Svstem: The Case for Evidence-Based Medicine. Ottawa: Canada Communications Groups, Printing Services. Grobstein, C. (1 978). ('S tatement to the Ethics Advisory Board." Transcri Se~tember15,1978. National Technical Information Service, PB-288 764: Washington, DC. Hall, P. (1986). Governir the Economv: The Politics of State intervention in Britain and France. New York, Oxford University Press. Hamilton M. (1972). The New Genetics and the Future of Man 64(68). Heyd, D. (1996). Experimenting with Embryos: Can Philosophy Help? Bioethics! 10(4), 292- 312. Hogg, P.W. (1992). Constitutional Law of Canada. Scarborough: Carswell. Howlett, M., & Ramesh, M. (1995). Studvin~Public Policv: Policv Cvcles and Policv Subsystems. Toronto: Oxford University Press. IVF Canada. (1996). Our osition on: Bill C-47' An Act res~ectinphuman reproductive technoloties and commercial transactions relatinp to human reproduction. Jackman, M. (1992). "The Constitution and the Regdation of New Reproductive Technologies. In Canada. Royal Commission on Reproductive Technologies." (Ed.). (1993). New Re~roductiveTechnolodes and the Health Care Svstem: The Case for Evidence-Based Medicine. Ottawa: Canada Communications Groups, Printing Services. Jackman, M. (1994). "The Status of the Foetus Under Canadian Law.'' Health Law in Canada, 83-86. Jenhs, W.I. (1978) Policv Analvsis: A Political and Or~anizationalPerspective. London: Martin Robertson. Jones, D. G., & Telfer, B. (1995). "Before 1 was an Embryo, I was a Pre-Embryo: or was I?' Bioeducs. 9(1). Kahn, J. (1987). "Of Woman's First Disobedience: Forsaking a Duty of Care to Her Fetus - 1s this a Mother's Crime?" Brook. Law Report, 53, 807-808. I

CASES ClTED

Boro~vxkiIL Catlada (A.G.).([1989]). 1 S.C.R. 342.

Byd 11. Ut~i~edStales, 116 U .S. 616.

Davis Y. Davis. (1992). 842 S.W. 688. Tenn. Supreme Ct. Doe Y. Bolto~z,410 U.S. 179 (1973). Eisenstrrdt v. Baird, 405 US.438. Grisuold v. Connecficzd,381 US.479.

Namk Y. McRae, 448 U.S. 297 (1980). Inuin Toy Lld. L< Que. (A.-G.) Loni'g v. Viqinirr, 388 US.1. Ol~eadv. United Sfate~.277 US. 438 (1928). lYamed Paretztthoodv. Casey, 505 US. 833 (1 992). R v. Big M. Dng Mart Ltd, (1985) 1 S.C.R. 295. R v. Morgentaler. (1988). 1 S.C.R. 30. R v. Onkes, 26 D.L.R. (4th ). Reference Re Motor Vehide Reference, [1985] 24 D.L.R. Reference Re l+~licService Englome~ttRe/atioxrAcf (Ah.), 1 S. C.R. 3 13. Skinner v. Oklahoma, 316 U.S. 535. TmIilqv. Daigle. (1989). 2 S.C.R. 530. Weber v. Repmdz~cIiveHeaIth SemCe~;492 US. 490 (1 989). APPLIED IMAGE,tnc 1653 East Main Street ,-.- Rochester, NY 14609 USA =-' Phone: 7161482-0300 ------Fax: 716MBB-5989

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