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 O Copyright by David M. Kaplan (1 997) Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395, rue Wellington Ottawa ON KIA ON4 Ottawa ON K1A ON4 Canada Canada Your hie Volre réference Our hle Nolre r%l~rencs The author has granted a non- L'auteur a accordé une licence non exclusive licence allowing the exclusive permettant à la National Library of Canada to Bibliothèque nationale du Canada de reproduce, loan, distribute or sel1 reproduire, prêter, distribuer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/b, de reproduction sur papier ou sur format électronique. The author retains ownership of the L'auteur conserve la propriété du copyright in tbis thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantial extracts fiom it Ni la thèse ni des extraits substantiels may be printed or othenvise de celle-ci ne doivent être imprimés reproduced without the author's ou autrement reproduits sans son permission. autorisation. ABSTRACT 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