HEAL Committee Meeting

STANDING COMMITTEE ON HEALTH

COMITÉ PERMANENT DE LA SANTÉ

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, October 4, 2001

• 1102

[English]

The Chair (Ms. Bonnie Brown (Oakville, Lib.)): I call the meeting to order.

Good morning, ladies and gentlemen. You'll recall that this meeting has two purposes. One is to complete the work based upon the submission from the researchers called “Review and Clarification of Proposals for Legislation Governing Assisted Human Reproduction”, dated September 18 and 20. We worked pretty hard at it, but we didn't quite finish.

I would refer you to that document, and I would remind you that we are on page 6, starting with E, “Privacy and Access to Information”. This cross-references with clauses 18 to 22, so you might want to pull out your piece of draft legislation and find clause 18, which in both the English and French versions is on page 15.

First of all, I'm going to welcome the people from Health Canada, Rhonda and Francine, and also welcome a new person, Judy Hunter, who is from the legal department. The man we're used to isn't available this morning, so Judy has come to fill in for him. Thank you for that.

• 1105

Rhonda, would you like to begin attempting to answer questions one to four?

Ms. Rhonda Ferderber (Director, Special Projects Division, Policy, Planning and Priorities Directorate, Health Policy and Communications Branch, Health Canada): Certainly, and thank you very much. We're pleased to be back.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Madam Chair, it's not on page 6 of the French version of the document.

[English]

The Chair: Oh, I'm sorry. Thank you for that. It's page 7 in the French document and page 6 in the English.

Go ahead, Ms. Ferderber.

Ms. Rhonda Ferderber: As to the questions you have posed, particularly with respect to privacy and access to information, I can say at the outset that when we were developing the legislation, this was certainly an area where we were being very, very careful. We were concerned about how we would propose to deal with any information we might require to be collected in whatever fashion, noting particularly that this is an experience—if I may call it that—that's intensely private and personally sensitive.

Given that, for any requirements for information under the act we had to bear in mind those aspects. When you ask whether we think the concerns about the collection, analysis, and ownership of such data are being addressed sufficiently in clauses 18 through 22, I would like to say yes, definitely yes. The personal information that will be in the control of a clinic is governed by a privacy scheme.

That privacy scheme is outlined quite extensively within the assisted human reproduction draft proposal. That privacy scheme provides for very limited use and disclosure of personal information, in keeping, again, with the sensitive and very private nature of this information. In fact, the privacy scheme is certainly consistent with and in many respects could possibly be considered more restrictive than the federal Personal Information Protection and Electronic Documents Act, also known as PIPEDA.

We have taken a lot of time to make sure that we've taken into consideration the provisions of the existing Privacy Act and PIPEDA and have put forward this particular privacy scheme, noting that there will be fewer use and disclosure provisions under the legislation and that these will always be undertaken with the concerned person's express consent. That is to say, once a clinic has provided any health-reporting information to the department, the federal Privacy Act will apply and the AHR legislation will limit the grounds for disclosure. What we're trying to provide for you is a sense that the set of proposals for this privacy scheme is quite stringent.

The Chair: I have a question about CIHI. Does it conform to those standards?

Ms. Rhonda Ferderber: We certainly have been consulting with CIHI, who have been very helpful to us in providing suggestions and guidelines as to the development and operation of any information registry. They already have a health surveillance system, so they were very helpful to us.

We also went a step further during that set of discussions and brought in a consulting firm, Deloitte & Touche, to give us sense of options and costs for possible information registries and surveillance systems. I've made that report available to you through your clerk. That was the beginning of some work we did in 1999 to get a good sense of how an information registry could be set up.

We continue on an ongoing basis to work with our own people in Health Canada on the collection, use, and disclosure of information. We have an Office of Health and the Information Highway. We obviously have a lot of connections with the Office of the Privacy Commissioner, and we continue to work with PIPEDA as it evolves to ensure full compliance there. I think we are moving in quite a well-developed approach in this matter.

• 1110

I'm going to ask Francine to carry on with the next two questions.

Ms. Francine Manseau (Senior Policy Analyst, Health Policy and Communications Branch, Special Projects Division, Health Canada): I'll deal with the question concerning the Canadian Organ Replacement Register and whether we have considered using the data for a national database.

The Canadian Organ Replacement Register is certainly a national registry, but it's tailored to a specific application—namely, matching available tissue or organs with prospective recipients on a waiting list. It perhaps does not entirely reflect some of the specific data and needs in the draft legislation you have in front of you. It is likely, however, that components of that national register would provide valuable insights and design considerations as we try to develop and design the assisted human reproductive registry.

We would certainly take advantage of the current software and hardware, and certainly in consultation with them we'll been looking at other types of national registry that do exist and that collect information. However, I think some of it will have to be tailored to the specific requirements of the legislation.

In the legislation, when we talk about gathering of health information, there will be different requirements. If we're looking at a couple who is coming in to get an IVF, for example, there will be requirements to gather information about the identity of those people and how to contact them inasmuch as there's a fair chance they'll have frozen embryos kept in a clinic. You have to be able to get back to them when they've gone through treatment, maybe after a couple of years, in order to determine what they want to do with the embryos.

The information that could be made available publicly in terms of outcomes data would never have identification information attached to it. Whatever information could even be made public would be released only with the consent of those people.

Now, if we look at the information that will be collected from donors of gametes, when an IVF procedure or DI is done with third-party donated gametes, their information will be gathered. The legislation says in subclause 21(4) that the minister may disclose health reporting information relating to a donor to an offspring or its parents, but not the identity or any information that could provide ways of getting the identity of the donor unless the donor has agreed to that. That information will also be kept for a certain number of years, so when the child is getting into adulthood, he or she and even the children of that child would have access to basic health information. There are different kinds of data gathering for different purposes and reasons.

This gets me to the other question, the one where you're talking about the public information registry described in clause 22. Here, that public information registry doesn't contain any personal information. What it's all about is providing information on the clinics that have been licensed to practice, on the types of treatment and practices they have a licence to do, and maybe on the practitioners who meet the qualification requirements and who can provide the services.

Similarly, it could provide a list of qualified counsellors who, based on the requirements of the legislation, meet the requirements of what a counsellor should be.

That report could also have information on outcomes data, like the number of live births per treatment cycle in relation to the age of the woman coming into treatment. That would be the type of public reporting we're talking about.

Now, is there an existing model in another regulatory context? In terms of assisted human reproduction, I don't think there is necessarily a model right now in Canada, but we have here annual reports on similar work being done in the state of Victoria in Australia as well as in England at the HFEA. These are examples of the type of information we're talking about, information that would be made available publicly. I don't think there's an example in Canada right now.

• 1115

The Chair: I'm in the hands of the committee. Would you like to question the witnesses now on this particular topic, and then have them present again on inspection and enforcement and the general questions, or do you want to work through their answers to the questions, and then have all the questioning at once?

Mr. Ménard.

[Translation]

Mr. Réal Ménard: I move that we proceed clause by clause. It's already rather complicated as it is, and any possibility of a misunderstanding should be avoided.

[English]

The Chair: Is that agreeable? Fine.

We'll begin now with Mr. Merrifield.

Mr. Rob Merrifield (Yellowhead, Canadian Alliance): It's actually fascinating when you think about the privacy of this. I just want to get something straight. I think you answered it, but I want to clarify it for the committee and for myself.

When a donor donates sperm or ova to, let's say, an in vitro process, at what stage is that released, so they no longer have any responsibility? Is it only at their will? Can that happen? You're suggesting that they could donate that under the bill to, say, research.

Ms. Francine Manseau: When somebody donates their gametes?

Mr. Rob Merrifield: That's right.

Ms. Francine Manseau: In regard to gametes, in the legislation they would certainly be covered. It's more a matter of if the gametes are donated for purposes of assisting human reproduction, creating an embryo. If somebody wants to give gametes for research, that would not be covered in the legislation.

Mr. Rob Merrifield: But when an embryo, let's say it's released to another... When does it not become the donor's? That's my question, I guess, because that's the sticky part of it.

Ms. Francine Manseau: If you're talking about a donor providing his sperm, and the sperm will be used not by his wife or partner, so it's going to be used for a couple, a third-party donation as we call it, I guess that person has a say in what happens to his sperm, until there is an embryo created for the couple. Because basically, when they provide sperm at a clinic, they'll have an informed consent, and they certainly will be asked to provide information like medical information about their family, their parents, their grandparents, their brothers and sisters. That information would be collected. Then if a sperm donor decides he doesn't want his sperm to be used any more, he could say so, and they won't be using it any more in the clinic. However, if the sperm has already been used by a couple and embryos created, he will not be able to destroy those embryos.

This is a case where he was donating anyway to somebody he didn't know. It's different if you're talking about a man who is donating his sperm and his wife's going to be using it. Then both of them have to decide what's going to happen to the embryos, if they don't want to use them any more.

Mr. Rob Merrifield: Okay. What if they're not going to use them any more and somebody else wants to use them?

Ms. Francine Manseau: I guess it's going to be for the couple to decide once they've finished with the embryos, they've finished with the family, and they were successful or not. They will have to decide what they want those embryos to be used for. They could donate to another couple, they could ask that they be donated for research, or they could ask for them to be destroyed.

Mr. Rob Merrifield: When they ask for them to go to research, be destroyed, or go to another couple, do they then release their interest in those embryos?

Ms. Francine Manseau: Yes, they would.

Mr. Rob Merrifield: Okay. Let's say they go to another couple. Then it's the information.

Ms. Francine Manseau: Yes, that's right.

Mr. Rob Merrifield: It's so complex. What happens if, say, a sperm donor passes away before that, before he can decide what to do?

Ms. Francine Manseau: Usually at the time of donation, let's say for an embryo that a couple has created, in the consent that's going to be signed, those issues will be raised. There will be a timeframe, five years for which an embryo can be kept, and after that you will have to go back to the couple and ask them what they want to happen to their embryos. But in the first five years, just before the embryos are created, questions will be asked of the couple: What will happen if one of you dies? What will happen if you separate? What is your wish? So we want to make sure as much as possible that all those eventualities are raised even before those embryos are created, so it's very clear what's happening to those embryos while they are in the freezer.

Mr. Rob Merrifield: If there's not consent given for information down the road, and we have children or parents—I'm thinking a generation or two away—is there any way they can get back to that information under law?

• 1120

Ms. Francine Manseau: The children who are born?

Mr. Rob Merrifield: Yes, let's say the children who are born later in life. They all of a sudden want to find out where they came from, the history, and on and on, but that information was not given by the donor.

Ms. Francine Manseau: Well, the donation will not be accepted unless the donor provides the information that is required.

Mr. Rob Merrifield: The information goes with the donation?

Ms. Francine Manseau: Yes, it follows the donation.

Ms. Rhonda Ferderber: Excuse me, if I could add something, we'll always have the distinguishing element in here on identifying information versus non-identifying information. So certainly at this point, the proposed legislation is going to ask every person who comes forward if they will permit identifying information or not.

Ms. Francine Manseau: That's with the third-party donation, anonymous donation.

Mr. Rob Merrifield: Okay, thank you.

The Chair: Mr. Ménard.

[Translation]

Mr. Réal Ménard: This is the part of the bill that is the least clear, to my mind. Before I ask a question, I'd like to know if you might draw me a chart outlining all situations that can arise in a fertility clinics, with the various types of consent possible.

If I understood correctly, there are two kinds of information that can be given: the information given in advance by the donor and the information that can be made public by the minister. Is that a correct assessment?

An hon. Member: Yes.

Mr. Réal Ménard: Fine. Then it would be nice to have this chart after the one-week recess.

For instance, clause 20 refers to health reporting information. What's unclear to me is just how far back the child conceived in this manner can go in obtaining information about his medical history. That's my first question.

Ms. Francine Manseau: In this instance, we're talking about an anonymous donor. When a child is conceived using his parent's gametes, then tracing that child's medical history isn't usually a problem. We're talking about anonymous donors in t his case.

When a person wishes to donate his gametes, it may be possible to go back as far as possible in time, that is to parents, grandparents and so forth. For example, when someone asks us about our ancestors' medical history, we usually know about our grandparents, and we can most likely find about information about our great grandparents, and maybe even about the previous generation. I don't know how far back we need to go, but I certainly do believe it's important to gather information about parents, grandparents, siblings and so forth.

Mr. Réal Ménard: If I go to a clinic, donate sperm and father a child, that means that child may one day be able to track me down.

Ms. Francine Manseau: Not necessarily. If you agree to have your identity disclosed to the child, than so be it, but the proposed legislation stipulates that the identity of the donor shall not be disclosed to any children conceived by means of that procedure without the donor's consent.

Mr. Réal Ménard: This is one provision that witnesses have called into question. This would mean that the child conceived by means of this procedure... While it's clear that the donor has no legal obligations in terms of paternity and that the child thus conceived cannot claim any paternal ties, from an ethical standpoint, because there may be a father in the picture who may not necessarily be the biological father... If one day the child wants to know who the sperm donor was, is there some way for that child to get that information? For the sake of that child's stability and growth and to satisfy his deep desire to know about his roots, are there provisions that will allow him to trace his biological father? You say that this would be impossible without the donor's consent?

Ms. Francine Manseau: Right now, that's how the proposed legislation is drafted. The donor must consent to having his identity disclosed to the child.

Mr. Réal Ménard: Therefore, a situation could arise where a child conceived by means of assisted reproduction and having a father who is not his biological father could one day want to find out the donor's identity and be unable to do so.

Ms. Francine Manseau: Regardless of the circumstances, the donor's consent will be required in any case. Since this information will be on file, that is since there will be record of who the sperm donor was, it may be possible to contact the donor to find out if he wants his identity to be revealed. However, the donor's consent will be required in all instances. The donor's identity will not be disclosed without his consent.

Mr. Réal Ménard: Is this comparable to adoption cases?

Ms. Francine Manseau: Yes, in that's how adoptions are arranged in most provinces.

• 1125

Mr. Réal Ménard: A child may be adopted and not know who is biological parents are. There are no legislative provisions in place that require this.

Ms. Francine Manseau: Indeed. But as the proposed legislation is presently worded, the donor's consent is required.

Mr. Réal Ménard: I have one last question. A national health registry will be maintained. Witnesses have told us that at present, it's difficult to get any data on the number of successful fertilization cycles and on the number of donations that have been made.

I may wish to consult this registry and there may be a number of satellite registries in different provinces. Information of a certain nature will be available to me. Will anyone wishing to do so be able to consult this registry, or does a person need to have a vested interest in order to consult?

Ms. Francine Manseau: The final regulations have yet to be drafted, but I don't think a person will be able to sit down at a computer and access these registries.

Mr. Réal Ménard: Then there won't be a 1-800-gametes number?

Ms. Francine Manseau: I don't think so. The aim is to compile this information for an annual publication explaining success rates, number of children conceived and number of multiple births so that the risks associated with the procedure can be assessed.

Mr. Réal Ménard: Right now, for example, an extremely fertile donor could make three or four sperm donations as a result of which a number of children could be conceived. However, as things now stand, there's no way of knowing how many times a person has donated sperm.

Ms. Francine Manseau: We can't know how many times a person has donated sperm, or how many times the donated sperm has in fact been used. A registry will also enable us to control the number of children conceived from the sperm of the same donor.

Mr. Réal Ménard: To avoid consanguinity.

Ms. Francine Manseau: That's correct. Right now, there are no such controls in place. A national registry will correct this oversight.

[English]

The Chair: Does anybody on this side have something?

Ms. Judy Hunter (Counsel, Legal Services, Justice Canada): Could I just add something, Madam Chair?

The Chair: Okay.

Dr. Castonguay, then Madame Picard, and then Mrs. Beaumier.

[Translation]

Mr. Jeannot Castonguay (Madawaska—Restigouche, Lib.): I'd like to focus for a moment on the question raised by Mr. Ménard.

[English]

The Chair: Just one moment, legal counsel would like to comment following Mr. Ménard, s'il vous plaît.

Ms. Judy Hunter: In case it's not quite clear, the minister is required to maintain a personal health information registry that will have identifying information about donors, offspring, and patients. When a child is born as the result of an assisted human reproduction procedure, in the event that the child would like to contact the donor, the child would be able to approach, we're assuming, the minister or the department, and they could see if the donor is willing to consent. So part of the function of this personal health information registry is to facilitate contact in the future with consent by both parties.

I don't know if that helps.

The Chair: Thank you.

Mr. Castonguay.

[Translation]

Mr. Jeannot Castonguay: Thank you, Madam Chair.

Getting back to Mr. Ménard's question, the preamble to the proposed legislation states the following:

Whereas the Parliament of Canada

appreciates the paramount need for measures to protect and promote the best interests of children affected by the application of those technologies;

A child may decide one day that it's important for him to know his father and mother. Are we truly being serious here?

[English]

Are we consistent?

[Translation]

Does this make any sense? If one of us was conceived through these new technologies, wouldn't we want to know who our ancestors are?

In my opinion, this is an important point that we need to examine very closely. My tendency would be to think that the child thus conceived has a right to know.

[English]

Ms. Judy Hunter: For your clarification, this part of the bill, access of donors and children to knowing each other, so to speak, is consistent with adoption legislation in the provinces. Under the adoption legislation in all the provinces, if an adoptee wants to contact their biological parent, it's only with the express consent of the biological parent.

So we've patterned this piece of legislation on what already exists in respect of filiation in the provinces. But your point is well taken.

• 1130

[Translation]

Mr. Jeannot Castonguay: In years past, adopted children had no way of finding their birth parents. The realization dawned that our society had evolved, that perhaps rules like this were no longer appropriate and that adopted children should be allowed to trace their roots.

Since we're in the process of drafting legislation, shouldn't we concede that persons conceived using these new technologies have the right to know? Right now, no one is speaking for them. As a potential donor, I can boast to anyone and everyone that I have donated sperm, but that I don't want my progeny to know about it. But what if my progeny someday starts asking questions and we're dealing with a law that cannot easily be amended... Perhaps we need to go a little further and determine what rights are involved. It's something I'd like us to consider, because I've been weighing this question in my mind.

The Chair: Ms. Picard.

Ms. Pauline Picard (Drummond, BQ): I was wondering about something. With respect to information, are you authorized to receive data from fertility clinics? The province does have some jurisdiction of certain fertility clinics and there are a number of private clinics in operation as well. Are you authorized to receive data? How does that work? Or do you receive only partial information about the goings-on in these clinics or in universities laboratories?

Ms. Francine Manseau: Are you talking about the present?

Ms. Pauline Picard: Yes.

Ms. Francine Manseau: Right now, we have no access at all to that information which is kept by the clinics. Nor do I believe the clinics publish any information about the success rate of procedures or about the rate of live births. That kind of information isn't readily available.

Ms. Pauline Picard: Therefore, you have no way of knowing how many surplus embryos are stored in clinics or of controlling the use of such embryos. There is a total void, so to speak.

Ms. Francine Manseau: Right now, there is no mechanism as such in place. We can request this information from the clinics, that is we can ask them how many surplus embryos they have, but they are not obligated to disclose that information. It would surprise me to see them turn that information over to anyone, even to the provincial government. It's my impression this procedure isn't regulated.

Ms. Pauline Picard: Doesn't that concern you at all? It concerns me.

Ms. Francine Manseau: That's why the proposed legislation was drafted in this manner. There are no measures in place to control the number of children conceived with sperm from the same donor. The number of donors is quite low and sperm from the same donor may be available at clinics from Halifax to Vancouver.

Ms. Pauline Picard: Does this mean that any surplus embryos could actually be used at this time for human cloning purposes? It's impossible to get information about what's happening in private clinics. I don't think there's a problem with those clinics administered by provincial health departments, but we are denied entry into private clinics. Anything could be going on within the walls of these facilities, hence the need to act quickly.

Thank you.

[English]

The Chair: Thank you.

Ms. Beaumier.

Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.): I don't know if I should be asking now or if I should have read the entire legislation before I ask redundant questions. However, what I have gathered so far is that there is no control on the number of times a donor's sperm can be used. Have you set out a number of times?

• 1135

You see, having sperm shared from Halifax to Vancouver isn't the problem; it's having it shared 50 times in Etobicoke, which could ultimately be the more serious problem. Will there be a specified number of times that one donor can be used to fertilize?

Ms. Francine Manseau: Yes. With the legislation, that's what we want to do. It won't necessarily limit the number of times they donate, but it will certainly limit the number of children born from the same person.

It's true what you're saying. You could do that in the same region right now. I've been in contact with clinics and with people going through that and it's true, it's been done. Some clinics try to control that within their own clinics, but the problem is that information is not readily shared between clinics. Usually a donor is given a number, so if you bought the sperm from the same sperm bank you could control that between clinics, but nobody has taken the responsibility to do that.

So right now there is nobody doing it, except within a clinic. I'm sure they're trying to do it between clinics, but that's limited, as you say.

Ms. Colleen Beaumier: I have some sympathy for the idea that there should be a sense of responsibility on the part of the donor to reveal, perhaps in the future, who he is.

I was on the committee that sat two elections ago, and I got the feeling that this could become an activity of just sheer irresponsibility. There are those who would argue that there should be total privacy, but I don't think, even in the donation of sperm or ova, there should be absolutely no sense of responsibility on the part of the donors.

Ms. Rhonda Ferderber: I expect you will be hearing from some of the actual patients and those who have been involved. We certainly have been talking with fertility groups who have long been advocating for donor identification. There are some very interesting viewpoints that I'm sure you will be hearing.

I guess when we stand back from it right now, as you're hearing it this morning, it sounds like a completely out-of-control situation. We don't get that sense at all from the clinics and the individuals involved.

I believe strongly in people's professionalism at the clinic level. We have been working very closely with the Canadian Fertility and Andrology Society, in particular, as they have been trying to work amongst themselves as a group of 18 to 22 clinics involved in work on just gathering of data—things they know are going to be important to have, by way of information, etc.

Over the years there has been a huge recognition that this is an area that has not been regulated, and there are opportunities for a certain amount of self-regulation. But as we have studied it over the years, certainly from the time of the royal commission until now, we believe there needs to be a much stronger national level of regulation and control in these areas.

That's why you have proposals before you that are trying to address all the many scenarios. We'd be happy to attempt to table the chart Mr. Ménard has asked for, so we can lay out the thinking, as it stands now, that covers all the scenarios.

The Chair: Mrs. Scherrer and then Madame Thibeault.

[Translation]

Ms. Hélène Scherrer (Louis-Hébert, Lib.): Thank you, Madam Chair.

I want to be certain that I understand what's happening right now and how the proposed legislation will change things.

At present, clinics house sperm banks and a person can make a deposit anonymously so that an embryo can be created for future implantation. The donor remains anonymous, although I would imagine that the genetic material is identified.

Ms. Francine Manseau: Correct.

• 1140

Ms. Hélène Scherrer: We hear a great deal about embryos created for the purposes of procreation. With the new legislation, will two partners necessarily choose to create an embryo together, or will it still be possible for a person to make an anonymous donation which could subsequently be used for procreation, or for someone to select drawer number 22 or drawer number 28, instead of opting to know who the donor is?

Ms. Francine Manseau: Yes.

Ms. Hélène Scherrer: Therefore, that possibility will still exist.

Ms. Francine Manseau: Correct.

Ms. Hélène Scherrer: Here's my second question. As a rule, genetic material is labeled. For example, we've progressed sufficiently to know that when recessive genes are combined, a problem occurs. Is that fact currently taken into account? When genetic material is examined and recessive genes are identified that might potentially result in an problem or illness, will the new legislation allow a person to choose drawer 22 rather than a partner's genetic material?

Ms. Francine Manseau: Yes, because of health and safety considerations. Even now, donor sperm is tested for sexually transmitted diseases and the like. I'm also fairly certain that the woman who is scheduled to receive the donor sperm is tested to ensure that there are no problems with her being the recipient. I believe that's standard procedure at this time, but steps will certainly have to be taken to ensure that such procedures are followed in future.

Ms. Hélène Scherrer: Wouldn't this solve the problem of consanguinity? The technology exists to examine genetic material. We know that some diseases are more prevalent in certain regions. In Quebec, for instance, some diseases have been detected in Cap- Saint-Ignace or in the Saguenay because at some point in time, there were consanguineous marriages. If genetic material can be identified, are we not...

Ms. Francine Manseau: We were talking about the possibility of the same donor sperm being used by different clinics and about the possibility of a given donor in a given region fathering more than one child unbeknownst to him. These children may cross paths at some point. Therein lies the problem.

Ms. Hélène Scherrer: Siblings may live in the same community and not even know it.

Ms. Francine Manseau: That is indeed true. They may even share some physical traits and that could be a problem.

Ms. Hélène Scherrer: I understand.

Ms. Francine Manseau: There is no way of knowing. Right now, even if people have some doubts, it's difficult to run any checks, unless the clinic has kept a record of that information. Eighteen or twenty years down the road, these young people will be faced with the situation of having to contact the clinic, provided of course that young person is aware of how he or she was conceived, which isn't always the case.

Ms. Hélène Scherrer: Your father is in drawer 22.

Ms. Francine Manseau: That isn't always the case. It's possible only if the clinic has a record of the information. The new legislation will stipulate clearly that this information must be kept on file for 30, 40 or maybe even 50 years. Right now, each clinic follows its own rules. The onus is on the child to contact the clinic and verify the information. It's more complicated.

Ms. Hélène Scherrer: Thank you.

Ms. Rhonda Ferderber: I'd just like to add that some regulations are in place to ensure that information is compiled about the family and the medical history of the sperm donor. That's a fact.

Ms. Hélène Scherrer: On a final note, there something a little frightening about all of this. Upon examination of the genetic material, a compatibility check will be done. Some people believe that this will mean an end to cross-eyed persons or to... More and more, people will strive to create a perfect race of human beings and to weed out imperfections. I hope that in terms of compatibility, there will be some latitude and that efforts will not be made to eliminate any chance of cancer or other such things.

Ms. Francine Manseau: I don't think that's necessarily the objective. Rather, the goal is to obtain information. It's up to the couple who want a child conceived with donor sperm to decide which traits they want.

Ms. Hélène Scherrer: And they decide what level of risk they are willing to assume.

Ms. Francine Manseau: Correct. Everyone has something in their family background, whether it be cancer or heart disease. That's a fact of life for everyone.

Ms. Hélène Scherrer: Yes, but it's different if a person has a choice.

Ms. Francine Manseau: I agree. Some clinics tell us that couples sometimes have trouble choosing the donor. As you say, it's a little like making a catalogue selection.

Ms. Hélène Scherrer: That's right.

Ms. Francine Manseau: I don't think it will be easy to...

Ms. Hélène Scherrer: It will have to be taken into consideration.

Ms. Francine Manseau: I agree.

Ms. Hélène Scherrer: Thank you.

• 1145

The Chair: Ms. Thibeault.

Ms. Yolande Thibeault (Saint-Lambert, Lib.): Thank you, Madam Chair.

My comments are along the same lines as those made by Mr. Ménard and Mr. Castonguay.

I'm deeply concerned that some children conceived as a result of these new technologies may never know who their biological parents are. I'm wondering if we're not in the process of creating a category of human beings unlike any other merely because they were thus conceived.

To my mind, this whole issue warrants serious consideration by the committee.

[English]

The Chair: Can I just interject here, take what I consider to be the most complex scenario, and add it to Madame Thibeault's question?

We have five adults—the commissioning couple, neither of whom is able to use their own selves to parent, a sperm donor, an egg donor, and a surrogate mother. There's this whole question Mr. Merrifield has raised of the ownership of the embryo that is created through this mechanism. Then there is the ownership of the child. I know this legislation doesn't take us that far, but I think we have to be predictive because certain of our witnesses have raised that whole question.

If you have the two donors and then a surrogate mother, do the two donors own the embryo or does the commissioning set of prospective parents? Then what about the ownership of the baby who has been carried in a fifth adult's womb?

Those kinds of things are all sort of tied in to knowing who I belong to, who I am in history.

Mr. Rob Merrifield: That's what they call a family affair.

The Chair: If it were it would be okay, but the problem is, it isn't.

Does somebody want to comment on Madame Thibeault's concern and what you think about that? Then comment with regard to such a child as I've described.

[Translation]

Ms. Pauline Picard: Madam Chair, what about the rights of these individuals and of the children involved? If we accept your scenario, which I find quite plausible, what of these rights?

[English]

The Chair: Ms. Hunter.

Ms. Judy Hunter: I'll perhaps try to shed some light on this. We appreciate your comments and we'll take them for further discussion.

The way the legislation is currently drafted, the progenitors, or the people from whom the gametes have come, will have control of those gametes until they become an in vitro embryo. That's where their control ceases.

If, however, it's a couple that has gone for IVF treatment and their own gametes are involved, they will have control of the embryo. They are the ones who will say whether to donate it to research. They are the ones the clinic will look to for possible destruction. So they are the ones who will control it.

In the event of a dispute among the parties, we are hoping that the consent the couple gave will be the guiding document, if there's a dispute. For example, if the parties separate and there's a dispute as to what will happen to the in vitro embryo, we're assuming and hoping that the consent that is given will guide.

The courts in the United States have faced this issue already. Couples have come in disputing who has the right to control an in vitro embryo in the case of a divorce or separation. The court in the United States has developed a sort of test that in essence says the right not to procreate is paramount. So they would not force one party in a couple who had separated to become a parent if they didn't want to be one.

• 1150

We're not sure if the courts in Canada are going to look to that if in fact there are disputes. It's our contention that consents are going to be given up front. They will be guiding the disposition of in vitro embryos and, to a certain extent, the use of gametes up until the point when they're used to create an in vitro embryo for someone else's use.

I think the chart is a very good idea, though.

The Chair: Madame Thibeault.

Ms. Yolande Thibeault: No, I don't have anything.

The Chair: You're satisfied with that?

Perhaps, Mr. Ménard, we can move on. We've now taken almost an hour and we still have another section. Do you want to continue on privacy or do you want to go on to inspection and enforcement? I think we have to move on. We've taken about 50 minutes on this and we still have to save a few minutes at the end to approve our work plan.

On page 7 in the English, and probably page 8 in the French, on inspection and enforcement, Ms. Ferderber, would you like to comment on those three questions?

Ms. Rhonda Ferderber: I'm going to ask Judy to answer, because they're explicitly questions on the clauses of the legislation.

I could certainly say to you at the outset that the experience and decades of enforcement around the Food and Drugs Act, for instance, informed us tremendously as we developed our own areas for inspection and enforcement—of course, most recently with the revised Tobacco Act. The two have been used to put forward what we have in our area for enforcement in this act.

Judy, could you take us through some of what this particular legislation authorizes the minister to do?

Ms. Judy Hunter: Right, I'd be happy to.

Actually, I'll just go back for a moment. You have asked me to explain the way inspection works under other regulatory areas within federal jurisdiction. Under the Food and Drugs Act, it is solely federal inspection. There is no agreement between the minister and a provincial government for the province to take over inspection under the Food and Drugs Act. There are quite extensive inspections that go on, of course, under the Food and Drugs Act. They are done by the federal inspectors.

Under the Tobacco Act, however, through a contribution agreement, there is room for or an ability to have the health minister in a provincial government enter into an agreement such that the province would take over inspections under certain aspects of the Tobacco Act.

The draft legislation provides the authority to enter into enforcement agreements within the provinces. It is in clause 33 of the legislation. It authorizes the minister to designate, first of all, inspectors and analysts for enforcement purposes. This is very similar, as Rhonda has indicated, to how it is spelled out under the Food and Drugs Act and the Tobacco Act.

Inspectors under the HR legislation may enter premises where there are reasonable grounds to believe a controlled activity is being performed, or there is anything to which the act applies, including human reproductive material. The inspector will have all the powers necessary to determine if a breach of the act has occurred, including the powers of examination, production of material, seizure of material, and testing of the material.

While inspections for administrative enforcement do not generally require a warrant under this legislation, a warrant will be required if the place to be inspected is a home or dwelling place. Force cannot be used in any inspection unless a warrant has been obtained authorizing its use and the inspector is accompanied by a police officer. It's going to put a limit on the inspector's powers.

The act also provides a judicial mechanism for the return of seized goods. It also authorizes the forfeiture and disposal of seized material where appropriate.

I will just carry on and answer question F(2), if that's all right?

The Chair: Please do.

Ms. Judy Hunter: In question F(2) you've noted that the powers of inspectors are quite extensive and punishments are fairly significant. You want to know how these compare with other federal statutes in the health area, such as the Food and Drugs Act.

Do you want to speak to this initially, Rhonda?

Ms. Rhonda Ferderber: Go ahead, Judy.

• 1155

Ms. Judy Hunter: Okay.

As we said already, the enforcement provisions of our draft legislation are based on the Food and Drugs Act and the Tobacco Act. Specifically, you'll find those enforcement provisions in clauses 23 to 32. They are going to be governing the conduct of inspectors and analysts and they're largely based on the Food and Drugs Act, sections 22 to 30. I would just note for you that these provisions have been in place for decades, literally, and the powers and authorities granted under the AHR legislation are essentially the same as those granted under the Food and Drugs Act.

The Food and Drugs Act authorizes the inspection of those articles governed by the act. The AHR draft legislation applies to the inspection powers to “things”, a somewhat wider term than “articles”.

You'll note, however, that the authority of the inspector is circumscribed in the AHR legislation by subclause 24(1). There the inspector has to believe on reasonable grounds a controlled activity is performed within the premises, or that there's anything in the premises to which the act applies.

Subclause 24(3) of the AHR legislation, which talks about examination of information, is drawn from the recent Tobacco Act and it provides for clarity in the handling of information, including access to a computer system.

Clause 28, which provides for a judicial procedure to restore seized things, is also drawn from the Tobacco Act.

We believe the creation of a judicial restoration process under this legislation serves to protect the rights of those licensed to provide services under the act.

Generally speaking, enforcement under health statutes is administrative in nature. Criminal charges are rarely laid. So this is expected. We expect this will be the case under the AHR act.

To avoid nuisance prosecutions and to ensure the application of a consistent prosecution policy across this country, the AHR draft legislation requires the consent of the Attorney General for the prosecution of anyone under the act. Similar provisions don't exist in the Food and Drugs Act or the Tobacco Act, but we felt it was important for the AHR legislation so we would have consistency across Canada.

As you have noted, the criminal penalties are significant, and they reflect the potential for quite serious harm if the provisions of the act and regulation are not followed. Offences like cloning or germ-line alteration cannot be undone once they're committed. The entry into the human gene pool of a modified germ line will have lasting consequences. So we want to ensure the penalties for those sorts of activities are severe and strict.

At the same time, however, the penalties provide for flexibility in sentencing, allowing a court to take into account the circumstances of each case. Charges can be laid by an indictment or by a summary conviction under the legislation, and the draft legislation provides for both maximum sentences and fines.

Perhaps I'll just touch on our answer to F(3). The question relates to the wording of “any thing” in the enforcement and inspection provisions and whether that includes embryos. It does currently. The inspection of in vitro embryos may be necessary from time to time in order to determine whether a breach of the act or regulations has been committed.

The term “thing”, as I have mentioned previously, has quite a wide meaning. However, in light of the uncertainties that have been raised about its application, consideration is being given to redrafting the clauses to clarify their application to in vitro embryos.

The Chair: Thank you very much.

I have just one question, quickly. Would a doctor's office in a dwelling, in his or her own home, be considered a dwelling that required a warrant, or would they be able to go in without that warrant because it was a professional office?

Ms. Judy Hunter: My understanding is if it's in a home, or what's termed a “dwelling place”, they will require a warrant.

The Chair: I'm wondering if we should make an exception for a doctor's office in a home, get a little more specific on that, because a doctor's office in a professional building would not require a warrant.

Ms. Judy Hunter: That's correct.

The Chair: It's just a thought, anyway.

Ms. Judy Hunter: Okay.

The Chair: Are we ready for questions?

Mr. Merrifield.

• 1200

Mr. Rob Merrifield: I just want to go back to what you said earlier, that if there is a violation with regard to germ-line alteration or cloning, the penalties would be severe but it could not be reversed.

Ms. Judy Hunter: What I meant by that is that once you've cloned somebody, if you've done that in violation of the act, you can't reverse the cloning. Once you've cloned a human being...

Mr. Rob Merrifield: Are you suggesting after they're born?

Ms. Judy Hunter: Yes.

Mr. Rob Merrifield: But if you found that they're 30 days in gestation and they've been cloned, could we reverse that?

Ms. Judy Hunter: Are you suggesting a fetus within a woman?

Mr. Rob Merrifield: Yes.

Ms. Judy Hunter: We don't go there. The legislation doesn't go there.

The person would certainly be subject to the prohibition and that activity would be a prohibited activity under the legislation. The offences are very severe, drawn on the federal criminal law head of power. They would be subject to those penalties.

Mr. Rob Merrifield: No, I understand the penalties.

An hon. member: It's the irreversibility.

Mr. Rob Merrifield: Yes, it's the irreversibility that intrigues me. I'm not saying you're wrong; I'm just suggesting it's an intriguing scenario.

Ms. Judy Hunter: Yes.

Mr. Rob Merrifield: I didn't get much of an answer there. I wonder if...

The Chair: Were you considering a state-authorized abortion, or if the child had actually been born, a murder? I mean, that's the only way to reverse it.

Ms. Judy Hunter: That's right.

Mr. Rob Merrifield: And you're suggesting murder is out of the question, right? But you're suggesting there's nothing written with regard to an abortion.

Ms. Judy Hunter: No. Once the in vitro embryo is transplanted into a woman, this piece of legislation does not apply. You would be looking at drafting separate legislation to deal with that.

Mr. Rob Merrifield: So it only catches it after it's born. So there's a nine-month—

Ms. Judy Hunter: It doesn't say anything about the clone, it just talks about the prohibition and the criminal penalties applying to the person who has committed the act, who has created the clone. In the event that an individual is cloned, the legislation doesn't deal at all with the individual.

Mr. Rob Merrifield: I'll move to another line of questioning. I think we've exhausted that one.

When it comes to federal inspectors—and I'm not sure if it's the same throughout all provinces—are the federal inspectors under environment or under health?

Ms. Judy Hunter: The federal inspectors would be under health. That's my understanding.

Mr. Rob Merrifield: Always under health.

Ms. Judy Hunter: Yes.

Mr. Rob Merrifield: Okay. I know there is some overlap in—

Ms. Rhonda Ferderber: Excuse me, but perhaps I can just clarify that. Certainly any inspectors who would be brought on to provide oversight with respect to this particular piece of legislation would, we expect, fall under the purview of the Department of Health.

Mr. Rob Merrifield: So what you're suggesting is there would be an entirely new layer of inspector. Or would you train existing inspectors?

Ms. Rhonda Ferderber: That is certainly one of the possibilities we could pursue. As Judy was trying to explain, there are opportunities for provincial agreements to come into play, and there would obviously be training needs for any existing inspectors at the provincial level with respect to the requirements of this act and the regulations. There are any number of different scenarios to ensure we have properly trained inspectors available to pay these site visits.

Mr. Rob Merrifield: And because of the provincial jurisdiction and the agreements, or not having the agreements, it could vary from province to province.

Ms. Rhonda Ferderber: That is correct.

Mr. Rob Merrifield: Thank you.

The Chair: Mr. Ménard.

[Translation]

Mr. Réal Ménard: I have a general question, since we are wrapping up our work. Has the Justice Department reviewed the challenges filed under section 15 of the Charter which could affect the outcome of our proceedings?

For example, some witnesses have argued that infertility is a disability and should therefore be treated as such under section 15. They further argue that failure on the part of the State to make provision for in vitro fertilization constitutes indirect discrimination. Could the Justice Department forward to us the list of cases pending before the courts? Has such a list been compiled?

• 1205

[English]

Ms. Judy Hunter: When you say such a thing exists, do you mean...?

[Translation]

Mr. Réal Ménard: Are there any cases pending? Has anyone challenged the fact that the government does not cover treatment costs, that certain provinces or...

Ms. Francine Manseau: In fact, challenges were launched in two provinces, namely Ontario and Nova Scotia. I recall these two cases. However, I don't believe the courts ruled in favour of...

Mr. Réal Ménard: Are there no cases pending before the courts at the present time?

Ms. Francine Manseau: Not to my knowledge.

[English]

Ms. Judy Hunter: Not that I know of.

Ms. Rhonda Ferderber: However, I would add that we have been working quite closely with the Department of Justice with respect to the constitutionality of all of the sections of the act and we are still constantly asking these types of questions to make sure we're on solid constitutional ground. At the moment we certainly have no indications that we are not.

[Translation]

Ms. Pauline Picard: Earlier, on reading the section of the draft legislation concerning the role of the inspector, you stated that an inspector “may seize any thing”, including embryos. I thought we had already agreed here that embryos should not be considered “thing”. Do you think this choice of words is appropriate? Perhaps another word could be substituted.

[English]

The Chair: Excuse me, Madame Picard, but that was one of the questions they answered in their presentation. They said they're considering those criticisms from witnesses and are now examining the possibility of other language. But they actually presented that a few minutes ago.

[Translation]

Ms. Pauline Picard: I see. Since she repeated the word, I thought this hadn't been taken into consideration. In her presentation, Ms. Hunter repeated the word “thing” when she said the inspector may seize any thing.

Ms. Francine Manseau: She was merely quoting from the draft legislation.

Ms. Pauline Picard: Thank you.

[English]

Ms. Colleen Beaumier: It has echoes of The Munsters.

The Chair: It does.

I think you're getting a true picture that we're pretty concerned about this.

Are there any questions from this side on enforcement and inspection?

Seeing none, I will ask you to move forward into the general questions.

Ms. Rhonda Ferderber: In terms of the question you posed here with respect to the Governor in Council and authority to make regulations, and how many sets of regulations have been prepared and how long will it take to prepare others, I think the last time around when I was here I did in part respond to the question when I indicated that we have certainly engaged in that level of initial phases of regulatory development.

We are definitely in the business of collecting information. We have consulted during the last round of consultations specifically with respect to views of others, stakeholders, etc., on just what would be the issues they would want to make sure get covered off in regulations. We know we're going to be needing the expertise of many others in the field and so are in the process of identifying experts, etc.

The work is under way in what I would have to call more the initial, or informal, phase of regulatory development. In saying that, we're hoping we'll be well prepared therefore to enter into what are already the existing formal processes whereby you do have to submit for public scrutiny, if I may, through the gazetting process and other processes already in existence for regulations to be developed.

I would underscore today, as I did the other day, that we are very much aware of the key role these regulations will play in how this legislation can be effective. And we are certainly persuaded by the urgency, as I know you are, to ensure that we are in a position to move to begin to provide the necessary regulatory environment for this legislation to unfold.

Apart from that, I did take a bit of time and left a list with you the last time, some sort of a description, if I may call it that, of what are the areas for regulation already in place, or in terms of the legislation, what's described there.

I guess I have to leave it at that. We are certainly proceeding with this as an area for ourselves at this time.

• 1210

The Chair: You didn't mean to imply that the regulations in these areas are in place. You mean to imply that you have identified those areas as places where regulations have to be developed.

Ms. Rhonda Ferderber: That is correct, Madam Chair.

The Chair: Okay.

Well, if we can manage our job and get a report to the minister by January, and then there would probably be some work on the legislation itself and the regulations, how soon do you think this thing could be in effect?

Ms. Rhonda Ferderber: It's a question I wish I could give you a better answer on, but at the moment I really don't feel able to give you one other than to underscore urgency and the need for cooperation by many of the players. Here we are talking about the provinces and the territories, because it is with regulations that they will become I think very engaged and want to be a participant, and it would certainly be a requirement under regulations development or in the given processes that they be involved. Of course, as I indicated, there will be expertise from any number of areas.

Apart from that, all of this influences how quickly we can have regulations in place.

The Chair: I'm going to intervene here because question 2 is pretty specific, and I think I'm going to let the researchers ask you that on their own: “Could Health Canada identify the intention associated with each subsection?”, etc. I don't think this is of great interest to us right now until it's straightened out.

Is that agreeable to the members?

For the new members, the researchers drafted these questions, having gone through the legislation and listened to the witnesses. These questions then were drafted based upon things either witnesses didn't understand, the researchers don't understand, or they got from our questions that we don't understand.

With regard to the provincial opt-out clause, perhaps you can just put this into English for me. All these things—clause this, specifically exclude clause that. Just what is it you want to know?

Ms. Nancy Miller-Chénier (Committee Researcher): Exactly that: What does the clause say?

The Chair: Which clause?

Ms. Nancy Miller-Chénier: The clause on provincial equivalency, called the provincial opt-out clause.

Ms. Rhonda Ferderber: A terminology we would not necessarily want to subscribe to.

The Chair: What page is that on?

Ms. Nancy Miller-Chénier: Page 32 in your proposals in both English and French.

Ms. Rhonda Ferderber: I think it does... We'll take a little time, if we may, Madam Chair, but you're quite right; we have a rather exhaustive answer that we could certainly provide from this meeting just for purposes of your researcher's further edification, but it is a good opportunity for us to clarify a few previous testimonies.

The first thing I want to say is that clause 41 does not apply to the prohibitions in clauses 3 to 7. Prohibitions, in other words, are not to be the subject of any equivalency agreement. So we kind of go around the office saying that prohibitions are prohibitions are prohibitions. However, there are other areas that can be part of an equivalency agreement should there be a desire on the part of any province to have one.

Here's where I'll invite Judy to go through that with you as concisely as possible, noting that there are some intricacies here for which it's perhaps not necessary to get into too many details at this stage unless you wish to do so.

Ms. Judy Hunter: I'll try to be concise. If I'm rambling, just indicate.

• 1215

Under the draft legislation as it currently appears before you, this is covered in clause 41. And within clause 41 there are actually going to be three conditions that are going to have to be fulfilled before provincial provisions or legislation and accompanying regulations can replace those parts of the federal draft AHR that have been identified.

So before that can happen, the province is going to have to have in place legislation and accompanying regulations. There's going to have to be an agreement signed between the Minister of Health and the provincial government that those provincial provisions and regulations are equivalent to the federal legislation and accompanying regulations.

The third condition is that the Governor in Council will have to make an order declaring that clauses 8 to 40 of the federal legislation do not apply in that province, and that really is assuming that the province is going to have equivalent legislation and accompanying regulations for clauses 8 to 11, 18 to 21 and 23 to 32. If that were the case, then the Governor in Council would make such a declaration that clauses 8 to 40 of the federal legislation no longer apply in that particular province.

The purpose of this clause is a recognition that this is an area of joint responsibility between the federal government and provincial governments. By that I mean, for example, under clauses 8 to 11 of the draft legislation, when we're talking about controlled activities, we're talking about the practise of medicine. If the province wants to pass legislation in respect of those controlled activities, this is the legislative authority that would allow them to do that.

But it is important to note that before they could do that, this agreement between the minister and the provincial government will have to specify that each provision and the accompanying regulations are “equivalent to”, and in other federal legislation where we have this ability to enter into equivalency agreements, that phrase, which is repeated often, has been interpreted to mean having an equal or equivalent effect.

So if we look at it in that light, it may be that the minister and the department are going to examine each provincial law and the accompanying regulations to ensure that, for example, they provide the same level of protection for individuals accessing assisted human reproduction procedures and the children born of those procedures. That might be—and I'm giving you an example of what the department and the minister might consider to be sort of a guideline—what they would look into to ensure that provincial legislation comes up to that particular sufficient amount of protection.

So I think what you can look at in this area is that the federal legislation sets the national standard in terms of human health and safety in the area of assisted human reproduction. If a province wants to adopt its own legislative scheme in respect to clauses 8 to 40, then that scheme must meet the national standards that have been set out in the AHR legislation in order for it to be found equivalent.

You've specifically asked us whether paragraphs 41(1)(a), (b), and (c) exclude clauses 12 to 17 from requiring provincial equivalency. No, they don't, and there's really no need to, because you have to look at it in its entirety. Subclause 41(1) notes that the Governor in Council order would declare that clauses 8 to 40 of the federal legislation, along with the regulations, no longer apply in a province. So all those sections would no longer apply.

So if the province decided to adopt legislation in respect to the controlled licensable activities in clauses 8 to 11, which they can do under paragraph 41(1)(a), then the province would also have to adopt legislation relating to the administration of such licences, which would be, in the federal legislation, clauses 12 to 17. It's sort of understood that if they're going to be adopting laws that have to do with the controlled activities, they're also going to have to adopt the administrative aspects of that. For example, their provincial minister would issue the licence.

• 1220

Clause 22 refers to the public information registry the minister is going to create, which Francine spoke to. It's not the one that is going to have particular identifying personal health information but the other registry, which will talk about licences, etc. And with in respect to clauses 33 to 40, the penalties, it has been suggested by other witnesses before you that the federal government may need to introduce some flexibility into clause 41 to ensure that not all of these provisions are suspended—because it may be, of course, that we will want to keep clause 22 and keep that registry.

The Chair: Could I ask the members of the committee, do you feel that you have a sufficient understanding of this section that we can leave it now?

Some hon. members: Yes.

The Chair: Okay, thanks very much. It's pretty complicated.

Ms. Judy Hunter: It is.

The Chair: I think we might have more questions on this after we meet with some of the representatives of provincial governments, but right now we really haven't forayed into that area.

Ms. Judy Hunter: Okay.

The Chair: Are there any questions on anything else that was in this presentation and documentation this morning?

Mr. Merrifield.

Mr. Rob Merrifield: I have one question with regard to what you said earlier about the opt-out clause. So you're saying the prohibitions of this bill would not necessarily apply provincially?

Ms. Rhonda Ferderber: No, it is exactly the opposite.

The Chair: All prohibitions apply, no matter what. They have no equivalency on prohibitions.

Mr. Rob Merrifield: So there's no equivalency. All right, I just wanted to clear that up, because I couldn't believe what I was hearing. Thank you.

The Chair: Thank you very much.

Can I put one more thing before you? Since we saw you last we've had witnesses on the whole question of disputes that arise after one of these children has been born and that seemingly, in the United States, have gone to the courts and under contract law, because everything has been under contract. We've had very strong representations that in Canada we do not want to see that happen, where a child becomes a commodity and so on.

Is there anything in here, or could you do some thinking about the possibility of getting something in here, that everything that happens is under family law, as opposed to contract law, that somehow or other we preclude the possibility of contracts being used, which then would preclude the use of contract law and this being part of the marketplace?

It seems to me we've had about three different witnesses on three different days talk to us about that, and in my view, certainly the people in favour of family law versus contract law were much more convincing. I think the people who were present at those meetings would probably agree. This whole commodification of human reproductive material or the children that result is something we really want to be clear on that we don't want to have happen.

Would you agree with me, Mr. Dromisky? You were here for those.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): Yes, definitely. You presented it in a clear and precise manner.

The Chair: Oh, did I? You're such a nice friend.

I just want to throw that problem at you, because we really haven't had a big discussion with you about that. I know it is the intent of the minister and the framers to keep it from becoming like that, but we have had suggestions to us that maybe it's not strong enough in that area. We're trying to think of mechanisms to strengthen it, and I wonder if some kind of a prohibition against contracts might...

Ms. Hunter.

Ms. Judy Hunter: Any time there would be a dispute about a child, after the child was born it would be the court's parens patriae jurisdiction, and the court would look at it in terms of the best interests of the child. I don't know if you take any comfort in that.

The Chair: No, I don't, because the problem is with surrogate mothers.

Ms. Judy Hunter: That's what you're concerned about, the contract?

The Chair: Yes. That's where we felt that what went on was pretty negative. We had witnesses who suggested that when a child has spent nine months in one woman's womb, and yet the child is told this is not their mother, and the woman is told she is not the child's mother because she is carrying reproductive material from somebody else, from this person or several persons... Well, they do not buy that argument. We can't assume that because the commissioning parents own the embryo and can decide to what use it will be put, beyond reproduction, they also automatically own the child that results.

• 1225

Ms. Judy Hunter: That wouldn't be the case under the legislation anyway. Under provincial legislation, which deals with filiation, it's the woman who gives birth who is presumed to be the mother—always.

The Chair: Yes, but some of these situations apparently have been contracted, so the concern is to keep contract law out of it.

Ms. Judy Hunter: Okay.

Ms. Rhonda Ferderber: We'll come back to you on that issue.

The Chair: Okay.

Thank you very much for coming this morning. You get out a little early, you lucky people.

I'll ask the committee to put away the more academic work and pull out the information they got yesterday on work plans.

At the end of the session on work plans, certain subjects were suggested as additions for us to cover with meetings or witnesses or whatever, and the clerk has a list for you to add to the back of your work plans.

Yesterday, for those who were here, we went through the proposed work plan, and it was implied at least—if you refer to the calendar at the back, it's actually easier than the prose—or there was a certain, I think, degree of approval of the idea that to get through the complexity of these subjects, we're probably going to need to meet three times a week.

We'll have the panels on Tuesdays and Thursdays. We'll try to touch on some of the other subjects that you have suggested, and that don't seem to be fit in here, on the Wednesday afternoons with feature witnesses.

One of the reasons we're doing this is that a number of the expert witnesses we tried to get, even back in the spring, could not come because they're attached to universities and they're teaching. They themselves suggested they could come Wednesday afternoon at 3:30, say, but they could never come on Tuesday or Thursday, because that's when their classes are.

So that was one of the reasons. The other is that we really need to hear from some of them because they are considered experts in the whole field. At any rate, that's what that's about.

You will see that the last few days of October, including Halloween, and the first couple in November have been set aside as a potential travel period. That is a little bit up on the air, because we have to get approval of our budget through the liaison committee. We're hoping to do that on the first Tuesday back after the break.

• 1230

So we're looking at that week for travel, figuring you'd come back for two weeks of work, have a week out of town, and then come back for a final week so you could clean up things in your office. We then go into a recess, after which we would continue with the topics as suggested.

In December, we would have two weeks, essentially, to finalize our report. It was suggested yesterday by Dr. Dromisky that we might consider coming back on Monday the third, setting aside that whole day to try to break the back of it as best we can. We don't think little two-hour meetings are going to get us to any kind of consensus on most of these topics. I don't know how many topics you would say there are in this, but I can name at least four highly controversial issues that lie within it.

So first of all, does the schedule for October and November look okay to you? Are there any concerns?

Hearing none, I will deem that piece of it okay.

Looking at December, could we have any other opinions about coming back and giving Monday the third to that purpose? It isn't on here, but we could add a new page for December showing it. What I'm really saying to you is if we put that in, how many of you would intend to be here for that full-day session? Can I see hands?

Ms. Colleen Beaumier: What's the full day?

The Chair: Monday, December 3.

The reason we're saying that is that Dr. Dromisky pointed out that most of you have other committees on Tuesday and Thursday and we really only have the two hours. We just know four hours won't be enough.

Can I ask again, then, who would be willing to commit to coming on Monday, December 3, and working from, let's say, 9:30 a.m. to 5:30 p.m., preferably, or something like that?

You have a problem with that, I know.

Ms. Judy Sgro (York West, Lib.): If we start in the morning, I'm fine until 3:30 p.m.

The Chair: Great.

Ms. Judy Sgro: And there are four other members who would—

The Chair: Have to leave at that point? Okay.

Mr. Stan Dromisky: Would lunch be provided?

The Chair: Oh, of course.

Thank you. We'll put that into the next schedule.

Are there any other issues about October, November, or December that you're concerned about? I will keep the travel plans separate, and we'll deal with them separately. But other than the travel—

[Translation]

Mr. Jeannot Castonguay: Madam Chair, the list refers to “individual witnesse” appearing on Wednesday. We haven't yet decided on these witnesses, have we?

A number of groups have expressed an interest in appearing before the committee, notably the Juvenile Diabetes Foundation. Is this a definitive list?

[English]

The Chair: Yesterday you gave this series of topics that you could not see anywhere in the plans. I would assume some of those topics would be on Wednesday. For some of them, on the other hand, we might be able to get an expert in one of the cities we're visiting. As long as you put in all the topics or suggestions you have, the researchers will do their best to squeeze it in.

Mr. Jeannot Castonguay: Okay. Thank you.

The Chair: Can we move now to the travel plans? There are two options. They're actually listed in the prose of your work plan on page 3. Under part D of “Travel”, you'll see one week, with two bullet points at the bottom of that paragraph. One choice is to divide the committee into two halves, one to travel to eastern cities and the other to western cities. Option B is to have the full committee travel to five key cities across the country. We could get to which ones if we decided on that option.

Option B is maybe $10,000 to $15,000 cheaper, but I think the difference in cost is so slight that we shouldn't let that be a criterion. I had two well-positioned arguments yesterday, for those of you who weren't here, and I would ask to have those two again, if I can call on Dr. Dromisky and Madame Picard to respond.

Mr. Stan Dromisky: Thank you, Madam Chairperson.

I was recommending the second option, involving the full committee, because this is such a crucial issue we're talking about that I would like to see all members of the committee receiving the same information at the same time from the same deliverers or experts, watching the body language, being in the same environment. All of this counts.

• 1235

I think the interpretations we receive from all of this input is crucial. However, when it comes to the recommendation of five cities, I don't think it's necessary to hit five cities. I think four will do, but the four we choose will be the best, in the sense that we'll get a variety of experiences there, a variety of facts and knowledge pertaining to various aspects of this bill from people who are working in this area in labs or whatever.

The Chair: The problem is, who are you going to leave out? Even doing five cities, you're only hitting five provincial capitals, for example. Even given that, we were trying to figure out how to do it. Yesterday Nancy came up with the idea of having one city that would be considered in the mountains or near the mountains, so you'd do either Victoria or Edmonton; the next group would be the prairies, so you'd do either Regina or Winnipeg; and then there'd be one meeting in Toronto, because the population base in Ontario is a third of the country, another meeting in Quebec, and a fifth meeting in Atlantic Canada.

Mr. Stan Dromisky: Madam Chairperson, I don't know where you're coming from. I don't know whether or not those decisions are being made for political reasons, whereby you want to hit different regional areas of the country. Or are we going to make decisions based on what it is we're looking for, what is there, what is, in a sense, the most valuable centre to visit? The most valuable centres to visit might be, as far as our task is concerned, in only three cities. They could be replications of what is going on in the rest of the country under the laws and regulations that exist at the present time. Are we just going to be visiting five centres and seeing a duplication of the same thing from centre to centre?

The Chair: I don't think so, although we might try to tap into the opinion of the provincial government while we're in that province, to get the flavour of that as well.

You've now developed a sub-question to the main question. The question I put before you is, do you want to travel as a full group, as Mr. Dromisky puts it, listening to the same witnesses in the same atmosphere? His point yesterday, which was a good one, was that it's all very well to have two groups and hit more cities, but it actually makes the synthesis of the ideas more difficult when you're trying to write the report, because you have half the committee that's heard a certain set of witnesses, while the other half has heard maybe a different story. It's richer, but it makes the end task more difficult, I think is what he was trying to say.

We have another opinion from Madame Picard.

[Translation]

Ms. Pauline Picard: Madam Chair, I disagree in that I find it totally unrealistic to travel cross country, from north to south and from east to west, given our level of energy. The flight to Vancouver lasts five hours. We must account for our travel time. If we must spend 24 hours in one location, and then travel on to another community the following day, in addition to our travel time... After all, we have to eat and sleep.

The argument whereby we won't have all of the information at the same time doesn't hold, because our researchers will be traveling with us. We have the staff we need to gather information and to summarize testimony. I've missed several committee meetings and I can always bring myself up to speed by reading these summaries.

Physically, I don't think I'm capable of criss-crossing the country for one week, of hearing testimony from such a large number of people and of visiting some laboratories. I don't think it's logical to send the entire group out on the road for one week. I can understand our splitting into two separate groups. The schedule would then be more manageable and members would have time to digest what the witnesses have to say. That's my opinion on the subject. Let me tell you here and now that you shouldn't count on the Bloc spending one week on the road. That won't fly with us.

• 1240

[English]

The Chair: Thank you, Madame Picard.

Both options suggest essentially... Let's look at option one, with the committee in two parts. The group that was going to do Halifax-Quebec-Montreal-Toronto, in my view, would probably fly to Halifax late Sunday and have their first meeting starting Monday morning in Halifax. At the end of the day they'd fly from Halifax to Quebec. On Tuesday morning they'd get up and hold their hearings in Quebec, and on Tuesday night they'd fly to Montreal. Then on Wednesday night they'd fly from Montreal to Toronto.

So either way, Madame Picard, it's hearings, it's hard work, and then flying, hearings, flying, no matter which way you slice it, whether it's the single group or the double group. So I don't know that the energy argument is that strong.

[Translation]

Ms. Pauline Picard: That's reduces the amount of work on our plates. I realize it isn't a picnic. I'm not saying that I don't feel like working, but I think it's too much to squeeze stops in Halifax, Quebec City, Montreal, Toronto and maybe even one more city all into the same week. I would opt for one day in Montreal, because that is the centre of expertise, and one day in Toronto, because it's a big city and many people will want to appear. That makes two days.

If we travel to Vancouver, that's one day spent in transit, plus the time difference. What's left on our schedule? Stops in Winnipeg, Regina and Edmonton. I think it's completely unrealistic to fit all of these stops into one week. I could understand two weeks, but one... In any event, I don't have the energy for it, and I would imagine my colleagues feel the same way.

The Chair: Ms. Thibeault.

Ms. Yolande Thibeault: If I can weigh in with additional arguments, I personally think it's very important for us to split into two groups. This bill is likely to be quite controversial and we need to hear the views of Canadians from coast to coast. We need to take the time to visit as many communities and cities as possible, and to hear from as many people as possible. I'm convinced that people from all parts of the country will want to weigh in with their opinions. I'm sure they are also interested in meeting with members.

Therefore, I'm strongly in favour of this option. This would give us the chance to meet more people from a larger number of communities. There are four on this list. We could add a fifth for eastern Canada and the Maritimes. We don't often travel to the Maritimes.

[English]

The Chair: Are there any other comments on this?

Madame Scherrer.

[Translation]

Ms. Hélène Scherrer: I tend to agree with Ms. Picard. If the effort is to be worthwhile, we can't be bouncing back and forth like ping-pong balls. We need time to digest the information we receive. Furthermore, we're assuming that everyone will want to participate. That may not be the case. I for one always seem to have scheduling problems. I ask my whip to clear my calendar, but it's never easy. At some point, I'm needed elsewhere.

I think that if we begin by scheduling specific meetings and by giving those who are free the opportunity to attend, then we know there will be at least four or five members taking part.

I think this is a more realistic approach then handing out the travel schedule and expecting everyone to go along with it. I don't think that would work. Perhaps if we plan for two weeks, scheduling meetings in eastern Canada the first week and giving everyone who can an opportunity to come along, and then scheduling meetings in western Canada the second week...

[English]

The Chair: Excuse me, Madame Scherrer, I think you're operating under a misapprehension. When you are assigned to a standing committee and the standing committee travels, you don't say, I'll go on Tuesday but I can't go on Wednesday. It's expected. Many committees have travelled, and some of them have travelled for two weeks without a break. Even over the weekend they are stuck in Vancouver or something. So it's not a matter of how it fits with your schedule, it's a matter of what it is we want to do. If somebody wants to be excused, they have to go through their whip.

[Translation]

Ms. Hélène Scherrer: Fine.

[English]

The Chair: Another complicating factor, as the clerk has informed me, is there seems to be a new guideline that they don't want more than ten people travelling at once. I'm not sure if that's a cost concern or a whip's concern, about too many people out of Ottawa at the same time.

• 1245

So it's possible, if they come down with this idea, that only 10 of us can go, so there may be room for people to absent themselves because of that. This is an iffy question, but all I really want to know is, do you want to split into two groups, and maybe work harder at the synthesis of your views when you come back together again, or do you want to travel as one group, as Dr. Dromisky has suggested, in order to hear all the same things? I've had Madame Picard say two groups, I've had Madame Thibeault say two groups, and Madame Scherrer. Is there anybody else on Mr. Dromisky's view?

Okay. I could then accept a motion that we travel according to option one, which is the two groups.

Mr. Rob Merrifield: There are pluses and minuses on both sides, and I'm not going to get bent out of shape either way.

The Chair: But I need a motion, people.

Ms. Judy Sgro: I move that we do our travel in two groups.

The Chair: Thank you.

(Motion agreed to)

The Chair: That's one piece of the puzzle. We need two more motions. We have the formal motion. I'll read it out and somebody can just say “So moved”.

Some hon. members: So moved.

The Chair: Whatever it is, it's moved, is that right?

At any rate, it's a couple of hundred thousand dollars for us to travel. We need your approval that you think it's wonderful.

An hon. member: So moved.

The Chair: Whatever that amount is? It's $215,000 for the single group, and $220,000 or something for the...

(Motion agreed to [See Minutes of Proceedings])

The Chair: Thank you very much for your hard work this morning. I hope everyone has a wonderful Thanksgiving. I look forward to seeing you on the first Tuesday back.

Meeting is adjourned.