HEAL Committee Meeting

STANDING COMMITTEE ON HEALTH

COMITÉ PERMANENT DE LA SANTÉ

EVIDENCE

[Recorded by Electronic Apparatus]

Wednesday, October 24, 2001

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[English]

The Chair (Ms. Bonnie Brown (Oakville, Lib.)): Good afternoon, ladies and gentlemen. It's my pleasure to call this meeting to order and to welcome everyone, in particular our witnesses from faculties of law. Yesterday we had the medical profession's perspective on this issue, and today we're having the legal perspective.

It's my pleasure to introduce as our first speaker Mr. Patrick Healy, Associate Professor, Faculty of Law, McGill University. Mr. Healy.

Professor Patrick Healy (Associate Professor, Faculty of Law, McGill University): Thank you very much, Madam Chairman.

Before I say anything about the substance of the bill, may I express, certainly for myself and I'm sure for my two colleagues, our gratitude for the invitation from the committee to come and offer some remarks about this proposed legislation.

For myself, I must say that I am a lawyer and I'm also a law professor, but my repertoire is rather limited. I'm a criminal lawyer. I cannot range too widely beyond my narrow frame of knowledge, but if I can assist you with comments about the criminal law and the constitutional aspects of the criminal law, I'll be pleased to do that.

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I certainly cannot offer any remarks about the science that lies behind this proposed legislation. I understand that you've already received testimony on that point from a variety of witnesses, so I won't even attempt to go into a field that is foreign to me. As a criminal lawyer, however, I would like to make a couple of very brief observations in my opening remarks and perhaps elaborate on them later on.

There are really three reasons, it seems to me, the criminal law might be invoked in respect of these new reproductive technologies. One of them would be to try to deter activities that in the opinion of the legislature should be deterred in the firmest possible terms.

The second—and there's no order of priority here, obviously—is to make a public declaration of public values with regard to new reproductive technologies, public values and moral values that are held by Parliament and parliamentarians and that reflect the views of Canadians as a whole.

The third is perhaps more technical but nonetheless important. That is, that Parliament could not hope to act in this area of the law on the understanding that it is criminal law unless it is genuinely in a constitutional sense characterized as proper criminal legislation.

What you have in this proposed legislation is a basic division between outright prohibitions, so-called prohibited activities, which are contained in the first part of the bill, and what are called controlled activities, which follow later on. It is my view that this committee and Parliament as a whole, if they are called upon to examine this model legislation or anything like it, should consider very carefully whether the proposed division between prohibited activities and controlled activities should be maintained in legislation in the form that has been proposed.

The caution that I say to you is this: assuming that the legislation as a whole can properly be characterized as criminal law—and I am of the view that it can be, because the criminal law power available to Parliament has a rather wide scope, and that wide scope has been confirmed in the courts over recent years—I am not persuaded that the approach taken in the first part of the bill on outright prohibitions, clauses 3 to 7, is an appropriate model to follow. I make no comment or judgment on the science. I make a comment or judgment about the nature of the prohibition that is proposed. It is an outright prohibition. The issue on which parliamentarians and others would have to be certain is that the reach of these outright prohibitions is appropriately drawn, that it is not too broad and does not include activities that we might not want to prohibit in an outright fashion as is the case here.

It should not be thought that if my proposal were to be taken seriously it would mean an abandonment of the legislation or even an abandonment of the criminal law approach it takes. What I would propose is that careful thought be given to including some or all of the activities that are identified in clauses 3 through 7 and to covering them by the same regulatory model that is available for the controlled activities in clause 8 and those following.

I ask you to think carefully about what that means. I'm not asking you to condone the activity that is identified in clauses 3 to 7. What I'm asking you to consider is that there is a different way of prohibiting it. If you include the activities in clauses 3 through 7 in the model for controlled activities, what that would mean is that activity is prohibited unless a licence were given for it. There would be no licence. If the consensus of Canadians, parliamentarians, and other public servants is that these sorts of activities should be prohibited and remain prohibited, then there would be no licence for those activities, and you are in exactly the same legislative position as if you maintained outright prohibitions.

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The benefit you derive from this is increased flexibility. It might be that our views of the science involved with these new reproductive technologies will change over time.

I'm aware of at least one very difficult case—perhaps my information is wrong—that has arisen in the United Kingdom where a young child is suffering from a dreadful terminal condition, and the only hope for that child to have any form of recovery is by involving one of the activities that would be prohibited by this legislation. Is that the kind of outright prohibition we want to maintain without exception?

The advantage of the model for controlled activities is that there is a general prohibition subject either to licensing or to specific ministerial exception, and no minister acting responsibly would embark upon an exception of that kind without the gravest consideration given to the issues involved.

So my opening point is very simple: The criminal law power, I am convinced, is available for Parliament to rely upon in enacting legislation with regard to new reproductive technologies. The criminal law power does not rest, however, in outright prohibitions of the kind you see in the first part of the legislation. It can also be used under a licensing or regulatory model of the type you find for controlled activities. I repeat that the position you would be left in by adopting the second course for all of these activities is that they are prohibited unless they are authorized specifically by law.

That's the position we have, by the way, in relation to other things in this country, such as firearms—it's an uncontroversial subject, I know—and gambling. Gambling in this country, as you probably know, is absolutely forbidden under the Criminal Code, because it is a grave affront to our sense of morality, unless it's licensed by a province under a scheme approved by the Criminal Code, in which case it raises welcome money for the provincial legislatures. So I'm not without examples that I can give you, and there are many examples in the jurisprudence.

I would ask you to think about using the criminal law power in a restrained and flexible way, a way that would allow for changes in science to be taken into account without giving up in any sense the disapprobation that Parliament might want to make in respect of some of these activities.

Madam Chair, I have some comments to make on more specific points in the proposed legislation, but I'll leave that until later in the afternoon's proceedings. Thank you.

The Chair: Thank you very much, Mr. Healy.

Our next speaker is Alison Harvison Young, Dean of the Faculty of Law of Queen's University. Ms. Young.

Ms. Alison Harvison Young (Individual Presentation): Thank you. I also would like to thank the committee for giving me the opportunity to be here today. It's a real delight to lose the shackles of being a dean for an afternoon.

I want to make the point that I am very much here in my own capacity and that I am not in any way speaking for my institution.

I gave evidence on Bill C-47 as well, and I think this is a great improvement over that bill. In particular, I applaud the introduction of the concept of controlled activity and the regulatory scheme based on licensing. I think this recognizes one of the common denominators of most of these technologies, and that is that it may not be the technology or practice in and of itself but the potential for misuse or abuse that bothers us and that raises our legitimate concern.

Having said that, though, I want to concentrate in my time today on one aspect of the draft legislation that still bothers me, and that is the distinction relating to the sale of gametes or consideration for surrogacy, which remain prohibited, and the reimbursement of expenses with regard to those same activities, which are controlled activities. I think those illustrate a real problem with the delineation between the notion of prohibition—criminalization, as it were—and the notion of the regulated activities. I share Professor Healy's view that it would be much better, particularly if the jurisdictional issues could be addressed, if they were all treated as regulated activities.

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I think this is a general issue, but I want to focus my remarks mainly on the surrogacy issue today, although most of what I have to say will also apply to the gamete issue generally, and indeed other aspects of the law generally. My concern is with the difference between the criminal activities and the regulated activities, which I do not think is sufficiently justified to warrant, at some point, the heavy artillery of the criminal law.

I do not believe that the difference between altruistic surrogacy or gamete donation is a sufficient marker to justify using the criminal law in its brute sense, which is effectively what the prohibitions do. I think the distinction falters when you consider the common justifications for the prohibitions, for criminalizations, which are usually articulated in the form of concerns about commodification, exploitation of women, autonomy, and the best interests of children, and there are some others as well.

I want to emphasize that I wholeheartedly endorse the regulation of all these activities and the serious regulation of all these activities, but I do not think that prohibition is the right way to go. I'm going to say a couple of things about each of those grounds in a minute, but before I say anything about the specific concerns, there's a general point I want to make, and it is that history shows us in this country, and elsewhere, that outright prohibitions or criminalizations tend to fail miserably when the issue in question is one of social controversy. The cure of criminalization, moreover, can be worse than the disease. For example, not only was prohibition of alcohol not successful in obliterating alcohol in this country, but it's largely recognized that it was instrumental in creating an enormous industry and machinery in this country that has boomed every since.

Abortion is another example. Whatever you think about abortion, you probably have to agree that outright criminalization did not end the practice, but rather drove it underground and had the by-product in fact of causing the exploitation and downright injury of society's most exploited and vulnerable women—the women who did not have the means to get safe medical abortions.

Having reviewed the evidence that this committee has already heard, and having read many newspaper letters that have been in the press in recent months, I think it's very clear that there's no strong social consensus on any of these issues. In fact, I don't know that I'd say on any of these issues, but there's no strong social consensus on the prohibitions, such as whether surrogates should get compensated for being a surrogate, or whether sperm donors should be paid, and organ donors, and so on. I think the best you can say is that those are matters of social controversy. My point here today is simply that those are precisely issues where the criminal law, in terms of raw prohibitions, tends not to work very well. They don't address the evils we're concerned about. I'll say more about the specifics in a moment.

The other thing about social controversy and concerns about social consensus is that views change over time. I think we've seen this even with respect to in vitro fertilization over the last ten years. I think views have changed. You have many aspects of new reproductive technologies where broad social views have changed. I know that studies in England, for example, have shown that views about surrogacy have evolved over the last decade. My point is that I don't think a raw prohibition would change this, would make it any less likely to change, and you would have something carved in the criminal law stone in the meantime.

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I want to say something now about commodification and exploitation. The concern about commodification of course is absolutely legitimate and a serious concern, but I don't think it follows that this concern is addressed simply by focusing on the question of consideration or money received by the surrogate or donor themselves. When you do that, which is exactly what the raw prohibition does, you ignore the broader concerns that are in operation here.

Again, I'd say the distinction in the case of surrogacy is that so-called commercial surrogacy, to use the colloquial term, is very bad, whereas altruistic surrogacy is okay. We're willing to allow or regulate altruistic surrogacy.

I don't think that distinction bears very close scrutiny. I certainly don't think it bears enough scrutiny to allow the heavy artillery of prohibition, criminal prohibition in the former case. To focus only on the fact that any money is received by the mother or gamete donor is to ignore other broader social factors that we may also say commodify reproduction.

For example, at present, access to assisted reproduction is largely a matter of money. You have to have a lot of money to afford to have in vitro fertilization or to go the ovum donation route or anything else, whether or not the gamete donor or surrogate is getting any money. It costs a lot of money, and on one view the parents pay a lot of money to become parents. This is a reality that is beyond any act of legislation to remedy; it's a broader social issue. But my point here is does it matter so much that the surrogate herself, or gamete donor, might get some money, recognizing their contribution, and that this makes it a matter of criminal law, where the absence of receipt of any money is not a matter of criminal law? I don't think so.

I would also point out that usually the amount of money that either a gamete donor or a surrogate gets is relatively small when viewed in the context of the whole thing. So I don't think that allowing a woman gamete donor to receive something is something that in and of itself takes it beyond the realm of ordinary non-commodified human reproduction and taints it hopelessly with the notion of evil commodification, to put it a little dramatically.

The other point is that I think the notion of commercialization or consideration is not nearly as clear as the draft legislation proposes. As you heard in some earlier evidence, the mere fact that a woman received some compensation and perhaps could not afford to do so if she didn't does not necessarily mean that money is her prime or only motive.

To illustrate this, we can think of a myriad of professions that we think of as altruistic but for which people are paid—priests, for example, or social workers, nurses, and so on. I think in our society we live daily with a very complex mixture of what counts as altruism and what counts as profit motive. I don't think it's quite fair to cast someone who is paid for a gamete donation or being a surrogate as stamped with the taint of being motivated by money and therefore committing a criminal act, which is the main point.

The other point I want to make, which I make in my brief and I won't go through in any detail, is that this issue has been focused on by some feminists, particularly American feminists, only because I think there are a lot more writers and academics in the United States.

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One author who is opposed to the enforceability of contracts for surrogacy, which I would oppose as well—in other words, opposed to the forcible giving up of a child if a mother has changed her mind—is also very opposed to the criminalization of commercial surrogacy. She also argues that the prohibitions of so-called commercial surrogacy echo attitudes similar to those that many jurisdictions have traditionally shown to women's domestic labour. She says:

The consequence of prohibiting pregnancy contracts or banning payment for gestational services is suggested by the question of the surrogate who asked “Why am I exploited if I am paid, but not if I am not paid?”

Shanley goes on to say:

When the state forbids payment for contract pregnancy it treats reproductive activity as it has traditionally treated women's domestic labour—as unpaid, non-economic acts of love and nurturing rather than as work and real economic contributions to family life.

Her point is that this is one of the things that has disadvantaged women in society.

I'm not necessarily advocating that as a view, except to say that I think we have to think closely about why it is that the idea of the surrogate herself or a gamete donor actually receiving the money is so odious and the places where we seem to have the most trouble are places where it's the woman who is the recipient, either as an ovum donor or as a surrogate.

I want to say a couple of things about the exploitation of women. I think the obvious concern here is that, as you've heard from other witnesses, there's a real risk that prohibition of commercial surrogacy can to some extent drive it underground or out of the jurisdiction, which is more of the concern.

Women who want to be surrogates but cannot afford to do so without compensation will either travel to the United States or do so informally. This greatly increases the risk of their exploitation in both economic and health terms. I think this is something we should take seriously if we're doing more than paying lip service to the concerns about the exploitation of women.

The other point I want to make is that the draft legislation presupposes a level of coercion or implicit coercion in the case of commercial surrogacy, also presupposing that it does not exist in altruistic surrogacy.

In the same book that I just quoted from a minute ago, another woman by the name of Uma Narayan has written a great deal arguing against that distinction precisely because a lot of situations that are so-called altruistic surrogacies may be family situations. Particularly in families or cultures where there is very high pressure for fertility, that may be a very serious problem.

So it's wrong to assume that commercialization means some level of coercion, and altruism, no money, means that it's all fine. I realize that's not what the regulatory system presupposes with respect to the altruism. My point is just that it would be better to have both the commercial and the altruistic looked at under the same general umbrella.

The point is that if you have it regulated you can deal with things like what does count as reasonable expenses, what are the limits, what is the surrogate mother's recourse if she's mistreated in any way by the commissioning parents. If you have it completely banned, you're raising the very real risk that the vulnerable person in this, who is usually the gestational surrogate, is left without any kind of recourse.

The final point I want to make is on the best interests of children. This of course is a very important consideration, and while this is very important, I do not think there is much basis, in fact any basis, for saying this justifies the criminalization of things like commercial surrogacy or consideration for so-called sale of gametes.

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I don't see how it's going to be very different from a child's perspective, from a situation where the parents have spent large amounts of money to adopt him or her. How aware or relevant is it going to be? It seems to me the general point, as they seem to be very much wanted children, tends to go against it.

Again, I'm not trying to say this is a great thing. I certainly don't think we should be going out and promoting surrogacy. I do think it's a reason to be careful and cautious. We need to look at a regulatory scheme to actually monitor the conditions, rather than prohibiting it and risk sweeping it under the rug where we do not see it. As we know from the abortion example, it does not mean the problem has gone away.

Those are my remarks. I'm looking forward to questions later. Thank you.

The Chair: Thank you very much.

We'll move on to Mr. Bernard Dickens, professor in health law and policy at the faculty of law, faculty of medicine, and the joint centre for bioethics at the University of Toronto.

Mr. Dickens.

Professor Bernard Dickens (Professor in Health, Law and Policy, Chair in Biomedical Ethics, Faculty of Law, Faculty of Medicine and the Joint Centre for Bioethics, University of Toronto): Thank you, Madam Chairman. Like my colleagues, I am very grateful for the invitation to be here.

You have, or will have, my brief described as a summary of the presentation. In view of the time and the comments already made, which I endorse, I can in fact be brief. The document available will in fact be more of an amplification of my comments.

My field is health law in general and medical law more narrowly, especially reproductive health law. The field of reproductive health, of course, has long attracted philosophical and religious evaluation and, more recently in a secular context, a bioethical evaluation. The legal areas are essentially pragmatic. They deal with realities and sometimes the dysfunctions of the law.

There are four points I want to address, in particular the first three. They focus on an area of potentially serious dysfunction in the practical effects of the legislation you are considering. I want to deal with the sex selection procedures, the prohibition of embryo creation for research purposes, and then the private nature of surrogate motherhood.

Again, I am endorsing the criticisms Dean Harvison Young presented. My final comments will be on the nature of a regulatory authority.

First of all, there is the prohibition of procedures to favour the development of an embryo of one sex or the other. The recommendation is in paragraph 3(1)(h) to the draft legislation that this be prohibited. The background thinking is this would be to deter a male preference. Many of the commentators before the Royal Commission on New Reproductive Technologies supposed a male preference. The royal commission conducted an extensive and, dare I say, expensive survey of Canadian opinions and found this view is refuted.

I might say that the evidence for the royal commission came from Bombay. It was essentially Indian, not Canadian.

If I could just quote their observation, they said of their survey:

The survey revealed that, contrary to what has been found in some other countries, a large majority of Canadians do not prefer children of one sex or the other. Many intervenors...assumed that Canadians have a pro-male bias with regards to family composition; we found that this assumption appears to be unfounded...

Most people were not concerned with the sex of their child. They were concerned with balancing their families. Again, to quote from the royal commission:

...preferences were generally seen as unimportant, almost trivial. The survey showed that virtually all prospective parents want, and feel strongly about having, at least one child of each sex.

The royal commission emphasized that there should be the practice of evidence-based medicine. There is also a case for evidence-based social policy. The evidence from Canada shows there is no preference for children of one sex or the other. We, perhaps in contrast to other countries, operate in an environment of sex neutrality. There is an interesting family balance in having children of both sexes.

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Since the prohibition of abortion was declared inoperative by the Supreme Court in 1988, we know abortions are not controlled by the criminal law. No particular indications need to be satisfied. The royal commission found there is a certain aversion to sex-based abortion or non-therapeutic abortion. The legislation you are considering sets the scene for exactly that.

If a couple have a child, or perhaps two children of one sex, and want to have their family complete with a child of the other sex, they may start pregnancies. If prenatal diagnosis shows the child to be of the same sex they already have, they can terminate the pregnancy. It is perfectly legal. Under the legislation you are considering, it will be necessary for the family to balance their composition with children of each sex. If we outlaw sex-based procedures to favour a child of one sex or the other, this will be the option the families will pursue.

Some provinces have tried to eliminate it by precluding disclosure of fetal sex. This, of course, violates the fundamental principle of free and informed consent. It probably is also unconstitutional. We don't want women to be locked into a sequence of pregnancies until they have a child of the sex other than what they already have.

To that extent, the recommendation would be to have a second exception that is in the draft legislation now. There is accommodation of sex selection where there is risk of transmission of a sex-link disorder. It would essentially be for male fetuses. The existing section is for reasons related to health of the resulting human being.

I would recommend there be another exception for reasons relating to the sex of a family's existing child or children. This would not accommodate preferring the first child to be one or the other sex.

Again, according to their figures of those contemplating family building, the royal commission had evidence showing 82% had no interest in the sex of their first child. Of the remaining 18%, 10% favoured a male and 8% favoured a daughter.

One could prevent any control of the sex of the first child by saying that when there is a first child or children of the same sex, sex selection procedures to promote the conception and birth of a child of the other sex ought to be permitted. This is family balancing. It's not favouring one child or the other.

There's also the point about the breadth of paragraph 3(1)(h). It would prohibit or make it an offence to knowingly “provide...any thing for the purpose of...increasing the probability that an embryo will be of a particular sex...”.

An historical example of that advice is found in the Old Testament on the timing and position of intercourse to favour having a child of one or the other sex. I seriously don't think the legislature of Canada wants to promoting reading of the Old Testament punishable with ten years of imprisonment and/or a $500,000 fine. The overbreadth of this is extraordinary.

With regard to creating embryos for research, it might be accommodated under the existing legislation. It doesn't define research and it doesn't define therapy. It could be if one wanted to develop an embryo for therapeutic purposes, by perhaps a cloning technique of so-called therapeutic cloning as opposed to reproductive cloning, then one could tolerate the prohibition of creating another person, another me or you. One could accommodate cloning an embryo in order to identify the particular stem cells that will develop to become the particular tissues or organ an individual needs. Using surplus embryos will not suffice. They will be genetically alien and be prone to rejection by the donor.

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To that extent, saying we can do research—which is currently approved up to 14 days gestational age—on surplus embryos acknowledges that embryos are not sacrosanct. Clearly they attract a great deal of philosophical religious attention, and those with conscientious objections to participation in embryo manipulation, including embryo destruction, would clearly be accommodated.

But if, for example, there is to be development of stem cell research to a point where one can specify which of the stem cells will become neurotissue—brain cells for production of dopamine for Parkinson's patients—or, given the absence of hearts for transplantation reported in today's newspaper, if one wants to develop for people at risk of chronic heart failure and consequent death cardiac tissue that can be accepted by them, it would be by development of their cells: by creating embryos for them.

If that is described as therapy, it's not caught by this legislation. If, on the other hand, one believes that before unproven medical technologies pass into therapeutic practice they should be subject to research, then this is research. And it therefore becomes necessary to create embryos for research.

We recognize that in Canada we have—literally coast to coast—an enormous potential for genetic development. Dalhousie University, Memorial University in Newfoundland, right across to the University of British Columbia and Simon Fraser University, all have research facilities for the promotion of genetic research and genetic therapy.

That will require that purpose-built, specified embryos be created, embryos with particular genetic qualities, with particular genetic characteristics. If one can only use the surplus from in vitro fertilization, many embryos will have to be tested and wasted with complete futility, because they will be found not to have the very characteristics the investigators, the researchers, want to test. This would waste their time and scarce resources, when one could create embryos of a particular genetic composition in order to undertake the critical tests.

The United Kingdom has changed its legislation specifically to accommodate this. That is, the United Kingdom's Human Fertilisation and Embryology Act repealed what now is a rather dated prohibition on creating embryos simply for purposes of research because of the recognition that stem cell research requires that there be the deliberate economic creation of embryos for research purposes under circumstances of accountability and regulation. That is responsible research.

I would therefore recommend that the creation of embryos for research not be in the prohibition section of this legislation but moved under clause 8, as a controlled activity that will be subject to licensing, so that one has accountability and responsible agencies will be able to undertake research.

The United Kingdom system permits accountability for every embryo created and every embryo subject to research. This is not to say that anything goes. This is not to let human embryos be accessible in grade school experiments, but to keep them in accountable agencies.

The third point echoes what Dean Harvison Young has said about surrogate motherhood. In a sense the legislation channels it in the worst possible circumstances of a private arrangement in a family.

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I'm being a little historical now. I was project director to the Ontario Law Reform Commission project on human artificial reproduction and related matters. The evidence we had on surrogacy from pediatric psychiatrists and experienced social workers was that when sisters and sisters-in-law are the only people who could gestate a child—and this needn't be with any advanced technology; it needn't be so-called “full surrogacy”, with in vitro fertilization, so that the surrogate mother is not the genetic mother—the experience of their doing so goes back far before advanced technologies using artificial insemination and involves nothing more sophisticated than a turkey baster.

Indeed, at the beginning of the 1980s these were called “turkey-baster children”. The practice was that the husband's sperm would be injected by a turkey baster into, let's say, his sister-in-law—his infertile wife's sister. She would go into hospital, give her sister's name and health insurance number, and deliver the child, who would be registered in the name she gave. She would then surrender the child to the family. Most of those arrangements worked perfectly well. Indeed, there was no history of any special acrimony.

But there was a history of the children being confused about whether their aunt was their mother and their mother their aunt. There was also a history of these women—who were in these cases also the biological mother, which is the easy way around all of these technologies and licensing systems—being very involved in the family and sometimes being intrusive. That is, the pediatric psychiatrist who testified at the beginning at the 1980s said if we take the criterion of the best interests of the children, it is in the best interests of these children that the gestating mother, whether or not the genetic mother—with in vitro fertilization, of course, she wouldn't be the genetic mother—be a stranger to the family, which means she would need some incentive for acting in this way.

And whether or not she was paid, she would have to be found. The question is, how would you identify a strange woman willing to gestate a child? In the United Kingdom—and in the United States, as well—it would be through commercial brokers.

Now, the recommendation of the Ontario Law Reform Commission was that an agency—an exchange of those willing to offer services and those seeking them—be managed through the existing children's aid societies or provincial superintendents of child welfare, who could undertake appropriate screening.

In addition, of course, if there is no stranger who could serve, but the sister—let's say—of the wife and the infertile couple is the only one who can serve and refuses, then the couple will blame her for their continuing childlessness. In addition, she comes under pressure from her parents, who want to be grandparents. And the enormous pressure that's brought to bear, Dean Harvison Young has already addressed.

The legislation, as proposed, is also dysfunctional because it invites both avoidance and evasion. Avoidance is simply by saying “There will be no reimbursement.” If there's no reimbursement, there's no occasion for licensing. If, of course, the legislation were to be enacted, then we have the unreality of this private domestic setting in which the couple have persuaded—hopefully without undue pressure—a sister or other relative to gestate a child for them.

They would have to get a licence from a federal authority in order to pay her grocery bills. Well, this simply is not going to happen. We're dealing with intense, prolonged family relationships and a reimbursement that would be, under the legislation as drafted, an unlawful evasion of the legislation. It could be made many years after the event, by paying some service three years later, perhaps by paying for a vacation for the gestating mother and her partner, perhaps by rewarding the child the gestating mother already has or subsequently has. That is, there is no effective method to monitor the exchange of generosity and gifts within families over years. This is simply unreal.

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As we've heard—and Dean Harvison Young amplified this—it simply drives the practice underground, where the potential for pressure, exploitation, and inequity is the greatest.

The recommendation of the Ontario Law Reform Commission was that these matters be public—i.e., not confined to the private environment. That is all the draft legislation would allow. They recommended that the arrangements be made in a public way and they be scrutinized before being implemented.

The recommendations of the Ontario commission were that family court judges should look at these arrangements; speak to the parties; look at the terms, including financial terms; and make it clear that the parties all recognize that these agreements will not be specifically enforced by a court, but that once a child is born the ordinary principle of the best interest of the child will prevail.

So this is not a binding contract. Many contracts that are perfectly lawful are not enforceable by the courts. Contracts in the entertainment and sporting fields are not enforceable by courts. Courts might order the professional sports player to get on the team jersey, get out there, and do his or her best. The courts would simply say that if the contract were not observed, then the fees were not going to be paid and the individual wouldn't be free to play for another team.

Although these contracts are not enforceable, they are perfectly lawful. The proposal of the Ontario Law Reform Commission was that judges should make clear that all parties understand the implications of the arrangement they've made, ensure that it is not oppressive, and then let it go ahead.

Again, it seems that this would be better pursued as a controlled activity under independent scrutiny before implementation, recognizing non-enforceability in the specific sense, but otherwise, legality.

The final point I'll make is with regard to the nature of the regulatory authority, which has been left open in the legislation. The references are to the Minister of Health undertaking a licensing system.

Although this is feasible, it seems ill-advised, particularly in light of the very successful model in the United Kingdom of the human fertilization and embryology authority. This is independent of the minister. It has set up a code of practice. It regulates practice by monitoring the skills of individuals and the facilities of clinics that undertake these procedures.

It also gives the public information on centres accessible to them, what their centres do, and the outcome of those centres in operation, when the operation has been sufficiently long for an assessment to be made.

This is sometimes dysfunctional, in that newspapers have seized on this and presented it as league tables—the more successful and the less successful, failing to recognize that the less successful are so because they take the harder-to-treat cases. They are more conscientious, in pursuit of social equity, taking the hard cases rather than cherry-picking the good cases.

This is a controlled system. It has a high level of confidence among the public that use clinics and the public that seek access to clinics. Practitioners within clinics have confidence. The scientific community concerned with reproductive biology has confidence, and indeed is represented within the authority. The public at large are willing to entrust important and contentious decisions to this agency, knowing they're in responsible hands.

It frees the minister from accountability for some very contentious decisions. We can imagine, for example, a minister of health who was a practising Roman Catholic being very upset by procedures that required the wastage of embryos after a certain time.

Also, there would be no public suspicion that the discretions of the agency were being manipulated to serve a personal or political agenda. So detaching the regulatory authority from the minister serves the credibility of the independence of the agency, and also frees the minister. The matter would remain under legislative control, because the background legislation would of course be the responsibility of Parliament.

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In that sense, my final comment would be to recommend the establishment of an agency, independent of the Ministry of Health, to undertake the control of controlled activities.

Thank you.

The Chair: Thank you very much, Mr. Dickens. You've certainly given us a lot to think about, and you'll find out what that is when we begin the questioning.

We'll begin with Mr. Manning, please.

Mr. Preston Manning (Calgary Southwest, Canadian Alliance): I would like to say thank you to all three of you for spending this time with us. I mentioned earlier we've spent a lot of time on the science and moral and ethical sides, but we haven't got around too much to the legal or the administrative ends, and I think we're moving in that direction. So we thank you for your contributions.

My first question is more to Dean Young and Professor Healy. Dr. Dickens has given us his view on the ideal form of the regulatory body to administer this legislation. I have a couple of specific questions under this heading, but I just wonder if you have any general comments.

I know you're not presenting yourselves as administrative lawyers under our specialities here, but do you have any views, given your particular concerns and interests, on what the shape and nature of the regulatory body that's put in charge of this legislation should be?

Ms. Alison Harvison Young: I think the HFEA is a good place to start, for an example of a structure that works pretty well. I agree it has to be independent and accountable. I have to say I'm not up to speed on all the details, but I did hear a paper given by the current chair of the English agency this summer. His sense was that the balance between the legislative framework and the sorts of things the authority itself has to determine on a regular basis was very well struck.

I'll just make a few comments. I think the authority, as it's called in that legislation, is made up of a certain number of people from particular backgrounds. There are scientists, doctors, and lawyers. That's a very important part of the design of the scheme. You have to make sure that is adequate, and that's something the legislation itself should contemplate, ideally.

The accountability machinery is important, as Professor Dickens talked about. There should also be an important communications public accountability, not just in the sense of Parliament, but something that also has some kind of responsiveness to public concerns. I know the English system has an education function. It may produce certain publications for the public, to inform consumers where to go for certain kinds of treatment, what kinds of questions to ask, and that kind of thing.

Patrick.

Mr. Preston Manning: Patrick, maybe before you comment I'll raise my second question, because I think it pertains to your area of criminal law.

I'd be interested in your general views on the form of the regulatory body. But given the fact that the criminal law is the underpinning of this statute, we've heard many calls for the regulatory body to be at arm's length. If it's going to be administering basically a criminal law type of statute, are there even examples of independent regulatory authorities administering basically a criminal law statute? Does the fact that it so relied on criminal law power impose constraints on what kind of regulatory body we can have? I think this is in your field, so if I may, I'll get that on the table before you reply.

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Prof. Patrick Healy: You've actually raised several questions, as you know.

Mr. Preston Manning: Well, our chairman would like us to be economical, so we try to get through as many...

The Chair: That's not a good reputation.

Prof. Patrick Healy: Well, Mr. Manning, I'll try to be as frugal in my answer.

There is no single model that could be recommended for this. It seems to me—and I don't understand Professor Dickens to be saying otherwise—the minister would clearly want to be independent, and the agency would want to be independent of the minister insofar as the daily operations of the agency, however it's constructed, are concerned. Among other things, the minister doesn't have the time or the expertise to perform that kind of administrative function, nor do I think it's desirable. The minister obviously would have to be accountable in some way, and this is the place in which that accountability would be tested.

We can perhaps talk a bit more about specific models later on. There are examples: income tax, bankruptcy investigations, and the Competition Act. All these have administrative agencies that derive part or all of their constitutional validity from the criminal law power. There are many of them.

If your question is pushing a little further, as I think it is, it is that this agency, whatever it would be, would have enforcement responsibilities that are not unlike policing functions.

It's one thing to talk about an administrative model for licensing decisions. It's quite another thing to talk about enforcement mechanisms and how those would be operated within the responsible agency. I confess that I have some difficulty understanding exactly how some of the enforcement mechanisms would work. Again, there are examples. If you think of Canadian agricultural legislation, we have inspections of all sorts relating to agricultural activities. We have inspections that take place with respect to the transportation of hazardous products that may involve the CN police or other railway authorities. We have mechanisms for the inspection of all sorts of dangerous activities and materials: nuclear fuel or whatever it might be. But this is a very specialized kind of activity. I can't imagine, with all respect, the RCMP officers I know walking up to a door and saying, excuse me, ma'am, I don't have a warrant, but I want to check your dishes.

It's a difficult thing for me to... I understand the point, which is that if the agency is aware that certain kinds of activities governed by the act are or might be going on in specified premises, they would like to have a look. But how do they get that information in the first place? How do they execute these powers—which, by the way, are rather sweeping powers of search and seizure—the proposed legislation would give them?

Mr. Preston Manning: What you said reinforces your original point, that to the extent this is more of a regulatory body licensing things, it can envision the structure. To the extent that it's a policeman and a regulator, it's going to be pretty hard to find a structure that fits those both.

Prof. Patrick Healy: Excuse me for interrupting, but the point you've put your finger on is one that is extremely delicate in Canadian criminal and constitutional law. It's the distinction between regulatory offences and regulatory activity, which at one end shades into administrative matters but at the sharp end comes very close to criminal law and true crimes. There's a margin there that is very obscure, and with the greatest respect, I must say your neighbours down on Wellington Street here have not clarified it—the nine neighbours, not the... They have not clarified it at all.

In fact, in a decision—one of the most significant decisions on this in recent times—the Supreme Court said there is nothing wrong with regulatory crime. They were concerned in that case called Wholesale Travel Group with an offence of misleading advertising in the context of the Competition Act, which regulates economic activity. They even said that an indictable offence of misleading advertising carrying a maximum punishment of five years with no requirement for proof of fault, just a strict liability offence, was constitutionally valid.

• 1640

The Supreme Court gave further support to that with respect to the Tobacco Products Control Act, with which you're all familiar, and said that this too derived a substantial amount of its validity from the criminal law power.

I would suggest to you, although I can't guarantee what happens down the street at all, that if the Supreme Court is prepared to say that Parliament's regulation of products that are dangerous to health is valid criminal law—and they've said that many times over the years—then they will certainly say that about life itself. Now, that doesn't answer your question about what kind of uniforms you give people to knock on the door and say that they want to look at the dishes, but—

Mr. Preston Manning: So what you're saying is that if you try to envision an agency that covers everything from real criminal acts in the traditional sense to violations of licensing and obscure administrative provisions, it's probably not going to perform well at one end of that spectrum.

Prof. Patrick Healy: It will have to be highly specialized. That's the minimum one knows.

Prof. Bernard Dickens: I wasn't asked to respond to this, but the fact is that while in the United Kingdom the legislation has sanctions, they're not sanctions against undertaking procedures. They're sanctions against wilfully defying the regulatory authority.

Clause 38 of the legislation you're considering provides that there can be no prosecution without the consent of the federal Attorney General. If one is dealing with a mistake, there would probably not be a prosecution because of the liability to heavy sanction.

The way the United Kingdom Human Fertilisation Embryology Authority, the HFEA, operates is largely by having scientifically, technologically qualified inspectors. They will go into premises by compulsory powers—which have never had to be invoked—if need be and make certain the standards are being satisfied. If they are not, then a licence may be suspended or its continuance could be conditional on the standards being met within a given time period, performance being monitored. In that sense, this is a case of technical regulation rather than a wilful defiance, although a maverick doctor proposing to clone a human being, for example, could well be subject to the full weight of sanctions.

The Chair: Thank you, Mr. Manning.

Mr. Lunney.

Mr. James Lunney (Nanaimo—Alberni, Canadian Alliance): Thank you, Madam Chair.

I'd like to take it in a different direction. I've heard from all three of our witnesses this afternoon a very strong protest against any prohibitions or banning at all. There seems to be a sense that prohibitions do not work and that they simply drive things underground; therefore, we should not prohibit activities, we should just regulate them.

I even heard a defence there as to how effective prohibition is in restricting gambling. Governments profit by licensing gambling establishments, and that argument shows us how effective prohibitions can be when there are exceptions to them. In fact, when there's a dollar sign attached, it seems that we go that way entirely unless there is a prohibition. I'm concerned about that, for the essence of your argument is that we shouldn't prohibit anything because we're a very liberal, tolerant society and anything should go.

I would just like to say this, having just come from a conference where I spent three days in Victoria with 1,140 people gathered to examine an issue. It was a health issue, though it wasn't exactly the issue we're discussing. It was a meeting of the Canadian Palliative Care Association, people who deal with the issue of death and dying and with helping humans through that very sensitive transition.

I want to mention—and this is for the record—something said by one of the speakers there, Dr. Rachel Naomi Remen, a very well-known medical lecturer from California. She's been on the faculty of three medical schools and has over 25 years of service in this area. She said that it's possible to study life for many years and not know life at all.

• 1645

She described many of the mysteries associated with undeniable healings that they debated in medical circles with 200 doctors at grand rounds trying to understand what happened, and it couldn't be explained. She went on to say that if we leave it to science alone to analyse and quantify life, we can miss the essence of life. Sometimes life is found outside the box.

Some of the things that were described at this conference... I looked around and saw nurses, doctors, and volunteers who work with the dying with tears in their eyes as they contemplated the mystery of life. So when I hear arguments such as those presented this afternoon by all three of you, and particularly by Mr. Dickens, arguments in favour of destroying an embryo because of sex, arguments that Canadians are not concerned about sex selection when it comes to developing a human being, I suggest your views are not shared by a whole lot of Canadians.

Perhaps Canadians' views are changing in this regard, as we come to understand life issues a little better. But I'm very concerned about that.

When I hear you mention quotes from the Old Testament regarding how sex selection was practised, and the specific procedures and positions to influence the outcomes of childbirth, I'd like you to offer some chapter and verse on that, because I think you're right out of your league in making such a reference.

To go on to this other issue, Mr. Dickens, you speak of the development of embryonic cells for Parkinson's disease or for the cardiac patient, and you say it will require a lot of embryos, perhaps the ones from in vitro will not be enough. It will require specific embryos with specific traits; therefore we might need a lot of them.

We've heard a lot of witnesses at this committee, experts and scientists, who are very excited about the tremendous breakthroughs with adult stem cells. We know if you take embryonic cells and develop them for the Parkinson's or cardiac patient, cells from another source, you're going to have to deal with rejection. You're going to have to deal with an immune system that wants to reject those cells. So it's going to leave a patient dependent.

There are many concerns about taking cells from outside the body. In fact, for the Parkinson's patients, in taking cells from another being and trying to put them into a recipient, when they've used fetal cells they've had terrible results.

What we've heard...even from your own university, Ms. Young, you've had tremendous breakthroughs with some of your own researchers at McGill in the area of using skin cells to develop adult cells. Autologous transplants are very likely possible with the great advances we're having in this realm, where you can take cells from your own body, grow cells, and reintroduce them to your own body. This is an area of exciting medical research that offers a potential for a much better therapeutic outcome, which will not require anti-rejection drugs and will leave a patient actually healed and not dependent on drugs for the rest of their life.

So when I hear this kind of commodification, when I hear you use this language, and you say we shouldn't be worried about commodification—and we can carry that over to Ms. Young's remarks on surrogacy—basically, I'd say you're talking about the commodification or industrialization of human tissue. I want to suggest to you that is highly offensive to a large segment of Canadian society. They're not prepared to hide behind scientific language, which tends to steamroll this past the public before they have a chance to really understand it.

We've heard witnesses to that effect. I'd just like to put that on the record. I'd like to perhaps hear your response.

Prof. Bernard Dickens: Thank you.

The observation I made regarding the destruction of embryos by reference to sex was that it is objectionable, but the legislation you are considering sets the scene for it. That is, if one is going to avoid sex-selection abortion, then one would want to control the sex of embryos before implantation. This is prohibited by the legislation. To that extent, it is dysfunctional, because it makes the destruction of embryos simply because of their sex more likely. It's a dysfunction in the legislation.

I won't go into a biblical chapter and verse, but it's there. I didn't put it in the paper. I thought that was too pedantic.

• 1650

With regard to the use of adult stem cells, they have potential. But if we look at the criticism from distinguished scientists of the proposal in the United States to limit cell lines to those already developed and to undertake research only with adult stem cells, there is a responsible conclusion that this would prove inadequate. It may be that one can move ahead on the basis of adult stem cells, but it seems the full richness, the full potential, will require the use of embryonic stem cells.

We have to recognize that Canadian society has already accepted guidelines under which research can be conducted on surface embryos up to 14 days of gestational age. There has been predictable opposition to that, but generally this has been accepted. The intention to undertake stem cell research would be well within that 14-day period, and this, I repeat, is already accepted.

In addition, although there is opposition to the use of embryos for the development of therapeutic product, there is no evidence that those opposed in principle are declining to use the therapeutic product that such use of embryos has already produced, and in that sense, the opposition is principled and warrants respect. Again, one accommodates it through provisions on conscientious objection for those who would otherwise be expected to participate in the procedures and those who could avail themselves of the product.

The general conclusion is that the steam we give to embryos is not reflected in nature. The royal commission showed that a high percentage of embryos produced in natural reproduction are spontaneously wasted. We have accepted that embryos can serve the wider community by their availability for research services, including the product, the vaccines. The Salk polio vaccine, for example, was based on embryo research, and those fundamentally opposed to the research are not opposed to benefiting from the product of that research. To that extent, there's an incongruity that we accept among human communities. But the idea of locking in a prohibition because of a philosophical approach is something that has to have a margin of latitude.

The Chair: Thank you.

You've actually had just under ten minutes.

Mr. James Lunney: You're kidding.

The Chair: You gave quite a good speech, which is very unusual for you. You can have one more question, because you usually don't take quite this much time.

Mr. James Lunney: Thank you, Madam Chairman.

I'd just like to address the issue of surrogacy, because we have heard a fair bit of testimony related to that. Again, we heard it suggested today there shouldn't be any prohibition on reimbursing people either for gamete donation or for commercial surrogacy, basically. I would suggest when we consider paying young girls for their ova to be extracted, when we pay them to hyperovulate and produce ova, we may expose them to abuse. Young people perhaps haven't had time to consider the consequences that are going to be paid by going through procedures that may affect their fertility in the future. That is a prospect that is a concern to many people.

Also, we heard testimony from those wanting to advance the payment for surrogacy that they might be reimbursed, just for expenses, in the order of $2,500 to $5,000 a month. The prospect of women being drawn into a career in producing babies for someone else is not one that's highly palatable in society. But if we open the door to this type of reimbursement, there are serious concerns there.

Ms. Alison Harvison Young: I agree with that. I have to say that is one of the issues, for example, the college student ovum donor who is looking to make up her tuition by doing this on a regular basis. It's a huge problem.

My point, and this underlines Professor Dickens' point, is that it is more likely to happen if you prohibit it than if you regulate it. If you regulate it and make sure there are certain conditions... You do not grant licences under certain circumstances, one of them being people under a certain age. I know that reputable centres in the United States, for example, don't accept donors who haven't already had children, etc.

• 1655

I agree with you 100% that there are some very serious dangers inherent in this, but if you just criminalize them and pretend that they go away, you are sweeping the problem under the rug. Indeed, part of the problem with this legislation is that the wording is subject to some manipulation. For example, it is prohibited to sell your gametes, but it's a controlled activity to be reimbursed for expenses. On the surrogacy example, it's even more potent, where it says getting consideration is prohibited.

Consideration, by the way, is a very technical term of contract. And if you can figure it out, you're doing better than most first-year contract students by the time they write their final exam. And that was a long time ago for me.

Prof. Patrick Healy: And it does not exist in Quebec.

Ms. Alison Harvison Young: That's actually a very good point, the notion of consideration. I would expect that if this legislation goes through, the notion of what counts as reimbursement of expenses is gradually going to get interpreted fairly broadly over time. So you're in effect approving a disingenuous distinction when it would be more honest to say, we're going to control the whole damn can of worms, and we're not going to allow licences in certain conditions such as those.

If we do allow licences for egg donation, the following conditions have to be met. The regulatory agency can say, okay, you can reimburse for medical expenses, groceries, etc., and perhaps some other amount. Does reimbursement for expenses, for example, in the case of a surrogate, count for what it's costing her to stay home with her children for the extra year instead of going back to work after all her leave runs out with her own children?

Over time, you would get a very broad definition of that. It's incumbent to be honest with that. I agree with you. I don't think Canadians want to see reproduction commodified, and I don't think they want to see teenagers or young adults exploited in this way. If you go the route of the outright prohibition, that's exactly what's going to happen.

The Chair: Thank you, Dr. Lunney.

Ms. Beaumier.

[Editor's Note: Inaudible]

Ms. Colleen Beaumier (Brampton West—Mississauga, Lib.): ...and I both sat on the committee on the original Bill C-47, and the only thing that really has changed is the science in all of this. Those of us who sat on the committee were rather pleased that there was an election and that it died, because we didn't really have a lot of time to put our all into it. It was a slam-dunk, rush-through bill by the time we approved it.

I see a number of problems. You're saying prohibition will encourage people to violate these and go underground, but regulation isn't any different from prohibition. The scientists all think we're stupid, and they're right, but it's fascinating when it comes to science. The doctors all come and say to us, trust us, we don't need you, we're going to be accountable. We were elected to be accountable to our constituents. When you use the abortion situation, as an example, we all know there are principles that doctors abide by, and we know those are being violated, because we have nurses come to see us.

I'm definitely pro-choice, but it's a lot easier to sit back and say let's not have any rules at all and let the doctors look after it and let the courts fight it out.

• 1700

We're shirking our responsibility as well. I've listened to the doctors and the legal profession coming here. Basically, they're saying you probably shouldn't have any kind of legislation at all, because if prohibition isn't going to work, neither is regulating it.

We all on committee would find it a lot easier if we could just turn it over to a regulatory board and wash our hands of it. I could be wrong, but I don't think that's what Canadians have elected us to do.

Ms. Alison Harvison Young: In a sense, this is a very challenging issue, precisely because so many of these issues require a very detailed knowledge about certain things. It's a harder issue in that sense than abortion, in a way. There are more issues and it's more complicated.

Basically, I would suggest that members of Parliament are shirking their duty at least as much if they say, right, there ought to be a law. We'll ban it. That's it. We've lived up to our responsibility without paying attention to whether or not that ban can actually have some effect.

That's certainly what they have in England. If you're talking about an effective regulatory structure, you're talking about one that knows what's actually going on, that is able to monitor, that has the resources to do that. And that's an important part of this. It can also draw the subtle distinctions that have to be drawn.

That's one of the problems with this. No form... And Patrick Healey could give you chapter and verse on this. It's a criminal law. Raw prohibitions are blunt instruments that don't take all those factors into consideration.

The Chair: Are you finished with this, Colleen?

Ms. Colleen Beaumier: No. I think Dr. Dickens is going to respond, and perhaps I'll recall what my response was going to be.

Prof. Bernard Dickens: We know that legislation can always have inadvertent adverse consequences. This is one of the costs of doing business, one of the costs of making laws. When you are facing predictable dysfunctions, there's an accountability for that as well.

In the reproductive field we're already familiar with an ugly phrase because it trivializes. We speak about reproductive tourism. The people prohibited from a practice in the country where they live go to another country and they have services there. To set the scene for that, so that one not only goes to other countries but also purchases surrogate services there, seems the sort of dysfunction, the exportation of oppression that really we want to try to avoid.

The surrogacy field invites lawful avoidance and unlawful evasion. And it is so obvious that, first, this is going to be a very limited practice. The couples having recourse to surrogacy are really very few. We have a sizeable experience in Canada of surrogacy being undertaken without demonstrated oppression and without demonstrated social dysfunction.

Whether one is dealing with reimbursement of costs incurred, whether one is dealing with financial rewards is a very difficult line to draw. To pretend that one is curing a problem by a blanket prohibition seems inadequate, unless one is also willing to take responsibility. They're not simply for meeting the sensibilities and concerns of the Canadian public, but also for being responsible for setting the scene for predictable wrongs, predictable consequential harms that could be avoided by a proper regulatory system.

• 1705

Ms. Colleen Beaumier: If regulatory boards had to report to Parliament regularly, I think we'd be more comfortable. Regulatory boards, once they are set up, have a life of their own.

When you talk about regulation, and punishing labs or clinics, it sounds like we're setting up a better business bureau for fertility clinics. Sometimes with discounted prices you will have clients anyway. I know it's an over-simplification.

Prof. Bernard Dickens: The fact is, as Dean Harvison Young said, this is a business. The services are not covered by provincial health insurance plans. This is luxury medicine. One is concerned with conceiving protection.

The Chair: If it's luxury medicine, why should we be facilitating it?

Prof. Bernard Dickens: We're not facilitating it.

The Chair: We would have to pay for the regulatory body and the terrific expense for inspection that was sufficiently qualified to understand the nuances Ms. Young talked about. This is highly priced health care. Why should we do it for people who have paid a bunch of money in trying to have, in my view, designer children in most cases?

Prof. Bernard Dickens: Yes. You're making the case for public subsidization of techniques to overcome infertility and the social inequity.

The Chair: Even with the inspection of it, you're talking about a regulatory body with highly skilled inspectors. Who is going to pay for that if it isn't the government? In effect, we would be subsidizing it, even if everything else was conducted with people's own cash and not the health insurance plan.

By the way, a lot of our witnesses are asking for health insurance to cover it across the country. It is all tax dollars. If we didn't do it, and they paid for it out of their own pockets, which seem to be deep in the case of the people wanting children, why should we pay for the inspection of the facilities?

Prof. Bernard Dickens: It is not necessarily the case. The United Kingdom model has a limited governmental contribution to the functioning of the human fertilization embryology authority. It makes up the bulk of its revenue through fees that are charged to those it licenses. Of course, the fees are reflected in the service costs. They'd be borne by those who use the services.

The Chair: Fees are charged to those who have a licence? I don't understand.

Prof. Bernard Dickens: The clinics that are licensed pay a fee to cover inspection and monitoring. Again, it is reflected in the fees they charge for their services. They are borne by the consumers of the service.

The Chair: It puts the price up.

Why is there not commodification? We had witnesses who talked about this as the industry, with the surrogate mother as the carrier. The commissioning parents were lobbying for about $36,000 a year for the surrogate mother. It is why Dr. Lunney went into the whole idea of a career in it. There are some people who have no hope of making that kind of money. If they made it once, they'd probably want to make it again.

What you're saying is really disturbing us, I think. It's disturbing me. I don't know about the others.

Prof. Bernard Dickens: The commodification language is selective hostile language. This is essentially a service transaction. We have consumer protection for luxury vehicles. We don't say this is something the public has no interest in.

If one had an adequate regulatory system, then the potential career surrogate mother would be deterred. It is independent inspection of the circumstances in which this was undertaken. If it was an unemployable woman trying to make a career as a surrogate mother, then one would see this is not acceptable. Again, by prohibition, underground roots, and foreign roots, you set the scene for it, in a sense. If the issue is transparent, then one can introduce the sorts of regulations known in the United Kingdom.

The Chair: I don't understand the nuance. If apparently banning something drives it underground, doesn't the government have a role in saying what's right and wrong? In other words, we banned bank robbery. It drove it underground and the criminal law kicks in.

Prof. Bernard Dickens: Yes.

The Chair: We can't stop people from doing things that are underground if they so choose. It seems to me we have a role to play in deciding what is okay and what is not.

Prof. Bernard Dickens: We are not dealing with wicked people who want to exploit others and take their property. We're dealing with people who want to have children.

• 1710

The Chair: No. They want to take people's eggs, sperm, and everything else.

In this country, we have a slant toward property being more important than people. If it's dollars in the bank or gold in a vault, all of a sudden property is important and requires the criminal law and policemen. Isn't it awful? If people are exploited and paid for their essence, all of a sudden it should be regulated. It's not a criminal offence.

To me, the second case is worse than the first. I'd rather have a kid who grew up and robbed a bank than a kid who grew up and exploited someone for their eggs and sperm and someone else to carry their baby. It interferes with three lives, producing a fourth life who doesn't even know its parent. It's much more serious.

Prof. Bernard Dickens: The analogies you're choosing are certainly appropriate, but within limits. We have the experience of alcohol prohibition that fueled organized crime. We're living with the consequences. We have criminalized the use of certain recreational drugs. We're now reconsidering it because it is dysfunctional.

This is not analogous to robbing banks. This is people trying to pursue a lifestyle with no demonstrated damage to others. The cost of morally based prohibitions has to be estimated. I think the morality of robbing banks is not contestable. The morality of trying to have your own child with the only means available is not on the same plane, unless you choose to make it so for purposes of advocacy.

The Chair: No. You made a statement that surrogacy happens in this country without social disruption. It is not true. We have no proof it's true. There isn't statistical data gathered to prove it's not true for any of the participants and, most importantly, for the child of the union.

Prof. Bernard Dickens: The Ontario Law Reform Commission had evidence. It was anecdotal, but from a very experienced social worker. I'll mention her name because she was public on the issue. Ruth Parry is a distinguished long-serving professor of social work, who was a social worker at one of the family court clinics in Ontario.

Clearly, you're not going to have statistics because this is underground by definition. You won't be able to quantify it. You're only, therefore, dealing with qualities and anecdotes.

The evidence Ruth Parry gave was that it has been long practised in many immigrant and aboriginal communities. A woman will be artificially inseminated and give birth to a child who she will surrender within the family unit. The families are not ecstatically joyful, but they're not less functional than other families in the community. It's a matter that is simply accepted and is of no particular concern.

The Chair: I'm sorry, Ms. Wasylycia-Leis. I jumped into your time ahead of you. Go ahead.

I didn't have Madame Picard's name. I didn't see her hand. I have Ms. Wasylycia-Leis next. We don't do it in order; we do it in turn with the people who tell me they want to speak. I don't go down the row. If it's happened before, it's because you've put your hand up third.

Ms. Judy Wasylycia-Leis (Winnipeg North Centre, NDP): I'll let her go ahead.

[Translation]

Ms. Pauline Picard (Drummond, BQ): I find it quite shocking to hear you talk about goods, transactions, commercialization. I do not share those values.

A number of my colleagues have asked the questions I was asking to myself. First, I'd like to know if I understood correctly Ms. Young. You seem to think that surrogate mothers do a job like any other physical job. You also have compared that work to what priests and social workers do. I think this is an attack against the human dignity of women. I don't understand how you can speak like that about the gift of life.

I feel that women will be much more exploited if they are paid that if they are not paid. In fact, we should not be concerned that women with low income who are right now raising their children themselves will use that method more often that women who have a good income, because they need the money to raise their family.

• 1715

You speak about students who would give their ovum to be able to pay their fees. Don't you think this is exploitation? This must be regulated.

There is also the health aspect. In your argument, you don't mention the health of these women, because there are limits to what one can do to stimulate the ovaries. Some have talked about the cancer of the ovaries and all kinds of consequences. There is also the rights of these women who give their ovum. How do you know that one day the future child will not want to know who is his biological mother? So, there are also the rights of the child.

I think this activity must absolutely be regulated and prohibited. I think that this must be done as a gift of life and not as a commercial operation. The uterus of women is fast becoming a reproductive laboratory. I completely disagree with you on that point.

I also would like to ask a question to Mr. Healy. You talk about the scope of the prohibition and you said they should be well defined. The proposed legislation which we are studying now deals with the prohibition or regulation of these techniques for therapeutic purposes and all these assisted reproduction techniques, and I feel that all this is not very clear. Do you think this proposed legislation should have a more limited scope?

You also said that you wish to make other recommendations and that you could give some examples. What are those recommendations?

Ms. Alison Harvison Young: You have asked many questions.

[English]

First of all, on the commodification issue, I do not want to see the commodification of human reproduction, either. It's something we should be discouraging. Again I would underline what I said before; an outright ban is only going to push it under the table where we don't see it. I'm concerned about regulating it so the nuances can be taken into account.

To use your example of the cancer risk and so on, this is absolutely the kind of thing a good, effective, accountable authority should be looking at with respect to each particular practice, whether it's egg donation or whatever else. And the risks according to this authority, which I envision to include doctors, lawyers, and other representatives of society—so I'm not suggesting that it be controlled only by doctors—should be taken into account. This is where it should happen.

I used the term “commodification” responsively, because it's a concern. It's even in the preamble. Commodification or commercialization of human reproduction is in there. We're called on to address it. I am not looking to promote it at all.

If we're concerned about exploitation, and particularly exploitation of vulnerable women—and by the way, I would include the gestational surrogate here... The gestational surrogate and the college student egg donor are most likely to be exploited in situations where it's banned. Take the gestational surrogate, for example. There are cases like this right now. I knew of a couple of cases from a former student of mine in Montreal when I was still at McGill.

• 1720

Couples frequently will go to a lawyer to have an agreement negotiated. Typically, the couple is better educated and more affluent; the proposed surrogate is less educated. She knows it's not quite legal. Of course right now it's not that it's illegal, it's just that the contracts cannot be enforced in Quebec. It's not criminally prohibited, it just doesn't have any status in law.

If there's a problem down the road, if she's exploited, it's the woman who, because she is less educated, is least likely to have the wherewithal to know what to do about it. And I'm not only talking about getting money here; I'm talking about adequate medical help if she has problems during the pregnancy. What if they want her to have an abortion because the fetus isn't healthy enough? There are all these kinds of issues. In a situation where it's underground and prohibited, she is without any resource or support in this situation. In a situation where you have an effective regulatory scheme, you can control those conditions.

Again, as Patrick Healy said, it might well be that the authority says you know what, as far as egg donation goes, we're not giving any licences right now because we're not satisfied that the appropriate conditions exist; or it says we'll give it only in limited circumstances, only with mild drugs or whatever. But those conditions can be set out by the authority.

So I want to say over again, I am not promoting commodification; I am not promoting the exploitation. I am suggesting that if you're serious about avoiding those things, you should give very serious thought to Patrick Healy's proposal to have all decisions made via a regulatory structure that takes all of this seriously.

My final point before I turn it over to my colleague is this. It's very unfair to treat all people who are looking at this as though they are out for designer children. We deserve to—and your constituents would expect you to—look at this whole issue with a high degree of compassion. I don't believe people have a God-given, substantial right to have children; but I certainly believe that, as a society, we should treat those people with dignity, respect, and compassion.

Patrick.

Prof. Patrick Healy: There were two questions put to me, and I'll answer them.

To answer the first is in a sense to repeat what I said before, which Professor Harvison Young has already done. I'm not debating whether there should be prohibitions; the question is what method of prohibition. Both rely on criminal law authority: that is the outright ban, which is the ordinary form of criminal law, and a prohibition subject to licensing approval. With a responsible agency, that would allow for classifications of different types of activities to be approved or not approved according to the consensus of those experts and according to consultation—possibly even with Parliament or with other responsible people.

It's not a question of prohibition. I'm not arguing about that. It's a question of the form of prohibition and how flexible the system would be for dealing with those sorts of things that might be licensed and approved and those sorts of things that might not be. And Professor Harvison Young has said it, so I won't say anything more.

To respond to Madam Picard's question, if I may, Madam Chair, I would raise a few points about the draft legislation, which are perhaps of a technical nature, but are not trivial, if I may suggest that.

First, on page 5, I'm simply not clear as a technical matter why “woman” is defined as it is. It says “any female person over the age of 18”. I looked through proposed legislation for a reason why this technical term is defined. I see lots of references to “female person” and “surrogate mothers” and so on, but I don't see a technical reason why this was done. Maybe I've just read it too quickly and I overlooked it.

More importantly, however, I've already signalled that there are very broad powers of search and seizure, which, if you were to rely upon the prohibitions in their outright criminal form, would be subject to challenge as soon as those inspectors' powers were used. It's not necessary for them to be drafted quite as broadly as they are.

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On page 24 in clause 26 there is a proposition to the effect that “no person shall obstruct”. However, if you look later on at the clauses that enact offences, 34 and 35, there are no references to clause 26. Clause 26 refers specifically to no obstruction of someone executing duties under this act, but it is not an offence to obstruct someone who is executing his or her duties under this act. There is an oversight there, and presumably it means that the obstruction offence would be found in clause 35.

Next, on page 28 in clause 36, and elsewhere in this proposed legislation, there is reliance upon two principles that are disreputable—if I may say so—in the criminal law. One is the principle of vicarious liability in which person X is held responsible for the conduct of person Y. Now, there are circumstances in which one can rely upon this principle. It's available in instances of corporate criminal liability and some limited other circumstances, typically involving directors of companies, but I call it to your attention because it would be a point at which criticism would be levelled.

The second way in which this clause is offensive in its reliance upon a disreputable principle is that it contains a direct violation of the presumption of innocence because it puts the onus on the accused to disprove his or her liability.

My next point, which was referred to by Professor Dickens, involves page 29. It says that there should be no prosecution “except with the consent of the Attorney General, within the meaning of the Criminal Code”. I would rarely want to correct Professor Dickens, but in the Criminal Code this refers to the Attorney General of the province, not the federal Attorney General.

This piece of federal legislation is apart from the Criminal Code. The normal practice for the Food and Drugs Act, the Controlled Drugs and Substances Act, and other regulatory and serious criminal offences such as those in the Competition Act is to rely upon the consent of the federal Attorney General. And if you're interested in having a consistent policy with respect to this matter, I suggest you think seriously about making the federal Attorney General responsible for the enforcement and prosecution of offences under the act.

I remark that clause 40 gives remarkable powers to the Governor in Council to designate classes of controlled activities that can be authorized by a licence. This is consistent with everything we have said. That's paragraph (a); but paragraph (m) refers to the exemption of a class of controlled activities. Now, I am not sure at all that you would want to give this kind of regulatory decision-making power to the minister, for the reasons given by Professor Dickens.

The need for an independent agency that reports to the minister, and the minister to Parliament, is a different matter; but it's not contemplated here. What's contemplated here is direct ministerial decision-making, and I suggest to you that this needs to be seriously reconsidered.

My final point, Madam Chairman—and I want to be very brief about this, even though the point is important—has to do with clause 41, which to my way of thinking, and I say this with the deepest of respect, is bizarre. This clause would give to the Governor in Council the power to make an order saying that certain sections—the regulatory offences from clause 8 to clause 40—are not in force in a particular province. This kind of thing is constitutionally valid; the Supreme Court has said so. But that doesn't make it a good idea.

This is even more bizarre when you look at it closely. This is legislation that in whole, if not in significant part, relies upon Parliament's authority over the criminal law. How can the minister make a deal with any province saying that there is equivalent legislation in a province, where no province has the authority to make criminal law, period? It makes no sense.

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If this clause is designed to suggest that the Governor in Council, the cabinet, can withhold the application of the criminal law by decree because there is comparable legislation of a health-related nature in a province, then I would suggest to you that is not a position on the criminal law that shows much spine on the part of the Parliament of Canada. I also think it weakens the constitutional basis upon which the legislation is premised.

The Chair: Professor Healy, I wonder if you could write a one-pager or a two-pager with that particular clause and your reasons.

I understand exactly what you're saying. I think it's a highly important point, and it would be helpful to those of us who are not lawyers to have it written in proper language so we can make our case.

Prof. Patrick Healy: Madam Chairman, I have a personal confession to make to you. I realize this is Parliament, and I'm very serious about what I say, but my reputation for meeting deadlines is...

She knows. We've been friends for 25 years, and she's already laughing at my ability to meet this suggestion, but I will try. I promise.

Those are my quick comments.

The Chair: Ms. Wasylycia-Leis.

Ms. Judy Wasylycia-Leis: I know our time is almost up, so I'll be very brief.

It has been a fascinating debate. I think this gets to the heart of what we're struggling with, the balance between allowing for all kinds of possibilities in the science, the results of which we can't imagine or anticipate, with legislation that reflects the values of Canadians.

I hear what Alison is saying about not being judgmental, because when families want to have children and they can't, it is critical; it's fundamental to their quality of life. But I think that gives us even more reason to be careful about the legislation, because the pressure that is then put on the system, as our chair said, to cover certain procedures under our health insurance system, or if not that, certainly undermine our public health system, is enormous, and we have to be very careful.

So we have to come back to what are the appropriate values and standards and mores in our society today that must be reflected in the law? We've touched on a couple of them today—and up until today I thought these were sort of sacrosanct truths. One is that we under no circumstances allow for selection on the basis of sex. This seems to be something that's not just recognized in Canada, but internationally in a draft or actual convention on bioethics.

I appreciate Dr. Dickens' bluntness. I think he's suggesting—and I think he's the first before our committee—that in fact selection on the basis of sex for purposes of balancing family is legitimate. We're saying that's contrary to what we've heard and the values of Canadians and what we know in terms of the international scene. Am I wrong? Is this not an internationally accepted value that needs to be entrenched in law, and is there any exception to this in any other jurisdiction?

Prof. Bernard Dickens: There are ways of interpreting the prohibition. That is, when one has a demonstrated preference for males over females, or when one has a demonstrated preference for first children to be male, this does entrench the devaluation of girl children and it reinforces the devaluation, the minor status, of women in the community at large.

But family balancing is something that there is strong Canadian endorsement for, and this is something that other communities can except. It isn't time to be anecdotal, but I was at a meeting in Cairo last November, and they were dealing with Islamic medical ethics. This was at Al-Azhar University, which is the centre of Islamic orthodoxy in the Sunni tradition, and there was acceptance that a family can legitimately want to balance the composition of their children so that if they have children of one sex and only of one sex, they can be facilitated without excessive unwanted pregnancies to have a child of the other sex.

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That is where the record indicates that there is no practice of discrimination against one sex or the other, which of course always means the female sex. Where there is no record of discrimination against the female sex, you are not supporting discrimination by allowing family balancing, and the evidence we have from the Royal Commission on New Reproductive Technologies is that in Canada, in general, there is no such bias.

Ms. Judy Wasylycia-Leis: Values change, governments change. There's always the possibility for something like this to be open to abuse, to malicious intent, to discriminatory treatment. Isn't that, then, the purpose of the law, to entrench a value that cannot be opened to such abuse, and isn't one of those values and principles, as stated in article 14 of the Convention on Human Rights and Biomedicine, the fact that the use of techniques of medically assisted procreation shall not be allowed for the purpose of choosing a future child's sex, except when serious hereditary sex-related disease is to be avoided?

Prof. Bernard Dickens: Yes. It could be that future experience will show that when or where a sexual bias is not present, as in Canada, or where it has been eliminated, there will be no need to preserve that particular bias. That is, one has to look behind the language to the purpose, that in societies that do have a practice, a tradition, on whatever basis—in some communities, religious—that devalues women, these technologies not be used as an instrument to advance that goal, but where and when the experience is that such bias is not present, then to burden women with unwanted pregnancies in order to have a family of their composition seems to victimize women. It seems to suggest that women can be required to bear successive pregnancies until they have a family composed of their choice that is a balanced family. In legislation designed to liberate women from oppression, to say that women must have successive pregnancies until they reach a family of their chosen composition seems contradictory.

Ms. Judy Wasylycia-Leis: Do the other two presenters have a view on this question of eliminating the prohibition on sex selection in this act?

Ms. Alison Harvison Young: My view is that the concern could be as effectively addressed in the regulatory issue. In other words, you have it again, technically, as a controlled activity, but one for which the authority...

Right now in Canada, I would probably say, reflecting the values of Canadians—and on this I probably disagree with Professor Dickens slightly—I suspect that one of rules would be that there would be no licences permitted for sex selection for non-therapeutic reasons.

In other words, I'm inclined to agree that if you did a general poll in Canada—and as you people all know, polls are very difficult things—generally speaking, people would certainly say that aborting a child on the basis of sex selection is a bad thing.

I think you'd probably find a greater variation with respect to pre-implantation stuff, and if it turns out that there's some drug you can take that means there's a 90% chance that you're going to have a boy or a girl, as the case may be, you'd then find more Canadians willing to think that was okay, probably on the family balancing premise that Professor Dickens suggests.

So I think the value you're talking about reflects the time when the idea of sex selection meant aborting a child of the wrong sex. Having said that, I think you can do as good a job at dealing with the practice by having it, in effect, prohibited vis-à-vis the regulatory route rather than a criminal prohibition.

The Chair: Thank you, Ms. Wasylycia-Leis.

I should apologize to the witnesses for my outburst. You're absolutely right. I did not want to paint those people who go for help as wanting designer children. What I was trying to say was in response to Professor Dickens on this family balancing, which to me is designer families. So if you will forgive me for my outburst...

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A few things were said here today that actually enraged me. That's why the outburst occurred. The committee will know I have a fairly good reputation for staying calm, but today it didn't prevail.

I really wanted to thank you for your presentations and the ideas you've given us, which have complicated things for us, I have to say. Probably that's a good thing. I would like to ask, if our researchers in trying to help us would like to talk to you again, whether it would be all right if they gave you a telephone call to clarify a point.

I can relieve Patrick Healy of the burden I put on him a few minutes ago, because I realized this will all be in transcript. We can simply capture that part of your commentary on the actual clauses of the bill and replicate it for ourselves, and that would be fine. So you don't have to write a two-pager.

Prof. Patrick Healy: If I could add one thing I forgot—

The Chair: Sure.

Prof. Patrick Healy: —I would direct you all to page 28, to clauses 34 and 35. These are the two clauses concerned with the offences that would be created under the legislation. I already drew to your attention the problem that clause 26 is not mentioned in clause 35, but there's something else I would like to draw to your attention.

Clause 34 would be concerned with offences and punishment for the prohibited activities, and clause 35 with offences and punishment for controlled activities. Now, it's always difficult for parliamentarians to look at what is an appropriate punishment, but these punishments are disproportionate. I don't mean they are excessive; I mean they are disproportionate between themselves.

You have in clause 34 a maximum penalty of 10 years on indictment, or $500,000. In paragraph (b) of that, you have $250,000, or imprisonment for four years. You may not know that the norm for maximum conviction on a summary conviction offence in the Criminal Code is $2,000 or six months or both. This is wildly out of line with the statutory norm.

There are exceptions; I'm not saying there aren't. There are exceptions for what are now called, in the Criminal Code, “super summaries”, which are typically around 18 months. But this is four years. That, by the way, is in a federal penitentiary, not in a provincial jail, where the maximum term is two years.

When Parliament is asked to consider the enactment of penalties of this kind, it is sending a message about the seriousness with which the activity is viewed. Now, I understand that prohibited activities are viewed with considerable seriousness. That's perfectly acceptable. But you have to bear in mind, it seems to me—and I say this with respect—what is appropriate for the conduct being punished.

Look at clause 35. This is for the breach of a licensing offence, breach of a controlled activity. It's not one of the prohibited activities, but breach of a controlled activity. It says $250,000 or five years; $100,000 or two years. What is the relationship between paragraph (a) of clause 35 and paragraph (b) of clause 34?

I'm not going to give you the answer—maybe there isn't one—because I confess to you that to a certain extent these figures are not scientifically arrived at. But you have to bear in mind the seriousness of the punishment being proposed for the offences.

I would have thought, for example—and I'm purely expressing my own opinion—that if Parliament were to persist in the view that there should be outright prohibitions, there could be no such thing as a summary conviction offence. There could only be an offence punishable on indictment with the approval of the Attorney General. But this treats it in the same way dangerous driving is treated, and I would suggest to you that sends the wrong message.

On the other hand, is it proportionate to the nature of the breach of a licensing offence in clause 35 that it should be punishable by five years on indictment? If that's the case, then you're putting those people in with manslaughter convicts, the armed robbers, serial sexual offenders—the works.

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All I ask is that you exercise great caution when you look at the quantum, both in terms of jail time and fines that can be imposed for breaches of this kind of legislation. I understand why those high fines are there, because you're talking as well about corporate entities. I understand that. But that's not enough of an answer to justify the apparent disproportionality that lies between these two provisions.

Thank you.

The Chair: Thank you very much. Thank you for that extra information as well.

I have a couple of announcements for the regular members. First of all, you approved a motion yesterday to acquiesce to the minister's request for us to do GMOs and to give your permission to write a letter to that effect.

The clerk has been bothered quite a bit by the media on this issue. So I'm wondering if I have your permission to release a press release that essentially says the same thing—that is:

The committee today agreed to study genetically modified organisms in food and is going to look at these four component parts of that.

I have a copy here if anybody wants to see it.

The Clerk of the Committee: I believe we handed it out.

The Chair: It was in there, was it? Good.

Could I have a motion on it? I can't apparently send a press release without your approval.

Mr. James Lunney: So moved.

(Motion agreed to)

The Chair: You probably have heard already via the grapevine that our request to travel was denied yesterday at the House leaders' meeting. I asked my own House leader, the government House leader, today whether there was anything I could do about it. He asked me when we were planning to leave. I said Sunday night, and he said there's nothing that can be done about it because the decision was made yesterday and they don't meet again until next week. So it looks as if this committee will not be travelling on assisted human reproduction.

Having had a number of hours to think about this today, I'm wondering if we might take one of the meeting dates next week and visit a clinic, if the clerk can set it up. I asked him about that. He tells me we have to have a travel budget to hire a minibus, etc. I'm saying if it's in Ottawa, couldn't we just take taxis and pay for it?

Ms. Judy Sgro (York West, Lib.): There's one very close to here that one of our deputies mentioned.

Mr. Preston Manning: The University of Ottawa.

An hon. member: Mr. Ménard's been there.

The Chair: Then you'd need to agree to dispense with interpretation for that particular visit, because if there's no budget, there's nobody to pay the interpreters. Is that all right? If you all say agreed at once, that will be okay.

Some hon. members: Agreed.

The Chair: Mr. Manning.

Mr. Preston Manning: I know I was late, Madam Chairman, but I wonder if the committee would like to consider, since we can't travel, whether we should go to our House leaders and ask if we could have a take-note debate sometime this fall where we ask our parliamentary colleagues something like, we haven't been able to get all across the country, can you...

The Chair: I have proposed that to a number of people who are not in favour of it at this point. They don't think we're ready. We haven't really debated it even in committee, and so to throw it open to the House, where all kinds of people who haven't thought any of these thoughts would want to have their ten minutes, might be more dangerous than helpful at this point on such a hot and controversial topic.

So I don't think that idea is going to go anywhere, Mr. Manning. I think you tried it in the summer and it didn't go anywhere. I put it forward on your behalf and it was denied.

Mr. Preston Manning: I'll maybe raise it another day here.

The Chair: But I'm wondering, Mr. Manning, if this idea you have might not be translated into one of our committee meetings, where we could have something of a take-note debate among the committee members. At the meeting each member could go through the proposed legislation and some of their own notes about the testimony and make say a five-minute presentation as to what their most serious concerns are and/or what conclusions they have drawn and are quite comfortable with. That way we would at least know among ourselves where we're standing on these issues as we try to move toward some sort of consensus.

Mr. Preston Manning: Yes, certainly that sounds like a good idea.

The Chair: I'm wondering how the other members would feel about that. Are you feeling the need for saying out loud what you've been thinking as you've been receiving all this information?

Mr. Preston Manning: It would be nice at some point for us to have a meeting that's less formal where we can just talk among ourselves and have that kind of discussion.

The Chair: As long as we have witnesses we have to follow the regular procedures.

Mr. Preston Manning: Yes, I realize that, but maybe we could have one among ourselves where we just compare notes.

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The Chair: I'll think of that as a possibility for next week at one of the meetings.

There's also the summary of evidence that you were given. At the last meeting you were given two things: the chapters on surrogacy out of the royal commission report, and the summary of evidence from this fall. And you already have the summary of evidence from last spring. So it seems to me that one meeting next week should be to review the summary of evidence so the researchers and writers know if they're on the right track.

Another meeting would be to visit a clinic, if there's a clinic that is willing to welcome us on such short notice.

The third meeting could be us talking to each other about what we're worried about around these issues, what we've concluded, and what we'd like more testimony on if we're feeling really confused on a topic.

Would that be an acceptable plan for next week?

Dr. Lunney.

Mr. James Lunney: Madam Chair, surely you weren't serious about limiting us to five minutes to express our views on this subject.

An hon. member: Just you.

The Chair: It would just be as a first round, and then we could move into the more to-ing and fro-ing with the conversation of the type Mr. Manning proposed. But everybody would put their views on the table first.

Ms. Judy Sgro: Tomorrow morning? Is the minister coming tomorrow morning?

The Chair: The minister is coming tomorrow morning. It was supposed to be at nine, but I'm now hearing it's going to be 9:15, so could you get here by 9:10? It's Room 253-D Centre Block. The later meeting tomorrow is in Room 269 West Block.

Thank you.

This meeting is now adjourned.