[Recorded by Electronic Apparatus]
Thursday, April 10, 1997
.1540 
[English]
The Chair (Mrs. Bonnie Hickey (St. John's East, Lib.): Okay, we can get started.
Welcome. We'll get started right away. The way we're trying to run this is to have your briefs for five minutes each and try to keep them at five minutes. I'll watch the clock up here and I'll let you know if you go over. We'll start from my left and come across, if that's okay with everyone. Give your name and group or organization that you're representing; we'd appreciate that. After that, we will have questions and answers and for anyone who will be here. Around 5:30, we'll go into a vote. We'll probably have to do what we did last night and we'll split the panel down to two and two; two will leave and two will stay. If that happens, we'll continue the committee; if not, we'll have to disperse and come back.
Would someone move a motion that we have sandwich expenses for yesterday's lunch?
Mrs. Carolyn Parrish (Mississauga West, Lib.): I have to leave at six o'clock today.
The Chair: Can I have a motion for the luncheon?
Mrs. Carolyn Parrish: No, I'm not motioning anything. You guys can't eat if I'm not staying.
The Chair: You wait, last night we had to move a motion -
Mrs. Carolyn Parrish: I'll move a motion for last night.
The Chair: Thank you very much.
Mrs. Carolyn Parrish: You're welcome.
The Chair: We eat first, pay later.
[Translation]
Ms Pauline Picard (Drummond, B.Q.): I am unable to stay, even for the vote, because I have an event in my riding tonight. So, I can only stay until 5:15 p.m.
[English]
The Chair: The housekeeping is done. If you wish to start over here to my left, we can continue. Thank you.
[Translation]
Ms Tamra L. Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Madam Chair.
[English]
I am Tamra Thomson. I am the director of legislation and law reform with the Canadian Bar Association. With me today is Professor Timothy Caulfield of the University of Alberta.
The Canadian Bar Association is a national association representing over 34,000 jurists from across Canada. We welcome the opportunity to appear before this committee today in studying Bill C-47. The submission that we made today was prepared by our national health law section in consultation with the national sections on constitutional and human rights, criminal justice and family law, as well as by the standing committee on equality.
The association's primary objectives include the improvement of the law and the administration of justice. It is in this context that we would like to make our comments today. I am going to ask Professor Caulfield to expand on the substantive points that we would like to make.
Professor Timothy Caulfield (Member, National Health Law Section, Canadian Bar Association): Thank you.
First I would like to thank the Canadian Bar Association and the government for giving me the opportunity to address Bill C-47 and the numerous issues associated with it. I'd also like to thank my co-authors and colleagues, Marie Hirtle and Sonia Le Bris, for their excellent work on the project.
As the committee has undoubtedly heard numerous times, we are in the midst of an exciting medical and scientific era. With the advances that will undoubtedly continue to accompany the moves in genetics and reproductive technologies come serious and complicated issues. As such, the government is to be complimented for attempting to address these complex issues. It is and will continue to be a daunting task.
As one commentator has noted, genetic research and technology represents powerful forces for change. The law, meanwhile, is a mechanism for maintaining stability. When the two forces interact, there can be considerable tension. I think that within Bill C-47, we see this tension expressed numerous times. Indeed, Bill C-47, while outlining many of the fundamental dilemmas associated with the new technology, does so in an awkward and ultimately inappropriate manner. Hence, while we support and encourage the development of regulatory mechanisms, we would respectfully submit that you reconsider the bill while having regard to a number of our recommendations and a number of general principles I would like to put forward.
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First the government needs to justify and explain why criminal prohibitions of this nature are required. This should be done by factoring in a number of considerations:
First is the strong, indeed almost paramount, ethic of individual autonomy. This is particularly so in the area of reproductive decision-making.
Second is the inherent inflexibility of criminal legislation, particularly as it pertains to scientific inquiry.
Third is the lack of consensus on many of the prohibited activities. This is true for a great number of the activities, from the prohibitions on compensation for sperm donors right up to germ line therapy.
Fourth, and perhaps most important, is the broad chill this legislation may have on useful research and therapy.
In addition, the government should explain why a more flexible regulatory scheme would not be sufficient to meet the policy goals of the legislation. This should obviously be done before the introduction of such severe criminal prohibitions.
Lastly, I would like to highlight that numerous specific drafting problems are outlined in our submission and they must also be addressed.
I appreciate that this must be a frustrating process for the committee. However, Canada has the opportunity, and I believe the expertise, to learn from other jurisdictions and to develop an informed, nuanced, and responsive reproductive and genetic technology policy. This is important stuff, so let's do it right.
Thank you very much. I look forward to your questions.
The Chair: Thank you. Dr. Majury.
Professor Diana Majury (Member, Health and Reproductive Issues Working Group, National Association of Women and the Law): I teach in the law department at Carleton University in Ottawa. My colleague, Diana Ginn, teaches in the Faculty of Law at Dalhousie University in Halifax. We're here on behalf of the National Association of Women and the Law, which is a national non-profit organization composed of lawyers, law students, legal academics, and judges who promote women's equality through advocacy, law reform, and research and education.
NAWL has had a long-standing interest and has done a lot of advocacy on issues relating to reproduction and genetic technologies. We are very pleased to have the opportunity to respond to the bill and to the Setting Boundaries document, both of which obviously fall clearly within our mandate of women and the law. We hope great care and full consideration will be given to the impact of the proposed legislation on women's lives and particular attention will be paid to the impact on women who are doubly or triply disadvantaged on the basis of disability, race, sexual orientation, or class.
I'm going to speak briefly to the preamble and the objects of the legislation and concerns we have about the potential for over-criminalizing, or overuse of the criminal law. My colleague Diana will then discuss our specific concerns and make a few comments on the Setting Boundaries document.
About the preamble and the objects clause, clause 3, we generally agree and support the sentiments expressed in the preamble and in clause 3 on the objects, but suggest they need strengthening. The concept of human dignity is extremely important, and its explicit mention in the preamble and in the objects is very positive. However, it's a concept that is quite vague in the context of Canadian law.
On the other hand, we are developing a substantial body of jurisprudence on equality in this country. We would suggest the concept of equality should be the explicit foundation on which this legislation is built and premised. As a result, we would recommend that a statement endorsing equality as the informing principle be added to both the preamble and the clause 3 objects.
The explicit recognition of the potential impact of the legislation on women and children is also very important. However, we do think there are other groups in society upon whom this legislation will also have a very major impact, and we would suggest a reference to those other groups should also be included in the preamble and the objects. We are thinking here particularly of people with disabilities, but also of racialized groups and groups who are socio-economically disadvantaged.
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In terms of the use of the criminal law, we agree with the criminalization of certain of the practices listed in the bill, but we think some of the practices included in the proposed legislation should be left for other forms of regulation. The invocation of the criminal law should be done only with extreme caution and when there are no other feasible alternatives. In this context particular attention must be paid to the impact of criminalization on women's reproductive autonomy.
Generally, the use of the criminal law is not effective in many circumstances as a method of regulation. It is heavy-handed in the extreme. It is inflexible. It is invasive. It creates the danger that many of these practices will go underground. It has huge enforcement problems - we have enforcement problems with the existing criminal law, and of course these will add to those. And criminal law tends to be more harshly used against disadvantaged members of our society; that is, women, racialized groups, and poor people.
Criminalizing new regulatory-type activity is really contrary to the direction criminal law has been taking. More generally, we are thinking about diversion and notions of restorative justice.
Diana will now give you more details as to what we think should be left in and taken out.
Professor Diana Ginn (Member, Health and Reproductive Issues Working Group, National Association of Women and the Law): We're particularly concerned about criminalizing specific activities, such as ascertaining the sex of the fetus, the commercialization of surrogacy or birth contracts, and the selling or buying of gametes, zygotes, and fetuses. We want to stress we do not condone these activities, but we feel there are other and more effective ways of limiting them, particularly through the regulatory licensing system. In other words, not engaging in these activities could be made a precondition of a licence, and engaging in them could lead to a doctor or clinic losing their licence granted by the regulatory body. We would also urge that provincial and territorial governments be encouraged to pass legislation that requires health care professionals to discipline their members should those members take part in these activities.
With regard to surrogacy or birth contracts in particular, we would urge that provincial governments and territories be encouraged to amend their legislation such that surrogacy agreements cannot be enforced against the birth mother and the relinquishing of birth rights by the mother would have to fit within the present adoption scheme.
As I say, we do not condone these practices, but we do not feel that criminalization is the appropriate or effective way of dealing with them.
We would accept the criminalization of the other practices listed in the bill, as we see them as being clearly reprehensible, and we also see less danger there of criminalizing women's reproductive choices.
We would also suggest adding a provision to this legislation to expressly state that any intervention in a woman's pregnancy without her consent is a criminal act. And we finally note that if activities are going to be criminalized in this bill, we would hope that will be reinforced through the regulatory system.
Speaking briefly about that system as set out in the Setting Boundaries document, we agree that many aspects of new reproductive and genetic technologies can be dealt with most appropriately through licensing. However, we would advocate that the principle of autonomy be explicitly added as a guiding principle, as well as the principle of equality. Again, we would like explicit recognition that women's rights to autonomy are not diminished by pregnancy, that the general law and consent to treatment is not abrogated by a pregnancy.
With regard to the principle of protecting the vulnerable, we would agree with the Department of Health on the inclusion of all the groups listed, but we would like to add to that lesbians and gays. We would like to see government through this legislation state and show its commitment to support and accommodate persons with disabilities.
Finally, looking at the composition and operation of the regulatory agency, obviously that will have a huge impact on how it carries out its work. Therefore, we would like to recommend that women and other disadvantaged groups be well represented among both the decision-makers and staff of the proposed agency and that decision-makers and staff have expertise with regard to equality law, feminist principles, and ethical decision-making.
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In closing, I want to say that NAWL is very pleased to have had the opportunity to make representations. We are pleased to see the government moving to introduce legislation in this very important area. However, we would advocate that if the criminal law is to be used, it be used carefully in order to ensure that criminal law sanctions are only used for those for whom it would be the most appropriate method and that there be a strong and explicit commitment to the principle of equality, both in this field and in any legislation dealing with the regulatory agency. And further, we would advocate ensuring that women and other disadvantaged groups have a strong voice in the regulatory process.
Thank you.
The Chair: Thank you very much.
Ms McTeer, go ahead.
Ms Maureen A. McTeer (Individual Presentation): My name is Maureen McTeer. I'm a lawyer who has a master's degree in health law from Dalhousie Health Law Institute, where Tim also studied. My thesis looked at these issues, regulatory frameworks to control technology in the field of human reproduction and human genetics. I have taught a course in this subject at the faculty of law at the University of Calgary and will be teaching the same course in the faculty of law at the University of British Columbia in the fall. I also served for two highly exciting years on the Royal Commission on New Reproductive Technologies.
[Translation]
I will be making my remarks in English, but will be pleased to answer any questions you may have following our presentations.
[English]
In his book Treat Me Right, the British writer Ian Kennedy wrote:
- You cannot put genies back into bottles. You can, however, try to make sure that the genies do
not go around granting any old wish. You can give the genies some rules.
The question then is does Bill C-47 achieve that fine balance of encouraging medical scientific research in this field while protecting human rights? My view is that it does not. I say this for several reasons.
First, Bill C-47 fails to provide a context within which Canadians directly and through Parliament can decide how and for what purposes they want these important medical and scientific technologies and practices to be used. Without this, there can be no defensible way for the law to intervene in the regulation of these technologies and practices.
Secondly, under the guise of protecting human safety and health, this bill would criminalize medical scientific research, criminalize doctors, scientists and lawyers, and subject certain reproductive decision-making and choices women would make to the sanctions of the criminal law once again.
Thirdly, while its stated goal is to ensure the non-commercialization of human life and certain reproductive practices, the bill in fact does the reverse, creating a new category I call reproductive prostitution.
Fourthly, this bill fails to separate the technologies related to reproduction and those related to genetics. This is fatal because reproductive technologies and practices pose threats of a different nature and a different seriousness from those of genetics and therefore require different responses. The former involve mainly questions of management, while the latter require responses to tougher questions to protect the public from harm.
Fifthly, Bill C-47 fails to recognize and take account of the Canadian constitutional reality in the field of health. Its attempt at bringing these issues within exclusive federal jurisdiction under the guise of criminal law denies the provinces their legitimate and necessary constitutional role in the management and control of these technologies and of those who practise them.
How then can we hope to achieve the dual goals of maximizing the benefits of medical scientific research and protecting Canadians from harm? I offer the following recommendations.
First, as its starting point, this bill must create a national body, perhaps similar to the British model, to establish a consensus-building forum and process for the discussion and resolution of these monumental issues. It will need a large mandate and the human and financial resources to ensure that its experts and informed laypersons are on top of these issues every day of the year.
Why would I start here? In large measure, because this debate is only partly about the technologies themselves. Spending our time focusing our legislative response primarily on specific technologies and practices is an exercise in futility. If we need an example, we need only look to the event that triggered the recent flurry of activity within this committee, the successful cloning of an adult cell in the form of our now-famous Dolly, a practice that is not even covered by the bill as it is presently drafted.
.1600
What is needed is not an obsession with the repugnant and the bizarre in these technologies but a framework for their careful assessment, an opportunity to predict their development and use, and a means for Canadians to offer guidance all along the way as to how we can identify what is and what is not acceptable.
In short, this bill must do two things. First, it must provide a publicly funded national body of governments, experts and informed laypersons, with a broad mandate to regulate, research, discuss, educate and offer public-policy options. Secondly, this committee must ensure that this bill identifies the key values and principles to be protected. Some, of course, are obvious: the non-commercialization of human life; the elimination of the norms and the definitions of commerce and of ownership as defined in our property laws when dealing with human persons and human substances; the equality of women; the interests of children to be created by these technologies; the assurance of public safety; and access of all Canadians to medical services. All these will lead us naturally - although I don't pretend that they will lead us without controversy - to a legally defensible limit to the potential and real abuses of scientific and medical activity. These, then, are the parameters within which the national body and Parliament can work.
Giving an example, if we agree that the human body, its parts and its processes are not objects of commerce and cannot be bought and sold nor be the subject of a patent, then we can find that any activity that crosses this line is legally unacceptable.
That would allow us, for instance, to meet the argument of those who say that this is no more than a property issue. Their view is that we own our bodies and should therefore have the right to buy, sell or lease them. In this scenario, buying and trading in humans and their reproductive parts and capacities is an individual choice over which the larger community, as represented by the state, should have no role. If that were so, then anti-slavery laws would prevent even a willing person from selling herself into slavery, or laws banning the selling of babies would fail as an unjustifiable limitation on individual rights.
As requested, I've included a few draft amendments to the bill as it is presently written, and I've submitted these. But I come here today to urge that this bill be re-written and that the points I and others have made not merely be taken into consideration in the drafting of such a new bill and that we not merely have an amended version of the present one. The bill, as it stands, is not only incomplete, but it takes us on a road of criminalization that is neither sensible nor acceptable in a country that prides itself on its scientific achievement and its commitment to individual and human rights.
The Chair: Thank you all very much. I will move right on to Madame Picard to open the questioning.
[Translation]
Ms Pauline Picard: Welcome to the Sub-Committee on Bill C-47. Your presentations were very interesting. I have a question for Ms McTeer.
I felt you raised a number of very positive arguments. At the same time, I'm a little uncomfortable with your position. We are currently studying proposed legislation. I believe some of these provisions are a matter of some urgency, particularly those that deal with cloning and that criminalize the development of human- animal hybrids.
This is an area that's been under discussion for several years now and I think immediate action is required. Since you work in this field, you are well aware that with every passing day, a new or more sophisticated technology comes on stream. We are practically out of our depth as it is, even in the area we are discussing today. So, what action would you suggest the Committee take with respect to Bill C-47?
We can't afford to launch another study that's going to take a year or two. We have to give careful consideration to certain provisions - indeed, on an urgent basis, as far as I'm concerned. What do you think we ought to do?
Ms McTeer: I am not suggesting that there be another report. I think we've already spent enough time and money on reports. I find it rather sad that we are examining these issues now, only two weeks away from an election call. Let's not kid ourselves: this bill will not be passed before the next election.
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So, you have an opportunity to build the foundation for future legislation. If you want to concentrate on this bill alone, there are certain things you can do. You are absolutely right to say that feminist and legal groups across the country have been looking at this issue and are asking the government to respond.
I did not come here to tell you to kill this legislation. However, I am a lawyer and as such, I know there is no point in passing a bill into law if it doesn't achieve anything in the end. Personally, I have no desire to waste anybody's time, but I do think we have to be realistic. If, from day one, this legislation is challenged before the Court of Appeal for two or three years running, it won't be worth much.
On the other hand, you can certainly make amendments to the bill to at least establish a decision-making mechanism. We're not only talking about ending the use of two or three technologies we don't like or various genetic procedures that we don't agree with, because we can't deal with them separately. It's not a matter of saying: this one is good, this one is not so good and, as for this one, well, I don't like it, or my mother doesn't approve of. We have to deal with this in a serious manner. We must have a context in which to respond.
That is why I believe we absolutely need a mechanism like the one in Great Britain. There are other options as well. That mechanism should be broad enough to allow us to say: in this context, we, as a government, have decided that research is unacceptable in the following areas. We can obviously set out a number of restrictions there, but not necessarily within the Criminal Code.
In my comments, I made a number of suggestions for possible amendments. However, it is important to realize that we are not talking only about technologies. Technologies are only tools. The real issue is how we can go about ensuring that our values and principles are protected and respected and how we can provide appropriate protection to the most vulnerable, such as unborn children, and so on.
What will you do tomorrow, when another technology you don't approve of comes along? Are you going to stand up in the House and propose further amendments? Who decides and on what basis? That is what is important.
I am not asking you to throw this bill out and start from scratch, but you must be realistic and realize that what you're doing now is building a foundation.
Ms Pauline Picard: Thank you.
[English]
The Chair: Go ahead.
Prof. Majury: Thank you.
I'm very sympathetic to the concerns and urgency of this issue and the fact that nothing has been done, but I think the illusion of doing something is as dangerous as the fear of doing nothing. It has a tendency to make everybody think we've covered that and solved that problem when in fact if we don't have enforcement and can't make these things work we've done something arguably worse than doing nothing.
I was in Toronto last weekend at a restaurant where people were smoking all around me. The restauranteur said he has to tell people they are breaking the by-law when they smoke, but there is nothing he can do about it. The situation was much worse than it was when at least there was a section where nobody smoked. So when we use extreme measures sometimes we do worse than when we do nothing.
Prof. Caulfield: I'd also like to highlight the point you and Ms McTeer raised that the technology is moving so quickly and new advancements are happening every day. Our friend Dolly the lamb serves as a very good example. Australia and Britain thought they had cutting-edge prohibitions to cloning. In fact those provisions don't cover the type of cloning we witnessed with Dolly the lamb. It therefore served not as an example of cutting edge law, but as an example of why criminal prohibitions are not necessarily the best route or mechanism in an area such as reproductive and genetic technologies.
Thank you.
The Chair: Ms Beaumier.
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Ms Colleen Beaumier (Brampton, Lib.): A number of the physicians who appeared before us really believe we should leave this up to them. They really believe that they should decide what is ethical in the field of medicine.
You keep referring to Dolly. But on the other hand, in the United States there was a cloning of primates. When this was discovered the FBI rushed in, destroyed all the records and patched it up.
These proposals are all-encompassing. Are you telling me that this bill, were it amended, would not be a good starting point? When I listen to all of the issues that you address, many of them are provincial. Do you feel this is even a poor piece of legislation as a building block or as a cornerstone?
Prof. Caulfield: Are you addressing me?
Ms Colleen Beaumier: Anybody.
Prof. Caulfield: I feel it is a poor piece of legislation, and I say that with respect for the committee. This is a very difficult area. Many of the prohibitions are very specific. I think a number of my colleagues have mentioned that the prohibitions don't outline or set principles, they try to address specific issues, and that's almost a worst-case scenario. Ideally, we would have a national policy set up under whatever mechanism. Secondly, we would have regulation. Beneath that we would have criminal prohibition where absolutely necessary and where there is true consensus.
Finding true consensus in areas like genetics and reproductive technologies is extremely difficult. You can go through every single prohibition in the bill and find people in Canada who truly believe this should not be prohibited in any way, including the areas of cloning and germ-line therapy. In fact, germ-line therapy has recently experienced a renaissance. There are people throughout the world who think we are now - or may be in the very near future - in a position where germ-line therapy can provide useful scientific inquiry. I, perhaps, am not one of them, but it does serve as an example of how scientific and social norms change. This bill does not serve as a building block to respond to those types of changes.
As I've said a number of times, I understand the frustration. We've had a useful royal commission, which has produced a good deal of scientific and social data that can be used. I'm not saying that we should go back to square one, but let's respond as well as we can, given the information that we have.
Ms Colleen Beaumier: I would like to hear the others' responses as well.
The Chair: Professor Ginn.
Prof. Ginn: I certainly echo what Timothy Caulfield has said about the importance of having policy and a regulatory approach in place.
I will simply note that you spoke quite accurately of the first piece of legislation as a building block for what would come. Obviously what we have as our first building block is of fundamental importance. It will have so much impact on what edifice is built upon that, although I think we share the concern with all of you that this is an important issue and while we would never advocate foot-dragging simply for the sake of foot-dragging, it is important to be very clear on what can most appropriately be done through criminalization and what should most appropriately be done through licensing and starting to set up that system.
You mentioned at the beginning of your comments that some people, who I gather are within the medical profession, are advocating that regulation of these matters should perhaps be left to that profession. I certainly would not advocate that. These matters are far too important to us as individuals and as a society to allow any particular segment within society to say it can deal with those issues. Yes, there are medical issues involved here, but what is really needed is expertise around ethics and equality and those sorts of things. We can't simply rely on the medical profession.
We do need comprehensive legislation in the area, but because it is so important, let's make sure that the kinds of issues being brought forward today are actually implemented with that legislation.
Ms Colleen Beaumier: Could I also have Ms McTeer's comments?
Ms McTeer: There are so many elements it's always hard to know where to start. At the risk of sounding like a broken record, I really do feel strongly that we need some mechanism within which these can be discussed by a larger number of people, discussed more than simply at the committee stage and more than simply within the medical scientific community.
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One of the problems with this is most Canadians haven't a clue. I have been at this for ten years. Half the time I read the same chapters of scientific magazines ten times trying to figure out what they're talking about, and I feel I have a fairly good grounding in some of these questions.
The advantage of a large mechanism is you can roll in several things at once. You can include research in the mandate. For instance, when ten years were up and the issue in the United Kingdom arose, they needed to decide what to do with non-claimed frozen embryos. This was politically a very difficult question. They had the advantage of going to an independent tribunal with the human fertilization embryology authority and saying ``Could you have people come together and do a policy paper on what we should do with these?'' Then it became a public document. It was criticized publicly and made available to groups.
I don't mean propaganda here. Education of the public is very important. It is a sham to pretend we want the public to be involved if we don't at least give them the tools with which to be informed participants.
I believe you should start with this. You should start with the recognition that these issues are going to get more complicated, not less complicated, and more difficult.
All of us who lived through the abortion discussion know in the end we don't want a repeat of this when we look at reproductive and genetic technologies. We pay a price for not resolving that issue. We would pay a huge price for not resolving reproductive and genetic issues.
So what would I do? I would start with the creation of a body. I wouldn't start it from scratch. I may even look to existing publicly funded bodies and make a mix and match with some of the expertise. This would be useful. I would have a good balance, as the royal commission recommended, between women and men and among some of the other professions.
If we just stick to asking what the most horrendous technologies are that we can imagine, and then try to use the criminal law to ban them, they will keep cropping up all over the place. Also, I don't believe the courts would uphold the use of the criminal law, especially in some of these. Why waste our time in court? It's much more useful to say infertile people need these, and then ask how we arrange to provide the service at the same time as we ensure potential abuse is negated using existing legal tools.
The Chair: Go ahead.
Prof. Majury: I'll try to be quick.
In response to the question of whether it's a building block, I think it isn't a building block because it doesn't have the principles and all the other things we've been talking about. I think it is an immediate attempt to do something because the situation is urgent. If that's the case, then we had better be careful about making what we do small until we have those principles. So we should only proceed where we are very, very clear about the use of criminal law. For the other issues, leave them until we have the principles and until we have those building blocks in place, because I think this bill is not it.
The Chair: Okay. Thank you very much. Madam Picard has another question.
[Translation]
Ms Pauline Picard: Ms McTeer, you referred to the system in Great Britain. You seem to endorse that legislation or model and that method of regulating new technologies. I believe you were a member of the Baird Commission, were you not?
Ms McTeer: Yes, for two years.
Ms Pauline Picard: Did you meet with the people who put that legislation in place in Great Britain?
Ms McTeer: These issues were in fact the subject of my Master's thesis. I looked very closely at the British model. It is not the only one, but there are a number of things I do not agree with. I go back to England every year to bring myself up to date on any amendments to the legislation.
What interests me is that this a mechanism that allows the general public to be involved. One of the problems in this area is that we use our knowledge about these issues to exclude, rather than include, average people. Yet it's essential that the public play a role in deciding these issues.
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As I said earlier in English, I am very concerned that people will be asked to take part in this process without having been given the proper tools. It's all very well to ask them for their input, but that simply doesn't work.
In England, they have a huge mandate, but at least genetics and reproductive technologies are dealt with separately. The reproduction issue is one of management, nothing more. There are no major issues involved, such as whether sperm might be...
Ms Pauline Picard: Are donors to be compensated?
Ms McTeer: ... infected with a virus. We're not talking about AIDS here. These are technical matters that the profession can deal with.
However, the major societal issues confronting us require the involvement not only of elected Members of Parliament, but of experts in the field and people from every walk of life. What I am seeking is some means of achieving that. Otherwise, who is to say that cloning is not valuable?
If a doctor asserts that cloning would mean the eradication of cancer, who is to decide whether that is a good or bad thing? Is it worthwhile limiting human rights in order to ensure that there will be no more cancer? Pre-natal diagnosis raises such issues. It allows us to do before birth what we are not allowed to do afterwards. It is technology that raises these issues.
Ms Pauline Picard: Thank you very much.
[English]
The Chair: I just have one question and it is open to whoever would like to answer it.
In your opinion, should any of the practices under the legislation be a criminal offence? If so, which ones would you suggest?
Prof. Ginn: Yes, there are certain activities listed in the legislation that we would see as being appropriate to criminalize. However, we want very much to reinforce the idea that we wouldn't want to see criminalization as the only method. We would see it, as Timothy Caulfield mentioned a minute ago, sort of as a third part of a three-tier system. I think this was a good way to express it.
If we had the policy and the regulatory authority in place, then it seems that it would be appropriate as a last-stop measure. So if all this doesn't work, then we will also have criminalization there to deal with activities such as cloning. Within cloning we would include: artificial twinning; any combination of animal and human reproductive materials either through fertilization, fusing of zygotes, or cross-transplantation of embryos; harvesting ovum or sperm after death for reproductive purposes, causing fertilization of ovum outside the body for purposes of research; and offering payment for any of those procedures.
We would say it might be appropriate to have the criminal law there if all other steps along the way had not worked to eradicate those activities. However, we think the more effective way of approaching it would be by saying if you want to deal with things in the area of new reproductive and genetic technologies, you have to have a licence. If you have a licence, you cannot do these things or you'll lose the licence. You'll be fined and you'll be disciplined by this profession should you think to carry them out.
The Chair: Thank you.
Is there anyone else on the panel who wishes to comment?
Prof. Caulfield: I think there are a number of procedures that have been covered. Two that come to mind are cloning and germ-line therapy. There seems to be a continual international consensus on those. But again, even in those areas I would like to echo what my colleagues have said. I think it's better if even those criminal prohibitions fall under some type of mechanism, whether it is a licensing mechanism or some other mechanism.
The Chair: Thank you.
Are there any other questions from my colleagues? No?
Well, I'll take this time to say thank you to all of you for being with us today and voicing your opinions. We take all of this very seriously.
Perhaps I'll take a minute and we'll change to our next group, please.
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The Chair: Perhaps we can get started and maybe Linda will be here before the end of the meeting.
My colleagues and I would like to welcome you here today. For those who weren't here for the previous meeting, there will be a five-minute brief by each of you and ten minutes of questions by my colleagues. I'd like you to give us your name and the association or group you represent.
Ms Carole Pressault (Canadian Nurses Association): Thank you. I'm Carole Pressault and I represent the Canadian Nurses Association.
With me I have Lesley Myers, also representing our association. Madam Myers is
[Translation]
professor of nursing at McGill University, where she has been working, teaching, and doing research in the field of women's health for a number of years.
I want to thank the Committee for inviting us to appear. This is an issue of prime importance to us. As the main group of health professionals in Canada and as one composed primarily of women, nurses have a particular interest in sexual and reproductive health.
Nurses are in direct contact with most health care consumers, be it in the hospital, community, or home setting. That is why we think they are in a special position to provide valuable input on health service options and their usefulness to the general population, as well as on the implications of reproductive technologies.
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[English]
Registered nurses have a special responsibility to clients of reproductive technologies. Nurses enable individuals, families and communities to make informed choices regarding reproductive and sexual health matters. Nurses help individuals, particularly women, retain control of the reproductive and sexual decision-making and practices. The nurse's role includes education information, counselling, clinical services, and advocating for the client's access to required services.
The Canadian Nurses Association, or CNA, is the national voice for the nursing profession in Canada. We are a federation of the 11 provincial and territorial nursing associations representing 110,000 members who are all registered nurses. Our mission is to advance nursing in the interests of the public.
We continue to advocate for a health system designed on the principles of primary health care. CNA believes that primary health care is the key to a healthy Canada, and its principles should form the foundation for the health care delivery system. That framework continues to guide CNA in our interventions in the public policy area. Our presentation to the Royal Commission on New Reproductive Technologies in September 1990 underlined the importance of a primary health care approach to address these new challenges.
Last November the CNA board of directors reaffirmed that health promotion and disease prevention strategies to address the known causes of infertility must be a priority, and this approach has guided us in our response to Bill C-47.
While we are pleased that the government has moved forward in setting a legislative and regulatory framework for reproductive technologies, we are concerned that the curative approach overrides preventive health strategies.
In our brief this committee received last January, we made recommendations to amendBill C-47 to ensure that a health promotion framework leads the legislative and regulatory initiatives, and that the best interests of women and children are recognized in the legislation.
I would like to highlight some of our recommendations. We asked that this committee review the illness prevention strategies related to sexual and reproductive health. We called on the government to allocate funds to research on the causes of infertility. We believe that further research needs to be conducted on the effects of reproductive technologies on women and children.
We proposed that the preamble of Bill C-47 be amended to promote the best interests of women affected by reproductive technologies - and you have the text of the preamble we proposed in our brief. We believe the issue of sex identification should be dealt with by the development of clinical guidelines or practice standards.
We also recommended that the regulatory agency develop national counselling guidelines for use with perspective clients of new reproductive technology programs and that counselling be provided by health professionals who are not directly involved with treatment.
Finally, we recommended that the federal government work with provincial and territorial governments to ensure the availability of reproductive technologies, including appropriate pre- and post-treatment counselling, for all Canadians.
We appreciate the opportunity afforded to us this afternoon, Madam Chair, and we know this debate is one that is emotionally, ethically and morally charged. It's a debate about the right to make choices. It's also about the rights of women, children, and families. We look forward to your questions.
The Chair: Thank you. Yes, doctor, go ahead.
Dr. John Hamerton (Member and Past President, Canadian College of Medical Geneticists): My name is Dr. John Hamerton, and I represent the Canadian College of Medical Geneticists. The Canadian College of Medical Geneticists welcomes the opportunity to present its views on Bill C-47, the Human Reproductive and Genetic Technologies Act.
The college was established in 1975 to ensure that high-quality genetic services were available to Canadians. The membership of the college comprises 77 MDs and 79 PhDs who have successfully completed accredited training programs and passed the examinations set by the college or, in the case of MDs, by the college or the Royal College of Physicians and Surgeons, which since 1987 has recognized the specialty of medical genetics.
Seven Canadian universities deliver CCMG-accredited training programs. Programs of service delivery are accredited in 10 Canadian hospitals and medical centres, and we list these.
In general, MD clinical geneticists will be delivering genetic services to patients in the form of diagnosis, counselling and advice. Our PhDs will be acting as laboratory directors of genetic service laboratories. In many cases, if not most, both MDs and PhDs cannot conduct genetic research programs funded by the medical research council or other granting agencies.
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The Royal Commission on New Reproductive Technologies recognized the valuable work carried out in accrediting genetic services by recommending that CCMG accreditation be required as a prerequisite for licensing under a national regulatory framework. The royal commission also specifically rejected the piecemeal approach being taken by the federal government - ``...we reject a piecemeal and incremental response to new reproductive technologies on both conceptual and practical grounds...'' - and recommended the establishment of a national reproductive technologies commission which would have appropriate licensing and regulatory powers. The CCMG considers that the establishment of such a national commission, with regulatory and licensing powers and working with the provinces and existing regulatory and licensing bodies, would be able to establish a framework grounded in clear principles and policy objectives on which future legislation, and in exceptional circumstances criminalization, might be based.
The CCMG continues to support the development of an improved mechanism for regulating NRGTs and is committed to working with the federal government to ensure ethical concerns raised by advances in genetic and reproductive technology are adequately addressed. The CCMG considers the present approach of basing the legislation on criminal sanctions to be premature and wholly inappropriate. As pointed out by the Canadian Medical Association, criminalization is an extreme regulatory option. It encroaches on patient autonomy and the autonomy of physicians and researchers and poses a threat to the integrity of the patient-physician relationship.
That is not to say no dangers and harms are associated with the NRGTs. But there are also benefits, and criminalization as proposed in Bill C-47 may well impede productive and beneficial advantages in medicine and science, to the detriment of future Canadians. The CCMG therefore urges the government to withdraw the proposed legislation pending the development of a comprehensive policy and regulatory structure.
The CCMG endorses the Canadian Medical Association's response to the proposed legislation and supporting documents and agrees with the CMA that the principles guiding the government's proposals must be clarified, that the proposals must be justified and shown to be the least restrictive alternative, and that constraints must be proportional to the harm. We have already pointed out in our detailed comments on the proposed legislation that it is not at all clear that all the actions to be prohibited in the proposed legislation are considered unacceptable to Canadians.
We would also like to emphasize, as pointed out by the CMA, that although the NRTs and genetic technologies may be related in some cases, the emerging genetic technologies are much wider in scope, will affect the lives of more Canadians, and will raise ethical issues of comparable, if not greater, magnitude. With the exception of prenatal genetics - prenatal diagnosis and prenatal screening - genetic and new reproductive technologies will usually be applied in different contexts by different practitioners. Many applications of the new genetic technologies will have nothing at all to do with reproduction but will nonetheless require appropriate regulatory oversight. We therefore believe the new genetic and new reproductive technologies should be treated separately in legislation.
The CCMG recognizes the ethical and moral dilemmas posed by developments in genetics and reproductive technologies but firmly believes Canadians will be better served by a rational discussion and careful formulation of policy and legislative options involving all stakeholders than by ad hoc legislative action which will almost certainly be overtaken by events, is not based on a clear set of principles, will certainly require rapid amendment, and is clearly not in the interests of the health and safety of many Canadians.
As an example of the rapid progress in these fields, a report in The Lancet of March 1, 1977, of the permanent correction of the cystic fibrosis phenotype in mice by in utero gene therapy holds out the hope for many Canadian couples at risk for this serious common genetic disease. Transference of this technique to humans will require research, experimentation, and clinical trials. Canada has been one of the leaders in cystic fibrosis research, and indeed the identity of the gene and its mode of action were first reported by a Canadian group. The carrying out of research into CF therapy by in utero gene transfer might well be banned in Canada under this legislation. Is this really what Canadians would wish?
Much confusion and a great deal of emotional rhetoric have been generated by the recent publication in the journal Nature of the first true mammalian clone. The technological breakthrough, namely the reprogramming of a somatic cell by the maternal cytoplasm of the ovum, has immense scientific implications in the areas of aging, cancer research, the production of beneficial human proteins in animals, and agriculture in the production of elite strains of domestic animals.
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The subsequent report of the production of genetically identical monkeys, although using a different technique, brings the image of human clones, so beloved by our most sensational media, closer to reality. There is no doubt that cloning of human beings may become theoretically feasible in the next few years. However, the cloning of a human being remains as far away in practice in Canada as it has ever been. As the journal The Lancet pointed out in a recent editorial, there is no medical or scientifically justifiable reason for any such attempt. Laws exist prohibiting cloning of human beings in several western countries, most of which also have some form of regulatory commission where these issues can be discussed. The Lancet went on to comment that ``the only way to reinforce an international prohibition of human cloning is to stop any research headed in that direction''.
The recent draft document by the tri-council working group outlining a code of conduct for research involving humans states in article 16.10 that
- Ectogenesis, cloning of human beings, formation of animal/human hybrids, or the transfer of
zygotes/embryos between humans and other species are unacceptable.
Paragraph 4.(1)(a) of the proposed legislation would seem effectively to ban human cloning, but it would also make a criminal offence of embryo splitting to form identical twins, a procedure which might be of benefit to some infertile women and which is little different from the natural splitting of a zygote to form identical twins. We see no reason why this procedure should be prohibited, let alone made a criminal offence.
In conclusion, the CCMG recommends to the committee the withdrawal of this legislation by the Government of Canada and urges the government, in consultation with the provinces and existing licensing and professional organizations, to proceed with legislation to establish a new reproductive and genetic technologies commission, such as that proposed by the royal commission, to allow for the discussion, regulation, and licensing of these complex issues in a rational, effective manner and in the best interests of future generations of Canadians.
The Chair: Thank you very much, Doctor.
Dr. Lin Tan, please continue.
Dr. Seang Lin Tan (Association of Professors of Obstetrics and Gynaecology of Canada): Thank you, Madam Chair and honourable members of the Standing Committee on Health. I wish first to thank you for the privilege of being invited to appear before you today.
I'm professor and chairman of the Department of Obstetrics and Gynecology at McGill University. Before coming to Canada I directed one of the largest infertility and IVF programs in Great Britain, together with Professor Robert Edwards, who was the man who invented in vitro fertilization.
I've been asked to represent the Association of Professors of Obstetrics and Gynaecology of Canada, which is the official organization comprising all sixteen medical schools in the country. APOG supports the development of national standards for new reproductive and genetic technologies. We in fact support a number of the prohibitions contained in Bill C-47, such as those on ectogenesis, creation of animal-human hybrids, transfer of embryos between species, use of embryos without consent of the donor, and research on embryos after fourteen days. However, we are deeply concerned that there are major problems with the bill as it is currently worded.
First, the tone of this bill is entirely negative. If this is the prelude to the proposed regulatory agency, we are concerned that access to and support for ART services in this country will be greatly compromised. It is important for you to know that only 5% of infertile Canadians have access to IVF today, a figure that is far lower than for comparable countries in the developed world and a figure that is far lower than the 25% of infertile patients who would benefit from such therapy. This is partly because medicare does not cover assisted reproductive technologies in Canada.
The tone of this bill is likely to exacerbate this situation. The government should be investing to help Canadians have the families they want instead of imposing measures which, as currently worded, will serve only to reduce access, increase the cost of treatment, and discourage therapy.
Second, although a long consultation process has been undertaken in Canada through the royal commission, it is important to note that the bill in its current proposals goes far beyond what the commission itself recommended. The commission agreed that sperm and egg donors should be compensated for expenses and that embryos could be generated for research. Bill C-47 seeks to prohibit these two practices, which are permitted in every other country in the world.
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Third, the bill talks about protecting women, and this is a good gesture. However, it is ironic that some of the provisions of the bill will in fact make it less safe for women to have treatment. The bill will prevent research on in vitro maturation of oocytes and egg freezing, both of which are important for women. It will also make it more difficult to train embryologists to perform ICSI, which is a procedure that has recently been introduced and which has revolutionized the treatment of male infertility.
I would like to turn to specific parts of the bill and to suggest some modifications for your eminent consideration. One, we recommend that the preamble reflect the contributions NRGTs have made to infertile patients and scientific knowledge. We hope the federal government would follow the advice of the royal commission and the practice in other countries and urge provincial governments to cover ARTs within medicare. If this is deemed to be economically not feasible, it should at least urge insurance companies to cover infertility treatment, including ARTs, as they do in many states in the U.S.
Secondly, with reference to paragraph 4(1)(b), fertilization of a human egg by sperm of a different species or vice-versa to produce a zygote capable of differentiation cannot biologically occur because of the incompatible DNA. However, many infertility centres offer what is called a hamster egg penetration test, which is a test used to evaluate the fertilizing ability of human sperm. We recommend that diagnostic tests of this nature be allowed to continue and that this clause be amended by adding the following phrase at the end: ``except for diagnostic tests for infertility, and any resulting zygote should not be implanted''.
Paragraph 4(1)(e) would essentially prevent gene therapy. At present we do not yet know what diseases may be cured by such treatment in future, and we should not close off such a possibility, which may be of tremendous benefit to us. Gene therapy should be carefully regulated, but it should not be banned. We recommend this paragraph therefore be deleted from the bill.
Regarding paragraphs 4(1)(f) and (g), human embryo research is critical to promote advances in the treatment of infertility, to increase our knowledge about the causes of congenital diseases and miscarriages, and to find ways of detecting genetic or chromosomal abnormalities in embryos. Because of the obvious scarcity of human eggs, we should allow research using eggs retrieved from cadavers or aborted fetuses. Research with eggs would be subject to controls and only permitted if informed written consent specifically for that particular purpose had been obtained from the woman in question. We recommend therefore that these paragraphs, which are largely similar, be removed from the bill.
Regarding paragraphs 4(1)(h) and (i), if these paragraphs are interpreted literally, it means a woman cannot have an ultrasound scan in order to tell the sex of her baby unless it is related to the baby's health. Since the intention of this bill is clearly to prevent termination of pregnancies on the basis of sex, this should be clearly stated in the bill. We therefore recommend these paragraphs be modified such that procedures done for sex determination with the intention of terminating the pregnancy on the basis of sex and without a valid medical reason would be prohibited.
With regard to paragraph 4(1)(k), if this paragraph of the bill had existed 20 years ago, there would be no such thing as IVF or ICSI today.
The Chair: I'd ask that you please rap up, because we've gone way over your time.
Dr. Lin Tan: Okay. The concern that women may be pressured to undergo unnecessary ovulation induction has been examined by the royal commission and found not to be based on any evidence. We therefore recommend this paragraph be deleted from the bill.
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Subclause 6(2) prohibits reimbursement of expenses by sperm and egg donors. We feel that this is again something that is not done in any country in the world, and this should be allowed. Therefore, we recommend that this section should be deleted.
Finally, we say that it is important that some of these sections of the bill be changed. Some types of research that will tremendously benefit women can only be done by the fertilization of an ovum outside the human body for purposes of research, which I'll be happy to elaborate on during question time.
I would therefore finally conclude, because of the limits on time, that today we stand at the crossroads of infertility treatment in Canada. The provision of care to the 10% or 15% of Canadians who have difficulty conceiving is poor in this country compared to most other developed countries. This bill will make it worse.
Bill C-47, as it is currently worded, does not enhance health. It reduces access to treatment, it increases cost of treatment, and it impedes the very research that would make treatment safer for women. The aspirations and dreams of thousands of infertile Canadians rest on your decision. We strongly urge you not to pass the bill as it stands.
I thank you once again for allowing me to speak to you today.
The Chair: Thank you, Dr. Tan.
Linda, would you begin your presentation, please.
Dr. Linda Surh (Geneticist, Member of the Medical Bio-Ethic Committee, Royal College of Physicians and Surgeons of Canada): I should introduce myself to the committee. I'mDr. Linda Surh.
I understand this is an information-gathering discussion panel to ensure a well-rounded diversity of perspectives, as so reflects our Canadian context. Given the time constraint, I would first ask you if I could please present to you the perspectives I bring today and then two of the most major problems with this Bill C-47.
I present today my official role, which brought my opportunity to speak here, and that is as a representative from the Royal College of Physicians and Surgeons of Canada. This is a voluntary professional organization comprising 30,000 medical specialists across Canada, through which standards of training and education of Canadian specialists are established.
I also bring my professional role as a practising physician here in Ottawa. I actually run a provincial service laboratory in DNA diagnostics that is directly supported by the Ontario Ministry of Health. Thus, I actually use the new genetic technologies to provide real patient medical services.
I also bring my 15 years experience as an MD and 10 years experience as a PhD who bridges the gap between the bedside of medicine and the lab bench of basic science.
Finally, I bring my personal role as a woman and a visible minority.
I'd like to go on in the next few minutes to focus only on the two major deficits that will have the most alarming and disturbing long-term effects on both human health and the research that improves that health. Therefore I hope we do not forget the minor flaws that, when added together, in themselves would show not only the gross deficiencies of Bill C-47 but also highlight the very low likelihood that responsible implementation of this bill could occur even if it were to be passed.
Regarding major flaw number one, the differences between reproductive and genetic technology are substantial, both in their ultimate medical goals and the methods to obtain those goals. Putting these two under the same umbrella of new technology is like saying that the Bloc and the Reform parties are the same as the ``opposition''. Let me emphasize that the new genetic technologies would not only affect reproduction but are even now affecting every other branch of medicine, from the most prevalent diseases in Canada, like cancer, heart disease and diabetes, but also very different applications, as we've heard from the previous speakers, such as agriculture, animal husbandry and the drug industry. Does the government expect to criminalize these activities, to which this bill would open such a door?
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That leads to flaw number two, the issue of criminalization, which would mean setting up an entirely new structure to inspect, enforce, and follow up that enforcement. Such a new structure leads to the very - and pardon my phraseology here - fascist dogma we have so recently witnessed in the 1940s of this century, and the many inquisitions that have preceded in history.
Let us not forget that surgery on the human body was at one time considered an invasion of the so-called ``human dignity'' referred to in Bill C-47. If we were to take the same logic used in this bill and apply it to the times and beliefs of that not-so-distant period in medicine, the simple and life-saving surgical removal of the appendix would be a criminal act.
Criminalizing payment for sperm is likely to drive the system underground, increasing the risk for transmissible diseases like AIDS and the other things that afflict us today, as well as loss of quality insurance and control, especially regarding inbreeding and so on.
History has shown that even deep-seated ethics and beliefs change as knowledge advances. Currently, such knowledge is changing at a rate more rapid than we could ever have anticipated before. For example, today's prenatal diagnosis for genetic disease leaves only the following options: (1) choose to have an affected child; (2) choose not to have an affected child; or (3) choose never to have children.
Right now there is no germ-line research in Canada. But do we or even the Canadian public want to close that option of germ-line therapy, if in the future a gene could actually be fixed for a severe medical disorder?
This is not to say that fear of the unknown or awareness of potential abuses is not important. It is very important. We need to confront and actively deal with these issues in a morally responsible and informed manner. However, and again pardon my phraseology, Canadians are wise. We don't make ill-considered and frivolous use of technologies. Leave the many their freedom, and don't restrict their legitimate needs for the rare abuses of the few.
Past and recent history has already shown that the route of legislations, and even more so criminalization, are specific to only one point of time, and rarely only a small narrow set of facts or events.
A viable, already-existing alternative is to: (1) support and strengthen current guidelines, such as in the Medical Research Council tri-council ethics guidelines for research and for applications to humans; (2) move to provide this body the resources to monitor research activities. At present we have a good ethics review process, but there are little financial or human resources for the important ongoing role of monitoring such activities.
In closing, I'd like to thank you for this opportunity for the Royal College of Physicians and Surgeons. I hope that the proposed Bill C-47 actually ends at this stage, having accomplished its most meaningful benefit, which was to bring its issues on reproductive technologies and the issues of genetics to the Canadian public, and to people such as you, our decision-makers on policy. Thank you very much.
The Chair: Thank you.
Thank you all very much for your briefs. Before I pass the questioning on, this time I'm going to ask the first question, if it's okay with Madame.
[Translation]
Ms Pauline Picard: I have no questions.
[English]
The Chair: This can be answered by whomever wishes to respond for me, please. It has been recommended that genetics and the new reproductive technology should be treated separately. Can this distinction be made, and in what practices in the bill can we make that distinction? Can we separate it?
Dr. Hamerton: I think the Canadian college's position is that genetics and new reproductive technologies - except in the area of prenatal genetics, prenatal diagnosis and prenatal screening - are separate issues. Genetics is much wider than the new reproductive technologies; will affect in terms of the genetic information that is available on individuals as the Human Genome Project comes to fruition; will affect many aspects of our lives, including such things as insurance, job security and so on.
So yes, we feel they should be dealt with separately in legislation, but they could be handled by a single commission dealing with both aspects, and as somebody pointed out earlier, in one case management and the other case review and discussion and so on.
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The Chair: Thank you. Does anyone else wish to respond?
Dr. Lin Tan: Yes. I support the view that it is possible to separate the two. I think that a major flaw of this bill, if we can put it bluntly, is that it seeks to encompass certain activities we all universally abhor - that is ectogenesis, creation of animal-human hybrids, and so on - with practices that have gone on in Canada for many years, and which are going on throughout the world everywhere else, and by tarring all these practices with the same brush, appearing to apply the same criminal sanctions and the same penalties on them.
I think in the very first place this goes against one of the principles of criminal justice, and that is the sanctions applied must be proportionate to the seriousness of the offence, rather than to criminalize everything and say that it's all the same, when clearly it is not.
The Chair: Thank you very much.
Madame Picard, do you have any questions?
Mrs. Pauline Picard: No.
The Chair: Mrs. Parrish?
Mrs. Carolyn Parrish: I have a couple of questions and some comments.
First of all, I appreciate the Canadian Nurses Association's comments on putting a little bit more energy into infertility education. I think that's really essential. And some of the energy currently going into the things we're banning - maybe we can redirect it.
Your comment on counselling: I at first wouldn't have believed that there isn't a lot of counselling done with people like this until we had groups come before us who said that it's a medical procedure - boom, boom, boom and you're out of here. They're not getting a lot of counselling, and we've been hearing that. Thank you very much for bringing those two perspectives.
I wasn't clear on your comment on sexual identification and sexual selection. Could you clarify that for me?
Ms Lesley Myers (Canadian Nurses Association): Okay. I think it is one point on which we agree with our colleagues, that it is a very difficult area to criminalize, and probably inappropriate to do so. Most Canadian women have at least one or two ultrasounds during their pregnancies now, although this is not necessarily the recommendation of all medical bodies. It's very easy for a woman to get an early ultrasound through her obstetrician without informing the doctor that she may be intending to have an abortion if the child is one gender or the other, and to go elsewhere and seek an abortion.
It's clearly impossible to regulate this. Our approach would be much more along the lines of working again from evidence-based practice that ultrasounds not be done if there is no medical indication for the ultrasound, and that wanting to know the sex of a child clearly is not a medical indication even though it might be a very deep desire on the part of some couples or women.
There was a report recently from a group at UBC looking at the overuse of ultrasound in Canada. They found it to be quite high, and that again many ultrasounds are done for no medical reason.
We would advocate that a regulatory agency look at the question of the routine use of ultrasound and come up with tighter protocols for medical indications for ultrasound use. This would both lower costs - we could redirect some of that money.... I would agree with Dr. Tan about the need to make proven, effective infertility treatments available to all Canadian women and couples. So we could lower costs, redirect some of that money, and at the same time go some way towards dealing with the possibility of people using ultrasound for sex selection in terms of having an abortion for that reason alone.
Mrs. Carolyn Parrish: It's interesting, and it has nothing to do with the bill, but very coincidentally I heard Great Britain has banned ultrasounds except in cases of emergencies, as it increases the chances of hyperactivity in the babies. I watched a whole program on it. And I had two ultrasounds with one of my children and she was hyperactive. So of course that proves the point, doesn't it?
Ms Myers: It is very hard to make correlations like that.
Mrs. Carolyn Parrish: Yes, I know, but apparently they've done extensive studies. The incidence of hyperactivity seems to be going up in Canada as well, and we love using medical technology here.
Ms Myers: In the proposals I've seen from medical bodies themselves, the list of what are medical indications is quite broad. Many women would still have one ultrasound during their pregnancy, but we wouldn't have the very high rates of women having one or more ultrasounds, as now.
Mrs. Carolyn Parrish: Okay.
Dr. Hamerton, you and several others have really concentrated on criminalization as being a big problem. One of the arguments you give is that none of us would do this. In other words, why make it a criminal act if in fact none of us will do this? I could give you the alternate argument, that if you're never going to do it, then the criminal penalties will never come into play. In any type of legislation of this type when you're dealing with people....
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I'm a great admirer of scientific minds. I think they are like Olympic athletes. They go into scientific research and they want to be one step better than the next guy. And sometimes in the heat of a race you are going to go one step too far. As you say, sometimes these criminalizations are not there for 99% of the people, and those who do step over the line aren't doing it for horrible reasons. They don't want to clone another Dolly or whatever.
I'm just concerned that this criminalization seems to be very offensive to you. Could you elaborate on that?
Dr. Hamerton: One of the points made earlier by one of the members of the committee was that urgency is associated with this at the moment; we need to do something. I'm not sure there is this urgency that we need to do something. We had the royal commission report four years ago and we are now seeing a bill criminalizing some of these activities.
In my view the urgency is not there, because we are a long way from doing some of these things. From a scientific point of view we are far away from that. The efficiency of the cloning process used to produce Dolly was very low. I think it was one animal from 277 fertilizations. Out of the whole set of experiments it was three or four animals out of 800. So we are a long way away from it. At this point it's not even certain it can be done in man.
Mrs. Carolyn Parrish: I would like to interrupt for a second. Everybody is referring to Dolly and talking about urgency. In fact this government and the government before it have been working on this for quite some time.
Dr. Hamerton: Right.
Mrs. Carolyn Parrish: This is a framework. It's an amalgam, if you will, of scientific thought. We had people here the other day who were from associations of adults and persons with disabilities. We've had scientists and religious and community leaders. I choose to believe this is the end of a very long process which has had varied input, some of which you won't agree with. Some of the people who were here yesterday would probably throw you out that window.
As legislators, we have to come up with a framework that everybody can fit into somewhat. I think when you add the idea of criminalizing it what you are saying is it's very serious to this government and to this country. I feel like Solomon while we are doing this.
That's a bad choice of words. We're not chopping up any babies, but....
Dr. Hamerton: As a speaker said in the previous debate, we recognize the difficulties the committee is in.
Mrs. Carolyn Parrish: I would like to ask you a question. You talked about cystic fibrosis. We had a person here yesterday who was on the royal commission. I assume she was a medical doctor. She told us you can take lung tissue and do the same sort of experimentation as you are currently doing on zygotes. Is that possible, in your opinion?
Dr. Hamerton: Possibly, yes; but the cystic fibrosis ones were animal experiments. Let me correct that. They were animal experiments using what is called ``knockout mice'', where the normal gene had been knocked out and the human cystic fibrosis gene had been inserted into that mouse. They were able to correct this by in utero gene therapy. Of course that could not be done in lung tissue. That is something which would at least be questionable under this bill, I think: whether such experiments could be done in Canada, leading to that type of treatment.
You raised the question of criminalization in this bill. In our view the bill is premature in the sense that what we need first is a regulatory commission so we can have the sorts of discussion that have been developed. Then, if absolutely necessary, certain practices might need to be criminalized. But the regulatory commission would have licensing powers, it would have regulatory powers, it would have power of sanction, and so on. Those work very well in Canada.
As Dr. Surh said, our ethics reviews work very effectively in medical schools in Canada. The problem is -
Mrs. Carolyn Parrish: To use a very bad analogy, it's a chicken-and-egg argument. I think what we have here is legislation that's going to go before the House of Commons and it's going to be either voted down or passed. Once it's passed - and it will be; it will go to the House before the election and I'm sure it will be passed, with modifications thanks to these hearings - then the regulations will be built around it. If it doesn't pass, what would be the point of building up an elaborate body of regulations when in fact the House of Commons has decided in their wisdom not to pass the legislation?
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Dr. Hamerton: But if this is a building block, as has also been said, in the beginnings of a process, then like building a house on foundations, if the foundations are flawed then the house is going to collapse. I suspect this bill will require amendment very, very quickly simply because of the speed with which scientific research is proceeding at the present time.
Mrs. Carolyn Parrish: Can I ask Dr. Tan, Madam Chair, about the hamster test -
The Chair: Yes?
Ms Myers: Could I just comment on that also? I guess I have a different perspective on this because I followed the commission process and I've read the report and read the critiques of the report. To me, this is the foundation for this legislation and for the regulatory agency. I don't know where that is in the process, but I see it as very, very important.
Mrs. Carolyn Parrish: So do we.
Ms Myers: I would disagree that the regulatory agency is going to be built on the foundation of this law. I think both of them are built on the foundation of the commission. As you know, there was a voluntary moratorium on what were originally nine practices found by the commission to be abhorrent to a cross-section of Canadians, both professionals and non-professionals. I feel we've already had that consultation. We've had those in-depth discussions. The range of people the commission talked to is truly impressive.
I think it's erroneous to say the regulatory agency is built on the foundation of this law. I see this law as one small part coming out of the commission. The regulatory agency may in fact be the most important aspect because, as we hope is true, although I'm not quite as optimistic as my colleagues about what may or may not be done, very few people, if any, will ever attempt some of these.
I have just a further comment linked to this. I think the diversity of opinions, even on this panel, shows why it is important to have a multi-disciplinary and a regulatory agency that also includes non-professionals. For instance, one of my personal lines - I forget who went over it - and one thing I find as a professional abhorrent to Canadians is the use of embryonic or genetic tissue from cadavers or aborted fetuses.
Mrs. Carolyn Parrish: I saw you flinch. Don't ever play poker.
Ms Myers: That's personal. It's not necessarily the position of the CNA. As we all know, there are a variety of opinions on these issues. It is very difficult to come up with a suitable compromise, although I don't even want to call it a compromise because I don't think compromise is the right word to use when you're talking about these issues.
Mrs. Carolyn Parrish: Actually, what ran through my head -
Ms Myers: I just want to say that to me the commission is a foundation. It was well done, and I see this legislation coming out of that. We certainly think there need to be modifications to at least three sections of this, as you'll see in our brief. We urge that the regulatory agency be -
Mrs. Carolyn Parrish: I don't want to leave an incorrect impression. I guess what I'm saying is the legislation is before us. We're inviting opinions. We're modifying it. When it goes to the House, if it doesn't pass we go back to the drawing board, and that's usually how it works around here.
The question I had to ask Dr. Tan is this. You talked about the hamster test, and I find this interesting. You connected it to the 14 days. I don't understand how this test works. Do you need to keep this tissue alive for 14 days for an analysis?
Dr. Lin Tan: No. If I gave you the impression it was connected to the 14 days, I was mistaken. It was not collected for 14 days.
Mrs. Carolyn Parrish: Okay, that's why I asked.
Dr. Lin Tan: I would like to expand on this question of the difference between a regulation and criminalization. The government can say all centres offering such treatment have to be accredited by a regulatory agency. Such a regulatory agency could be built with lay representation, a broad spectrum of representation around organizations that already exist, including the MRC, the royal colleges, SOGC, and so on.
What is the difference? The difference is this. When you regulate, you can change the regulations easily when there is new knowledge. When you criminalize, you require a major act of Parliament to change the law.
Look, for example, at the difference when you talk about research. If you were to ban research by creating embryo research, you would stop a few practices that I think are very important to women. At the moment, for example, we can freeze embryos but we cannot freeze eggs. If we can freeze eggs, it means a young woman who has cancer and who is about to undergo chemotherapy can preserve her eggs for her future fertility. But in order to freeze eggs, we have to be able to freeze them, thaw the eggs, fertilize the eggs and see whether the embryos will develop normally before this can be used clinically. Therefore, if you cannot fertilize an egg by sperm for the purpose of research, it means you cannot do research on egg freezing any more.
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Similarly, at the moment, to do IVF we have to give a woman drugs to stimulate her ovaries. If we can find a way of taking eggs that are at an earlier stage of development at the early part of the menstrual cycle and then maturing them in a laboratory, what we call in vitro maturation of oocytes, it means a woman can have IVF without taking drugs. This would reduce costs and reduce the problems of side effects of drugs and so on, which surely must be an advance for women. Again, in order to do in vitro maturation of oocytes, it means we have to fertilize the eggs with the sperm to see whether the embryos develop normally before we use it for clinical trials. Again, this law would ban in vitro maturation of oocytes research in this country, which surely is not the purpose when the whole purpose of the bill is to protect women.
Thirdly, at the moment, as I mentioned, a major treatment is ICSI. With ICSI, it means a single sperm is introduced into the egg and it fertilizes, and it is used very successfully for men who have very low sperm counts. This treatment is widely used in Canada now. However, it requires a lot of skill by the technician to do this. How does that person learn this skill? In practice, what we do is we ask patients who are undergoing IVF for themselves. The first day after they undergo IVF, if an egg has not fertilized using conventional IVF that egg is normally thrown away. With the patient's permission, the technician then performs an ICSI procedure and sees whether fertilization can be achieved. Only when he or she demonstrates a certain competence in the procedure is he or she then allowed to treat patients. Again, if you ban the fertilization of an egg by a sperm for research, it means embryologists cannot be trained safely for ICSI any more.
Mrs. Carolyn Parrish: Can I interrupt you for a second? We've been doing this for quite some time, so I understand the process. Why can't your student practise on animal tissue?
Dr. Lin Tan: It's simply because animal tissue is always the first step they learn it on, but at some stage they have to move on to human tissue before they actually undergo treatment, simply because there is a technical difference between injecting it into a mouse egg versus injecting it into a human egg.
Mrs. Carolyn Parrish: Thank you very much. You must be really fun at a cocktail party.
Some hon. members: Oh, oh!
The Chair: Ms Beaumier, do you have a question, or is that it?
Ms Colleen Beaumier: No, actually I did have a comment.
We've had a lot of groups before us, and I certainly appreciate the reports put before us from the Nurses Association and from Dr. Tan. When you come before us and say throw the bill out, you know that's not going to happen. And I really appreciate the material to look at so we can perhaps look at some modifications in dealing with this bill.
The Chair: Thank you, Ms Beaumier.
On behalf of my colleagues, I'd like to thank you all for being here today. Thank you for taking the time to do your briefs and to pass them along to us. I'm sure they'll come in handy when we sit down to do our final draft. Thank you very much.
Our next meeting is Wednesday at 3:30 p.m.
The meeting is adjourned.