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“Baby by Stealth” covers only one side of complex argument

March 23, 2010 6 comments

In her front-page National Post article, “Baby by Stealth”, journalist Kathyrn Blaze Carlson, suggests that a Canadian statute is causing Canadians to break the law. Quoting some professionals whose income is derived at least in part from assisted human reproduction, Carlson writes that the Assisted Human Reproduction Act is “forcing a slew of prospective parents underground”.

The article suggests that Parliament is wrong to treat people who just want to be a mom or a dad like criminals. But the one-sided argument hardly helps advance debate on this complex issue.

Regulating human reproduction in Canada has not been easy, especially for politicians who face re–election by citizens who can disagree fundamentally on reproductive matters.

Not surprisingly, every Canadian effort at regulation has been controversial. The Ontario Law Reform Commission bravely tackled the matter in 1982. But that all-male body recommended that “surrogacy” deals be enforced, even by taking a breast-feeding infant from its mother.

Canadian women reacted by lobbying for the federal Royal Commission on New Reproductive Technologies. It reported in 1993, after spending $28 million hearing from individuals and groups throughout the country and commissioning volumes of original academic research.

Despite the cost and the effort, it would be eleven years before Canada’s Parliament enacted the Assisted Human Reproduction Act.

And then in June 2008, the Quebec Court of Appeal decided that Parliament acted unconstitutionally regarding many statutory provisions because they concerned health – a matter within provincial jurisdiction. The Federal Government appealed to the Supreme Court, whose decision we await.

Meanwhile, the Federal Government has, since January 2009, had a duty to review the existing statute. It is unclear whether Prime Minister Harper’s government has even commenced the statutorily-required task.

This history can perhaps unite all Canadians in agreement on two points: it is difficult to pass legislation in a federation about matters as sensitive as whether people can buy semen, ova and embryos; and some Canadians are bound to feel badly treated by everyone’s best efforts to regulate assisted human reproduction.

So maybe we should not ask, “How can we make everyone happy?” but rather, “Whom should we worry about the most?”  Parliament admirably answered this question in 2004 when it recognized and declared that, “the health and well-being of children born through the application of assisted human reproductive technologies must be given priority in all decisions respecting their use”.

So what are the health and well-being interests of the children? Some reproductive technology providers say, “The children should be grateful to be alive.” In other words, they believe that the children’s interests are in being born and the consequences of the methods are irrelevant.

But many disagree. Some people conceived by third party gametes say that not knowing half of their identity creates a significant loss. Many claim that not only must they grieve this loss; they must defend the legitimacy of their grief – a double blow.

Some donor-conceived people compare themselves to adoptees whose loss is recognized. Adoptees are encouraged to seek their birth parents and are aided by government registries in their search. By contrast, parents who use third party gametes need not tell children the truth about their conceptions. Nor is anyone who knows the identity of the genetic parent required to disclose this fact to the child, even when the child becomes an adult.

Whilst the donor-conceived and adoptees arguably suffer similar losses in being separated from their genetic parents, adoptees can find resolution of the loss in the knowledge that the decision to surrender them for adoption was arrived at with great emotional difficulty, as a last resort. The donor-conceived, however, can find it much harder to find resolution of this deliberate separation of genetic and social parenting.

The donor-conceived can believe that their genetic parents were only interested in money, and gave no real thought to the children they were helping to create. They can be devastated by the full import of what their genetic parents did – that their parents were motivated by the money. A condition of the sale can be the promise of anonymity, but the donor-conceived can be severely affected by their inability to meet their genetic parents or even know their names.

Curiously, the National Post article seems to lament, “We see donors who originally thought they didn’t want to be very involved, but who then want increased involvement after the child is born.” How is parental involvement with his or her child a bad thing, even if it is inconvenient for the rearing parents? Children are usually glad to know and to develop a relationship with their genetic parents.

Parliament’s decision to ban the sale of semen, ova and embryos is bound not to make everyone happy. But insofar as it attempted to protect human reproduction from becoming a commercial enterprise, its motivation is honourable.

In the reproductive technology business, some people claim that adults have a right to have a child no matter what the cost. Parliament and Canadian legislatures have a moral duty to investigate the costs to prospective children and to take steps to reduce them.

When regulating assisted human reproduction, the health and well-being of children and prospective children must be given priority, even if commercial or other adult interests might incidentally be thwarted.

Dr. Juliet Guichon is Senior Associate in the Office of Medical Bioethics and a faculty member of the Department of Community Health Sciences in the University of Calgary Faculty of Medicine.