Editorial

The Supreme Court of Canada ruled in December 2010 that many aspects of the 2004 federal Assisted Human Reproduction Act (AHRA) improperly encroached on provincial jurisdiction. This decision, which the Court described as touching “among the most important moral issues faced by this generation . . . the artificial creation of human life,” should have reopened the debate in Canada about what legal regimes should govern the use of reproductive technologies. But it did not. Provincial governments have been reluctant to step in and fill the gaps on controversial assisted human reproduction issues such as gamete registries, parentage, and professional standards. Meanwhile, the Assisted Human Reproduction Canada agency, which was to advise the government on policy and regulatory frameworks, was eliminated in the 2012 federal budget. Even in areas where the federal government retains power, such as the use of regulations to support compliance with the prohibition on commercial surrogacy, no regulations have been passed. In the absence of regulation, there is some evidence that grey markets in human eggs, sperm, and surrogacy flourish and, as the articles in this special edition demonstrate, at least some women are poorly served by the current regime.

Feminists made influential contributions to the decade-long debate leading to the passage of the AHRA. The AHRA’s opening declaration of principles, which traces its origins to feminist advocacy, provides 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;

• • the benefits of assisted human reproductive technologies and related research for individuals, for families, and for society in general can be most effectively secured by taking appropriate measures for the protection and promotion of human health, safety, dignity, and rights in the use of these technologies and in related research;

• • while all persons are affected by these technologies, women more than men are directly and significantly affected by their application, and the health and well-being of women must be protected in the application of these technologies;

• • the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies;

• • persons who seek to undergo assisted reproduction procedures must not be discriminated against, including on the basis of their sexual orientation or marital status;

• • trade in the reproductive capabilities of women and men and the exploitation of children, women, and men for commercial ends raise health and ethical concerns that justify their prohibition; and

• • human individuality and diversity, and the integrity of the human genome, must be preserved and protected.

However, since the passage of the AHRA, feminists’ voices have not been heard, and, as the authors in this volume explore, these principles no longer inform assisted human reproduction practice or policy. We have rarely been invited to government or professional consultations or conferences, and we have been left off boards and advisory committees.

With a view to connecting feminist scholars working on assisted human reproduction and out of concern that the law lags far behind science, ethics, and rapidly evolving public opinion, twenty legal experts came to Winnipeg in early 2012 for a research roundtable on the regulation of assisted human reproduction. The event was hosted by Robson Hall Professor Karen Busby and Professor Susan Drummond from Osgoode Hall. It was sponsored by the University of Manitoba’s new Centre for Human Rights Research and the Canadian Journal of Women and the Law/Revue femmes et droit, with additional financial assistance from the Legal Research Institute. Many of the articles in this issue were inspired or provoked by that roundtable.

Jocelyn Downie and Françoise Baylis mine the public record to reveal a series of lost opportunities to advance research and policy making related to assisted human reproduction. Alana Cattapan surveys how women disproportionately experience the negative implications of reproductive technologies and are increasingly prone to their potential misuse. These two articles set the stage for more detailed analysis of specific issues.

Stu Marvel explores a myriad of problems that can arise when careful attention is not paid to sperm donor regulations or when the market rules are rigid...