Mr. Speaker, it is a privilege and an honour to enter the debate on Bill C-13. I know we are debating certain amendments, but I wish to address my remarks to the entire bill because a lot of the amendments deal with various provisions of the bill.
I would like to suggest that the seven principles that are enunciated at the beginning of the bill are rather comprehensive. I would like to summarize them as reading them in detail would take too long.
First, priority must be given to the health and well-being of children in the application of assisted reproductive technologies; second, in the application of assisted reproductive technologies the health, safety and dignity and rights of humans must be protected and promoted; third, the health and well-being of women in particular must be protected; fourth, free and informed consent must be promoted and employed in the use and application of assisted reproductive technologies; fifth, there must be no discrimination against those who undergo assisted reproductive procedures; sixth, the productive capabilities of men and women must not be exploited for commercial ends; and seventh, the human genome, human individuality and diversity must be preserved.
Those are lofty and worthwhile principles. I would like to look at the implications of the application of those principles to the body of the bill and the legislation that follows it as presented to the House.
The first principle states that the well-being of children must be preserved. It means, among other things, that all children are created equal. That does not mean that they are all the same. It means that they are equal in the basic rights and freedoms before the Constitution and the law. This means they have at least three fundamental rights: the right to life, the right to liberty, and the right to the pursuit of happiness. They also enjoy or should be given four freedoms: the freedom of speech and expression, the freedom of every person to worship God in his or her own way, the freedom from fear, and the freedom from want.
Three rights and four freedoms should be there for all children. I think principle number one clearly implies those kinds of freedoms. Are any of those rights and freedoms denied in the body of the bill? No, they are not. I think the bill is consistent in that area. Does that mean I find each of the other six principles to be that consistently applied throughout the bill? I do not think so.
Let us examine principle number four, which is subclause 2(d). It states:
the principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies;
The phrase free and informed consent deserves further investigation. Free and informed consent is considered as a principle that must be promoted and applied as a fundamental condition. Let us look at that in some detail. What are the provisions of the bill with regard to the application of that?
The first of these is the prohibition of certain activities. They are found in the bill as a general provision and I think that is good. There are certain activities with regard to reproductive technologies that are prohibited. Second, the bill would create an agency to enforce the bill and the provisions of the bill. I think that too shows foresight and recognizes that a bill like this, complicated as it is and difficult as the implications might be, does require a good and solid administrative structure.
At this point it is essential that we look at what constitutes the conditions under which this agency must carry out its responsibilities. Interestingly enough, as one goes through the operation of the agency, one discovers quickly that almost all of the agency's administrative provisions or obligations are subject to the regulations of the governor in council. That is an interesting provision. This is an agency that is to carry out the administration of this act but subject to the regulations of the order in council.
Let us look at the regulations with regard to free and informed consent. Free and informed consent, as far as the orders in council are concerned, are not the subject of consultation, and are not the result of the intense seeking advice and assistance from persons or experts outside of the government.
In fact, in a parliamentary system the government represents the people. The free, open and informed consent is the Government of Canada which is elected by the people, not the governor in council. The governor in council is the cabinet which is the arm of the Prime Minister.
How would this work in terms of the agency doing its work? Clause 65 of the bill has 28 subclauses. It states that the governor in council may make regulations in 28 particular areas.
I am going to look at this particularly as it affects clause 8. Subclause 8(1) reads:
8(1) No person shall make use of human reproductive material for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its use for that purpose.
Under subclause 65(1)(b) it states:
- (1) The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations
(b) for the purposes of section 8, respecting the giving of consent for the use of human reproductive material or an in vitro embryo or for the removal of human reproductive material;
We must observe here that the consent must be written by the donor for the use of human reproductive material for the purposes of creating an embryo in accordance with the regulations.
The regulations, if any, may be made by the governor in council. However there will be somebody immediately who will say “the agency shall require written consent and the governor in council may make regulation”. One could argue what if there are not any regulations? Then any form of consent literally would be recognized.
Is it realistic to assume that to be the case? I doubt it very much. For example, written consent might be the result of coercion of some form or it might not be current or there might be any number of reasons under which written consent might occur and it would have to be regulated according to the governor in council. I can see all kinds of reasons why the governor in council might make some regulations. I can see also why the agency might want to make them.
The point I am trying to make here is that the regulations themselves are secret. They would be created in secret and then perhaps made public, but they would not be the result of checks and balances in the debate of the House.
I would like to look at clause 10, although the regulations cover clauses 10 and 11. Subclause 10(1) states:
10(1) No person shall, except in accordance with the regulations and a licence, alter, manipulate or treat any human reproductive material for the purpose of creating an embryo.
Subclause 65(1)(c) states:
- (1) The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations
(c) for the purposes of sections 10 and 11, designating controlled activities or classes of controlled activities that may be authorized by a licence;
Interestingly further down subclause 65(h) states that the governor in council also decides what the rules and regulations are with regard to a licence.
Therefore the business of allowing these kinds of activities would be determined not by the agency, but by the regulations first of all with regard to the activities and with regard to a licence. A person wishing to do this kind of manipulation would have to have both a licence and have the regulations as well.
We have a double whammy here as the governor in council would virtually be controlling the whole operation of the agency. Who would be in control? Would it be the agency or the governor in council? It is pretty clear by now that it would be the governor in council. It would run roughshod over the House of Commons because it would not have to consult the House. With regard to this kind of arrogance Jefferson in the declaration of independence said:
...to secure these rights, [the right to life, liberty, and the pursuit of happiness] Governments are instituted among Men, deriving their just powers from the consent of the governed,--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The bill should be reconstituted before it is brought to the House so that indeed we can have free and informed consent as to the provisions for assisted human reproductive technologies.