Academic journal article Health Law Review

Regulating a Revolution: The Extent of Reproductive Rights in Canada

Academic journal article Health Law Review

Regulating a Revolution: The Extent of Reproductive Rights in Canada

Article excerpt

The most basic instinct of all creatures is to survive and propagate. The social concepts of love, family, community and mortality strengthen the biological drive for genetic procreation. Reproductive liberty is most often described as a negative right: a guaranteed right to be free from state interference in procreative choice. (1) Few theorists in the developed world would contradict the negative right to be free from state interference in procreation. (2) A fundamental distinction is made between negative rights and positive rights. Negative rights consist of the freedom to be left alone while positive rights, the right to something or to do something, require the provision of resources to fulfill the expression of the right. (3) The freedom to control one's fertility has become a widely recognized human right; (4) however, does this right by implication include a right to access the services necessary to procreate? (5)

Recent medical advances and genomic research breakthroughs have initiated a reproductive revolution. (6) In the context of this revolution, rising infertility rates have caused a new resort to medical intervention in procreation (7) through assisted reproductive technologies like in vitro fertilization (IVF). (8) The Canadian government is in the process of developing regulations for assisted reproductive technologies. (9) As the government has not yet enacted all-encompassing legislation in the area, the reproductive rights of Canadians are uncertain. A broad landscape of rights can be sketched out with reference to three sources: international law, the Charter of Rights and Freedoms, and Canadian jurisprudence.

The purpose of this paper is to examine sources of reproductive rights for Canadians and to establish the extent of the right to procreate by assisted means in Canada. Although the variety of reproductive technologies is expanding at an incredible rate, this paper will focus on IVF as an established and widely practiced treatment that is not currently insured by the vast majority of provincial health care schemes. (10) To this end, the Nova Scotia Court of Appeal decision in Cameron v. Nova Scotia (11) will be dealt with in greater detail than the body of Canadian jurisprudence on reproductive rights. The issues of abortion, sterilization and cloning will not be dealt with directly by this paper as its focus is access to existing assisted reproductive technologies. (12)

The Right to Procreate

International Law

The international community has established several conventions detailing inalienable human rights. The means to achieve or avoid procreation are viewed as integral to concepts of human dignity, personal identity and community. (13) The significance of reproductive rights is evident in its entrenchment in international law under four broad health-related categories: the right to found a family; the right to decide the number and spacing of children; the right to family planning information and services; and the right to benefit from scientific advancement. The bundle of human rights provided in international law suggests a right to access assisted reproductive technologies.

Universal Declaration of Human Rights

The first comprehensive elucidation of human rights by the United Nations was the General Assembly's declaration in 1948. The Universal Declaration of Human Rights includes the right to establish a family in Article 16:

     Men and women of full age, without any limitation due to race,
     nationality or religion, have the right to marry and to found a
     family.... The family is the natural and fundamental group unit of
     society and is entitled to protection by society and the State.
     (14)

The UDHR provides protection for families once formed, but has not been expanded to justify a positive right to procreate. (15) The right to found a family must be considered in the context of the other rights in the UDHR. …

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