The debate in the U.S. Supreme Court about whether it is legitimate for the justices to consider the opinions of courts in other countries is ongoing. There is no parallel debate about the relevance of medical findings from other countries, because human anatomy and physiology are universal. Law is jurisdictional. There are, nonetheless, lessons that U.S. Supreme Court justices, health care regulators, and physicians can learn from legal controversies in foreign courts. The recent decision of the Canadian Supreme Court on the regulation of reproductive medicine is a prime example, especially because it divided the court in a five-to-four decision, giving both sides the opportunity to express strongly held views.1
Because it centers on babies and pregnancy and is fostered by the creation of extracorporeal embryos and the private recruitment of “surrogate mothers,” reproductive medicine has proved impossible to regulate at the federal level in the United States and formidable to regulate at the state level.2 More recently, the Internet, Facebook, and Twitter have helped to promote an international trade in reproductive medicine that could ultimately make even national regulation ineffective. A Wall Street Journal article, subtitled “Assembling the Global Baby,” concisely described the current state of disarray in reproductive medicine: “With an international network of surrogate mothers and egg and sperm donors, a new industry is emerging to produce children on the cheap and outside the reach of restrictive laws.”3
International norms themselves are unlikely to be followed because of the lack of national laws to give them teeth. Thus, human-rights advocates who think that only international standards can prevent reproductive medicine from becoming a branch of international trafficking in women and children are greatly concerned that the two major national regulatory agencies in reproductive medicine—the United Kingdom’s Human Fertilisation and Embryology Authority and Canada’s Assisted Human Reproduction Agency—are both under attack. The United Kingdom’s agency may survive, but it was slated by the government to be discontinued for budgetary reasons.4 Canada’s agency has been gutted by Canada’s Supreme Court, primarily on the basis that reproductive medicine, like all other medical practice, should be regulated at the provincial level, not at the national level.1 Of course, the question of what should be regulated (and what should be outlawed altogether) is a much more important substantive question than the jurisdictional one of what level of government should be responsible for regulation.
Canada established the Royal Commission on New Reproductive Technologies (the Baird Commission), chaired by pediatrician Patricia Baird, in 1989. In 1993, the commission issued what is still the most comprehensive public-policy document on the subject, its two-volume report, Proceed with Care.5 The report made a series of recommendations, including recommendations that some practices be outlawed and that many others be subject to regulatory oversight, including special licensing. Legislative proposals were put before Parliament, and in 2004 Canada enacted the Assisted Human Reproduction Act.6 The province of Quebec, never entirely comfortable with federal rules, sought judicial review of major parts of the act on the basis that it exceeded the authority of the federal government.7 The Supreme Court of Canada issued its decision at the end of 2010.
On the basis of the federal government’s powers to enact criminal laws, Canada’s act outlaws specific acts countrywide (prohibited activities) and sets up a national oversight panel to regulate reproductive medicine through licensing and regulatory standards (controlled activities).6 The province of Quebec, which only recently enacted its own law on the subject,7 brought suit against the federal government challenging most of the provisions of the law as trespassing on provincial jurisdiction over health and social services. Only two sections of the act’s criminal prohibitions, both involving consent, were challenged. Section 8 requires written consent for a number of procedures, including posthumous use of gametes, embryo creation, and embryo research. Section 9 prohibits obtaining sperm or ova from anyone younger than 18 years of age for any purpose other than to preserve the gametes for the person’s future procreation.6
The unchallenged criminal prohibitions include acts that were once thought to be so universally condemned that prohibitions against them could be incorporated in an international treaty.8 These prohibitions include the knowing creation of a human clone, the creation of an embryo from the cell of a human fetus or from another embryo, the maintenance of an embryo exutero for more than 14 days after fertilization, the use of sex-selection techniques for a reason other than the diagnosis of a sex-linked disorder, the performance of germline genetic engineering, the use of nonhuman life forms with human gametes, the creation of chimeras for any purpose, and the creation of hybrids for reproduction. The other major prohibitions explicitly reject the U.S. market model by outlawing the commercialization of human reproduction—including banning the purchase and sale of human sperm, ova, and embryos—and payment for the “services” of “surrogate mothers.”6
The major issue in the case is whether and to what extent Canada’s federal government has the constitutional authority to regulate the practice of reproductive medicine and medical research. The act placed this authority in the hands of the federal government by establishing a new federal regulatory agency with licensing and inspection powers, the Assisted Human Reproduction Agency. Four justices concluded that the federal government could lawfully establish the Assisted Human Reproduction Agency to regulate the entire area (as proposed by the Baird Commission), four justices concluded that the federal government could regulate none of it, and one justice concluded that it could regulate some of it (and he provided the fifth and deciding vote in the case).
The Argument in Favor of Federal Regulation
Chief Justice Beverley McLachlin wrote the opinion of the four justices who concluded that all the provisions of the act were constitutional as valid exercises of federal power over criminal law (unlike criminal law in the United States, criminal law in Canada is a federal power). The first paragraph of her opinion summarizes it well:
Among the most important moral issues faced by this generation are questions arising from technologically assisted reproduction—the artificial creation of human life… . The question on appeal is whether this [new criminal] law represents a proper exercise of Parliament’s criminal law power. I conclude that it does.1
According to the chief justice, whether the act is constitutional depends on whether its dominant purpose is to prohibit “practices that would undercut moral values, produce public health evils, and threaten the security of donors, donees, and persons conceived by assisted reproduction.”1 She concluded, contrary to the Quebec Court of Appeal, that even though jurisdiction over medical practice and research is provincial, there is a realm of “overlapping” jurisdiction broad enough to encompass federal use of criminal law to regulate reproductive medicine.
For the chief justice, the critical issue was whether the dominant matter (usually referred to in Canada as the “pith and substance”) of the entire statute was criminal in nature, and therefore within federal jurisdiction. In her opinion, the act was fundamentally a series of criminal prohibitions followed by a “set of subsidiary provisions for their administration” that only “incidentally permits beneficial practices through regulations.”1 She addressed two questions to arrive at this conclusion: Is the act within the scope of federal criminal power? And does the act serve a valid criminal-law purpose?
The central issue regarding federal powers involves the extent to which the act seeks to regulate the practice of medicine and medical research, because these are areas of provincial authority. This is a crucial question because the “doctrine of paramountcy” (what is called “supremacy” in the United States) holds that federal law would prevail over provincial law in areas in which they conflict such that federal law “would effectively oust provincial power over health.” The chief justice concluded that the regulations are only “carve-outs” for specific practices that Parliament does not wish to prohibit, and the act specifically permits provinces to adopt regulations that are as strict as or stricter than those of the federal government. She also concluded that the act is valid as an exercise to uphold central moral issues, to combat a “legitimate public health evil,” and to protect personal security. In this context, she noted that evil simply involves “any injurious or undesirable effect” of a procedure or product. Having determined that the act as a whole is constitutional, she then reviewed each of the contested provisions in the act and determined that each either itself constitutes a valid criminal law or is a “legitimate ancillary provision” designed to supplement rather than exclude provincial legislation.”1
It is worth underlining that the only issue in this case is federal jurisdiction; this case is not about whether any provision in the act infringes on individual liberties in an unconstitutional manner. This is a central question that is left to another day— and has not been decided by any supreme court in the world to date.
Arguments that the Challenged Provisions of the Act are Unconstitutional
In an opinion written by Justices Louis LeBel and Marie Deschamps, four other justices found that all of the challenged provisions were beyond the constitutional power of the federal government because they “belong to the jurisdiction of the provinces over hospitals, civil rights and local matters.” To determine whether the act was a justified use of federal criminal-law power, these justices found it necessary to delve more deeply into the legislative history of the act, most importantly into the Baird Commission report. This report divided the new reproductive medicine into two categories: those that should be prohibited by the criminal law and those that should be overseen by a national regulatory body.5