New approaches to assisted human reproduction in Canada

The Supreme Court of Canada’s ruling in December 2010 that some aspects of the federal Assisted Human Reproduction Act violated provincial jurisdiction should have re-opened the debate in Canada about what legal regimes should govern the use of reproductive technologies. However, provincial governments have been reluctant to step in and fill the gaps on this controversial issue, while a black market in human eggs, sperm and surrogacy flourishes. Meanwhile, the Assisted Human Reproduction Agency was eliminated in the 2012 federal budget.

The human rights issues involved are complex – and sometimes conflicting. Single women and infertile and same-sex couples want the right to form families, while surrogates and donors need to be protected from exploitation and inadequate medical care in Canada and abroad. Children conceived through assisted human reproduction are claiming their own rights, including to know the identity of all the adults involved in their conception. Meanwhile, some donors claim a right to anonymity and others want parental rights.

Concerned that the law lags far behind science, ethics and rapidly evolving public opinion, 20 leading Canadian legal experts came to Winnipeg Feb 3-4, 2012, for a research roundtable on the regulation of assisted human reproduction. The event was hosted by Robson Hall law Prof. This e-mail address is being protected from spambots. You need JavaScript enabled to view it  and Prof. This e-mail address is being protected from spambots. You need JavaScript enabled to view it  from Osgoode Hall. It was sponsored by 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.

Researchers at the Robson Hall roundtable shared preliminary results of research on international surrogacy and on the potential for hundreds of half siblings when sperm donation is not adequately regulated. The group talked about the potential for law reform and the reality that provincial colleges of physicians are plugging the regulatory gap with their own rules, without significant input from many stakeholders beyond clinic owners. Listen to these podcasts of CBC Radio coverage following the event.

A number of seminal – pardon the pun – court cases are brewing in Canada, including one on whether courts can order that the commissioning parents’ names go on a birth certificate when there is a surrogacy arrangement. Meanwhile, a sperm donor recently won paternity rights after the child’s mother died.

Researchers who attended the event circulated their most recent research or research ideas in advance of the roundtable.

The CJWL/RFD, co-edited by Robson Hall law Prof. Debra Parkes, is planning a special issue devoted to feminist approaches to assisted human reproduction after the Supreme Court reference. The deadline for submissions is Sept. 1.

 Sexual assault law

Centre for Human Rights Research academic director Prof. Busby is also a frequent media commentator on sexual assault cases before Canadian courts. She has analyzed Manitoba's Rhodes case, more infamously known as the "Justice Dewar case" or the "Don Juan case."

Mr Justice Robert Dewar of the Manitoba Court of Queen's Bench found earlier this year that mitigating factors in sentencing in a major sexual assault included that the complainant provoked the assault because she wore high heels, heavy make-up and a tube top. He found that "sex was in the air" and that the defendant was a "clumsy Don Juan". The defendant and the complainant, a much younger and smaller Aboriginal woman, had known each other for about 20 minutes before the assault occurred. She had rebuffed his sexual advances; picked up a stick to use in self defence; and asked him in the course of the assault if he was going to kill her. She had bruises on her backside and legs as well as cuts from running through the forest half dressed following the assault. Yet even after making these findings and rejecting the defences of consent and mistaken belief in consent, Dewar was obviously of the view that the complainant bore some responsibility for what had happened.

Read Busby's full blog entry about the Rhodes case on the Feminist Legal Forum website.

On April 11, 2012, Busby was a featured speaker at a University of Manitoba forum on gender equality.