Health Law and Policy, Reproductive and Genetic Technologies
Commentators argue that statutory prohibitions with the force of the criminal law should not be used to regulate new reproductive technologies (NRTs) and novel genetic technologies (NGTs). Bill C-13, the Assisted Human Reproduction Act, however, codifies 10 criminal bans. This paper considers the merits of the various arguments levied against Bill C-13, and the corollary claim that only a "non-prohibitive" model of legislation befits NRTs and NGTs. Three types of arguments are used to critique criminal bans: (1) "Structural" arguments hinge on the constraints of the Canadian legal system - legislation complete with prohibitions runs afoul of the Constitution Act 1867, violates the Canadian Charter of Rights and Freedoms, and cannot keep pace with scientific progress. (2) "Consequentialist" arguments focus on the potential results of enacting a statute carrying criminal bans - criminalization will chill research, drive research underground, encourage researcher forum shopping, fuel public misperception by reinforcing genetic determinism, and effectively foreclose important dialogue on NRTs and NGTs. (3) "Theoretical" arguments relate to the very nature of criminal law - prohibitions will be unenforceable; the criminal law, a model of "command and control", will be ineffective in shaping research practice; and moral ambiguity can support only regulation, as consensus is a sine qua none for criminal bans. All the arguments in opposition to criminal bans prove unpersuasive; moreover, they fail to substantiate a non-prohibitive alternative for NRT-NGT regulation. Bill C-13 should therefore be proclaimed into law; perhaps then commentators will actually theorize about the harms, or lack thereof, of particular NRTs and NGTs.
Matthew Herder, “Banning Bans on New Reproductive and Novel Genetic Technologies” (2003) 2:3 CJLT 1.