TY - JOUR
AU1 - Deckha, Maneesha
AB - I. INTRODUCTION A quick foray into the embryonic stem cell research (ESCR) debate in the USA would suggest that the fate of prenatal life is at its heart, with the controversy being the most recent manifestation of the American pre-occupation with abortion over the last several decades.1 For starters, the issue involves both pro-life and pro-choice groups. It is not difficult to understand the connection between abortion and ESCR for pro-life groups, given the centrality with which prenatal life figures in both contexts. Both entail the destruction of the embryo, and the ESCR also contemplates the intentional creation of embryos solely for research purposes. Pro-life advocates (and others) ask: is it ethical to create or simply use embryos for purposes not therapeutic to the embryo at issue, especially when the embryo is deliberately created and deliberately destroyed for this use? Many pro-life advocates answer in the negative. They view the embryo,2 and its zygote predecessor, as a developing human life from the moment of conception, akin to an ‘unborn child’. Prior to his death, Pope John Paul II declared the moral opposition of the Catholic Church to the use, let alone the creation, of embryos for stem cell research purposes, a view he personally communicated to President Bush.3 American pro-life groups have lobbied the Bush administration to ban ESCR altogether.4 It is important to note, however, that there are individuals who oppose abortion, but support ESCR for its potential therapeutic benefits, and they have also lobbied the Congress in this regard.5 Nevertheless, to the extent that pro-life groups and scholars object to abortion rights that enable the destruction of the embryo, many also object to new genetic technologies that would harm embryos.6 Though not as well-organized, feminist pro-choice groups7 have responded by claiming that anti-abortion advocates are holding human health and scientific advancement hostage to a rigid conservative ideology.8 On 9 August 2001, shortly before the events of 11 September 2001, which displaced the ESCR issue from its frequent front-page status,9 President Bush announced a ban on federal funds for ESCR.10 American researchers wishing to harness federal funds to conduct ESCR are now only able to avail themselves of the stem cell lines existing in the world before August 2001, which was thought then to be at 60, but is now confirmed at 78.11 To this day, scientists wishing to carry out a more robust research agenda must secure non-federal funding (including private funding) for their projects, as long as their home state does not itself prohibit stem cell research.12 Although some view the permissiveness in the private sphere as reflecting a compromise in the federal law among competing stakeholders—anti-abortion advocates and scientists keen to conduct cutting-edge, potentially life-enhancing research—even four years later after private research programmes were not well established.13 It would appear that, at least with respect to the public sector, the pro-life opponents of ESCR have won. What about Canada? The Assisted Human Reproduction Act (AHRA) came into force on 28 March 2004,14 and, among other things, legislated on the topic of embryonic research. Have abortion politics affected (infected?) the issue in Canada as they appear to have in the USA? Although the increasing erosion of abortion rights in the USA correlates with the conservative position adopted by the Americans on ESCR,15 there is a disconnect between Canadian abortion jurisprudence and politics and its stem cell research regime. I argue that unlike the USA that demonstrates a tight correlation between abortion laws and ESCR policy, 16 the Canadian position on embryonic research is more conservative than its abortion jurisprudence. After explaining the science behind the ESCR in Section II, Section III of this paper elaborates upon the American stem cell debate and the related federal law to reveal the close extent to which abortion laws and politics infect the federal law. The American context is a useful point of comparison to assess the contrary situation in Canada, which is the topic taken up in Section IV. II. THE SCIENCE OF ESCR A. What is ESCR? A stem cell is a cell from the embryo, foetus or an adult who has, under certain conditions, the ability to reproduce itself for long periods of time or, in the case of adult stem cells, throughout the life of the organism. Stem cells can give rise to specialized cells that make up the tissues and organs of the body.17 There are three types of stem cells: embryonic stem cells, foetal stem cells and adult stem cells.18 Embryonic stem cells are extracted from the inner cell mass of the 4–5-day-old embryo, called the blastocyst, which consists of 50–150 cells.19 Embryonic stem cells are pluripotent; they can develop into almost all cell types of the foetus and the adult body.20 However, embryonic stem cells are not totipotent; they cannot develop into placental cells.21 The only cells that are totipotent are fertilized eggs and cells of the first few divisions, which can develop into both foetal and placental cells.22 Foetal stem cells are derived from foetal tissues.23 They are also known (somewhat confusingly) as embryonic germ cells because they come from the primordial germ cells of a 5–10-week-old embryo/foetus.24 Like embryonic stem cells, foetal stem cells are also pluripotent, but their properties are different.25 Compared with embryonic stem cells, foetal stem cells have a more limited range of potential specialization, and a more limited lifespan.26 Stem cells are not unique to embryos or foetuses.27 Stem cells are also present in adult tissues, such as bone marrow, blood, the cornea and retina of the eye, brain, skeletal muscle and skin.28 These stem cells found in adult tissues are termed adult stem cells. Yet, embryonic and adult stem cells are of a different nature. Adult stem cells retain the ability to renew themselves for the lifetime of the organism, but can only generate a limited number of cell types.29 For this reason, they are classified as multipotent cells. Adult stem cells are being developed for use in treatments for a variety of human conditions, ranging from blindness to spinal cord injury.30 However, adult stem cells do not have the same capacity to multiply as embryonic stem cells and cannot generate all cell types.31 Furthermore, adult stem cells are extremely rare and difficult to identify and isolate.32 Although it is a contested assertion, many researchers credit embryonic stem cells, compared with other sources, with the best promise of generating groundbreaking advances in the treatment of an array of life-threatening diseases.33 This is why, despite the presence of foetal and adult stem cells, there continues to be avid interest and attendant controversy in the ESCR.34 Where then do the embryos from which embryonic stem cells are extracted originate? The surplus of embryos created by the sperm and ova of the clients of fertility clinics has been a critical source of embryos for research purposes.35 Yet, many believe that the supply of these surplus fertility embryos is insufficient to support the type of research that is contemplated with stem cells and may also be unsuitable because embryos derived from infertile donors incline towards higher rates of abnormality.36 A second frequently proposed method is cloning through somatic cell nuclear transfer (SCNT). SCNT refers to the cloning method whereby the nucleus of a donor cell, which is not an egg or sperm (and thus a ‘somatic’ cell), itself is implanted into an egg from which the nucleus has been removed.37 The egg is then electrically charged to simulate fertilisation. No sperm is involved. Cloning occurs because the receiving enucleated egg starts to grow as an embryo, but carries the identical genetic make-up of the donor somatic cell, that has not been mixed or adulterated with genetic information from a second person through sperm.38 SCNT was successfully used by a group of British scientists to clone the sheep ‘Dolly’ in 1996,39 but human cloning (either reproductive or therapeutic) using SCNT method has never been successful. Given the further and separate ethical and social complications that cloning entails,40 here I consider only the issue of ESCR apart from cloning. That is, my discussion of the use and creation of embryos assumes that they will be created through non-cloning methods. This phenomenon generates intense controversy on its own even absent the cloning dimension because it involves the destruction of embryos.41 This raises the question of whether ESCR is possible without the destruction of embryos. In the USA, the President's Council on Bioethics recently identified four possible options: ‘obtaining stem cells from embryos that are clinically dead, removing stem cells without harming the embryo, creating non-embryonic entities that produce usable stem cells, and converting adult cells into embryonic stem cells by a process of genetic reprogramming’.42 These options are not currently available,43 although a new method of extracting human embryonic stem cells without the destruction of the ex utero embryo has been very recently reported.44 Presently, at least, the controversial nature of non-cloning ESCR will persist as long as scientists and others remain eager to realize the imagined benefits. B. What are the Benefits of ESCR? What are these benefits? They are impressive.45 Perhaps, most significantly, embryonic stem cells are highly lauded for their promise in advancing regenerative medicine by replacing cells, tissue and organs that have been damaged by disease or otherwise.46 Stem cells are expected to lead to advances in the generation of cells to treat, among other things, heart disease, stroke, diabetes, spinal cord injuries, kidney failure, arthritis, Parkinson's disease and Alzheimer's disease.47 Stem cell research may facilitate the development of new forms of contraception as well as enhance knowledge in the areas of human development, embryology, cancer, diabetes and transplant biology.48 It may also enable researchers to test new drugs directly against human cell lines instead of relying on non-human animal testing49 and to develop better and safer drugs in general.50 Stem cell research would also benefit fertility treatment. Currently, the success rates—or the chance that an egg fertilized outside of the woman's body will be successfully transferred into the uterus of the woman wishing to become pregnant and thereafter develop into a foetus and result in a live birth—for fertility clinics in the USA remain slim at around 20–35%.51 Stem cell research may improve clinical protocols for fertility treatment, thereby enhancing the rates of success.52 Finally, the ESCR would provide more information on human development in general.53 Despite the anticipated benefits of this research,54 opposition to it is well mobilized. The next section outlines the parties to and nature of the controversy. III. THE USA A. Stem Cell Regime As mentioned at the outset, federal funding for ESCR in the USA is largely unavailable. Only research involving embryonic stem cells that meet certain specified criteria are eligible to receive federal funds. These criteria are: (a) the stem cells must have been derived from an embryo whose destruction was initiated before 9:00 p.m. Eastern Standard Time on 9 August 2001; (b) the embryo must have been created for reproductive purposes; (c) the embryo is no longer required for reproductive purposes; (d) the embryo must have been donated from its genetic parents after informed consent was obtained, and (e) no financial inducements must have been involved in the donation of the embryo.55 Whether or not one may carry out privately funded ESCR is a state-by-state matter, with a significant number of states prohibiting some form of ESCR.56 The National Institutes of Health (NIH) identified 64 embryos worldwide that met its criteria for funding at the time of the announcement.57 That number is now estimated at 78.58 These stem cell lines have been placed on a public registry. The organizations listed on the registry have provided a signed assurance that their stem cell lines meet the President's criteria. Researchers who receive federal funds are expected to contact the company or laboratory directly to negotiate access to specific cells which they determine their research requires.59 In arriving at this decision, the President, somewhat ironically, adopted many of the recommendations of the National Bioethics Advisory Commission's (NBAC) report on Human Stem Cell Research.60 NBAC recommended that federal funding flow only to research involving stem cells derived from ‘surplus’ embryos remaining unwanted after fertility treatments. In adopting this recommendation, President Bush's ban was more liberal than President Clinton's who continued the ban on almost all human embryo research where a human embryo is ‘destroyed, discarded, or knowingly subjected to risk of injury greater than that allowed for research on fetuses in utero’.61 Overall, though, the Bush ban is more restrictive than the recommendations and guidelines adopted, or legislation proposed, during the preceding Clinton's era.62 At the same time the ban was instituted, the President also announced the establishment of the President's Council on Bioethics to study, among other things, the ESCR.63 In its first report in the summer of 2002, the Council, acting on majority, recommended a four-year moratorium on cloning embryos for research.64 The Council has not issued any new report on this topic in 2006 or 2007. Consequently, the current status of the moratorium is unclear.65 B. Underlying Rationales While it is always a potentially perilous exercise to generalize about the overall characteristics and cultural values informing a specific national debate, certain dominant influences shaping politics and policy can be noted. This subsection discusses the prominent factors that inform the trajectory of the USA's position on ESCR. 1. Religion Although unanimous opposition to ESCR does not exist among religious scholars and communities (when does it ever for any community?), it is possible to characterize religious voices as generally against the practice.66 The Roman Catholic Church has declared its formal opposition to ESCR despite the prospective medically beneficial potential, urging US lawmakers and scientists to promote the use of methods that would not entail resorting to embryos for stem cell research.67 It takes the view that life and personhood begin at conception and that embryos are sacred forms of life because they are human beings who deserve the respect and protection that being human affords.68 The instrumental use, creation and destruction of embryos are disturbing because persons are not supposed to be treated instrumentally.69 The Catholic Church is not alone in objecting on this ground. Spokespersons for other religions such as Judaism, Eastern Orthodox Christianity, Islam and Protestantism consulted by the NBAC have all expressed opposition despite their differing perspectives on the moral status of the human embryo or abortion, with ‘(t)he most vocal opposition in the United States … emanat(ing) from the Christian Right’.70 Religious scholars have tried to rationalise the ‘sanctity of human life’ argument espoused by religious leaders in order to popularise it among the non-religious. They have argued that the line of reasoning is underpinned by commitments to human equality and human dignity.71 For example, Eric Cohen argues that once fertilisation occurs there is a new entity that comes into being that is a member of the human species regardless of whether it will develop into a full-fledged human adult. They insist that fertilisation is not an arbitrary decision for when life begins.72 From this premise that embryos are humans and persons, the argument continues that to the extent a society values the principle of equal human dignity,73 it must recognize the equal moral worth of the embryo to paradigmatic human persons and, to be consistent in treatment, refrain from killing it or engaging in other merely instrumental use.74 Cohen insists that ‘(t)o oppose embryo research is to act rationally on the belief that human beings are inherently equal. This position is strictly religious only inasmuch as the belief in human equality is strictly religious’.75 Leon Kass, the former Chair of the President's Council on Bioethics, and also a religiously influenced commentator, has distinguished between the commitment to equality and dignity, to suggest that the objection to ESCR really should be articulated through the latter. He wants us to understand the core issue as identifying and maintaining the value of a human and the meaning of humanity as a being that extends generosity to the newest members of our circle.76 Thus, the religiously motivated and influenced opposition to ESCR underscores, alternatively, the sanctity and dignity of human life. Since it identifies human life as beginning at the moment of conception, it objects to ESCR or anything else that harms post-fertilisation genetically human entities. This objection applies to both the creation of new embryos for research purposes as well as the use of surplus frozen embryos that would be discarded in any case.77 2. Abortion It is a fine line that distinguishes religious views from views on abortion generally in the USA, despite the existence of pro-choice religious individuals and pro-life atheists.78 That religion has been a prominent voice shaping stem cell discourse as well as other cultural controversies and related laws (including abortion) throughout American history is clear.79 It is still worth considering the precise effect of abortion law and politics on ESCR, notwithstanding the religious forces that significantly shape the abortion issue, because of the significant number of pro-life/anti-abortion Republicans who support ESCR. The ESCR connection with abortion politics in particular might appear equivocal at the outset because the division between opponents and proponents of ESCR does not align itself precisely with the schism between conservatives and everyone else, or even Republicans and Democrats. The personal stories of celebrities and other public figures afflicted by, or taking care of people with, debilitating diseases relayed before Congressional Committees for the purposes of making impassioned pleas to let stem cell research proceed have helped persuade a significant number of those who usually prefer to treat prenatal life as inviolable to think otherwise in the case of ESCR.80 For example, 60 Republicans signed a letter asking the President to support ESCR and the son of Ronald Reagan, a Republican pillar, appeared at the 2004 Democratic National Convention urging Democrats to support a robust ESCR agenda.81 Most recently, Bill Frist, the then Senate Majority Leader and a pro-life Republican from Tennessee, reversed his support for President Bush's ban by announcing that he was in favour of federally funding ESCR.82 It would be a mistake, however, to view this incomplete overlapping of the issues as evidencing a lack of correlation between the federal policy on ESCR and American abortion laws and politics. For one, the religious and Republican anti-abortion voices against ESCR are strong and the arguments marshalled there are the same ones used to oppose abortion: human life is sacred and personhood begins at conception.83 Secondly, despite the legality of abortion under certain contexts in the USA, abortion rights have steadily eroded under pressure from pro-life influences since the landmark 1973 decision in Roe v. Wade legalised abortion nationwide before viability.84 Even though foetuses are not legally considered to be persons, this has not prevented courts from increasing the scope and nature of the interest that states can recognise in foetuses when regulating abortion,85 declaring pre-embryos to be ‘humans’ whose death can sustain a wrongful death action,86 expressing doubt as to the wisdom and future plausibility of Roe,87 and the Supreme Court from nearly overturning it in 1992.88 The non-personhood of foetuses has also not stopped pro-life Republicans from impinging on what is left in Roe by enacting legislation trying to stop very late (and very rare) term abortions that they have not so innocently termed ‘partial birth abortions’. Just this year, the Partial-Birth Abortion Ban Act89 was upheld as constitutional in a 5–4 decision of the Supreme Court.90 Abortion remains one of the most fundamental issues marking the American political landscape especially now that the anti-abortion efforts ever since Roe have assumed a momentum to imperil the ruling. The precarious standing of Roe and prominence of abortion in the American political landscape are facts not lost on women's groups. Various feminist organisations that advocate for women's reproductive rights have argued that the Bush Administration's policy is disingenuously entangling the debate over ESCR with its extremist anti-choice abortion politics to the extent of ‘hold(ing) the health – indeed, the lives – of millions of Americans hostage’.91 These groups underscore the strong relationship between the Bush administration pro-life policies and his framework for assessing the ethics of the ESCR. This influence is instanced in its reinstitution of the global ‘gag’ rule that prevents international women's clinics and other health organisations receiving financial support from the US Agency for International Development (USAID) from giving out information about abortion or even recommending it as an option (even where the NGOs use non-USAID funds to do so).92 When international policies are shaped by pro-life philosophy, it is not difficult to accept that domestic health policies would also be so informed. Indeed, Janet Dolgin has mapped out the complicated but nonetheless connected terrain between pro-life discourse and ESCR positions. She seeks to explain why Bush, a President who is deeply and publicly committed to opposing abortion, has taken a compromise position on ESCR. She suggests that the embryo has come to take on different meanings in abortion discourse on the one hand, and discourse about ESCR on the other.93 Among pro-life adherents today, abortion discourse focuses primarily on the moral value and ontological status of foetal and embryonic life.94 She also points out that this has not always been the case. Historically, pro-life adherents opposed abortion as part of a wider attempt to advocate openly for the preservation of traditional family life and gender roles95 Dolgin suggests that this position became problematic in the last decades of the twentieth century as Americans became increasingly familiar and comfortable with modern family forms.96 Consequently, the right-to-life movement began to rely more heavily on assertions about foetal and embryonic personhood. She argues that this shift was ‘strategically valuable’ for the pro-life movement, as pro-choice groups failed to respond effectively to these claims.97 Interestingly, Dolgin argues that in the context of ESCR, claims about the sanctity of embryonic life are far less compelling. Images of ‘sick children, suffering adults and grieving relatives’ often override and displace the pro-life images of foetuses and embryos that have had such a powerful impact on the abortion debate.98 Stem cell research invokes the idea of a moral use for embryos—the promise of long life and health. Consequently, she writes that the moral position becomes the one that favours embryonic research.99 She also argues that this explains why some pro-life adherents have re-conceptualised support for ESCR as a position that is both pro-life and pro-family.100 This position is premised on an entirely new understanding of the embryo—‘one that continues to define embryos as people, but begins to justify and qualify that definition’.101 Dolgin's illumination of the pro-family discursive thread that underlies and thus closely ties President Bush's and overall Republican response on ESCR policy with abortion politics is also confirmed by two recent articles that compare the shaping of the American regime on ESCR with those of Germany and Japan. Angela Campbell reaches similar conclusions about the importance of context when she states that ‘(t)he impact of cultural and economic forces on the regulation of embryonic stem cell … research is perhaps nowhere better illustrated than in the United States’ with politics also playing ‘an important role’ given the proximity between federal policy and the particular values of the current presidential administration.102 While acknowledging the diversity of American society, she nonetheless identifies certain influential voices shaping ESCR laws and policy, namely, religious, antiabortion and scientific ones.103 Kara Belew also highlights the close links between political controversy over abortion in the USA and that which exists over the current legislation regarding ESCR. She writes that ‘[ESCR], like abortion, invokes deep cultural beliefs about the origin and sanctity of human life, the role of women in society, the state as a moral agent, and a nation's obligations to those who are helpless to speak for themselves’.104 She argues that abortion law will ‘… reflect and adhere to a nation's social fabric’, and consequently work to shape a nation's arguments concerning the use of embryos for scientific purposes.105 Belew concludes that the ‘… ostensibly inconsistent and politically-fractured’ position on ESCR in the USA is ‘… reflective of a greater inability within American society to agree on the issue of abortion’.106 3. Scientific and Economic ‘Progress’ A better reason to elucidate the crossing of political lines by Republicans on the ESCR issue is the uniquely impressive promise that the research has to alleviate the ills associated with disease and perhaps cure many diseases altogether and, in doing so, generate job opportunities.107 This has caused religious, pro-life Republicans to join forces with the third group that Campbell identifies: the medical, scientific and research communities. Although not all scientists support ESCR, many prominent members of the scientific community have publicly declared their support for a more robust programme than the federal policy allows.108 Intense research interest among many scientists surrounds this new technology. Not surprisingly, they wish to pursue their research unencumbered by restrictive prohibitions or the threat of criminal prosecution.109 Although the goal of developing therapies to help people remains an important one for this third group, it is a different type of faith that operates. Faith in God in this case is supplanted, or at least subordinated to, the long-standing American proclivity for faith in science and new technology as well as the capitalist entitlement to profit from new scientific development.110 What is more, there is a certain anxiety among Americans that the USA should be at the forefront of research.111 American researchers and politicians are aware of the increased public support (both in terms of values and funding) for and freedom to conduct ESCR in other countries and the competition by foreign governments and markets to attract American scientists to institutes outside of the USA to conduct cutting-edge research with great lucrative potential.112 Even within the USA, at the state level, there is fierce competition for the best researchers to staff newly appointed multibillion dollar institutes sponsored by private funding.113 Californians recently approved $3 billion to be allotted to stem cell research in a referendum, and other liberal states—have or—are considering following suit.114 As one article put it, ‘(i)n New York City, a private foundation recently gave $50 million to three medical institutions for early stem cell work to sustain the city's research credentials’.115 These developments accord with the long-standing state resistance to federal intrusion perceived to limit the market opportunities and market forces.116 4. Small Government The restriction of federal policy to federal funds also betrays another value competing with, but also related to, religious and pro-life values to respect human life: faith in small government.117 A skeptic would point out that if the fundamental concern was really protecting human life, the carte blanche that exists in the private realm at the federal level is hardly a state of affairs that would ensure it. Although the concern that a scientist's ability to research may be covered under a right to freedom of expression, and thus any prohibition on that right may run foul of constitutionality,118 it is also plausible that the traditional conservative proclivity against governmental regulation and support for the free market also animates the private/public funds distinction in the policy. 5. Summary The American debate at the federal level about the ethics of ESCR is a product of multiple voices with competing values. It has occurred in the shadow of a political and legal landscape that is indelibly marked by religious influences and polarised views on abortion and the beginning of human life in particular. Yet, competing concerns that other countries with more liberal regimes will exceed American technological prowess in ESCR and impair private enterprise, also explain why the federal ban for ESCR on non-pre-existing stem cell lines only affects public funds. The overall American federal position is reasonably viewed as a conservative position on ESCR that matches the conservative national position on abortion that is corroding the rights secured in Roe. Whether abortion law and politics play a central role in the development of the Canadian ESCR regime is the next focus. IV. CANADA A. Stem Cell Regime Canada's response to ESCR came in March 2004 when it enacted the AHRA (the Act).119 While all statutory (and judicial) interpretation, even if purposively undertaken, is an exercise in interpretation and distillation of the narratives within, this acknowledgement of the contingency and partiality of any one interpretation should inform rather than dilute the significance of any interpretive task.120 I thus embark on a comparative reading of the Act here. The Act is generally intended to facilitate ‘responsible’ reproduction by promoting dignity and respect for human life.121 With respect to stem cell research, the Act permits research on the existing embryos, but only when the research is ‘necessary’ and is carried out within 14 days of the embryo's creation, and the written consent of the gamete donors exists.122 The deliberate creation of embryos for purposes not related to reproduction is prohibited. The Act thus permits the creation of human embryos only for assisted reproduction and the transfer and destruction of gametes and embryos is strictly controlled.123 An overall assessment of the Act indicates that Canada has adopted an intermediate position of permitting research on existing embryos but not permitting the creation of embryos purely for stem cell or any other type of research not related to reproduction. That only carefully circumscribed uses may be made of these ‘surplus’ IVF embryos suggest the Act's acceptance of the principle that the human embryo is due some form of respect. If this is indeed the rationale, it is a striking one since Canadian law has held that the foetus, and thus presumably the embryo which is even further removed from the moment of birth, is not a person and thus denied the rights and protections that legal status entails.124 While a restrictive stem cell regime makes sense in jurisdictions where restrictive abortion regimes also exist, it seems discordant in a country such as Canada, where references to the sanctity of human life and the embryo as unborn life are not staples in public discourse and abortion is not a live political issue. The next section explains the extent of the discordance more fully.125 B. Underlying Rationales 1. Abortion Canada legalised abortion nationwide under tightly prescribed circumstances in 1969 when it created an exception to the prior ban contained in section 251 of the then Criminal Code. A woman could only obtain an abortion if it was performed in an accredited hospital and approved by that hospital's ‘therapeutic abortion committee’ (TAC). Approval was only forthcoming when the woman's life or health was endangered.126 In 1983, Dr Henry Morgentaler, a Montreal physician who provided abortions and advocated for abortion rights, was charged with performing unauthorised abortions.127 He challenged the law on a variety of constitutional grounds implicating the Canadian Charter of Rights and Freedoms.128 In a decision containing three concurring opinions and one dissent, a majority of the Court concluded that section 251 infringed women's right to security of the person as protected under section 7 of the Charter.129 It was held to do so for procedural reasons. The lengthy delays, lack of widely available TACs and time-sensitive nature of an abortion request were found to jeopardize a woman's ability to receive effective health care, which, in turn, implicated her security of the person.130 Only the decision penned by the lone female justice on the court articulated the right violated as one of liberty, freedom and choice over what happens to one's body.131 Justice Wilson focused on the substantive problems with legislation regulating abortion, rather than just its procedural defects. Since the security of the person issue in Morgentaler was decided on procedural grounds, the Court was able to sidestep the issue of foetal personhood. This prompted the then Conservative Government to try to pass another Act regulating abortion that fell within the procedural parameters specified in Morgentaler. The Bill passed in Parliament, but met with a tie in the Senate and was thus defeated.132 Cases that followed Morgentaler continued to stymie attempts to regulate pregnant women. A few years later, the Court, interpreting the Quebec Charter of Rights in a case wherein a man sought an injunction to prevent his ex-girlfriend from having an abortion,133 decided that a foetus was not a ‘human’ or ‘person’ under the relevant right to life and bodily security provisions of that provincial rights document.134 Since then, courts confronted with tangential issues surrounding abortion and mother–foetal relations (intervention in wanted pregnancies due to risky behaviour of pregnant women) have confirmed that the foetus is not a person in Canada; only a child born alive, that is, one that has fully emerged from the woman's body, is considered a person with the panoply of rights that personhood entails.135 Thus, in almost every consideration of foetal status in the courts or the legislature, the issue has been decided in favour of reproductive freedom for women over their bodies. This is perhaps to be expected given that women are the rights holders in these contests and it is the courts, rather than the political process, which are charged with giving meaning to constitutional protections. Yet, courts had the opportunity to recognise foetuses as rights holders, but declined to do so the given women's reproductive rights. Parliament has not tried to intervene to erode the progressive developments in the case law. Today, Canada is one of three countries in the world where there is no direct abortion regulation at all.136 From this global perspective, on abortion, Canada occupies a position at the extreme liberal end of the spectrum.137 This, of course, has not quelled anti-abortion views outright in Canada and a sizeable pro-life community persists.138 What it has done, however, is to push the ‘abortion debate’ in Canada from one over legalisation and the status of the foetus to one of access.139 In that regard, Canadian women are in a comparatively fortunate position vis-à-vis most of the world. What remains to be seen, however, is whether the legal non-recognition of the embryo in the abortion context where such recognition would interfere irreparably with women's reproductive rights will persist in a context where such rights would not appear to be impaired by embryo and foetus recognition. 2. Anti-commodification and Women's Bodily Integrity If abortion jurisprudence is not a productive measure to explain the embryo research provisions of the ESCR, how can we account for the discrepancy along the spectrums and, in particular, restrictions on ESCR in a country that has a reputation for human rights, compassion and social justice?140 But it may be precisely an interest in human rights, here, those of women, that explains the restrictions in the Act. This connection between human rights and restrictions may be evinced in two ways. First, there is a strong commitment to anti-commodification in the Act. Section 2 states that (t)he Parliament of Canada recognizes and declares that (f) trade in the reproductive capabilities of women and men and the exploitation of children, women and men for commercial ends raise health and ethical concerns that justify their prohibition. This principle is expressed with respect to commercial surrogacy141 and the selling of human reproductive materials such as sperm and eggs,142 all of which are banned. The genesis of the ban is a desire to protect vulnerable individuals in society, namely, women whose bodies will be most likely implicated in the procedures that would support these technologies and the children that could be born of them.143 Canada's legislation is reflective of feminist literature that argues that permitting human reproductive material (eggs) or gestational capacities to become fungible, market commodities will impair the equality and dignity of marginalised women who will opt to commodify these essential parts of themselves due to their limited economic capital.144 It is feared that with little else to sell, low-income women will feel pressured to become breeders and egg suppliers for the wealthy, further entrenching class and racial inequalities.145 Roxanne Mykitiuk, Jeff Nisker and Robyn Bluhm assert that a close reading of the provisions of the AHRA reveals that ‘the protection of the health and safety of women’ is at the centre of the Act's prohibition on SCNT.146 An examination of the legislative history of the AHRA lends further support to this position, illuminating the prominence of feminist influence, particularly during the earlier stages of the assisted human reproduction debate in Canada.147 The Act thus manifests what Joan Williams calls ‘commodification anxiety’ with respect to human eggs, sperm and wombs.148 This anxiety, animated as it is by human dignity and equality concerns, may also apply to embryos not because they are legal persons, but because they are genetically human. It is an anxiety that may be expressed with respect to embryos because the embryos at issue here are outside of women's bodies. In this space, they do not threaten women's autonomy as embryos inside a woman's body do, thus producing the abortion debate. The in vitro context evacuates the need to respect women's autonomy over their bodies because the woman's body is absent. Given this absence, the concern then over precisely what the human embryo is may come to the fore in a way that it cannot where any attempt to discuss the embryo is (legitimately) seen as a threat to women's reproductive rights. In a space, then, where an attempt to recuperate the embryo as a type of human life is not read as an attempt to resist abortion, the rehabilitation may proceed due to a desire to ascribe some non-instrumental status to the embryo given its membership in the human species. Doing so can be read as deflecting commodification anxieties and restoring dignity to all things human; the early embryo, to the extent it is genetically human and is not located inside a woman's body (whose human dignity mandates tipping the abortion question in her favour) is thus entitled to some limits to how it will be used to signal its non-instrumental status. The prohibition on creating embryos purely for non-reproductive research purposes and the 14-day limit to when pre-existing embryos may be used may be viewed as markers of this signal of ‘respect’ towards the embryo, not to undermine women's dignity, but to uphold human dignity as a concept.149 The second way to interpret the AHRA's restrictions on ECSR as promoting human rights values of dignity and equality stems from the centrality of women's bodies to creating research embryos, a point mentioned above and something the Act currently forbids.150 Note that in section 2 which lists the Act's purposes, the Act explicitly acknowledges that it is women's bodies more so than men's which will be affected by assisted reproductive technologies and emphasises the need to ensure women's dignity is safeguarded.151 Recall that SCNT would be a primary method of creating new embryos for research to add to the pool of pre-existing embryos. Although rarely expressed in the debates over its ethics, SCNT technology implicates women's bodies since women are the sources of the eggs that will then be enucleated and into which a nucleus of another non-gamete cell will be inserted.152 The process of extracting eggs from women's bodies is not simple but intrusive. As with feminist commodification anxiety that a market in human reproductive materials will encourage low income women to sell themselves, a concern surfaces here that women will be pressured by scientists and clinic professionals to supply these eggs for this technology that will produce the coveted embryos for research.153 From this perspective of human rights and, in particular, women's rights to dignity, equality and autonomy that are meant to infuse the Act, we gain a better sense of how the confluence of secular and progressive principles may justify the restrictions on ESCR. Yet, it may be too hopeful to characterise the embryo research provisions in the AHRA as of pure feminist design. Conservative principles have also exacted their influence in creating Canada's intermediate position. 3. Religion The religiosity, understood as the extent to which individuals have a heightened sense of a faith identity, of Canadians is much lower when compared with that of the USA.154 What is more, the absence of a civic sense of religion means that Canadians practice the theory of a separation of church and state to a much greater extent than their American counterparts.155 Canadians recognise fewer connections between their faith and political values than Americans, displaying a general sense of unease about mixing politics and religion.156 Overall, religion has a more muted public presence in Canada nationally.157 This, coupled with the presence of the Charter of Rights and Freedoms,158 goes a long way in explaining the permissive abortion regime. The lack of religiosity and related lack of direct abortion regulation in Canada may seem unusual in a country with a strong and concentrated Catholic population located in Quebec.159 But the particular cultural politics and history of Quebec have generated a population distrustful of Catholic dogma in public life. From the time of Quebec's Quiet Revolution in the 1960s, there has been a clear absence of any real institutional power of the Catholic Church in major public spheres.160 Quebec is largely supportive of a communitarian ethic and Government action to create social programmes. This is not to say that religion does not have any public presence at all in Canada. It is without contest that to the extent culture suffuses all aspects of life and civic society, Judeo-Christian values are the ones on which Canada were founded and still inform purportedly neutral legal and political norms today. At the same time, however, the civic religious Republicanism that was so formative for the USA did not solidify in Canada. The trajectories and present influence of religion in the two countries is thus quite different. The cultural wars engulfing American politics between secular liberals on the Left and the Christian evangelical Right around issues of abortion and stem cell research do not exist in Canada.161 Certainly, there are evangelicals in Canada who currently have unprecedented political influence, including being able to claim the Prime Minister as one of their members, but the numbers are still proportionately small.162 Despite this typical contemporary political positioning of religion at the margins of a system that is otherwise informed by Judeo-Christian values, Government consultations during the design and drafting of the AHRA included express invitations to religious groups.163 Some of this consultation was directed at the issue of stem cell research involving embryos.164 Statements of politicians in Parliament also evince religiously informed values about the meaning of life.165 Although most of these statements emanated from the extreme right-wing of Canada's Conservative Party, some came from the centrist and then ruling Liberal Party as well.166 It would be difficult to conclude that these debates and, at the very least, the consultations have not had any bearing whatsoever on the restrictions in the AHRA surrounding embryo research. Indeed, Caulfield and Bubela argue that strong views regarding the moral status of the embryo played a prominent role shaping Canada's legislation.167 Thus, although liberal and feminist values of human dignity, autonomy and equality, especially as those concepts relate to women's personhood, animate the AHRA's provisions to ensure non-instrumentality and non-commodification of human life, the influence of religious values in shaping the Act must also be acknowledged. IV. DISQUIETING DISCONNECT The disconnect between Canada's legal position on ESCR and its position on abortion is troubling from a perspective that values women's reproductive rights. This is because the disconnect is, at least, partly due to the fact that pro-life perspectives that would imperil the right to abortion were permitted to enter the discourse around embryo research. It appears that pro-life religious views, under the then Liberal Government, received a public airing and influence in the public lives of all Canadians that they have been denied in the abortion debate and other social justice issues. That Canada is a comparatively liberal national polity with the overall majoritarian view that any recourse to religious ideology in public decision-making is misplaced was most clearly and recently articulated in the same-sex marriage debate.168 Former Prime Minister Jean Chretien's statement this his own personal religious views as a Catholic on same-sex marriage would not inform his political opinion on the issue as Prime Minister, despite pressure from the Vatican, is an example of this view on the appropriate sphere for religion.169 Canada became the third country to legalise same-sex marriage, and the first to authorise it for all individuals, visitors and citizens alike who choose it as a forum for marriage.170 This is so despite the fact that there is a sizeable portion of the population that opposes same-sex marriage for religious reasons.171 Those values are simply not in the majority and also adumbrated by a collective sense that religious values may inform the private sphere, but not the public.172 To acknowledge this is not to insist that there should not be any role for religion, whether understood as belief or practice, in public decision-making about embryo research or otherwise. Canadian constitutional jurisprudence has increasingly recrafted the meaning of ‘secular’ towards a pluralist definition rather than an a-religious one. Taking into account religious views in public decision-making is legitimate as long as no particular religious view dominates.173 This is not to say that the jurisprudence does not restrict and reduce religion to the private sphere of the liberal public/private divide on which Canada's constitutional culture is based.174 The complexity of the jurisprudence reflects the anxiety within liberal legalism about the public scope of religious views. This is an anxiety, I would argue, that is at least legitimate where religious views, even minority ones of a marginalized religious group, would adversely alter the dignity and equality interests of other socially marginalised groups, such as women.175 By adverting to religious thinking on embryo research in consultations preceding the Act, views that regard early embryos as full human beings and persons entitled to state protection from harm receive an audience and legitimacy in Canada that could easily transfer to other contexts. The concern is that this discourse that animates the current embryo research debate will revivify the abortion debate in Canada to the detriment of women. This concern is amplified by the results of the most recent federal election when Canadians, frustrated with levels of corruption in the centrist Liberal Government that had ruled without real threat of displacement for 12 years, handed over power to a Conservative Government representative and led by the country's evangelical followers.176 Although the impact of the Conservatives in enacting policy that promotes evangelical values will not be as widespread due to its minority status, the scope for regressive laws pertaining to women's equality to be passed is greater than at any time since abortion was a live issue in Canadian politics.177 But the disconnect would be disquieting even if the impact of religion on the AHRA was minimal or non-existent and the restrictions could be wholly attributed to concerns about the commodification of human life and the integrity of women's bodies. This is because the intermediate position Canada has chosen on ESCR communicates to the layperson respect for the embryo far more effectively than it does the importance of integrity for women's bodies. The average Canadian will not understand how ESCR works and will not easily glean the risk to women's bodies that SCNT as a source of new embryos will present. It is much easier to discern a rationale of respect for embryo life as grounding the 14-day limit and prohibition on creation of new embryos. Even here it is arguable that the message projected is one of respecting embryos qua embryos rather than a larger principle of non-instrumentality of human life that could conceivably be read more innocuously from a pro-choice perspective. The worry then is with the spill-over effects that an Act that encourages a discourse of respect for the human embryo in the in vitro context will have in the in utero context. The significance and probability of this worry merits more space than can be devoted here as well as time to see how the embryo is re-conceptualised in this newer ethical debate. Still, the concern of how a position on ESCR will ultimately affect abortion legalities and politics, and thus the personhood of women, is worth acknowledging at this early stage. V. CONCLUSIONS The USA's position on ESCR, although not wholly explicable by abortion politics, unequivocally reflects pro-life sensibilities regarding the perceived value of early embryo life. The right to abortion has eroded in the USA since Roe, and the spirit of that erosion has strong pro-life roots that match the basis of federal funding restrictions on ESCR. The same cannot be said of Canada. Globally, Canada has an extremely liberal abortion regime simply by virtue of an absence of any law directly regulating abortion as distinct from any other health service. Yet, as we have seen, the AHRA has given Canada an intermediate position when compared with other countries worldwide with respect to ESCR. Canada is not unique. There are countries with liberal abortion regimes elsewhere. Many of these countries (e.g. in northern Europe) also restrict ESCR in much the same way as Canada. It could be argued that in those countries there is little evidence of any effect of the embryo research debate on the abortion issue. However, Canada's position on abortion goes beyond that of those countries. While many European countries have liberal abortion laws, Canada has no abortion law at all. Ultimately, the impact of the embryo debates remains to be seen, both within Europe and within Canada. The Canadian disconnect prompts asking why Canada has adopted an intermediate position in regard to the in vitro embryo when it has a very permissive position on the in utero embryo. Some have suggested that Canada's commitment to anti-commodification of the human body, including the related principle of protection of women and their bodies,178 is the issue that makes the disconnect understandable. While this is an important dimension, it would appear that what influenced the making of this position was also deference to religious and pro-life views about the status of early embryo life. This is a concern for two reasons. Privileging religion as a legitimate factor in secular policy-making when equality and dignity interests of marginalised groups are at issue gives it an elevated status that is unwarranted. This is the case when the long-term impact of that status may impair public perception of embryo life so as to impair women's reproductive rights. Although this is not yet proven, Canada's restriction in the area of ESCR could prompt a shift to a restrictive position in abortion in years to come. 1 Jean Schroedel, Is the Fetus a Person: A Comparison of Policies Across the Fifty States (Cornell University Press 2000) at 20–56 (discussing the history of foetal personhood in the USA). 2 It is important to note that the term ESCR is somewhat of a misnomer because in traditional biological terminology, a zygote only becomes an ‘embryo’ once it is implanted into a woman's uterus. The National Bioethics Advisory Committee (NBAC) notes this inaccurate appellation, but continues to use the term ‘embryo’ in defining zygotes outside the uterus because of the public familiarity with this term. NBAC, Report and Recommendations of NBAC Human Stem Cell Research, Vol. 1 (September 1999) at 4. 3 “Pope Urges President Bush to Oppose Embryonic Stem Cell Research” AP, Reuters, CNN, ABC (23 July 2001), online: http://www.prolifeinfor.org/stemcell022.html (last visited 18 January 2001). 4 William Walker, ‘Stem Cell Research Row Splits U.S.’ Toronto Star (5 July 2001) A01; William Walker, ‘Party Moderates Urge Bush to Support Stem Cell Research’ Toronto Star (6 July 2001) A13; Corinna Schuler, “‘Which of My Children Would You Kill?” Emotions Run High as Americans Debate the Morality of Embryonic Stem-cell Research’ National Post (21 July 2001) A3; Richard Owen, ‘Pope Calls on Bush in Pro-life Lecture: Pontiff Attacks Stem-cell Research’ The Vancouver Sun (24 July 2001; A8. 5 ‘Reeve Stem Cell Appeal Airs in US’ BBC News (23 October 2004) online: BBC News http://news.bbc.co.uk/1/hi/entertainment/film/3947029.stm; Nancy Reagan, infra n. 75. 6 Examples of groups: Focus on Family http://www.family.org/; Coalition of Americans for Research Ethics http://www.stemcellresearch.org/index.html; American Catholic http://www.americancatholic.org/Newsletters/CU/ac0102.asp; Concerned Women for America http://www.cwfa.org/articles/6650/CWA/life/; For example of scholars see Charles Lugosi, ‘Respecting Human Life in 21st Century America: A Moral Perspective to Extend Civil Rights to the Unborn from Creation to Natural Death’ (2005) 20:3 Issues in Law and Medicine; Brent Waters and Ronald Cole-Turner (eds), God and the Embryo: Religious Voices on Stem Cells and Cloning (Georgetown University Press 2003). 7 Although not all feminists are pro-choice (see, for example, Feminists for Life at http://www.feministsforlife.org/who/joinus.htm), an overwhelming majority of feminist groups and individuals support women's reproductive freedom, for example, see National Organization for Women at http://www.now.org/issues/abortion/index.html; Center for Reproductive Law and Policy at http://www.reproductiverights.org/about.html#mission; Feminist Majority at http://million4roe.org/; Feminist Campus.org: World's Largest Pro-Choice Student Network http://www.feministcampus.org/default.asp. To reflect this fact, and for ease of convenience, I will use the term ‘feminist’ to signal a feminist pro-choice position for the remainder of this article. 8 The Center for Reproductive Law and Policy, the National Organization for Women and the National Abortion Rights Action League have all supported ESCR and criticized the pro-life forces opposing it. See Rosemary Dempsey, ‘American Public Rejects Abortion Extremism Forcing President Bush's Compromise on Stem Cell Research’ The Center for Reproductive Law and Policy (11 August 2001) online: Center for Reproductive Rights Archive http://www.crlp.org/pr_01_0810stemcell.html (last visited 10 November 2006); Patricia Ireland, ‘Emergency Action for Women's Lives’ National Organization for Women (22 April 2001) online: NOW.org http://www.now.org/press/03-01/04-22-01.html (last visited 16 January 2002); and ‘The Bush Administration: Putting Far-Right Ideology Before Science and Our Health’ NARAL (28 November 2005) online: NARAL http://www.prochoiceamerica.org/assets/files/Bush-Ideology.pdf (last visited 10 November 2006). 9 Examples of articles on stem cell research from summer 2001 and before: Sheryl Gay Stolberg, ‘New Stem Cell Issue’ New York Times (3 September 2001) A13; ‘Downside of the Stem Cell Policy’ New York Times (31 August 2001) A18; Chris Adams, ‘Congress Braces for Vigorous Debate on Bush's Stem-cell Funding’ Wall Street Journal (31 August 2001) A10; Robert Oldham, ‘Stem Cells: Private Sector Can Do It Better’ Wall Street Journal (28 August 2001) A14. A search for newspaper articles on stem cells from 2000 and 2001 on ‘Academic Search Elite’ returned 226 hits. 10 ‘Remarks by the President on Stem Cell Research’ The White House (9 August 2001) online: The White House http://www.whitehouse.gov/news/releases/2001/08/print/20010908-2.html (last visited 31 December 2001). 11 Nancy Snow, ‘Introduction’ in Nancy Snow (ed.), Stem Cell Research: New Frontiers in Science and Ethics (University of Notre Dame Press 2003) 1 at 3. 12 Many states have legislated with respect to research on embryos with varying degrees of restriction depending on the source of the embryo. Arizona, Arkansas, Florida, Illinois, Iowa, Kentucky, Louisiana, Maine, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming do not specifically permit research on embryos and foetuses whereas California, Connecticut, Massachusetts and New Jersey do depending on the age of the embryo. See National Conference of State Legislatures, ‘State Embryonic and Fetal Research Laws’ (updated 18 July 2005), online: National Conference of State Legislatures http://www.ncsl.org/programs/health/genetics/embfet.htm (date accessed 21 June 2005). 13 Angela Campbell attributes this to the fact ‘that private investors often are reluctant to fund controversial research’. Angela Campbell, ‘Ethos and Economics: Examining the Rationale Underlying Stem Cell and Cloning Research Policies in the United States, Germany, and Japan’ (2005) 31 Am. J. L. Med. 47 at 69, citing Matthew Herper, ‘Japan's Stem-Cell Bid Lures U.S. Researchers’ Forbes (4 March 2002) online: Forbes http://www.forbes.com/2002/03/04/0304japan_print.html 14 Assisted Human Reproduction Act, S.C. 2004, c.2 (AHRA). 15 Schroedel, supra n. 1. 16 On the basis of a reading of the US federal regulatory positions on abortion and ESCR, it may be argued that these positions are actually quite liberal. Legally, there is a right to abortion on demand in the USA, at least up to the end of the first trimester. Likewise, there is no legal restriction on the ability of private companies to conduct ESCR. However, the focus of this paper is on a comparison of federal willingness to fund these activities and thus authorise this research in the public sphere. The restrictive availability of abortion as outlined under the jurisprudence of the US Supreme Court closely matches the restricted availability of ESCR. 17 National Institutes of Health (NIH), ‘Stem Cell: Scientific Progress and Future Research Directions’ (2001) ES-2, online: NIH http://stemcells.nih.gov/info/scireport/2001report.htm 18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid. at 1. 23 Ibid. at ES-2. 24 In this article, following the definitions of the AHRA, an ‘embryo’ will refer to an organism up to its 56th day of development whereas a ‘foetus’ will refer to the organism from the 57th day to birth. As the 5–10-week period crosses this boundary, I use the term ‘embryo/foetus’ above. AHRA, supra n. 14, s.1. 25 Ibid. at C-1. 26 Ibid. 27 Ibid. at 23; Amy Wagers & Irving Weisseman, “Plasticity of Adult Stem Cells” (2004) 116:5 Cell 639 at 639. 28 NIH, ibid. 29 Ibid. at 25. 30 NIH, ‘Regenerative Medicine’ (2006) at 35, online: NIH http://www.stemcells.nih.gov/info/scireport/2006report.htm 31 NIH, supra n. 16 at 25. 32 Ibid. 33 NBAC Executive Summary, supra n. 2 at 1–2, stating that ‘although much promising research is currently being conducted with stem cells obtained from adult organisms, studies in animals suggest that this approach will be scientifically and technically limited, and in some cases the anatomic source of the cells might preclude easy or safe access’. Even President Bush's remarks during his 9 August 2001 announcement recognise the special potency of embryonic stem cells over adult stem cells. He states: ‘You should also know that stem cells can be derived from sources other than embryos – from adult cells, from umbilical cords that are discarded after babies are born, from human placenta. And many scientists feel research on this type of stem cells is also promising. Many patients suffering from a range of diseases are already being helped with treatments developed from adult stem cells. However, most scientists, at least today, believe that research on embryonic stem cells offer (sic) the most promise because these cells have the potential to develop in (sic) all of the tissues in the body’ (emphasis added). For an argument as to why such claims attributing ESCR with greater research potential are unsubstantiated, see David E. Prentice, ‘The Present and Future of Stem Cell Research: Scientific, Ethical, and Public Policy Perspectives’ in Snow, supra n. 11 at 17–20. For a recent articulation of both views see David Cameron, ‘Life, Death, and Stem Cells’ Paradigm (Fall 2004) 14, 18 online: Whitehead Institute for Biomedical Research http://www.wi.mit.edu/news/paradigm/paradigm_2004_fall.pdf 34 It is not necessary to decide this question here since the focus of this article is to examine the links between abortion law and politics and the stem cell controversy as cultural phenomena, regardless of the need for that controversy scientifically. 35 Surplus embryos are stored through cryopreservation, a technique which very rapidly freezes material. Mary Z. Pelias and Margaret M. DeAngelis, ‘The New Genetic Technologies: New Options, New Hope, and New Challenges’ (1999) 45 Loyola Law Review 288 at 291; Christine L. Feiler, ‘Human Embryo Experimentation: Regulation and Relative Rights’ (1998) 66 Fordham Law Review 2435, citing Robert Blank and Janna C. Merrick, Human Reproduction, Emerging Technologies, and Conflicting Rights (Congressional Quarterly Press 1995). 36 NIH, ‘Report of the Human Embryo Panel D-4’ (1994) at 44 cited in Feiler, ibid. at 2449. 37 NIH, supra n. 16 at 17. 38 Ibid. 39 K.H.S. Campbell et al., ‘Sheep Cloned by Nuclear Transfer from a Cultured Cell Line’ (1996) 380 Nature 64–66. 40 When the sub-issue of using cloning as a method to create embryos for ESCR is added into the mix of the debate, the factions within the feminist pro-choice camp appear to be even more acute. See Nigel Cameron and Lori Andrews, ‘Cloning and the Debate on Abortion’ Chicago Tribune (8 August 2001) at 17, describing the hearings which led to the vote in the House of Representatives passing a Bill banning human cloning and the creation of cloned human embryos for ESCR as ‘one of the greatest occasions of political theater of our generation’. Right next to pro-life advocate Richard Doerflinger of the National Conference of Catholic Bishops sat three witnesses whose testimony sent shockwaves across the body politic. All three spoke in favour of a Bill drafted by pro-life members of the House and Senate, which has been widely characterised as pro-life legislation. All three spoke against ‘therapeutic’ cloning (the creation of cloned embryos to be the source of stem cells), which they argued should be outlawed. And yet all three were at pains to stress their pro-choice credentials. The three witnesses were Francis Fukuyama, Stuart Newman of the New York College of Medicine who appeared on behalf of the Council for Responsible Genetics and Judy Norsigian of the Boston Women's Health Book Collective and the current editor of the landmark feminist health text: Our Bodies, Ourselves (Simon & Schuster, 1976). 41 I also do not consider the derivative issues that will invariably result from the ability to do research such as embryonic stem cell manipulation with the cells of other mammals or whether the fruits of stem cell research should be patented. For a brief discussion of these issues, see Susan Greelee, ‘Note and Comment: Dolly's Legacy to Human Cloning: International Legal Responses to Human Rights Violations’ (2000) 18 Wisconsin International Law Journal 537 at 540–541. 42 Maureen L. Condic, ‘Stem Cells and Babies’, First things 155 (August/September 2005) at 12–13. She describes the latter option when she discusses a procedure called Altered Nuclear Transfer-Oocyte Assisted Reprogramming (ANT-OAR). This process involves converting an adult stem cell (thus removing the embryo and the issue of killing it) into an embryonic stem cell through epigenetic reprogramming. She explains: ‘As specialized cells are generated during embryonic development, they are programmed to use only a limited amount of the total genetic information present in the nucleus to produce the proteins required for their particular function. Thus, adult skin cells and adult brain cells contain exactly the same genetic information, yet each cell type uses a different subset of the total genetic information it contains. This process of restricting the use of genetic information during embryonic development is known as epigenetic programming – programming that is not part of the DNA code itself but imposed on that code during embryonic development’. She goes on to explain how epigenetic programming also explains the difference between the totipotency of a very young single-cell embryo and the pluripotency of an embryo that has started the process of cell differentiation. She concludes that the procedure is not yet feasible and must still be proven. 43 Insoo Hyun and Kyu Won Jung, ‘Human Research Cloning, Embryos, and Embryo-like Artifacts’ (2006) 36 Hastings Center Report 34. 44 Irina Klimanskaya et al., ‘Human Embryonic Stem Cell Lines Derived from Single Blastomeres’ (2006) 444 Nature at 481–485. 45 As President Clinton announced on 13 September 1999: ‘Today, my National Bioethics Advisory Commission (NBAC) delivered its report on, “Ethical Issues in Human Stem Cell Research.” Because of the enormous medical potential of such research, I asked the NBAC in November, 1998, to look at the ethical and medical issues surrounding human stem cell research. The scientific results that have emerged in just the past few months already strengthen the basis for my hope that one day, stem cells will be used to replace cardiac muscle cells for people with heart disease, nerve cells for hundreds of thousands of Parkinson's patients, or insulin-producing cells for children who suffer from diabetes…’. Georgetown University Bioethics ‘Stem Cell Press Statement’ (13 September 1999) online: Georgetown University http://www.bioethics.georgetown.edu/nbac/stemcell_press_statement.htm (last visited 30 December 2001). 46 NIH, supra n. 16. 47 NBAC, Executive Summary, supra n. 2 at 1; National Abortion and Reproductive Rights Action League (NARAL), ‘A Stem Cell Research Ban Would Hold America's Health Hostage’ online: NARAL http://www.naral.org/mediaresources/fact/pdfs/stemcell.research.pdt at 2. 48 NIH, supra n. 35 at 36. 49 Ibid. 50 Ibid. at 37. 51 Kristy Horsey, ‘IVF Success Rates from US Show Age Is All Important’ Progressive Educational Trust (13 January 2005), online: http://www.ivf.net/ivf/index.php?page=out&id=1198; ‘Success rates for test-tube babies doubles in 25 years’ (25 July 2003) CBC News, online: http://www.cbc.ca/health/story/2003/07/25/brown_25anniv030725.html 52 NIH, supra n. 35 at 8. 53 Ibid. at 1. 54 There are skeptics who argue that the expectation that rests in ESCR is largely overdetermined. See Stuart A. Newman, ‘Commentary: Embryo Stem Cells and Biobusiness at 20’ (2001) 14 Gene-Watch. Online: Gene-Watch.org http://www.gene-watch.org/magazine/vol14/index.html 55 NIH, ‘National Institutes of Health (NIH) Update on Existing Human Embryonic Stem Cells’ (27 August 2001) at 1. 56 Roger G. Noll, ‘Designing an Effective Program of State-Sponsored Human Embryonic Stem Cell Research’ (2006) 21:3 Berkeley Technology Law Journal 1143 at 1146. 57 Ibid. at 2. The embryos and resulting stem cell lines belong to 10 laboratories only four of which are located in the USA. Twenty stem cell lines are located in American laboratories, 24 are located in Sweden, 6 in Australia, 10 in India and 4 in Israel. 58 ‘Monitoring Stem Cell Research’ President's Council on Bioethics (January 2004) online: Bioethics.gov http://www.bioethics.gov/reports/stemcell/chapter2.html 59 NIH, supra n. 55 at 3. 60 NBAC, supra n. 2. President Bush terminated NBAC's Charter as of 3 October 2001. 61 NBAC, Executive Summary, supra n. 2 at 4, citing Pub. L. No. 105–78, 513(a), the rider to the appropriations bill for the Department of Health and Human Services to which the NIH belongs. 62 Campbell, supra n. 13 at 57–58. 63 Ibid. at 58. The President's Council on Bioethics is to ‘study such issues as embryo and stem cell research, assisted reproduction, cloning, genetic screening, gene therapy, euthanasia, psychoactive drugs, and brain implants’, ‘Embryonic Stem Cell Research’ White House Fact Sheet (9 August 2001) at 1, online: The White House http://www.whitehouse.gov/news/releases/2001/08/print/20010908-1.html 64 Ibid. at 58–59. 65 See: http://www.bioethics.gov/reports/ for President's Council on Bioethics Reports. The most recent report on stem cell research, ‘White Paper: Alternative Sources to Pluripotent Stem Cells’ (May 2005) illustrates that the Council has not urged a change in the ban prohibiting cloning of embryos. It is also worth noting that the constitutional status of the ban is murky. Some academics have argued that it is not an executive order while others believe that it is. It is certainly not a law passed by Congress. It can be easily reversed by another speech by this president or the next president. Further, the NIH policy is based on the presidential speech. Its legal status is also questionable. In theory, they are both open to legal challenge. 66 For divergent views by religious scholars on stem cells, see Waters and Cole-Turner, supra n. 6. 67 Schroedel, supra n. 1; Campbell, supra n. 13 at 65, citing John Cloud, ‘Bush's No-Win Choice: Why the President's Stem-cell Decision Could Define His Term’ Time (23 July 2001) at 22. 68 Campbell, ibid. 69 NBAC, supra n. 2. 70 Campbell, supra n. 13 at 66. 71 Eric Cohen, ‘The Tragedy of Equality’ (2005) 7 The New Atlantis 101. 72 As Cohen puts the point, ‘(b)efore fertilization, we have an egg and many sperm; we have many possibilities and no person. After fertilization, we have an individual human life-in-process. I was once a zygote, but I was never a sperm or an egg, since the gametes that produced me could have produced someone else’. Ibid. at 105. 73 To his credit, Cohen realizes that the norm of human equality is a cultural value and not a fact or assertion that can be proven, but only argued for or defended as a desirable norm to have. Ibid. at 102. 74 Ibid. at 104–106. 75 Ibid. at 106. 76 Leon Kass, ‘Equality Reconsidered – Human Frailty and Human Dignity’ (2005) 7 The New Atlantis 110 at 116–118. Kass writes: ‘… I don't have to insist that the human embryo is the moral equivalent of my child. I can call instead for a certain kind of expansiveness, a certain kind of generosity, a certain insistence that we should not wish to live in a society that uses the seeds of the next generation for the sake of its own. This argument appeals to the dignity with which we conduct ourselves, not the indisputable equality of the early embryo. It is an argument grounded in prudence and restraint, not in equality or justice. It is an argument that remembers that we must not sacrifice the opportunities to live well simply in order to try to live longer’. 77 Campbell, supra n. 13 at 66. 78 Lisa Shaw Roy, ‘Roe and the New Frontier’ (2003) 27 Harvard Journal of Law and Public Policy 339; Nicholas C. Lund-Molfese, ‘What is the Culture War About’ in Nicholas C. Lund-Molfese and Michael L. Kelly (eds), Bioethics: A Culture War (University Press of America, 2004) 3. 79 Campbell, supra n. 13 at 66, citing in particular, Marshall H. Medoff, ‘The Determinants and Impact of State Abortion Restrictions’ (2002) 6 American Journal Economics and Sociology 481 at 487, 491. 80 Nancy Reagan wrote to President Bush emphasising to him the benefits that stem cell research could procure for people suffering from Alzheimer's disease. Phil Brennan, ‘Exclusive: Nancy Reagan Strongly Endorses President Bush’ News Max (3 August 2004) online: NewsMax.com http://www.newsmax.com/archives/articles/2004/8/2/161745.shtml 81 Ibid. 82 Peter Slevin, ‘A Battle for Research Funding Emerges in Stem Cell Debate’ Washington Post (14 August 2005) online: Washington Post http://www.boston.com/news/nation/articles/2005/08/14/a_battle_for_research_funding_emerges_in_stem_cell_debate_.html (date last accessed 14 August 2005). 83 Campbell, supra n. 13 at 67, drawing upon the work of Richard W. Momeyer, ‘Embryos, Stem Cells, Mortality and Public Policy: Difficult Connections Symposium on Bioethics – Thinking About Biomedical Advances: The Role of Ethics & Law’ (2003) 31 Capital University Law Review 93 at 102; Kenneth J. Ryan, ‘The Politics and Ethics of Human Embryo and Stem Cell Research’ (2000) 10 Women's Health Issues 105 at 109. 84 Schroedel, supra n. 1. 85 Schroedel, supra n. 1. 86 See Miller v. American Fertility Group Ill. Cir. Ct., No. 02L7394 (2005) as discussed in Katharine Vick, ‘Judge Declares Pre-embryo Is Human’ (2005) 8 Journal of Biolaw and Business 52. 87 Casey v. Planned Parenthood, 14 F.3d 848 (3rd Cir. 1994). 88 ‘The Harry A. Blackmun Papers’ Library of Congress (16 November 2004) online: Library of Congress http://www.loc.gov/rr/mss/blackmun/ 89 Partial-Birth Abortion Ban Act, 18 U.S.C. § 1531 (2003). 90 Gonzales v. Carhart, 127 S.Ct. 1610; 75 USLW 4210 (2007). 91 The National Organization for Women (NOW), the Centre for Reproductive Law and Policy (CRLP) and the National Abortion and Reproductive Rights Action League (NARAL) NARAL, online: NARAL http://www.naral.org/mediaresources/fact/pdfs/stemcell.research.pdt (last visited on 1 January 2002). 92 Bush issued the executive order on 22 January 2001 which denies USAID funds to foreign NGOs if they ‘perform or actively promote abortion as a method of family planning or provide financial support to any other foreign nongovernmental organization that conducts such activities’. As Karen Baird notes, this includes counselling women, except when her life is at risk or the pregnancy was a result of incest or rape, and lobbying governments to change restrictive abortion laws. Karen Baird, ‘Globalizing Reproductive Control: Consequences of the “Global Gag Rule”’in Rosemarie Tong et al. (eds) Linking Visions: Feminist Bioethics, Human Rights, and the Developing World (Rowman and Littlefied Publishers 2004) at 134, citing ‘Memorandum of March 28, 2001: Restoration of the Mexico City Policy’, U.S. White House Memorandum (29 March 2001) Federal Register 66, no. 61: I7301–13. For a discussion of the predecessors of the gag rule as well as the effect, see Baird, ibid. at 133–145. 93 Janet Dolgin, ‘Embryonic Discourse: Abortion, Stem Cells and Cloning’ (2004) Issues in Law and Medicine 206. 94 Ibid. at 222. 95 Ibid. at 219. 96 Ibid. at 229 97 Ibid. 98 Ibid. at 260. 99 Ibid. at 260. 100 Ibid. at 256–257. 101 Ibid. at 259. 102 Campbell, supra n. 13 at 54. 103 Ibid. at 65. 104 Kara L. Belew, ‘Stem Cell Division: Abortion Law and Its Influence on the Adoption of Radically Different Embryonic Stem Cell Legislation in the United States, the United Kingdom, and Germany’ (2004) 39 Texas International Law Journal 479 at 481. 105 Ibid. 106 Ibid. at 518. This agrees with arguments by law and religion scholars about the partial incommensurability between the cultures of law and religion. See Benjamin L. Berger, ‘Understanding Law and Religion as Culture: Making Room for Meaning in the Public Sphere’ (2007) 15 Constitutional Forum 15 at 17. 107 Slevin, supra n. 83. 108 Nobel Laureates, the American Medical Association, the National Academy of Sciences and the New England Journal of Medicine, among others, have all supported ESCR. Cameron, supra n. 32 at 18. 109 NBAC, supra n. 2 at 1. 110 Campbell, supra n. 13 at 65, 68–69. 111 Ron Gara, ‘Americans Want Stronger Commitment to Health Research’ Daily News Central (21 September 2005) online: DNC http://www.health.dailynewscentral.com/content/view/0001670/44/. An example of the American drive to ‘be the best’ is provided by TheCenter [sic], an organization in the USA which puts together annual reports on major national universities to rank their research capabilities. The Center claims that the question ‘Who's number one?’ is ‘the quintessential American question’, see http://www.thecenter.ufl.edu/research.html 112 Campbell mentions the decision by two prominent Americans to leave the prestigious private company known as Advanced Cell Technology to accept positions at Japan's new Centre for Development Biology, a publicly funded institution in Kobe to the amount of $45 million. Campbell, supra, n. 13 at 69. 113 Slevin, supra n. 83. 114 The Editors, ‘Embryo Wars’ (2005) 8 The New Atlantis 101; N011, supra n. 56 at 1145–1146. 115 Ibid. 116 Ruth Deech, ‘Playing God: Who Should Regulate Embryo Research?’ (2007) 3 Brooklyn Journal of International Law 321 at 328. 117 Joseph Singer, Entitlement: Paradoxes of Property (Yale University Press 2000). For an example of how these values are related, see Dick Armey, ‘Christians and Big Government: Why Faith Requires Freedom’ FreedomWorks (12 October 2006), online: FreedomWorks http://www.freedomworks.org/informed/issues_template.php?issue_id= 2731. He writes:There was a day when social conservatives were united with economic conservatives in the belief that small, limited government was not only good for our economy and the prosperity of American families, but essential to protect traditional family values. We all fought for a limited federal government – a government that had the decency to respect the American people by staying out of their lives. Small government meant that all Christians could practise their faith as they saw fit. Big government violates those rights by meddling in our lives, misusing our hard-earned money, and dictating cultural norms to us. We were and are rightly outraged when government imposes wrong-headed values through its monopoly of schools, government-funded “art,” and taxpayer funded “family planning”. 118 Campbell, supra n. 13 at 70–71. 119 AHRA, supra n. 14. 120 Peter Brooks, ‘Narrative Transactions – Does the Law Need a Narratology?’ (2006) 18 Yale Journal of Law and Humanities 1. 121 See ibid., s. 2. 122 See ibid., ss. 5(1)(b), (d) and 8 (s. 8 is to come into force on a date set by proclamation) read as follows: 5. (1) No person shall knowingly… (b) create an in vitro embryo for any purpose other than creating a human being or improving or providing instruction in assisted reproduction procedures… (d) maintain an embryo outside the body of a female person after the fourteenth day of its development following fertilization or creation, excluding any time during which its development has been suspended. 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. (2) No person shall remove human reproductive material from a donor's body after the donor's death for the purpose of creating an embryo unless the donor of the material has given written consent, in accordance with the regulations, to its removal for that purpose. (3) No person shall make use of an in vitro embryo for any purpose unless the donor has given written consent, in accordance with the regulations, to its use for that purpose. 123 See ibid., s. 10. 124 Winnipeg Child and Family Services (Northwest Area) v. D.F.G., [1997] S.C.J. No. 96, 3 S.C.R. 925. 125 Alister Browne and Bill Sullivan, ‘Abortion in Canada’ (2005) 14 Cambridge Quarterly of Healthcare Ethics 287 at 290. An example of this difference between Canada and the USA can be seen in the appointment process of Supreme Court Justice Rothstein. In an unprecedented public hearing before the appointment of Justice Rothstein to the Supreme Court of Canada, questions regarding his personal opinions on controversial subjects, such as abortion, were not allowed. Reporter Janice Tibbetts, contrasts this hearing with those characteristic in the USA, writing ‘Though he will face questioning on Monday, several MPs who will sit on the panel said they don't intend to question Justice Rothstein's personal beliefs or opinions on issues that might come up before the court – a stark contrast to the confrontational, partisan confirmation process nominees endure in the United States’. See ‘Rothstein Will Be Asked Civil Questions’ National Post (24 February 2006) A6. Similarly, Prime Minister Harper has declined to engage in the abortion debate, see de Souza ‘The Issue Harper Can't Ignore” National Post (2 March 2006) A16. 126 See the Childbirth By Choice Trust, ‘Abortion: a Canadian Legal History’ at http://www.cbctrust.com/chronology.php 127 Ibid. 128 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. Morgentaler claimed that s. 251 violated s. 2(a), 7, 12, 15, 27 and 28 of the Charter. 129 R. v. Morgentaler, [1988] 1 S.C.R. 30, 1988 S.C.C. 2. 130 Ibid. at paras. 25–29. 131 Ibid. at paras. 240–241. 132 See Lorna Weir, ‘Left Popular Politics in Canada Feminist Abortion Organizing, 1982–1991’ (1994) 20 Feminist Studies 249–274; Thomas Flanagan, ‘The Staying Power of the Legislative Status Quo: Collective Choice in Canada's Parliament after Morgentaler’ (1997) 30 Canadian Journal of Political Science 31–53. 133 Tremblay v. Daigle, [1989] 2 S.C.R. 530. 134 Arts. 18, 338, 345, 608, 771, 838, 945, 2543 C.C.L.C.; Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss.1–2. 135 Winnipeg Child and Family Services, supra n. 124. 136 Abortion is indirectly regulated as any other medical procedure is through the Canada Health Act. Joyce Arthur, ‘Abortion in Canada: History, Law, and Access’ (October 1999) online: The Pro-choice Action Network http://www.prochoiceactionnetwork-canada.org/articles/canada.shtml. The other two countries with no direct abortion regulation are China and North Korea. See the Childbirth By Choice Trust, supra n. 126. 137 Ibid. 138 Examples of pro-life organisations in Canada: Canadian Physicians for Life: http://www.physiciansforlife.ca/; National Campus for Life Network: http://www.ncln.ca/; Newfoundland and Labrador Right to Life Association: http://www.home.thezone.net/~nfrtla/; Life Canada: http://www.lifecanada.org/; Catholic Civil Rights League of Canada: http://www.ccrl.ca/; Vote Life, Canada!: http://www.votelifecanada.ca/ 139 Browne and Sullivan, supra n. 131 at 290; See also Canadians for Choice, ‘Protecting Abortion Rights in Canada’, http://www.caral.ca/PDF/caralreport.pdf (last visited 14 November 2006). 140 Bureau of Democracy, Human Rights, and Labour, U.S. Department of State, ‘Country Reports on Human Rights Practices – 2006’ (6 March 2007), online: U.S. Department of State http://www.state.gov/g/drl/rls/hrrpt/2006/78883.htm 141 AHRA, supra n. 14, ss. 6(1)–(3). 142 Ibid., ss. 7(1)–(4). 143 Health Canada, ‘Health and Safety of Canadians’ (2004), online: Health Canada http://www.hc-sc.gc.ca/hl-vs/reprod/hc-sc/legislation/safety-securite_e.html; Roxanne Mykitiuk, Jeff Nisker and Robyn Bluhm, ‘The Canadian Assisted Human Reproduction Act: Protecting Women's Health While Potentially Allowing Human Somatic Cell Nuclear Transfer into Non-Human Oocytes’ (2007) 7 The American Journal of Bioethics 71. 144 Jennifer Nedelsky, ‘Property in Potential Life? A Relational Approach to Choosing Legal Categories’ (1993) 6 Canadian Journal of Law and Jurisprudence 343. Other feminists, of course, insist that commodification can be empowering for women given the correct regulatory structure. Various perspectives on both sides of the debate are provided in Joan C. Williams and Martha M. Ertman, Rethinking Commodification: Cases and Readings in Law and Culture (New York University Press, 2005). 145 Nedelsky, ibid. at 350. 146 Mykitiuk et al., supra n. 143 at 1. 147 From the outset, feminists were quick to identify the field of new reproductive technologies as an area requiring their attention. Concerned with the implications of these technologies for women's reproductive health, feminists insisted upon the development of regulations in this area. In 1989, when the Federal Government appointed a Royal Commission on New Reproductive Technologies, it did so largely as a response to feminist lobbying. When the Report of the Royal Commission, Proceed with Care, was published, in 1993, a clear feminist influence could be discerned. For a more detailed discussion of the history of the AHRA, and influences underlying the legislation, see Diana Backhouse and Maneesha Deckha, ‘Shifting Rationales: The Waning Influence of Feminism on Embryo Research Restrictions’ (unpublished manuscript on file with author). 148 Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It (Oxford University Press, 2000) at 118. 149 Denise Reaume explains that valuing human dignity means ‘acknowledging the inherent worth of human beings’. She suggests that this ‘deep sense of moral worth’ is simply ‘part of our conception of the person’. Dignity is ascribed to every human being, separate from any further qualifications. She further argues that ‘as something inherently “possessed” by human beings, dignity cannot be taken away’, but rather can be ‘dishonoured through a failure to show respect’ or ‘through the treatment of others as less than creatures of inherent worth’. See Denise Reaume, ‘Discrimination and Dignity’ (2003) 63 Louisiana Law Review 645. 150 AHRA, supra n. 14, s. 5(1)(b). 151 Ibid., s. 2(c). 152 D.W. Brock, ‘Is a Consensus Possible on Stem Cell Research? Moral and Political Obstacles’ (2006) 32 Journal of Medical Ethics 36 at 40; Stewart Sell (ed.), Stem Cell Handbook (Humana Press Inc., 2004) at 76. 153 Roni Caryn Rabin, ‘As Demand for Donor Eggs Soars, High Prices Stir Ethical Concerns’ The New York Times (15 May 2007), online: The New York Times http://www.nytimes.com/2007/05/15/health/15cons.html?_r=1&ref=science&oref=slogin 154 Samuel H. Reimer, ‘A Look at Cultural Effects on Religiosity: A Comparison between the United States and Canada’ (December 1995) 34 Journal for the Scientific Study of Religion 445; Reginald W. Bibby, W.E. Hewitt and Wade Clark Roof, ‘Religion and Identity: The Canadian, American, and Brazilian Cases’ (1998) 39 International Journal of Comparative Sociology 237 at 241. 155 Ibid. at 447. 156 James L. Guth and Cleveland R. Fraser, ‘Religion and Partisanship in Canada’ (March 2001) 40 Journal for the Scientific Study of Religion 51 at 52; Janice Tibbetts, ‘Keep Religion Out of Politics, Canadians Say’ Ottawa Citizen (17 April 2006), online: Ottawa Citizen http://www.canada.com/ottawacitizen/news/story.html?id=c3437b79-d0eb-4157-b4ae-ad11de38755c. 157 See Marguerite Van Die, ‘Religion and Public Life in Canada and the United States: How Different Are We?’ (Paper presented at the University of Calgary Iwaasa Lectures on Urban Theology, 24 September 2002). 158 Charter of Human Rights and Freedoms, supra n. 134. 159 Eighty-six per cent of all Quebeckers and 95% of French Quebeckers self-identify as Catholic. David Seljak, ‘Catholicism's ‘Quiet Revolution’: Maintenant and the New Public Catholicism in Quebec after 1960' in Marguerite Van Die (ed.), Religion and Public Life in Canada: Historical and Comparative Perspectives (University of Toronto Press 2001) 270. 160 Prior to Quebec's Quiet Revolution in the 1960s, the Roman Catholic Church wielded considerable power in major public spheres. The Quiet Revolution marked a period of rapid secularisation within the province and the Church experienced a massive decline in power. In the years that followed, the Church was increasingly displaced institutionally by the state in the major events of the public sphere. See Roger O'Toole, ‘Religion in Canada: Its Development and Contemporary Situation’ (1996) 43; Social Compass 119 at 122–125; Seljak, ibid. at 259; Gregory Baum, The Church in Quebec (Novalis 1991) at 35; Michael Gauvreau, ‘From Rechristianization to Contestation: Catholic Values and Quebec Society, 1931–1970’ (2000) 69 Church History 803 at 821. 161 Van Die, supra n. 160 at 11. For a discussion of the American cultural wars and the relationship of the Christian evangelical Right to the anti-abortion movement, see Robert Post and Reva Siegel, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) 42. Haw C.R-C.L.L. Rex (forthcoming). 162 R. Douglas Elliott, ‘The Canadian Earthquake: Same-Sex Marriage in Canada’ (2004) 38 New England Law Review 591 at 617. 163 The Minutes of Proceedings of the Standing Committee on Health indicate that members from the Campaign Life Coalition, the Canadian Conference of Catholic Bishops and The Evangelical Fellowship of Canada made statements and answered questions during a consideration of Bill C-56, An Act Respecting Assisted Human Reproduction. See Canada, House of Commons Standing Committee on Health, Minutes of Proceedings Meeting No. 90 (13 June 2002), online: http://www.cmte.parl.gc.ca/cmte/CommitteePublication.aspx?COM=218&SourceId=47045&SwitchLanguage=1; See also Canada, House of Commons Standing Committee on Health, Assisted Human Reproduction: Building Families (2001) at Appendix C, online: http://www.cmte.parl.gc.ca/Content/HOC/committee/371/heal/reports/rp1032041/healrp01/06-toc-e.htm for a list of groups that submitted briefs to the Committee. For a discussion of the influence of religion on Canadian politics and the AHRA, see Stephen G. Morris, ‘Canada's Assisted Human Reproduction Act: A Chimera of Religion and Politics’ (2007) 7:2 American Journal of Bioethics<69, 69–70. 164 Ibid. 165 Timothy Caulfield and Tania Bubela, ‘Why a Criminal Ban? Analyzing the Arguments Against Somatic Cell Nuclear Transfer in the Canadian Parliamentary Debate’ (2007) 7 The American Journal of Bioethics 51 at 54–56, 58. 166 Ibid. 167 Ibid. 168 Elliott, supra n. 162 at 617. 169 Paul Willcocks, ‘Mixing Religion and Politics’ Prince George Citizen (6 August 2003) at 4; ‘Former PM Honoured for Same-Sex Stance’ Kamloops Daily News (30 April 2005) at B6. 170 Doug Struck, ‘Same-Sex Marriage Advances in Canada: House of Commons Approves Measure’ Washington Post (29 June 2005) A01; Clifford Krauss, ‘Canadian Leaders Agree to Propose Gay Marriage Law: Canadian Cabinet Approves National Policy for Marriage to Gay and Lesbian Couples’ New York Times (18 June 2003), online: New York Times http://www.nytimes.com/2003/06/18/international/americas/18CANA.html; Elliott, supra n. 162 at 591. 171 CBC News, ‘Poll Shows Canadians Split Over Same-sex Marriage’ CBC News (5 September 2003), online: CBC.ca http://www.cbc.ca/news/story/2003/09/04/samesexpoll030904.html 172 Elliott, supra n. 162 at 617 173 Benjamin Berger, ‘Law's Religion: Rendering Culture’ (2007) 45 Osgoode Hall Law Journal 277. 174 Ibid. 175 For a fuller discussion of this tension between religion, culture and equality, see Bruce MacDougall, ‘The Separation of Church and Date: Destabilizing Traditional Religion-based Norms on Sexuality’ (2003) 36 UBC Law Review 1 at 15–22 and Maneesha Deckha, ‘Is Culture Taboo?: Feminism, Intersectionality, and Culture Talk in Law’ (2004) 16 Canadian Journal of Women and Law 14. 176 CTV News, ‘Harper Win Makes Headlines Around the World’ (24 January 2006), online: CTV.ca News http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20060124/elxn_main_story_060124/20060124?s_name=election2006; Rawan Jabaji, ‘Reporting Canada's Christian Right’ The Revealer (20 November 2006), online: the revealer http://www.therevealer.org/archives/timely_002722.php 177 Indeed, at a policy level, the Harper government has made substantial cuts to feminist groups who were previously funded by the Women's Program under the auspice of Status of Women Canada. Quite radically, the word ‘equality’ was removed from the mandate of the Women's Program on the premise that equality has already been achieved by Canadian women. Groups advocating for equality through research lobbying, and advocacy were defunded after decades in existence. What is more, for the first time, funds were dispersible to for-profit and religious groups. Now, only groups that were concerned with increasing women's ‘participation’ in society are eligible for funding. The assault on equality is clear. See Andrée Côté, ‘The Broken Promises of Prime Minister Harper’ in Jurisfemme: News from the National Association of Women and the Law, Spring 2007, 1. 178 Mykitiuk et al., supra n. 1973 © The Author [2008]. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
TI - THE GENDERED POLITICS OF EMBRYONIC STEM CELL RESEARCH IN THE USA AND CANADA: AN AMERICAN OVERLAP AND CANADIAN DISCONNECT
JF - Medical Law Review
DO - 10.1093/medlaw/fwm021
DA - 2008-04-01
UR - https://www.deepdyve.com/lp/oxford-university-press/the-gendered-politics-of-embryonic-stem-cell-research-in-the-usa-and-6wGN8zQgN3
SP - 52
EP - 84
VL - 16
IS - 1
DP - DeepDyve
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