Canada's new Assisted Human Reproduction Act (AHRA) is one
of the most significant pieces of legislation addressing human
genetic and reproductive technologies enacted to date. Many
Canadian constituencies played key roles in building consensus
for the AHRA, notably including the women's health community.
Canada now joins the United Kingdom, Germany and Australia as
countries that have adopted comprehensive, responsible policies
addressing human genetic and reproductive technologies. These
policies embody differing social and political values but agree
on core principles. Successful passage of the AHRA stands in
stark contrast to the situation in the United States, where
these issues have become entangled with the politics of abortion,
the "culture wars," and the Presidential election.
of the Assisted Human Reproduction Act
Context: A Menu of Policy Models
Politics: Canada and the United States
You Can Do
On March 11, 2004, the Canadian Senate approved the Assisted
Human Reproduction Act (AHRA), one of the most significant pieces
of legislation addressing human genetic and reproductive technologies
enacted to date. The legislation was earlier approved by the
House of Commons and will become law shortly.
The new legislation draws clear lines prohibiting unacceptable
applications of new human genetic and reproductive technologies
while allowing beneficial applications to proceed in a socially
Successful passage of the AHRA is a tribute to the hard work
and political sophistication of key constituencies, and to Canada's
tradition of consensus politics. Canadian feminists supported
the measure's core values of protecting the health and well-being
of women and children, and preventing the commercial exploitation
of reproduction. Supporters of embryonic stem cell research
recognized that if they were to receive public funding they
needed to work within a publicly acceptable framework. Although
key anti-abortion groups opposed the AHRA, other groups usually
associated with anti-choice positions, including the Canadian
Conference of Catholic Bishops, explicitly declined to oppose
Provisions of the Assisted Human
The AHRA distinguishes between practices that are prohibited
and those that are permitted but regulated. The prohibited practices
creation of human embryos solely for research;
engineering (i.e., inheritable genetic modification);
creation of human/non-human hybrids and chimeras;
use of somatic cell nuclear transfer (cloning), whether for
research or reproduction;
selection except to prevent, diagnose or treat a sex-linked
disorder or disease;
surrogate motherhood contracts and the sale of sperm, eggs and
Research involving human embryos, including embryonic stem
cell research, is permitted, using embryos created but not used
during in vitro fertilization procedures. The AHRA establishes
the Assisted Human Reproduction Agency of Canada (AHRAC) to
develop and oversee regulations covering these and other permitted
activities. The AHRAC is to license and monitor all private
and public fertility clinics, research facilities and other
institutions whose research or commercial activity involves
human gametes or embryos.
The AHRAC will be governed by a 13-member Board and chief executive
officer, both appointed by the federal Cabinet and operating
within the Ministry of Health. Board members serve 3-year terms.
Senators voting for the bill recommended that at least 50% of
the members be women.
Portions of the new law are still contested. Some organizations
representing infertile couples and fertility clinic physicians
objected to the ban on payments (beyond reasonable expenses
incurred by donors) for women's eggs. Some disability rights
leaders called for tighter restrictions on pre-implantation
genetic testing, to avoid promoting a medical model of disability
in place of a more inclusive social model. Some scientists argued
that criminal sanctions for the measure's prohibited activities
are excessive. Some pro-life groups want to extend the prohibitions
to include all embryo research.
The AHRA provides for a legislative review after three years.
This provision enabled many who were not completely satisfied
with the measure to support it nonetheless.
There is no reason to expect that passage of the AHRA means
the end of controversy over human genetic and reproductive technologies
in Canada. But the measure considerably narrows the range of
controversies and establishes a democratically accountable structure
for addressing them.
Wider Context: A Menu of Policy Models
Many in the United States and elsewhere are skeptical that
comprehensive policies to govern human genetic and reproductive
technologies can be developed, given the wide range of conflicting
positions held by engaged constituencies. But legislation adopted
in the United Kingdom, Germany, Australia, and now Canada shows
that this skepticism is premature. Policies adopted in these
countries embody differing social and political values but agree
on core principles.
In general, German policies are more restrictive, British policies
are more permissive, and Australian and Canadian policies are
German laws ban a wide range of activities involving human
genes, gametes or embryos. As a consequence no regulatory bodies
were needed to oversee these activities.
The British law established a Human Fertilization and Embryological
Authority (HFEA), whose 18-member Board decides what is permitted
and what is not. The HFEA requires that private and public institutions
working with human gametes and embryos be licensed, and can
suspend or revoke the license of non-complying institutions.
The Australian and Canadian laws legislatively ban a number
of widely condemned activities, leaving a more limited but still
significant set of issues open for further consideration by
regulatory bodies. The Australian regulatory body is the National
Health and Medical Research Council Licensing Committee and
the Canadian body, as noted, will be the Assisted Human Reproduction
Agency of Canada (AHRAC).
The different ways in which the four sets of policies have
addressed the issue of research cloning is instructive. The
German law prohibits research cloning. The United Kingdom's
HFEA has agreed to entertain specific research cloning proposals.
These require public hearings, and any approved research would
be subject to regulatory oversight. The Australian law established
a three-year moratorium on research cloning. The new Canadian
law prohibits research cloning, but this provision, along with
the rest of the law, will be subject to review after three years.
In contrast, consider the "wild west" regulatory
environment in the United States. In 1999 the University of
California at San Francisco began secret experiments to clone
human embryos, and did not acknowledge this until 2002 when
reporters using the California Public Information Act forced
disclosure of lab reports. In 2000 Advanced Cell Technologies
in Massachusetts began creating clonal embryos under wraps of
corporate secrecy, with no prior review except by an internal
"ethics advisory board" known in advance to support
research cloning. In 2001 the Jones Institute for Reproductive
Medicine in Virginia broke a widely-observed ethical restraint
and harvested 162 eggs from 12 women to create 40 viable embryos
to be used exclusively for research purposes, again without
going through any process of public review and approval.
The important point is that the United Kingdom, Germany, Australia
and now Canada all have laws on the books that prohibit unacceptable
activities, require public oversight of acceptable activities,
and establish socially accountable structures for revising policies
or setting new ones. Nothing of this sort exists in the United
States, or in most other countries, at this time.
Comparative Politics: Canada and
the United States
In the United States the development of policy on human genetic
and reproductive technologies has become deeply entangled with
the politics of abortion, the "culture wars," and
the Presidential election. Creative political work will be needed
to prevent this situation from further distorting the development
of needed policies.
Several factors have allowed Canadians holding different opinions
about genetic technologies to agree on a legislative package,
while their counterparts in the U.S. have been at loggerheads.
Abortion rights and access to abortion services are not hotly
contested issues in Canada. As a consequence, policies concerning
embryo research, cloning and related topics can be evaluated
more easily on their own merits rather than with regard to their
bearing on abortion politics.
The Canadian Institutes of Health Research (CIHR) and other
bodies provide public funding for human embryo research. The
existence of this support makes it easier for biomedical researchers
to accept public oversight and control.
A third factor is simply the greater sense of social solidarity
among Canadians, whose culture wars are often fought with styrofoam
bats rather than with sharpened knives.
Also important is the fact that Canadians have been discussing
the need for assisted reproduction policies since the early
1990's, when the Canadian Royal Commission on New Reproductive
Technologies launched an ambitious series of public meetings
and hearings that involved thousands of Canadians from all walks
The situation in the U.S., by contrast, is highly polarized.
The major constituencies politically active on these issues
- the religious conservatives who want bans on all embryo research
and the biotech/biomedical researchers who want a free hand
to do pretty much whatever they wish - are sharply opposed.
Although surveys suggest that Americans prefer a middle position,
one that supports embryo research but wants it subject to strong
social controls, at present this position does not have an organized
constituency advocating for it.
In the absence of any effective countervailing forces, the
biotech and biomedical interests are using this political moment
to secure unprecedented corporate and professional control over
the development and commercialization of human genetic and reproductive
technologies. All-out efforts are underway in key states, including
California, New York, New Jersey and Massachusetts, to legislatively
affirm the acceptability of such research, secure public funding,
and minimize public oversight.
The most troubling of these initiatives is the effort by stem
cell researchers and patient advocates in California to put
an initiative on the November ballot committing Californians
to spend $3 billion on stem cell research, financed through
taxpayer-supported bonds. The initiative would amend the state
constitution to include a "right to conduct stem cell research,"
and vest control over these enormous funds in an independent
Institute comprised largely of representatives of research institutions
and patient advocacy groups. The leaders of the initiative are
reportedly planning to raise $20 million for television ads
and other campaign activities.
The problem here is not the fact that stem cell research is
being supported and funded - we believe it should be - but that
the initiative represents a move by wealthy interests to manipulate
a compassionate public into supporting an earmarked fund for
stem cell researchers far larger than any deliberative process
of medical research priority-setting would allow. The initiative
goes on to explicitly establish barriers to any effective public
oversight of the use of these funds. This is precisely the opposite
of what any responsible regulatory structure should be designed
The U.S. Presidential campaign has the potential to exacerbate
this perverse situation. In reaction to Republican calls for
prohibitions on embryo research, some Democrats are responding
by advocating not only that such technologies not be restricted
but that they be given special dispensation from regulatory
control. Under the polarizing pressures of partisan conflict,
Democrats could find themselves unwittingly endorsing policies
that further the corporate control of biomedical research and
that open the door to an era of free-market eugenics.
What You Can Do
The Canadian Assisted Human Reproduction Act and the work of
Canadian women's health leaders and others to ensure its passage
demonstrate that effective social governance of reproductive
and genetic technologies can be secured. All of us involved
with professional or advocacy work in these areas can point
to this hopeful development in the course of our academic, policy,
communication and organizing efforts.
CGS is in touch with Canadian policy and activist leaders who
were active in the campaign for passage of the AHRA and who
are interested in meeting or talking with those interested in
learning more about this legislation and the effort to get it
approved. Please let us know if you would like to contact them.
1. The British law is the 1991 Human Fertility and Embryological
Act, the German law is the 1991 Embryo Protection Act (Embryonenschutzgesetz,
or EmS), the Australian policies are specified in the 2003 Prohibition
of Human Cloning Act and the 2002 Research Involving Human Embryos
Act, and the Canadian law, as noted, is the 2004 Assisted Human
Reproduction Act. In addition, thirty-one countries have signed
the Council of Europe's 1997 Convention on Biomedicine and
Human Rights, which commits them to policies concerning
embryo research, cloning and genetic alteration roughly similar
to those found in the Canadian legislation. It is important
to note that none of these laws restrict access to abortion
services. See the Resources section of this report for more
information on these policies.