Reproductive Technology and International Mechanisms of
Protection of the Human Person
Bartha M. Knoppers*
The author discusses reproductive techno-
logy with a view to examining the sufficiency
of current domestic regulation and proposed
reforms, and the need for the development
of international norms for the protection of
the human person. The first part of the article
studies the current legal status of human ge-
netic material (foetus, embryo and gametes)
used in, or resulting from, reproductive tech-
nology (artificial insemination and in vitro
fertilization). This is followed by an exami-
nation of domestic law reform proposals from
commissions in the Commonwealth, Europe
and the United States. These proposals reveal
the emergence of a consensus on a number
of points, namely on the need to protect hu-
man genetic material without necessarily ac-
cording it legal personality; on a time limit
to in vitro culture; on prohibiting embryo im-
plantation after experimentation; and on lim-
iting access to reproductive technology to stable
unions. The second part of the article dis-
cusses the possible application of constitu-
tional rights and international human rights
to reproductive technology. According to the
author, some national reforms belong in the
international arena since the respect for hu-
man life and dignity are universal values.
Furthermore, the protection of human ge-
netic material cannot be effective where there
are no international standards of control to
prevent forum shopping as a means of cir-
cumventing future national regulation.
Eauteur 6tudie les technologies de fertilit6 pour
determiner si les 1gislations nationales ac-
tuelles et les propositions de r~forme sont
ad~quates, ainsi que la nicessit6 de develop-
per des normes internationales de protection
de la personne humaine. La premiere partie
de l’article concerne le statut juridique actuel
du materiel g6ntique humain (foetus, em-
bryon et gametes) utilis6 ou produit par les
technologies de fertilit6 (insemination artifi-
cielle et fertilisation in vitro). I’auteur exa-
mine ensuite les recommendations provenant
de commissions de rrforme du droit amdri-
caines, europ~ennes et du Commonwealth. I
se d6gage de ces differentes recommendations
un consensus sur un certain nombre de ques-
tions, notamment: le besoin de protrger le
materiel grn6tique sans ntcessairement lui
accorder la personnalit6 juridique; l’imposi-
tion d’un drlai pour les cultures in vitro ; Pin-
terdiction d’implanter des embryons apr~s
experimentation; et la limitation de l’accas
aux technologies de fertilit aux unions stables.
La deuxi~me partie de l’article examine la
possibilit6 d’appliquer des droits constitu-
tionnels ou des droits de la personne inter-
nationaux aux technologies de fertilit6. Selon
l’auteur, certaines rrformes nationales de-
vraient etre 6levres au niveau international,
puisque le respect de la vie et de la dignit6
humaines sont des valeurs universelles. De
plus, la protection du materiel grntique hu-
main ne peut pas etre efficace en ‘absence de
mrcanismes de contrble internationaux qui
emp~chent les abus inter-juridictionnels des-
tines A contourner les 6ventuelles rrglemen-
tations nationales.
*Of the Faculty of Law, University of Montreal. This article is based on a report presented
by the author to the Medical Law and Humanitarian Law Committee of the International Law
Association, Seoul, Korea, August 1986.
1987]
REPRODUCTIVE TECHNOLOGY
Synopsis
Introduction
I.
Domestic Private Law
A. Current Legal Status of Human Genetic Material
B. Private Law Reforms
II. Public Law
A. Constitutional Law
B. International Human Rights Law
Conclusion – From Rights to Regulation
Introduction
While offering new hope to the infertile, the advent of reproductive
technologies undermines all existing notions of the family and, more par-
ticularly, of what constitutes a human being under law. Individual human
gametes (sperm and ova) can be obtained from donors, given to third parties,
destroyed or stored for future use by the donors themselves or by third
parties. If united to form an embryo in vitro (outside of the uterus), the
embryo may be donated, implanted, experimented upon, destroyed or again,
stored for future use. In both these situations, such genetic material can be
kept beyond the lifetime of the donors.
Leaving aside those techniques affecting the gene structure itself (ge-
netic manipulation) or seeking to reproduce life artificially (cloning, par-
thenogenesis and ectogenesis), to concentrate instead on those techniques
of assisted conception currently in practice (artificial insemination by donor,
in vitro fertilization and embryo transfer), it is obvious that their most
immediate impact as concerns the rights and freedoms of an individual over
human genetic material is in the area of domestic private law. The status
and protection of the genetic material will therefore first be studied on a
McGILL LAW JOURNAL
[Vol. 32
national level. Indeed, the reform of private law is already underway in
those countries possessing reproductive technologies.
The ambit of rights and freedoms that the human person has over
genetic material will also be subject to constitutional scrutiny and inter-
pretation under public law. The constitutional rights to life, to personal
integrity, to privacy, to dignity and to self-determination are themselves
limited by notions of public order and national interest.
Finally, while “efficient norms and institutions at the national level
provide the elemental basis for the discussion and eventual practical ap-
plication of international health law”,I international instruments themselves
reflect the possibility of varied viewpoints on whether there is a right to
privacy, a right to health – with a correlative right to fertility, a right to
found a family – with a correlative right to access reproductive technology,
and the right to life – with the remaining question of determining from
which stage of development this right arises.
While individual countries are presently seeking to establish guidelines
or to legislate specifically in those areas affected by reproductive technologies
such as family law, filiation, successions, property law, civil and criminal
responsibility,, and contract law, the repercussions go beyond national
boundaries to problems of international regulation and protection. Indeed,
regulation on a national level will be neither sufficient nor workable where
the parties to reproductive technology can benefit from different domestic
regulation existing in other countries. 2 As one author pointed out:
Une pr6-harmonisation 16gislative est en effet indispensable car I’existence de
legislations nationales disparates aurait des effets imm6diats sur le comporte-
ment des individus; ceux qui souhaitent se soumettre A un acte m6dical con-
trovers6 ou prohib6 dans leur pays n’h6siteraient pas i se d6placer dans un
Etat voisin, si la 16gislation de ce dernier est plus permissive. Ce “tourisme
juridique et procrratique” ouvrirait une brche p6rilleuse dans le patrimoine
commun de valeurs spirituelles et morales que les Etats europrens se sont
engages dfendre en adoptant la Convention europ~enne des droits de 1’homme.3
‘H. Fuenzalida, “The Concepts of Health and Health Law” (Address to the Socirt6 qu6brcoise
de droit international, 16-17 May 1985) [unpublished].
2See P. Widmer, “Les perspectives 16gislatives, en particulier vues du Conseil de ‘Europe”
in Artificial Procreation, Genetics and the Law: Lausanne Colloquium ofNovember 29-30, 1985
(ZOrich: Publications de lnstitut suisse de droit compar&, 1986) 211 at 215.
3Ibid. See also M. Torrelli, “La protection internationale de la vie prbnatale” in La vie
prnatale: Biologie, morale et droit (Actes du VIe Colloque national des Juristes Catholiques)
(Paris: TEQUI, 1986) 169 at 171:
Une protection internationale est n6cessaire pour deux raisons:
–
le respect de Ia vie et la dignit6 de la personne sont des valeurs universelles
qui doivent donc 8tre universellement reconnues et protrgres,
–
la g6ndralisation des techniques, du moins dans les pays dbvelopp6s, conduit
au d6passement des fronti res, et leur mise en oeuvre permet aussi d’8chapper A
une rrglementation exclusivement nationale.
1987]
REPRODUCTIVE TECHNOLOGY
This potential for “tourisme juridique et procr~atique”, already the case
with abortion,4 warrants the conclusion that in this field the transnational
harmonization of laws is a necessity.5 The recognition of the need to protect
a certain community of spiritual and moral values already reflected in the
European Convention for the Protection of Human Rights and Fundamental
Freedoms6 resulted in the adoption of a recommendation by the Council of
Europe in 1986 on the more extreme applications of reproductive technol-
ogy.7 What remains to be seen, however, is whether there is sufficient ma-
turation of public opinion and national consensus to permit the international
elaboration of certain commonly held principles while respecting national,
cultural and social differences.
I. Domestic Private Law
The artificial insemination of a woman with the sperm of a donor as
a means of alleviating male sterility has been extensively practiced since
World War II. Nevertheless, it has only recently attracted the attention of
legislators, particularly as regards the principle common to most legal sys-
tems of presuming the legitimacy and paternity of the child in the marital
context. Similarly, the principle of the inviolability of the human person,
as translated in the prohibition excluding the human body from commerce
(res extra commercium), has been attenuated by the proliferation of human
tissue legislation especially as concerns the donation of organs, blood and
human sperm. Generally, the freedom of the individual to participate in
such procedures has been affirmed subject to certain conditions, such as the
risk-benefit ratio.
More recently, the possible use of donated ova for fertilization in vivo
or in vitro, or of donated embryos followed by the transfer to a host mother
(the surrogate), has shaken the one remaining immutable private law prin-
4See M.-L. Revillard, “F~condation in vitro et congelation d’embryons” in Artificial Pro-
creation, Genetics and the Law: Lausanne Colloquium of November 29-30, 1985, supra, note
2, 157 at 170. As Revillard notes:
Les legislations relatives A la procreation artificielle 6tablies par certains pays peu-
vent 8tre plus ou moins restrictives. Verra-t-on se d~velopper des Etats refuges de
la procreation artificielle A l’instar des pays qui avaient autoris6 l’avortement sans
restriction pour les 6trangers? … Va-t-on refuser les possibilitfs qu’offre la pro-
creation artificielle A des couples 6trangers sous pr~texte que leur lIgislation na-
tionale le leur interdit?
51ndeed, such was the conclusion reached by participants at a recent international colloquium:
see J. Stepan’s discussion in Artificial Procreation, Genetics and the Law: Lausanne Colloquium
of November 29-30, 1985, ibid. at 301.
64 November 1950, 213 U.N.T.S. 221, E.T.S. No. 5 [hereinafter European Convention].
7Council of Europe, EA., Recommendation 1046 on the Use ofHuman Embryos and Foetuses
for Diagnostic, Therapeutic, Scientific, Industrial and Commercial Purposes, provisional edi-
tion, adopted 24 September 1986 [hereinafter Recommendation 1046].
REVUE DE DROIT DE McGILL
[Vol. 32
ciple governing maternal filiation (mater semper certa est). That principle
itself is based on the traditional view that a woman who gestates and delivers
a child is its mother (mater est quam gestatio demonstrat).8
Together, these developments have prompted legislation assuring the
legitimacy and paternity of the child born of artificial insemination. Other
law reforms seeking to limit the freedom to dispose of one’s gametes and
to ensure the maternal filiation of the child are on the horizon.
A brief examination of positive law concerning the -status of human
genetic material is essential in order to comprehend the hesitancy of recent
reform proposals to delineate clearly a starting point for the attribution of
legal personality. This hesitancy, as well as a concern for those suffering from
infertility, has prompted a general consensus by most countries towards an
approach fostering donor autonomy and control over his or her gametes
and yet protecting the human embryo from undue exploitation and
experimentation.
A. Current Legal Status of Human Genetic Material
Most countries do not confer juridical personality on the human foetus
prior to live birth.9 This is so even in those countries providing for abortion
only where necessary to preserve the life of the mother.’0 Protection of the
foetus in utero is thus indirect and consists of limitations on abortion, the
promotion of maternal health programs and medical surveillance.
From conception onwards, however, the embryo or foetus (nasciturus)
can be the subject of certain patrimonial rights (gifts, successions or do-
nations), rights which are contingent not only on live birth, but under the
civil law, on the viability of the child as well.” Furthermore, under the
principles of civil liability, any harm inflicted prenatally or during birth to
the foetus which can be related causally to the fault of another can be the
source of an action by the child at birth. Generally, where the wrongful act
of a third party causes the loss of a foetus prior to birth such loss is not
8See J.K. Mason & R.A. McCall Smith, Law and Medical Ethics (London: Butterworths,
1983) at 46.
9Sce R.J. Cook & B.M. Dickens, Emerging Issues in Commonwealth Abortion Laws 1982
(London: Commonwealth Secretariat, 1983) at 31; see also, by the same authors, Issues in
Reproductive Health Law in the Commonwealth (London: Commonwealth Secretariat, 1986)
at 51-78.
‘0See United Nations, Fund for Population Activities, Annual Review of Population Law,
vol. 9, (1982). See also C. Tietze & S.K. Henshaw, eds, Induced Abortion: A World Review
1986, 6th ed. (New York. Alan Guttmacher Institute, 1986).
“See Montreal Tramways Co. v. Lveille (1933), [1933] S.C.R. 456, [1933] 4 D.L.R. 337.
19871
REPRODUCTIVE TECHNOLOGY
compensable in itself for the parents in the absence of specific legislation. 12
Even in those countries having a limited legal period of abortion, wrongful
loss of a foetus before or after that legal period, prior to viability or thereafter,
is probably not compensable. Recent studies show a 62 percent natural
spontaneous abortion rate prior to the twelfth week of pregnancy. 13 Thus,
irrespective of abortion law and in the absence of specific wrongful death
legislation, under current positive law damages cannot be claimed for pre-
birth wrongful loss of a foetus caused by a third party. This is due not only
to the lack of legal personality of the foetus but also to problems in proving
causation.
Under current positive law, no specific mention is made of early em-
bryonic loss in utero. Generally, stillbirths are only recorded for those foe-
tuses exceeding 500 grams in weight. 14 Yet, where abortion is prohibited or
regulated, any attempt to provoke a miscarriage is usually considered crim-
inal whether or not the woman is actually pregnant.15 Such an approach
seems to indicate a greater concern for an abstract protection of human life
than for the rights and freedoms of a person already in existence, namely,
the woman.
These restrictions and variations on the “valuation” of foetal loss at
various stages are as much based on an emphasis on patrimonial rights, or
on some limited protection of human life, as they are linked to problems
of proof. However, difficulties of proof may not be applicable to in vitro
embryos where wrongful loss or destruction would immediately be evident
and perhaps compensable for the parents. 16 The child once born could also
sue for negligently caused injury whether it occurred before or after im-
plantation in the mother. Yet again, under current positive law, the human
embryo in vitro would not possess legal personality.
Turning from a discussion of the status of the embryo or foetus to the
gametes themselves (sperm and ova), some countries have included sperm
within the regenerative human tissues and organs covered by human tissue
12See B.M. Knoppers, “Modem Birth Technology and Human Rights” (1985) 33 Am. J.
Comp. Law 1.
13R. Cook, “Legal Abortion: Limits and Contributions to Human Life” in R. Porter & M.
O’Connor, eds, Abortion: Medical Progress and Social Implications (London: Pitman, 1982)
211 at 213.
14See World Health Organization, Health Aspects of Human Rights (Geneva, 1976) at 14;
see also World Health Organization, “Recommended Definitions, Terminology and Format
for Statistical Tables Related to the Perinatal Period and Use of a New Certificate for Cause
of Perinatal Deaths” (1977) 56 Acta Obstet. Gynecol. Scand. 247.
I5See Cook & Dickens, Emerging Issues in Commonwealth Abortion Laws 1982, supra, note
9 at 33.
April 12, 1978).
6Del Zio v. Manhattan’s Columbia Presbyterian Medical Center, No. 74 Civ. 3588 (S.D.N.Y.
McGILL LAW JOURNAL
[Vol. 32
gift legislation. These human gametes could also fall within the broad def-
initions of “body parts” under such legislation.1 7 Some countries have spe-
cifically excluded “[t]he transfer of embryos, the removal and transplantation
of testicles and ovaries and utilisation of ova and sperm” from the appli-
cation of these rules. 18 Indeed, it was not until 1986 that there was a Council
of Europe recommendation concerning the use of embryos and foetuses. 19
However, there is a recent proliferation of legislation governing the
medical and legal conditions under which artificial insemination by donor
can be performed, including the renunciation of the donor to any filiation,
the guarantee of donor anonymity, the necessity for spousal consent where
the recipient is married, and the creation of an irrebuttable presumption of
paternity and legitimacy of the child where such consent is given.20
Very few countries have any legislation in force on ova or embryo
donation, or on in vitro fertilization. An exception to this is Sweden which
under its current legislation requires permission of the National Board of
Health and Welfare for the importation of frozen sperm. No mention is
made of embryo donation, importation or exportation. 2’
Another exception to this general failure to legislate is the Infertility
(Medical Procedures) Act, 198422 of the State of Victoria in Australia. Al-
though it has not been adopted as a whole, it constitutes the most com-
prehensive legislation in force with respect to the control of centers that
offer infertility treatment as well as to the limits on the rights and freedoms
of donors involved in artificial insemination by donor, in vitro fertilization
and surrogacy. Its articles prohibit payment in excess of expenses incurred
for the giving of gametes or embryos. 23 Both England and the State of
Victoria in Australia have specifically prohibited commercial forms of
surrogacy.24
Verlag, 1981) app. 2-3.
17See the legislation reproduced in D. GiesenMedicalMalpractice Law (Bielefeld: Gieseking-
18Council of Europe, Committee ofMinisters, Resolution 29 on Harmonization ofLegislation
ofMember States Relating to Removal, Grafting and Transplantation of Human Substances,
adopted 11 May 1978, art. 1(2) [hereinafter Resolution 29].
19Recommendation 1046, supra, note 7.
20See J. Stepan, “Legislation Relating to Human Artificial Procreation” in Artificial Pro-
creation, Genetics and the Law: Lausanne Colloquium ofNovember 29-30, 1985, supra, note
2, 331.
21See art. 6, Code Relating to Parents, Guardians and Children, as am. Law No. 1139 of 20
December 1984 and Law No. 1140 of 20 December 1984 on Insemination, as reproduced in
Stepan, ibid. at 335-36.
22Vict. Acts 1984, no. 10163. The Act was assented to on 20 November 1984.
23Ibid., ss 11(6), 12(6), 13(7) and 13(9). As of August 10, 1986, these articles were not yet in
force.24See B.M. Knoppers, “Legislative Reforms in Reproductive Technology” (1986) 18 Ottawa
L. Rev. [forthcoming].
1987]
REPRODUCTIVE TECHNOLOGY
Finally, legislation already in force prohibiting experimentation on the
foetus (in utero or extra uterum) is generally presumed to be applicable to
the in vitro embryo.2 5 Distinctions need to be made however between “em-
bryo research followed by transfer to a uterus and research where no transfer
will occur … [as well as] between laboratory and clinical research, or basic
and applied research.”126 Foetal experimentation laws as they currently stand
have “a chilling effect on embryo research.” 27
Current domestic private law then offers a limited protection and rec-
ognition to the foetus prior to live birth and even less so to the human
embryo and individual gametes.
B. Private Law Reforms
The question of whether the individual human gamete, embryo or foe-
tus can be owned or passed on to one’s heirs, donated to others, or exper-
imented upon, traded, aborted, imported or exported concerns the actual
degree of legal status or protection afforded to human life. Before any reform
can be undertaken specifically with regard to the uses of human genetic
material, its qualification as person or property must be decided. Com-
monwealth, American and European law reform commissions 28 studying
25See L.B. Andrews, New Conceptions (New York: St Martin’s Press, 1983) at 253; Geisen,
supra, note 17 at 258.
26J.A. Robertson, “Embryo Research” (1986) 24 U.W.O. L. Rev. 15 at 16.
27Ibid. at 18. The State of Pennsylvania includes in vitro fertilization within its section on
“prohibited acts”: see Stepan, supra, note 20 at 356.
28Among the more important commission reports considered in this study are the following:
Australia, National Health & Medical Research Council, First Report by NH & MRC Working
Party on Ethics in Medical Research: Research on Humans (Commonwealth Government
Printer, August 1982) (Chair R.R.H. Lovell) [hereinafter NH & MRC Report]; Queensland,
Report of the Special Committee Appointed by the Queensland Government to Inquire into the
Laws Relating to Artificial Insemination, In Vitro Fertilization and Other Related Matters, vol.
1 (March 1984) [hereinafter QueenslandReport]; U.K., Department of Health & Social Security,
“Report of the Committee of Inquiry into Human Fertilisation and Embryology” Cmnd 9314
(July 1984) (Chair. M. Warnock) [hereinafter WarnockReport]; Council for Science and Society,
Human Procreation: Ethical Aspects of the New Techniques (Oxford: Oxford University Press,
1984); Ontario Law Reform Commission, Report on Human Artificial Reproduction and Re-
lated Matters, vols 1, 2 (Toronto: Ministry of the Attorney General, 1985) (Chair J.R. Brei-
thaupt) [hereinafter O.L.R.C. Report]; Canada, Ministry of Health and Welfare, Report of the
Advisory Committee on the Storage and Utilisation of Human Sperm (April 1981) (Chair. S.
Segal); Medical Research Council of Canada, Discussion Draft of Revised Guidelines on Re-
search Involving Human Subjects (Ottawa, October 1986); Federal Republic of Germany, Ar-
beitsgruppe des Bundesministers fur Forschung und Technologie und des Bundesministers der
Justiz, In Vitro Fertilisation, Genomanalyse und Gentherapie: Bericht der Gemeinsamen (Mun-
ich: J. Sweitzer Verlag, 1985); France, Comit6 consultatif national d’6thique pour les sciences
de la vie et de la sant6, Rapport 1984 (Paris: La Documentation Frangaise, 1985) (Chair:. J.
Bernard); France, Comit6 consultatif national d’6thique pour les sciences de la vie et de ]a
REVUE DE DROIT DE McGILL
[Vol. 32
ing the impact of reproductive technologies on private law have arrived at
some consensus on the issue of the future qualification of the embryo. No
report recommended that the embryo be expressly recognized as possessing
legal personality, that is, the status of personhood under law, prior to im-
plantation or live birth. 29
Nevertheless, it should be remembered that with gamete or embryo
donation, there is a donation of genetic information. Even though all human
tissues contain living cells, “each carrying all the genetic information needed
to code for the synthesis of a person, … [only] the genetic information carried
by sperm and ova is usable”‘ 30 and accessible. 31 For that reason, no current
reform proposal would leave the embryo in vitro in its current unprotected
state. Moreover, due to its unique character, all proposals would exempt it
from actual human tissue gift legislation. This is achieved by treating the
embryo as human life worthy of protection, as having a special status, 32 or,
according to the French national bioethics committee, as a “personne hu-
maine potentielle”. 33 In fact, in 1986 the Council of Europe recognized that
the issue of the legal personality of the embryo was secondary to the search
for appropriate legal protection.34 It is not clear, however, whether this spe-
cial status is distinguishable from the protection already afforded to the
foetus in utero by the application of the positive law nasciturus principle,
nor whether the proposals do more than protect the interests of others in
the embryo.
Indeed, a closer examination of the issue of donor control in these
proposals reveals a rather hybrid person/property approach to the question
sant&, Avis relatif aux recherches sur les embryons humains in vitro et d leur utilisation ,i des
fins mdicales et scientifiques (Paris, 15 dscembre 1986); Academie suisse des sciences m~di-
cales, Directives mdico-ethiques pour le traitement de la sterilitl par fjcondation in vitro et
transfert d’embryons: Version 1985 (BRle, May 1985) (Co-Chairs: A. Cerletti & B. Courvoisier);
American Fertility Society, Ethical Considerations of the New Reproductive Technologies (Bir-
mingham, September 1986) published as supp. 1 of (1986) 46 Fertility and Sterility; American
Fertility Society, New Guidelines for the Use of Semen Donor Insemination (Birmingham,
October 1986) published as supp. 2 of (1986) 46 Fertility and Society; and World Health
Organisation & Council for International Organizations of Medical Sciences, Proposed Inter-
national Guidelines for Biomedical Research (Geneva, 1982).
29See Knoppers, supra, note 24, where this discussion on the protection of humain genetic
material and private law reforms is more fully developed.
30R. Jansen, “Sperm and Ova as Property” (1985) 11 J. Med. Ethics 123 at 124.
3″See Robertson, supra, note 26 at 37.
32See Warnock Report, supra, note 28, no. 11.17.
33See “Avis sur les prl~vements de tissus d’embryons ou de foetus humains morts A des fins
34See principle 2 of Council of Europe, Ad Hoc Committee of Experts on Progress in the
Biomedical Sciences, Provisional Principles on the Techniques of Human Artificial Procreation
and Certain Procedures Carried out on Embryos in Connection with those Techniques (5 March
1986) at 3 [hereinafter Provisional Principles].
thdrapeutiques, diagnostiques et scientifiques” in Rapport 1984, supra, note 28, 23 at 23.
1987]
REPRODUCTIVE TECHNOLOGY
of the embryo’s status. This is due to the failure of current law to define
clearly both the extent of, and limit on, self-determination over one’s body,
life and health, and whether this autonomy includes a proprietary or pos-
sessory interest in one’s body parts.35
The American Fertility Society reports on reproductive technology con-
sider gametes and concepti as property of the donors.36 In contrast, com-
missions like the Warnock Committee in the United Kingdom specifically
recommend that “legislation be enacted to ensure there is no right of own-
ership in a human embryo”. 37
Yet, the majority of law reform commissions also recommended that
donors have full control over the uses to which their gametes are put. Thus,
according to the Ontario Law Reform Commission, where there is a “fer-
tilized ovum outside the body, produced with the gametes of the intended
recipient and her husband or partner, [it] should be under the joint legal
control of the man and woman”, 38 with a right of survivorship in case of
death. Moreover, in the case of the absence of a survivor, or dispute among
joint donors, or storage beyond normal reproductive life, final authority
over the embryo would pass to the physician, gamete storage bank or other
government authority in actual possession. 39 Another commission has sug-
gested that disputes over embryos go before the courts as in a custody or
adoption case.40
Furthermore, while there seems to be consensus on a fourteen-day limit
of growth in vitro of a human embryo prior to transfer to a recipient, there
is none concerning donation of an embryo to third parties. Amongst the
reasons given for the latter are problems of ethics, of possible consanguinity
among unknown siblings following cryopreservation, of donors wishing to
store “extra embryos” for their own future use, and of the difficulty in
obtaining the consent of both donors.
28; and B.M. Dickens, “The Control of Living Body Materials” (1977) 27 U.T.L.J. 142.
35See L.B. Andrews, “My Body, My Property” (October 1986) 16 Hastings Center Report
36Ethical Considerations of the New Reproductive Technologies and New Guidelines for the
Use of Semen Donor Insemination, supra, note 28. See also American Fertility Society, “Ethical
Statement on In Vitro Fertilization” (1984) 41 Fertility and Sterility 12.
37 Warnock Report, supra, note 28, no. 10.11. This may seem paradoxical considering that
the Warnock Commission would permit the selling and purchasing of human gametes or
embryos, subject to licensing requirements: see infra, note 41.
38Recommendation 27 of O.L.R.C. Report, vol. 2, supra, note 28 at 280.
39Ibid. See also NH & MRC Report, supra, note 28 at 27.
40Queensland Report, supra, note 28.
McGILL LAW JOURNAL
[Vol. 32
The majority of the reports recommend the prohibition of experimen-
tation on the embryo or embryonic tissues, or suggest the imposition of
strict regulation. All reports are unanimous in recommending the prohi-
bition of the implantation in a woman of an embryo subjected to non-
therapeutic experimentation. Only two reports have advocated that storage
banks be permitted to sell and purchase human gametes or embryos subject
to regulation. 4′ The Ontario Law Reform Commission would go further
and permit the exportation and importation of gametes and embryos subject
to regulation. 42
While all agree that the embryo in vitro constitutes human life worthy
of protection (through future medical or statutory regulation of reproductive
technology), the degree of recognition varies greatly from one commission
report to another. Furthermore, while the majority deny the possibility of
granting the donor a proprietary interest in human gametes or embryos,
most would seem to grant the donor at least some possessory interest, and
in some cases, a residual right. These options are indicative of the difficult
political and social problems underlying the question. While this range of
options, however, represents the particular compromises various jurisdic-
tions were willing to make, if implemented in their present garden-variety
form, they could also lead to forum-shopping by participants and scientists
alike. 43 Indeed, there is no area where the need for some common inter-
national principles of respect and protection is more imperative, if we are
truly to distinguish between human genetic material as property, as a simple
product of conception or as human life.
II. Public Law
The eventual adoption of the proposed domestic reforms will require
a debate on the issues of public law. Claims of a legal right to parenthood
or personal liberty, of a right to privacy of a right of access to these infertility
treatment programs irrespective of marital status, or finally, of the right of
the embryo itself to life or to inherit a genetic patrimony which has not
been artificially changed will frame the eventual adoption or interpretation
of any domestic regulation. These issues have been treated only indirectly
within national constitutional provisions relating to human rights. Their
future delineation will also be subjected to scrutiny and refinement under
international human rights instruments.
4tSee Warnock Report, supra, note 28, no. 13.13; and recommendation 17 of O.L.R.C. Report,
vol. 2, supra, note 28 at 277. See also Sweden, Law No. 1140 of20 December 1984 on Insem-
ination, supra, note 21 at 335-36.
42Recommendation 18 of O.L.R.C. Report, ibid.
43See, generally, Widmer, supra, note 2; Revillard, supra, note 4; and Stepan, supra, note 5.
1987]
REPRODUCTIVE TECHNOLOGY
A. Constitutional Law
Prior to the advent of reproductive technologies, most constitutional
debates centered on the abortion issue, a discussion of great importance for
the legal status and protection of human genetic material. A brief exami-
nation of the possible resolution of the constitutional issues is necessary in
order to understand the current reform proposals specific to the area of
reproductive technology.
The constitutional right to life is again limited by the interpretation to
be given by the courts to the notion of “person”, or “everyone”, or “in-
dividual”, or “human being” possessing the right. Thus, unless qualified as
a “person”, as included under “everyone”, or “individual”, or unless con-
sidered as a “human being”, the right (whatever its ambit) would not apply
to the foetus or human embryo. Furthermore, the right to life of the foetus
has been held to be a right limited by abortion law.44 The commencing point
for State interest in the protection of the foetus is then subject to the statutory
time period for abortion or, in its absence, to indications prescribed by law
(notably, the life of the mother). The interest of the potential father is also
limited in that his consent is usually not a legal prerequisite for abortion.45
In the initial stages of pregnancy, then, there is currently no constitu-
tional right to life of the foetus or embryo.46
Once past the early stages of pregnancy, however, there is an expansion
of legal protection of the unborn. This protection is being challenged by a
claimed constitutional right to procreative autonomy by the woman. There
has only been a limited recognition of procreative autonomy and then it
has generally fallen within the concept of personal liberty.47
44In France, see Cons. const., 15 janvier 1975, J.O. 16 janvier 1975; in Austria, see Verfas-
sungsgerichtshof, 2 Eu GRZ 74 (1975); in Italy, see Corte Constituzionale, 1 Eu GRZ 167
(1975). See also R Sieghart, The International Law of Human Rights (Oxford: Clarendon Press,
1983) at 132; and A.E. Michel, “Abortion and International Law: The Status and Possible
Extension of Women’s Right to Privacy” (1981-82) 20 J. Fam. L. 241.
45For the United Kingdom, see Paton v. British Pregnancy Advisory Service Trustees (1978),
[1978] 2 All E.R. 987, [1978] 3 W.L.R. 687 (Q.B.); for France, see Cons. d’ttat, 31 octobre
1980, L., J.C.R 1982.11.19732; and for the United States, see Planned Parenthood of Missouri
v. Danforth, 428 U.S. 52 (1976).
46Knoppers, supra, note 12 at 21; see also S.L. Isaacs, “Reproductive Rights 1983: An In-
ternational Survey” (1982-83) 14 Colum. Human Rights L. Rev. 311 at 339-50. Professor Stepan
cites Chile and Ireland (save the exception for the life of the mother) as the only two countries
in which constitutional provisions prohibit abortion, even at the early stages of pregnancy: see
J. Stepan, “How the Law Reacts to Various Stages of the Development of Potential Life”
(Address to Seventh World Congress on Medical Law, Gent, 18-22 August 1985) at I-1 [unpublished].
471n the United States, see Roe v. Wade, 410 U.S. 113 (1973), aff’d Thornburgh v. American
College of Obstetricians and Gynecologists, 106 S. Ct 2169 (1986).
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The constitutional right of privacy has also been invoked with regards
to procreative autonomy. The right to privacy includes the individual con-
stitutional right to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision whether to bear
or beget a child, 48 or to found a family,49 or to have the number and spacing
of children that he or she desires.50 To date, the interpretation by the courts
of this right demonstrates an effort to balance State interest in health, safety,
welfare or morality against individual rights. However, no Constitution or
court has yet addressed the possibility of State limitation or regulation of
the means used by individuals to procreate. In fact, no legislator or court
has addressed the possibility of preconceptual regulation by the State of the
individual means used to procreate.-”
The proposals for reform do not contain much discussion pertaining
to the constitutional issues surrounding reproductive technologies. The four
most fundamental constitutional issues are the right to procreate, the right
of access to assisted conception without discrimination, the right to marry
and found a family, and the right to life.
Presuming then the legality of artificial conception techniques (except-
ing surrogacy), and taking these rights in turn, few States expressly mention
the “human right to freely decide whether to have or not to have children.” 52
American case law, however, has included this right within the right of
privacy.5 3 An express mention may not be necessary considering the fact
that most States have traditionally ranked marriage and the family (includ-
ing the freedom or obligation to reproduce) as being of public interest. Any
48See, for the United States, Eisenstadt v. Baird, 405 U.S. 438 (1972).
491n Canada, see R. v. Morgentaler (1985), 52 O.R. (2d) 353 at 377, 22 D.L.R. (4th) 641
(C.A.) [hereinafter cited to O.R.]. The Court found no fundamental right to procure an abortion,
yet it concluded that the right to decide whether or not to have children was “so deeply rooted
in our traditions and way of life as to be fundamental ….
50See, e.g., Constitution of the Socialist Federal Republic of Yugoslavia, art. 191; Constitution
of the Republic of Portugal, art. 67; Constitution of Ecuador, art. 25; Constitution of Mexico,
art. 4. See also the National Population Policy Law of Peru, as reproduced in (1985) 36 Int.
Dig. Hith Leg. 980-83.
5 See, however, the recent case of Eve v. Mrs. E. (1986), [1986] 2 S.C.R. 388 at 434, (sub
nom. Re Eve) 31 D.L.R. (4th) I where, refusing to authorize a hysterectomy intended to sterilize
a mentally incompetent adult female, the Court affirmed “[tihe importance of maintaining the
physical integrity of a human being.., particularly as it affects the privilege of giving life”.
52Croatia, Law of2l April 1978 on Medical Measures to Implement the Right to Freely Decide
on the Birth of Children, art. 1, as reproduced in Stepan, supra, note 20 at 345. See also the
constitutional provisions, supra, note 50.
53See Roe v. Wade, supra, note 47. See also Skinner v. Oklahoma, 316 U.S. 535 (1942). The
American position contrasts with the Canadian decision of R. v. Morgentaler, supra, note 49
at 376-79, where the Ontario Court of Appeal found that the right of personal privacy as
understood in American case law was not included under the right to life, liberty and security
of the person as found in s. 7 of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11.
1987]
REPRODUCTIVE TECHNOLOGY
prohibition of, or limitation on, the recourse to assisted conception, even
if considered as a “liberty” or “privacy” right, could probably be justified
under a reasonable limitation clause as found in most State constitutions.5 4
Furthermore, an express legislative prohibition against reproductive
technologies would equally affect fertile couples seeking to avoid the trans-
mission of genetic diseases by the use of artificial conception. Since at pres-
ent most proposals for reform concern private law, the future inclusion of
a constitutional right to procreate by whatever means available as an expres-
sion of personal liberty or privacy is uncertain.
Even in those countries whose legislation requires the State to assure
medical services in the case of sterility, the duty of the State to provide
medical services cannot be considered the equivalent of a constitutional
right to procreate. 55
Turning to the right of access, the recommendation to adopt an un-
qualified constitutional right of access to assisted conception without any
discrimination based on criteria such as age, marital status, sexual orien-
tation or other social conditions is not found in any proposed reforms. They
do contain, however, restrictions based on the age of the donor or recipient,
on marital status and spousal consent as an eligibility requirement. Some
of these restrictions might not withstand constitutional challenge. Psycho-
social criteria such as the “stability” or “ability to nurture” of a couple or
individual could also be subject to constitutional challenge. 56
The right to found a family is not found in most national constitu-
tions. 57 Again, such a right need not be expressly articulated in fundamental
documents in order to exist and could well exist conventionally in the ab-
sence of any prohibition. The Constitution of Italy gives considerable im-
portance to the family as an autonomous unit with its own normative structure.
It consecrates the right of individuals to freely organize their familial re-
lations.58 Again, the question remains open whether this right includes con-
stitutional protection of a right to reproductive technologies. Finally, the
Constitutional Law (Cowansville, Qu&: Yvon Blais, 1986).
S4See the essays in A. de Mestral et aL, eds, The Limitation of Human Rights in Comparative
55See Portugal, Law No. 3184 of 24 March 1984 on Sexual Education and Family Planning,
art. 9, as reproduced in Stepan, supra, note 20 at 334; Croatia, Law of21 April 1978 on Medical
Measures to Implement the Right to Freely Decide on the Birth of Children, supra, note 52,
art. 29: “A woman and a man who cannot fulfil their wish for their own descendant have the
right to medical help”; and see Slovania, Law of 20 April 1977 on Medical Measures to Im-
plement the Right to a Free Decision on the Birth of Children, art. 31, as reproduced in Stepan,
supra at 348.
56See Knoppers, supra, note 24.
57See, however, the constitutional provisions, supra, note 50.
58Constitution of Italy, arts 29-31.
McGILL LAW JOURNAL
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right to found a family may also be included under the fundamental right
to liberty or to privacy. This right to found a family has however been
expressed most frequently in international conventions. 59
In the context of reproductive technologies, no constitutional proposals
for reform have been made with regard to the right to life. 60 Such a right
could however be extended to the embryo or foetus if States were to protect
potential human life or potential persons under domestic law reforms. We
have seen that such a right is limited in order to protect the mother’s life
or health. 6 1 Furthermore, “[tjhe question of whether the right to life implies
the right to reproduce life has also not yet been pronounced upon author-
itatively.162 Such a decision would have an impact not only for the infertile
seeking access to this technology but also for the question of sterilization.
Indeed, the repeal of involuntary sterilization laws as well as the movement
towards the recognition of the right of the handicapped to reproduce could
well establish an equivalent right for the infertile. 63
It remains to be seen whether the current limitations on constitutional
rights are compatible with international law which obliges States to bring
their legislation into conformity with international human rights obligations.
B. International Human Rights Lav
Under principles of international human rights law the question of the
status, protection and uses of, and access to, human genetic material could
be raised under the right to marry and to found a family, the right to life,
the right to equality, the right to health, to respect for privacy and family
life and to dignity. Taking these rights in turn, we will first examine their
possible applicability before raising those issues that need to be answered
and may not necessarily be covered by such rights.
59See infra, notes 64, 65 and 67-69.
60See, however, with respect to domestic regulation, the “in vitro provision” of the Illinois
Abortion Law of 1975, I11. Rev. Stat. ch. 38 s. 81-26(7) (1981):
Any person who intentionally causes the fertilization of a human ovum by a human
sperm outside the body of a living human female shall, with regard to the human
being thereby produced, be deemed to have the care and custody of a child for the
purposes of Section 4 of the Act to Prevent and Punish Wrongs to Children, ap-
proved May 17, 1877, as amended, [Ill.Rev.Stat. ch. 23, s. 2354 (1981)] ….
61Roe v. Wade, supra, note 47. See also, M.-T. Meulders-Klein & B. Maingain, “Le droit de
(1982) 14 Journ6es Juridiques
disposer de soi-m~me: Etendue et limites en droit compar”
Jean Dabin 215, nos 61-65.
62Sieghart, supra, note 44 at 132.
63See Eve v. Mrs. E., supra, note 51.
1987]
REPRODUCTIVE TECHNOLOGY
The 1948 Universal Declaration of Human Rights recognizes the right
to marry and found a family.64 This right was reiterated under the Inter-
national Covenant on Civil and Political Rights65 which requires States to
undertake “to respect and to ensure to all individuals within [theirl territory
… the rights recognized in the … Covenant, without distinction of any kind
….66 The language of these instruments would seem to link marital status
with the right to found a family, perhaps precluding recourse by single in-
dividuals seeking access to reproductive technologies, but also indicating
that married persons could raise legal questions if access were refused.
For those countries party to it, the International Covenant on Economic,
Social and Cultural Rights requires a recognition that “[t]he widest possible
protection and assistance should be accorded to the family …,.67
According to the Ontario Law Reform Commission, “[t]aken together,
these provisions may require ratifying States to protect the establishment
of families, by legislation if possible and necessary, and to afford individuals
access to such ‘benefits of scientific progress and its applications’ as artificial
means of conception, or at least not to deny that access where it is avail-
able.”‘ 68 It is, of course, a duty of governments to enact legislation to im-
plement treaties covering matters within their jurisdiction when such legislation
is necessary.
The European Convention also provides for the right to found a family
without any express restrictions. 69 Yet as we have seen, this right is not
absolute in that a husband has no enforceable right to prevent his wife from
obtaining a legal abortion.70 Thus, “provided that legislation adequately
respects privacy interests in early pregnancy, it may impose limits upon
abortion thereafter consistently with human rights provisions”.71 Similarly,
64G.A. Res. 217A, 3 U.N. GAOR Pt I, U.N. Doc A/810 (1948), Art. 16(1) [hereinafter
Universal Declaration].
6516 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47, Art. 23(2).
66 Ibid., Art. 2. See also the American Convention on Human Rights, Art. 17(2), as reproduced
in Inter-American Commission on Human Rights, Organisation of American States, Handbook
of Existing Rules Pertaining to Human Rights (29 March 1979) O.A.S./ser.L/V/II.23/doc.21
rev.6 at 48ffl[hereinafterAmerican Convention]: “The right of men and women of marriageable
age to marry and to found a family shall be recognized ….”
6716 December 1966, 993 U.N.T.S. 3, Can. T.S. 1976 No. 46, Art. 10(1).
680.L.R.C. Report, vol. 1, supra, note 28 at 37.
69Supra, note 6, Art. 12. See also Sieghart, supra, note 44 at 203.
70 Paton v. British PregnancyAdvisory Service Trustees, supra, note 45, which was subsequently
heard in Eur. Comm. H.R., No. 8416/79, Decision of 13 May 1980, X. v. The United Kingdom,
19 D.R. 244 (sub nom. Paton v. United Kingdom) 3 E.H.R.R. 408.
7 Emerging Issues in Commonwealth Abortion Laws 1982, supra, note 9 at 63.
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a lawfully convicted person detained in prison does not have the right to
be given the actual possibility to procreate.72
The right to life is found in various international instruments. 73 Ac-
cording to one author, this right is not absolute in that human life can be
deliberately terminated in certain specified cases, in contrast to other ab-
solute rights such as freedom from torture, ill treatment and slavery cases:
“It may therefore be said that international human rights law assigns a higher
value to the quality of living as a process, than to the existence of life as a
state.” 74
This interpretation is borne out by the jurisprudence. The ambit of the
right to life has frequently been raised before the European Commission of
Human Rights. In 1960, it heard an application by a Norwegian citizen
against a resolution passed by the Norwegian Parliament providing for the
interruption of pregnancy under certain circumstances. On behalf of parents
and the abortus, the citizen requested the Commission to decide “[w]hether
the human right to beget offspring is an inalienable human right or if not,
under what conditions and circumstances that this right may be forfeited,
and whether human rights are fully applicable to the human embryo from
the time of conception, or if not, at what stages in the development of the
human individual these rights take part and full force”. 75 Since the applicant
was not himself subject to the domestic legislation, the Commission did
not consider itself competent to examine in abstracto the question of the
conformity of the Act with the provisions of the European Convention. In
1980, however, the Commission held that “[e]veryone’s right to life” under
article 2 of the European Convention did not, at least in the early stages of
pregnancy, include the unborn.76
Similarly, in the 1981 case of Baby Boy, 77 the Inter-American Com-
mission on Human Rights considered the scope of the right to life contained
in Article I of the American Declaration and its equivalent in Article 4 of
the American Convention. The American Declaration upholds the right to
72Eur. Comm. H.R., No. 6564/74, Decision of 21 May 1975, X. v. United Kingdom, 2 D.R.
105.
73Universal Declaration, supra, note 64, Art. 3; American Declaration ofthe Rights and Duties
of Man, Art. I, as reproduced in Handbook of Existing Rules Pertaining to Human Rights,
supra, note 66 at 16ff [hereinafter American Declaration]; International Covenant on Civil and
PoliticalRights, supra, note 65, Art. 6(1); European Convention, supra, note 6, Art. 2(1);African
Charter on Human and Peoples’ Rights, Art. 4 (Nairobi, 28 June 1981), as reproduced in 4
E.H.R.R. 417 [hereinafter African Charter].
74Sieghart, supra, note 44 at 130.
75No. 867/60, Decision of 29 May 1961, X. v. Norway, 6 C.D. 34, 4 YB.Conv. H.R. 270.
76 . v. United Kingdom, supra, note 70.
77Case 2141 (United States) (6 March 1981), O.A.S./ser L/V/II.52 doc.48, as reprinted in
(1981) 2 Human Rights L.J. 110 [hereinafter Baby Boy cited to Human Rights L.J.].
1987]
REPRODUCTIVE TECHNOLOGY
life78 (for every “human being”) as does the American Convention79 (for
every “person”), the difference being that the latter protects the right “in
general, from the moment of conception”. According to the applicants, the
1973 American abortion case Roe v. Wade80 constituted a violation of the
right to life in ending the legal protection of unborn children. A majority
of the Commission found that United States abortion laws and policies were
not in violation of the American Declaration. In contrast to the Norwegian
case, the issue of standing for purposes of jurisdiction was not raised. “Fail-
ure to discuss the issue produces the incongruous impression that the fetus
is a ‘person’ for jurisdictional purposes, but not a ‘human being’ for Article
I.1181
Under the American Declaration, no precise moment is chosen for the
commencement of the right, leaving to each State the power to determine
in its domestic law whether life begins and warrants protection from the
moment of conception or at any other stage of development prior to birth.
Furthermore, to argue that the foetus is included under the wider term
“human being” fails to take into account the final clause of the American
Declaration limiting rights and freedoms by the rights and freedoms of
others such as the mother’s right to life, physical well-being and privacy.
Thus even if the “human being” were held to exist from the moment of
conception, abortion would not necessarily be precluded.8 2 The final con-
clusion of the Commission on the use of the American Convention to expand
the American Declaration was that it could not impose an interpretation of
an absolute concept of the right to life from the moment of conception
found in a treaty that a State had not duly accepted or ratified.83
The rights to equality, to health, and to privacy and family life have
traditionally been discussed with respect to the protection of human life.
Nevertheless, in the future, these three rights could be raised in the context
of the protection of genetic material.
The right to equality8 4 could be raised by those seeking access to medical
treatment for infertility as for any other disabling condition, or by women
78Supra, note 73.
79Supra, note 66, Art. 4.
8 0Supra, note 47.
81D. Shelton, “Abortion and the Right to Life in the Inter-American System: The Case of
‘Baby Boy”‘ (1981) 2 Human Rights L.J. 309 at 312.
821bid. at 314. See also Baby Boy, supra, note 77 at 122-30, where the dissenting commis-
sioners argue that the foetus is a “human being” protected by Art. I of the American Declaration.
83Baby Boy, ibid. at 129-30.
84 Universal Declaration, supra, note 64, Arts 1 and 7; American Convention, supra, note 66,
Arts 1 and 24; International Covenant on Economic, Social and Cultural Rights, supra, note
67, Arts 2 and 3; African Charter, supra, note 73, Art. 3. See also A.E Bayefsky, “Defining
Equality Rights” in A. Bayefsky & M. Eberts, eds, Equality Rights and the Canadian Charter
of Rights and Freedoms (Toronto: Carswell, 1985) 1.
McGILL LAW JOURNAL
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claiming that ova or embryo donation is a treatment equivalent to artificial
insemination by donor in case of male sterility. This right to equality was
also raised, albeit unsuccessfully, by the applicants in Baby Boy. They alleged
however, that the equality of “[a]ll persons … without distinction as to race,
sex … or any other factor”, under Article II of the American Declaration,
extended to the foetus.
Health is linked to the standard of living under paragraph 25(1) of the
Universal Declaration, while Article XI of the American Declaration guar-
antees the preservation of health. The right to enjoy the highest attainable
standard of physical and mental health has also been specifically recognized.8 5
The right to the preservation of health was also raised unsuccessfully
on behalf of the foetus as a person in the case of Baby Boy. 86 Theoretically,
the right to health could also be invoked by the infertile, particularly if
health were to be interpreted as a state of complete physical, mental and
social well-being.8 7 But the interpretation of “health” under international
law is not clear. In the words of one author:
Some international texts treat health as a basic Human Right, like life itself,
for whose’ protection the responsibility of the State is absolute. Others treat
health as one of several social conditions, with the responsibility of the State
confined to assuming minimum levels of decency while aiming to improve the
general and individual levels of health.88
Finally, the right to respect for one’s private and family life and to be
protected from interference in such is found under Article 8 of the European
Convention as well as other international instruments.8 9 Furthermore, the
protection of the family by the State is also guaranteed under various in-
ternational instruments. 90
85International Covenant on Economic, Social and Cultural Rights, ibid., Art. 12; European
Social Charter, Art. I(1 1), 18 October 1961, E.T.S. No. 35; African Charter, ibid., Art. 16.
86Supra, note 76 at 120.
87Such is the interpretation of the World Health Organization: see the preamble to Consti-
tution of the World Health Organization, U.N. Doe. E/155 (October 1946) 9 at 11: “Health is
a state of complete physical, mental and social well-being, and not merely the absence of disease
or infirmity.”
88Fuenzalida, supra, note 1. See also P. de la Pradelle, “Le droit fondamental de l’homme A
la protection de la sant6” (1983) 31 Annales de droit international m6dical [n.p.]; and M.
Blanger, Droit international de la santo (Paris: Economica, 1983), especially nos 5, 25 and 29-
33.
89Universal Declaration, supra, note 64, Art. 12; American Declaration, supra, note 73, Art.
V; International Covenant on Civil and Political Rights, supra, note 65, Art. 17(1); American
Convention, supra, note 66, Art. 11(2).
9Universal Declaration, ibid., Art. 16(3); American Declaration, ibid., Art. VI; International
Covenant on Civil and Political Rights, ibid., Art. 23(1); International Covenant on Economic,
Social and Cultural Rights, supra, note 67, Art. 10(1); European Social Charter, supra, note
85, Arts 1(16) and 11(16); American Convention, ibid., Art. 17(1); African Charter, supra, note
73, Art. 18.
REPRODUCTIVE TECHNOLOGY
Interpreting the right to privacy and family life, the European Human
Rights Commission held in 1975 that the right to respect for private life
was not violated by a prohibition against abortion after the twelfth week of
pregnancy under German law.91 It held that the claim to respect for private
life was reduced to the extent that the individual brings his private life into
contact with public life or other protected interests. Similarly, a prospective
father was not successful in his claim that the termination by his wife of
her pregnancy without his consent constituted an interference with his right
to respect for his family life since, according to the European Human Rights
Commission, it was justified as necessary for the protection of the rights of
others.92 It is uncertain, however, whether the failure to obtain spousal
consent prior to participation as a donor or recipient in artificial conception
procedures will be considered a legitimate exercise of one’s right to privacy.
Moreover, the right to privacy can also be raised with respect to the
genetic information gathered on participants or on the gametes or embryo.
Indeed, there is a need for “principles governing the preparation, storage,
safeguarding and use of genetic information on individuals, with particular
reference to protecting the rights to privacy of the persons concerned”. 93
Respect for one’s family life is interpreted mainly as meaning the right to
assistance and protection.94 This does not exclude however the possible legal
recourse by the donor or by a child conceived with the use of reproductive
technology to request testing for filiation 95 or access to genetic information,
so as to find and establish the true biological or genetic origins.96
Possible claims may also lie under the rights and protection afforded
to mothers before and during pregnancy and to children. Again, this special
protection of children would presumably, but not necessarily, begin at birth.
More importantly, Protocol No. 7 to the Convention for the Protection of
Human Rights and Fundamental Freedoms would permit States to take
necessary measures in the interest of children in addition to the rights and
responsibilities granted to parents. 97
Finally, a claim could also be based on the need for a protection unique
to the human embryo as being more than a simple product of conception
91No. 6959/75, Decision of 19 May 1976, BrFiggeman v. Federal Republic of Germany, 5
D.R. 103, report adopted 12 July 1977, 10 D.R. 100, 3 E.H.R.R. 244, 21 Y.B.Conv. H.R. 638.
92X. v. United Kingdom, supra, note 72.
93Council of Europe, PA., Recommendation 934 on Genetic Engineering, Texts Adopted,
January 1982, art. 7(d). See also principle 9(1) of Provisional Principles, supra, note 34 at 5.
94Sieghart, supra, note 44 at 204 and 315-16.
9SEur. Ct H.R., Series A No. 31, Decision of 13 June 1979, Marckx Case (sub nom. Marckx
96See principle 9(2) of Provisional Principles, supra, note 34 at 6.
9722 November 1984, E.T.S. No. 117, Art. 5.
v. Belgium) 2 E.H.R.R. 330, 22 Y.B.Conv. H.R. 410.
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considering the dignity inherent in all human beings. 98 The need for an
explicit recognition of the right to dignity as it applies to human genetic
material has found support in a 1982 recommendation of the Council of
Europe based on the rights to life and to human dignity protected by Articles
2 and 3 of the European Convention. According to the Assembly of the
Council, such rights (within the context of genetic engineering) “imply the
right to inherit a genetic pattern which has not been artificially changed.” 99
Under this recommendation of the Council, however, legitimate therapeutic
genetic engineering applied in the context of the treatment and eradication
of genetically transmitted diseases would be permitted. Thus, the recourse
to infertility treatment, to gamete or to embryo donation or to gene therapy
for the avoidance of the transmission of deleterious genes would not nec-
essarily be incompatible with the right to dignity.100 Again, this raises the
questions of whether infertility is a “disease” and whether the exercise of
an alleged right to health through the use of reproductive technologies is
incompatible with the inherent dignity of human beings.
This brief description of the principles of international human rights
law outlines issues that will, in all likelihood, be raised in the context of
the international protection and regulation of human genetic material. The
appearance of public regulation generally follows private law arrangements
and, in this case, research and scientific exchanges. Models already exist in
the areas of international regulation of blood or organ donation and the
importation and exportation of animal embryos, models which need to be
examined to determine their possible or limited application to human ge-
netic material. It goes without saying that the application of international
human rights law requires a more extensive study and analysis specific to
the science of reproductive technology, as well as the elaboration of possible
codes of conduct or conventions respecting these rights. Proposed inter-
national guidelines for biomedical research involving human subjects would
also have to make specific reference to human genetic material. 101 Moreover,
our summary overview of domestic, private law reforms revealed the pos-
sibility of the storage and trade of, and commerce in, human genetic ma-
terial, developments which have implications beyond international human
rights legislation.
98Universal Declaration, supra, note 64, Art. 1; American Convention, supra, note 66, Art.
11(1); African Charter, supra, note 73, Art. 5.
99Recommendation 934 on Genetic Engineering, supra, note 93, art. 4(i).
10See principle 7 of Provisional Principles, supra, note 34 at 5.
101The 1982 Proposed International Guidelines for Biomedical Research Involving Human
Subjects, supra, note 28, contain no such reference.
1987]
REPRODUCTIVE TECHNOLOGY
Conclusion – From Rights to Regulation
In 1981, the Council of Europe considered a draft resolution on the
artificial insemination of human beings which, like most proposed reforms
in this area, would permit the recovery of costs, but would prohibit profit-
making in the donation of sperm. The original draft recommendation of
the Council’s Committee on Social and Health Questions was more exten-
sive in its proposed rules regarding donors. It advocated that the “[c]ommercial
exploitation of the procurement, collection and handling of semen not [be]
permitted.” 10 2 This principle was affirmed in the recent principles proposed
by the Council’s Committee on Biomedical Sciences.10 3 As we have seen,
the adoption of this more general prohibition against commerce was not
the subject of a general consensus among commissions studying the pos-
sibility of the storage, sale and purchase of human genetic material.
There are some general conclusions as to common trends that can be
drawn from the work of the various commissions, trends that will be sig-
nificant for the development of international principles. 104 The first area of
common agreement is, as mentioned earlier, the trend towards recognition
of the need for protection of the gametes or the embryo, even in the absence
of a legal personality. The second is a fourteen-day limit on in vitro culture
(subject to cryopreservation), though this limit may result from the fact that
after such time a successful implantation is unlikely rather than from med-
ico-ethical concerns. The third is the requirement that in vitro fertilization
be limited to married couples or those in stable unions. Fourth, there is
consensus on the prohibition of implantation after embryo experimentation.
Fifth, if limited to the needs and reproductive life of the couple, storage of
genetic material is possible. Generally, donor anonymity is assured and
commercial surrogacy arrangements or agencies prohibited. Finally, donors
of gametes or embryos are given full control and autonomy over the uses
to which their genetic material are put.
Nevertheless, there is no agreement as to the characterization of the
interest a donor has over his or her genetic material, nor as to the use of
third party genetic material, nor on the question of access by single indi-
viduals, nor even as to the medical or social conditions for access generally.
Internationally, the possible applicability of product warranties or of
the rules respecting trade, patenting, commerce, importation and exporta-
tion to human genetic materials merits further study. The extent to which
states can regulate genetic material coming from another state needs to be
102Council of Europe, PA., Report on Artificial Insemination of Human Beings, Doc. 4776,
September 1981 at iii.
103See principle 11 of Provisional Principles, supra, note 34 at 6.
104Of particular importance are the proposals embodied in the Provisional Principles, ibid.
McGILL LAW JOURNAL
[Vol. 32
determined. While harmonization may well be difficult considering differ-
ences in cultures and values between countries, a minimum of principled
standards is no doubt needed on the international level to avoid abuse of
international channels as a means of circumventing national regulation. In
short, before deciding what legal instruments or procedures are required, it
is necessary to ascertain what the international regulatory problems are.
Possible mechanisms for international regulation include the addition
of new provisions to existing international human rights covenants or the
drafting of a Code of Conduct on Biogenetics in light of the urgency of the
situation as well as the limited scope of the Nuremburg and Helsinki Codes.
Another possibility would be the drafting of an international convention
opened for signature by the World Health Organization containing a pream-
ble of principles followed by a first part with obligatory principles for all
signatories and a second with provisions accepted progressively according
to national cultural and social norms.
According to the Warnock Commission, “[t]here is a case for an in-
ternational approach. This approach will be best formulated, however, when
individual countries have formed their own views, and are ready to pool
knowledge and experience.”10 5 Individual countries are well on their way
to completing this task and it is not too early to consider which national
reforms can be brought into the international arena so as to ensure their
conformity with principles of international law and provide a minimum of
protection for human life in its most vulnerable form.10 6 Indeed, the elab-
oration of international norms could well serve as a principled guide to
those countries which are now considering the implementation of the current
law reform proposals.10 7
105Warnock Report, supra, note 28, no. 1.8.
IO6See T. Cornarvin, “Throrie des droits de rhomme et progr~s de la biologie” (1985) 2
Droits 99 at 104.
t07See Torrelli, supra, note 3 at 176.
