1995]
M.A. MCTEER – LAW IN MATTERS OF MORALITY
A Role for Law in Matters of Morality
Maureen A. McTeer
In this article, the author examines whether there
exists a role for law in moral matters. She first traces the
interrelation of law, religion and morality through an-
cient times, Hebraic law and ancient Greek law until the
decline in the influence of religious doctrine during the
Renaissance. She then examines the Wolfenden Report
and the ensuing Hart-Devlin debates about whether le-
gal prohibitions were justified when society’s morality
was threatened. The author then applies Harts and Dev-
lin’s arguments to reproductive and genetic technolo-
gies, and highlights the need for a distinction between
those
activities involving truly public interests and
which are private in nature. She favours a public interest
approach to reproductive and genetic technologies be-
cause of the far-reaching impact of the technologies and
because of the law’s role in maintaining public order.
According to the author, a critical, multidisciplinary
analysis of the present and future uses of the technolo-
gies is a necessary prelude to any legislation in the area.
Dans cet article, rauteure se demande si le droit a
vraiment un r~le h jouer dans des questions d’ordre mo-
ral. Elle dtcrit d’abord rinterrelation qui a existd entre le
i travers rAntiquit6, le
droit, la religion et la moralitd
droit hdbra’fque et le droit grec et ce, jusqu’ la Renais-
sance, 6poque oa la doctrine religieuse vit son influence
diminuer. Elle examine ensuite le Rapport Wolfenden
ainsi que les d6bats subsdquents qui oppos~rent Hart et
Devlin quant A savoir s’il 6taitjuste de poser des inter-
dictions de nature juridique afin de protdger la moralit6
publique. L’auteure applique les arguments d~velopps
par Hart et Devlin aux technologies de reproduction et
de g6ndtique, et elle souligne la ncessit6 de faire la dis-
tinction entre les activit~s touchant A des int&rdts vdrita-
blement publics et celles touchant pluttt L des intrft de
nature privde. Elle considre plus opportun d’adopter
une approche dite d’intdret public en ce qui conceme les
technologies de gdn~tique et de reproduction dtant don-
n4 Iimpact de ces technologies ainsi que le r6le que doit
assurer le droit quant au maintien de rordre public. Se-
Ion l’auteure, une analyse multidisciplinaire critique des
usages prdsents et futurs de ces technologies constitue
un prdtude ntcessaire A radoption de toute legislation
dans cc domaine.
B.A., LL.B., LL.M., Litt D (hon.). Maureen A. McTeer is a well-known Canadian lawyer, author
and activist whose interest in human rights and greater equality for women led her to analyze the dif-
ficult and controversial legal and ethical issues raised by human reproductive and genetic technolo-
gies and related practices, including embryo research, pre-natal and pre-implantation diagnosis, the
selling of human reproductive capacity and parts and the patenting of human life forms. She was an
original member of the federal Royal Commission on New Reproductive Technologies and was most
recently a visiting Scholar in the School of Public Health at the University of California at Berkeley.
She is presently an adjunct assistant professor in the faculties of law, medicine and nursing at the
University of Calgary.
McGill Law Journal 1995
Revue de droit de McGill
To be cited as: (1995) 40 McGill LJ. 893
Mode de rdfdrence: (1995) 40 R.D. McGill 893
894
MCGILL LAw JOURNAL/REVUE DE DROITDE MCGiLL
[Vol. 40
Synopsis
Introduction
I. Historical Context
II. Law’s Domain in Issues of Morality
III. Public vs. Private Spheres of Morality: The Wolfenden Report
IV. The Question of Technology and Reproduction
V. The Case of Reproductive and Genetic Technologies
Conclusion
1995]
Introduction
M.A. MCTEER – LAW IN MAT”ERS OF MORALITY
It has been written that “in all communities that reach a certain stage of devel-
opment there springs up a social machinery which we call law. … In each society
there is an interaction between the abstract rules, the institutional machinery exist-
ing for their application, and the life of the people.”‘ In few areas of modern life is
the challenge to find a balanced relationship between these three elements more
crucial than with respect to technology in the field of human reproduction and ge-
netics. In this field, new developments and experiments build seamlessly one upon
the other, and are increasingly integrated into health care systems and normalized in
the public consciousness. These human reproductive and genetic technologies and
practices, so complex and powerful that they challenge the very integrity and
definition of the human person, prosper virtually unregulated by the law and are
largely absent from the broader public agenda. In the meantime, the very speed and
synergy of their development steadily narrow our legal and public policy options.
I. Historical Context
Throughout history, law has played an important role in the definition and pro-
tection of certain relationships, systems and institutions and in the control of indi-
vidual and collective human behaviour. Through the use of normative and prescrip-
tive rules, supported by varying degrees of sanctions, law has been used to create a
climate of social order, the usual justification of which has been that it benefits
members of society.
In ancient times, morality2 and religion were synonymous. Both the lawmakers
and the laws they declared were considered divinely inspired and directed. These
law, religion and morality – were interrelated.’ Opposition was
three elements –
not tolerated and the laws were respected because they were thought to be divinely
inspired.
Hebraic law supported this equation of law and morality, yet differentiated
between laws that were divinely inspired and other rules which were merely man-
made and therefore of a lesser stature in terms of importance and sanction.4
The Greeks introduced the view that rationalism was to be preferred to moral
mysticism; reason gave humans the ability to share in and understand the rational
IG.W. Paton, A Textbook of Jurisprudence (Oxford: Clarendon Press, 1964) at 8.
2Webster’s defines morality as “the character of being in accord with the principles or standards of
right conduct” (Webster’s New World Dictionary, College Edition (Toronto: Nelson, Foster & Scott,
1966)).
3 D. Lloyd, The Idea of Lav (London: Penguin Books, 1972) at 46-47.
… for the only true law was that which embodies the decree of God’s will and any*other man-
made decrees were not to rank as law at all” (ibid. at 50).
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 40
and physical nature of the universe. The Greeks believed that human law was
autonomous and separate from the law of God and accepted the possibility of the
existence of laws that were both legal and immoral. They held, however, that there
was a moral duty to obey the law. As such, even a bad law had to be obeyed unless
and until it was altered or abolished. According to one author,
[t]o this approach is owed much of the modem belief in scientific laws and in
the possibility of a rational philosophy which can elucidate the ultimate prin-
ciples of the physical structure of the world and of moral order governing hu-
man conduct, and also the relation of human beings to one another and to the
universe. Such a belief in human reason in the moral sphere entails the idea of
a moral law of a rational kind whose imperative character derives from the fact
that man’s reason must necessarily accept the rational solution as the moral and
true one. For the universe being itself ordered rationally, reason requires the ac-
ceptance of rules which stand the test of rationality
The decline in the influence of religious doctrine that accompanied the Renais-
sance’s new emphasis on the study of science and humanism broke the link be-
tween the physical and the divine, so important in natural law theories. The previ-
ous equation of law and morality was replaced by a new empiricism which adopted
a search for knowledge based on observation and experiment. These methods, used
regularly in the area of pure science, were to be applied to other fields including
philosophy and law. This marked a major break with the past6 and supported a way
of thinking and acting that still dominates law today.
H. Law’s Domain in Issues of Morality
While the modem consensus claims that law and morality are neither strictly
dependent on nor equivalent to one another, they must nonetheless interact to
achieve positive social ends. Over the years, the debate has continued about the
legitimate domain of the law in matters of morality. Some would restrict law’s
reach by creating a sphere of moral behaviour within which decisions must be left
to the individual conscience.7 Such a view would prevent law from intervening in
moral matters except to the extent that the society found it necessary to protect the
public interest.
5 Ibid. at 52.
6
Until the eighteenth century no clear line was drawn between the physical laws which
dealt with propositions about the world, and which could be refuted by empirical evi-
dence showing their non-applicability, and normative rules laying down standards of
human conduct. … mhe theological background of natural law, which interpreted both
physical and moral laws as traceable to God’s will, effectively blurred this distinction,
for if either could be attributed to an act of divine volition there was no difference in
kind between them (ibid. at 96).
7 This could occur, for example, with respect to issues of freedom of thought or religious belief.
1995]
M.A. MCTEER – LAWIN MATTERS OF MORALITY
III. Public vs. Private Spheres of Morality: The Wolfenden Report?
As part of our identification of the appropriate role of law in moral matters, it is
important to distinguish between public and private spheres of morality. Almost
forty years ago, the publication of the Wolfenden Report in England touched off a
public debate about the role of law in these two spheres of morality. In the public
discussions following the Report’s publication, two quite different approaches to
law’s place in addressing issues of morality emerged and were captured by the
well-known Hart-Devlin debates.
The Wolfenden Report itself proposed that the provision making it an offence to
have consensual homosexual relations in private be removed from the statute
books, on the basis that “it is not the duty of the law to concern itself with immor-
ality as such.”9 In so doing, the Report proposed the creation of a sphere of private
morality where even acts judged by society (as interpreted in that Report) to be
immoral could be performed in private without fear of sanction.
In his response to the Wolfenden Report, Lord Patrick Devlin defended soci-
ety’s right to pass judgment on all matters of morality, but especially on what he
described as “society’s constitutive morality”.’ Devlin proposed a public morality
that, in certain situations, would override matters of personal or private judgment.
He argued that because an attack on “society’s constitutive morality” would
threaten society with disintegration, such acts could not be free from public scru-
tiny and sanction on the basis that they were purely private acts. In Devlin’s view,
homosexual acts were a threat to society’s morality. In short, he maintained that le-
gal intervention was essential to ensure both individual and collective survival, and
to prevent social disintegration due to a loss of social cohesion.”
Professor Herbert Hart, in his response to Lord Devlin’s position, 2 agreed that
a true threat to the cohesion of society by the erosion of one of its dominant mo-
ralities would indeed justify legal prohibition. He qualified this view, however, by
requiring that such a threat be more than a mere challenge to society’s code of con-
duct. He attacked Lord Devlin’s thesis that homosexuality threatened society with
disintegration, insisting that it amounted to the view that moral pluralism threatened
the public order. He argued that empirical evidence must be presented to demon-
strate how, and in what way, a true threat to social cohesion resulted from the acts
8 U.K., Report of the Comnnittee on Homosexual Offenses and Prostitution, Cmd 247 (London:
H.M.S.O., 1957) (Chair- Sir John Wolfenden) [hereinafter Wolfenden Report].
9 Ibid. at 62.
10 P Devlin, The Enforcement of Morals (London: Oxford University Press, 1965).
11See R.P. George, “Social Cohesion and the Legal Enforcement of Morals: A Reconsideration of
the Hart-Devlin Debate” (1990) 35 Am. J. Jur. 15 at 18.
12 H.L.A. Hart, Law, Liberty and Morality (Stanford: Stanford University Press, 1971),
MCGLL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 40
or practices involved, before the law could be called upon to intervene on society’s
behalf. Without such empirical evidence, the law had no place in matters of moral-
ity.
IV. The Question of Technology and Reproduction
The issues raised in this now-famous debate on law and morality are equally
relevant to the discussion of the role of law in the regulation of technology in the
area of human reproduction and human genetics.
In the first place, both Lord Devlin and Professor Hart agree that acts or prac-
tices that might seem private can have consequences requiring action by the larger
community. Their differences are about evidence, not about principle. Therefore,
the debate suggests that the law not become involved until it is demonstrated that
the behaviour or practices in question (in this case, the area of reproductive and ge-
netic technologies and related practices) present a challenge to society’s sense of
cohesion and significant interests.
In addition, the Hart-Devlin debate suggests that the real issue is the determi-
nation of which societal interests are significant enough to warrant legal interven-
tion to regulate scientific or medical activity. That suggestion implies that some sci-
entific and medical activity should be beyond the reach of the law.
Therefore, with respect to issues involving human reproduction and human ge-
netics, it is important to distinguish between activities that involve truly public in-
terests and those that might be considered merely private in nature. Those public
interests could include the integrity of the individual; respect for all human life; the
equality of women and other historically vulnerable groups like the physically and
mentally disabled; the autonomy of the individual and the individual’s right to pri-
vacy, which includes the right to know and to protect one’s genetic heritage. Rec-
ognition of these types of public interest claims, in certain circumstances, would
allow us to focus on threats of a fundamental nature. This would prevent the inevi-
table disrespect for the law which would result from its involvement in less signifi-
cant societal matters. Such an approach would also allow us to respect individual
choices and to directly focus our attention on the more important issues.
V. The Case of Reproductive and Genetic Technologies
Many proponents and users of reproductive and genetic technologies and re-
lated practices argue that their use and development of the technologies are merely
enhancements of otherwise purely private reproductive acts. They argue that they
should not be subject to legal regulation and should be considered solely medical
interventions, the use of which would be determined exclusively by personal
choice. Under this reasoning, the practices involved in reproductive intervention
1995]
M.A. MCTEER – LAWINMATTERS OF MORALITY
would be classified as mere technological tools to help individuals who might oth-
erwise be unable to reproduce or have “healthy” children.
There are two fundamental reasons why such a narrow approach to the role of
law in the area of technology and human reproduction is insufficient as a basis for
public policy formulation and decision-making. First, it is impossible to argue
convincingly that the use and development of reproductive and genetic technolo-
gies is merely a matter of private moral conduct. Certain classes of person are more
likely to take part in, benefit from or be harmed by these technologies and prac-
tices, yet their impact inevitably extends beyond the users and providers to the
community as a whole. For example, consider Western society’s attitude toward
people born with physical disabilities. In Canada and other countries, public policy
rejects any assumption that disability means inferiority, and deliberately accords
equal worth to each individual. Discrimination is thus prohibited after an individual
is born.
Practices such as pre-natal and pre-implantation diagnosis create the possibility
of discrimination before birth, and that very possibility could erode public support
for the principle of equality. Again, practices like embryo research and genetic en-
gineering, made possible by the use of reproductive technologies, make it possible
to deny all legal status to some human life, at the embryonic and early embryonic
stages of development. These, then, are cases where, although the reproductive de-
cision may be an individual and private one, the consequences of that decision are
not.
The second justification of a role for law in this sphere is the public acceptance
of a role for law in maintaining and enhancing public order and in protecting soci-
ety’s members from real or potential harm. Threats to a society’s integrity should
not be limited to those involving only the actual physical integrity of its members.
More subtle threats can prove equally dangerous to a community’s cohesiveness
and stability. To the extent that our society’s significant interests, values, institu-
tions and norms are challenged or threatened by human reproductive technologies
and practices, there is a need for control and regulation in order to ensure that their
use and development enhances, rather than diminishes, the security and well-being
of all of society’s members. In the end, it is the potential for abuse that requires the
involvement of the law in the regulation of technology in the field of human repro-
duction and human genetics.
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Conclusion
The use and development of human reproductive and genetic technologies and
related practices have profound repercussions for individual autonomy and human
rights because they significantly affect society’s basic institutions, morality and
sense of social cohesion. Their use and development transcend the realm of private
reproductive decision-making, and move the technologies into the public realm
where they become the legitimate concern of the law.
However, as the issues raised include matters of reproductive choices and deci-
sion-making, it is important to balance the understandable desires of some members
of the community to use these technologies to overcome infertility, or disease and
genetic anomaly in their offspring, with the interest of society to protect its mem-
bers. The law, as the expression of public policy, is the instrument of that balance.
Significant new questions face society as a result of the use and development of
technology in the field of human reproduction and genetics. For example, if it be-
comes possible to clone humans, should it be permitted? If permitted, should it be
regulated? Should cross-species fertilization between humans and higher primates
be allowed merely because it is possible? Medical technology already allows the
use of animal organs for such procedures as heart and liver transplants in humans.
Should the decisions involved in these kinds of situations be left to the doctors and
scientists involved? If not, how should the public interest be expressed, and by
whom?
The issues looming in 1995 are ones that few foresaw a decade ago. Science
and medicine will continue to use technology to push back frontiers and the chal-
lenge for public policy is to maintain a dynamic balance between what is possible
and what is in the public interest.
This requires a broad and multidisciplinary approach that can identify the inter-
ests which are both significant to the larger society and are threatened by the use
and development of technology in the field of human reproduction and genetics.
This approach must be the basis of any proposed framework to regulate these tech-
nologies. Determining such an approach is clearly a complex undertaking.
First, it is necessary to define the significant societal interests at stake. Second,
we must examine how these interests are threatened by the use and development of
reproductive and genetic technologies and practices. Third, we must study the ways
in which the law can intervene to protect these interests.
1995]
M.A. MCTEER – LAWINMA7TERS OF MORALITY
In Canada, account must also be taken of any implications for the guarantees
set out in the Canadian Charter of Rights and Freedoms3 and relevant federal 4 and
provincial” human rights legislation.”
The basis of this broad approach must be an enlarged concept of societal harm,
which goes beyond a preoccupation with mere physical security to include what
one author refers to as a “substantive vision of human flourishing.”‘ 7 The notion of
harm, broadly defined as such, would reflect a more accurate view of human life as
more than a mere exercise in physical survival. It would also allow for the protec-
tion of those most vulnerable to any abuses that might result from the use and de-
velopment of technology in the field of human reproduction and genetics, such as
women, the physically and mentally handicapped, the disempowered and the poor.
Furthermore, such a notion of harm makes it easier to demonstrate that the use
and development of technology in the field of human reproduction and genetics
have a serious impact on society that extends beyond the couple or individual
seeking to use them as a means to reproduce and to control the health outcome of
their offspring. It also allows for a more comprehensive discussion of the public
policy and legal initiatives that can best balance the competing interests involved in
these matters.
The application of such a harm principle to the use and development of these
technologies would extend the measurement criteria for the costs and benefits of
these technologies and practices beyond the narrow medical or scientific consid-
erations now applied. The new standard would provide a reliable basis upon which
to distinguish between questions of technique, which are properly the preserve of
medicine and science, and questions that touch the broader fabric of society. This is
important specifically because it establishes the larger community interest, and as-
serts the principle that many of the issues raised by the use and development of
13 Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11
[hereinafter Charter].
14 Canadian Human Rights Act, R.S.C. 1985, c. H-6, s. 3.
,5 Human Rights Act, S.B.C. 1984, c. 22, ss. 1, 8(2), paras. 3(1)(a), 4(a), 4(b), 5(l)(a), 8(l)(a), 9(a),
9(b); Individual’s Rights Pmtection Act, S.A. 1991, c. 1-2, s. 2; The Saskatchewan Human Rights
Code, S.S. 1979, c. S-24.1, s. 2, Part II; The Human Rights Code, C.C.S.M., c. H175, enacted by S.M.
1987, c. 45, s. 9(2); Human Rights Code, R.S.O. 1990, c. H.19, s. 1; Charter of Human Rights and
Freedoms, R.S.Q. 1977, c. C-12, s. 10; Human Rights Code, R.S.N.B. 1973, c. H-11; Human Rights
Act, R.S.N.S. 1989, c. 214, s. 5; Human Rights Act, R.S.P.E.I. 1988, c. H-12, para. 1(1)(d); The Hu-
man Rights Code, 1988, S.N. 1988, c. 62, para. 19(a); Fair Practices Ordinance, R.S.N.W.T. 1974, c.
F-2, s. 3.
16For instance, do pre-natal and pre-implantation sex selection respect the guarantees of gender
equality and of protection against discrimination based on physical or mental handicap as set out in
these Acts and in the Charter?
17For an excellent discussion of this concept, see R. Hittinger, “The Hart-Devlin Debate Revis-
ited”(1990) 35 Am. J. Jur. 47 at 49.
MCGILL LAW JOURNAL/ REVUE DE DROIT DE MCGILL
[Vol. 40
technology in the field of human reproduction and genetics reach far beyond ques-
tions of management or science.
When balancing the pros and cons of these technologies and practices, then, we
must support a philosophy of utility that goes beyond the technical to a higher plane
of “utility in the largest sense, grounded on the permanent interests of a man [sic]
as a progressive being.”‘ 8 As was eloquently stated by one of the speakers at an in-
ternational symposium on the Social and Economic Teaching of the World Council
of Churches:
The ‘facts of the case’ as seen from the limited and limiting (although reason-
able and authentic) perspective of the sciences, physical, biological and social,
do not state all there is to be said about the human situation and need never
have the last word about the possibilities of a situation from the human point of
view.9
These, then, are some of the reasons why it is essential to choose a broad
definition of the notion of individual and collective harm to allow us to raise all of
the difficult questions about the costs and benefits such technologies and practices
present to society. The broad understanding of harm will help ensure that all those
affected by the use and development of technology in the sensitive field of human
reproduction and genetics will have the opportunity to be heard and the legitimacy
to exert real influence on public decisionmaking. This is important because, as part
of the legislative process, we must both assess the benefits which groups, such as
the infertile, for example, could receive from the use and development of these
technologies, and contrast them with the threat that they pose to other groups and
individuals within society.
Are there, for instance, some technologies or related practices in use, or pro-
posed, in the field of human reproduction, such as the cloning of humans, the cross-
fertilization of species, the use of pre-natal and pre-implantation diagnosis to elimi-
nate female or other embryos or fetuses for reasons of gender or disability or the
development of genetic engineering to alter human embryos in the laboratory, that
must never be explored? What makes their use or development fatal to the integrity
of the individual and to the cohesion of society as a whole? What are the specific
societal and individual interests under attack, and are they fundamental to social
cohesion and human integrity? If we find that the use and development of one or
more of these technologies and practices threaten or negate a fundamental societal
interest, are there any circumstances under which their use would be morally per-
missible? If so, what are these circumstances? If a positive or beneficial use can be
found, can it be severed from other immoral or socially threatening elements?
18 Ibid at 51, quoting J.S. Mill, On Liberty and Considerations on Representative Government, ed.
(London: SCM Press, 1971) 205 at 219.
by R.B. McCallum (Oxford: Basil Blackwell, 1946) at 9.
‘9 D.E. Jenkins, “The Concept of the Human” in R.H. Preston, ed., Technology and Social Justice
19951
M.A. MCTEER – LAW INMA7TERS OF MORALITY
If the answer to the above questions is yes, are we satisfied that sufficient legal
safeguards exist, or are possible, to protect both individuals and society from the
broadly defined harm that comes from the use of such technologies in any context?
What criteria should be relevant in making these decisions? And finally, perhaps
the most controversial and fundamental question of all – who decides?
Such an approach makes it clear that, as a prelude to regulation of technology
in the field of human reproduction and genetics, we must undertake a critical
analysis of the present and future uses of individual technologies and practices,
alone and in concert with other related developments, technologies and practices.
This may ultimately prove the most difficult of the tasks before us, for it will
require the cooperation of all interested groups and individuals. Those who propose
and practise these technologies, for instance, must be willing to share their knowl-
edge with a wide range of professionals and laypersons if the latter are to partici-
pate in the decision-making process in a meaningful and democratic fashion. This
will inevitably require doctors, geneticists and scientists to cede a measure of their
present exclusive control over the reproductive and human research agendas. The
success of an approach based on collective and consensual decision-making de-
pends on this sort of change in our ways of thinking and doing. My own personal
experiences as a member of a Royal Commission charged with examining these
very issues make me less than optimistic that such an openness can be achieved.
In the end, only an approach which allows for informed and meaningful public
involvement will earn society’s trust in the evolving technology and its human
goals.
Failure to engage in this kind of debate may lead to a situation where the public
discussion of the fundamental issues involved would stagnate at the level of slo-
gans, as in the case of the abortion debate. We must now find new processes and
contexts for the resolution of issues which profoundly affect society. Otherwise, we
will be faced with ad hoc public policy and legislation in an area of extreme impor-
tance to the integrity and freedom of both society and the individual, and we will
also risk losing the potential benefits offered by the enlightened use of many of
these technologies.
