On March 4th of this year the Canadian Institutes of Health Research, the main source of public fund- ing for health research in Canada, published guidelines on the scientific use of human embryos and foe- tuses. These guidelines permit federal funds to be used to finance research on embryonic stem cells and foetal tissues but impose a number of restrictions on their use. Of these, a prohibition on creating embryos and foetuses strictly for research purposes is the most significant. Researchers can only use surplus embryos that were originally created for assisted reproduction (e.g., in vitro fertilization).
Following the publication of these guidelines, several journalists and commentators claimed that the new policy puts Canada in its customary policy position somewhere between the United States and the United Kingdom. In an executive order in the summer of 2001, U.S. President George W. Bush not only prohibited the creation of embryos for research purposes but limited research to embryos produced prior to August 1, 2001. Add that restric- tion to the severe limitations which several states and the federal government already imposed on foetal tissue research and U.S. policy does appear to be much stricter than Canada’s. In contrast, commentators characterized the United Kingdom’s policy as being more permissive than Canada’s. The chief grounds for this conclusion was that in February of this year the House of Commons had author- ized therapeutic human cloning. Unlike reproductive human cloning, aimed at bringing to life whole people, therapeutic human cloning promises to create stem cells capable of producing human tissues that, as clones, could be a perfect biological fit for patients in need.
Such a ranking of policies for embryo and foetal tissue research nicely fits the image of ”œCanadian moderation” that this country’s policy-makers often wish to project. Canada, so the story goes, typically distances itself from American purism but does not go quite as far as Europeans in the opposite direction. The ranking may therefore serve to strengthen Canadian policy-makers’ sense that they have done an appropriate job in this area and can now move on to more pressing problems.
But does such a ranking tell the whole story? I want to argue that it does not. On the one hand, it underestimates the extent to which the United Kingdom regulates any resort to assisted repro- ductive technologies. On the other hand, it exag- gerates the implications of the Canadian Institutes of Health Research guidelines.
I belong to an international group of public policy scholars, the Comparative Policy Design Project, which monitors the evolution of policies on assisted reproductive technology (ART) in 12 OECD countries. Our research reveals that in terms of policy development Canada is far from being moderate. In fact, it sits at the bottom of the list, along with Belgium and Italy, two countries known as bioethical paradises because of the absence of legal con- straints over the use of ARTs, whether for research or reproduction. This lack of modera- tion I attribute to the intricacies of intergovern- mental relations and to the federal govern- ment’s uncharacteristic commitment to consen- sual decision-making on this issue.
In the United Kingdom, ART is governed by the Human Fertilisation and Embryology Act of 1990, which created the Human Fertilisation and Embryology Authority (HFEA) to regulate, licence and collect data on fertility treatments and embryo research. Novel research resorting to ART, whether publicly or privately financed, has to be approved by the HFEA, whose members, appoint- ed by the health minister, represent a wide spec- trum of interests: more than half come from areas other than medicine or embryo research. The Act constrains the authority of the HFEA by directly prohibiting extreme practices. Moreover, in 2001, following a court judgment which held that it did not govern embryos created by cell nuclear replacement and thereby could not sustain a ban on human reproductive cloning, these loopholes were closed by the Human Reproductive Cloning Act. Although a new amendment now permits therapeutic human cloning once specific projects are approved by the HFEA, all other forms of human cloning are prohibited, while the original Act still criminalizes other extreme reproductive practices. In fact, it stipulates that violations shall be subject to criminal sanctions.
In contrast, Canada has no general law gov- erning ART. Research resorting to so-called extreme ARTs has been discouraged by funding restrictions such as those announced by the CIHR in March, by a ”œvoluntary moratorium” called in 1995, and by social and peer pressure, but it is not strictly prohibited. In other words, while in the U.K. research projects using thera- peutic cloning cannot avoid licensing procedures and regulations, in Canada a private project using any kind of extreme ART could be con- ducted free of any kind of public scrutiny. This is certainly more permissive than the United Kingdom’s policy.
This contrast between the U.K. and Canada is surprising. To begin with, Canada’s parliamen- tary system is designed on the British model, which is well known to enable governments to make difficult policy decisions even in the face of strong opposition. Moreover, both countries have relied on extensive consultations to devise their policies. Britain’s Human Fertilisation and Embryology Act was first proposed in 1984 in the final report of the Warnock Committee, which had conducted a comprehensive inquiry on ARTs. Likewise, in 1993 the report of the Canadian Royal Commission on New Reproductive Technologies recommended the creation of a commission to regulate, licence and collect information on ARTs. The recommenda- tion was reformulated in a 1996 consultation document published by Health Canada and again in the spring of 2001 in a draft bill submitted to the House of Commons Standing Committee on Health. The government has promised to act on the Standing Committee’s recommendation to create a regulatory body similar to that of the United Kingdom, but several times now since the publication of the report of the Royal Commission in 1993 the Chrétien government has failed to act on similar promises.
Why has it been so difficult for the federal government to act on ART? A key part of the explanation is that the provinces have impor- tant responsibilities over research and health care, the two established sectors most closely concerned with ARTs. The creation of a regulatory and licens- ing body reporting to the federal Parliament through a federal minister can therefore be con- strued as an attempt to intrude into provincial jurisdiction. To avoid disputes, the federal govern- ment has subjected the creation of such an author- ity to intense intergovernmental negotiations. And since the large provinces are essentially satis- fied with keeping the federal government on the sidelines, these negotiations have been difficult and time-consuming. On the other hand, satisfac- tion with a low federal profile has not led the large provinces to introduce innovative policies on ARTs that are solidly anchored in the provinces’ wide jurisdiction over health care and research. In fact, all ten provinces rely on existing mechanisms of professional self-regulation to authorize and regulate both research projects, which are over- seen by ethics committees in public health research institutions, and clinical interventions involving ARTs, which fall into the jurisdiction of medical colleges. Private research is therefore entirely free from any kind of public scrutiny.
A second reason why on ARTs the Chrétien government has committed itself to consensual decision-making of a kind that has hardly been its hallmark and is not strictly required in a Westminster-type system is that it has no clear electoral mandate to choose any particular course of action in the area. As political scien- tists have often noted, the capacity of the Liberal Party of Canada to win an election depends not on an ideologically coherent and attractive electoral programme, but on its abili- ty to broker a coalition of disparate interests. To do so, the party must avoid clear commitments on controversial issues such as ARTs. While the benefits of such an electoral strategy are obvi- ous, the drawback is a diminished capacity, once elected, to develop innovative policies on con- troversial issues.
In the absence of an electoral mandate on ARTs, the Chrétien government has asked Health Canada to conduct unusually intensive public consultations before preparing a bill on the sub- ject. Health Canada could only report back that civil society is badly divided on this matter.
Researchers want to preserve their independence; women are worried about their reproductive autonomy and health and therefore demand reg- ulations; pro-life groups seek strict prohibitions for any research and reproductive practices that cause the destruction of embryos. This naturally includes stem cell research. With society frag- mented in this way, the federal government did not even adopt a bill, presented to Parliament in 1996, to prohibit the so-called extreme reproduc- tive technologies, even though the proposed pro- hibitions clearly fell within the federal criminal law jurisdiction.
To sum up, policy-makers should not take comfort in the idea that Canadian moderation prevails in the area of ART, as the country, jour- nalists and commentators have argued, and that our policy ranks between permissive Britain and the reactionary United States. Despite the recent guidelines on stem cell research published by the Canadian Institutes of Health Research, Canada is far behind the United Kingdom on policy reg- ulating research resorting to assisted reproductive technology. And unfortunately, the nature of intergovernmental relations in Canada and the federal government’s commitment to consensual decision-making in this field allows little hope that Canadian policy-makers will soon produce an ART policy as innovative as the United Kingdom’s.