HEAL Committee Meeting

STANDING COMMITTEE ON HEALTH

COMITÉ PERMANENT DE LA SANTÉ

EVIDENCE

[Recorded by Electronic Apparatus]

Thursday, November 22, 2001

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[English]

The Chair (Ms. Bonnie Brown (Oakville, Lib.)): Good morning, ladies and gentlemen. It's my pleasure to call this meeting to order.

The first item of business on this morning's agenda is a motion that was put forward by Mr. Merrifield of the Alliance. He cannot be here this morning. Mr. Manning is going to move the motion, I believe.

Mr. Preston Manning (Calgary Southwest, Canadian Alliance): Yes, I'll move the motion. Notice was previously given.

The Chair: Yes. There are three parts to it, but I think we can do it all together.

Mr. Preston Manning: Yes.

The Chair: Would you like to speak to the motion, Mr. Manning?

Mr. Preston Manning: Yes. I think members have seen a copy of it. It's a motion proposing:

that the committee hold meetings to consider and report on the supplementary estimates A for 2001-2002 for the Department of Health; and

that the committee invite the minister and senior officials to appear as soon as possible, but no later than December 1, 2001; and

that the committee consider and report recommendations on the supplementary estimates no later than three sitting days prior to the final allotted day of the current supply period.

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There are just two brief things I'd say on this. The first is that the principle I think is important, that Parliament endeavours to hold the executive accountable for public spending. I think just the principle of having the ministers appear before the committees to discuss estimates is an important one. It's one of the few tools the legislative arm has for holding the executive accountable, and we ought to practice it.

Secondly, the one objection might be that we're so time-consumed with this current bill that to have the minister come on the estimates might just add to our workload. As you know, there's considerable latitude in discussing the estimates with ministers, and if we did get the minister and the officials here to talk about estimates, I think we ought to use most of the time to talk about the economics and cost aspects of this particular draft bill we're dealing with.

That is the one area—the economics of it and the cost, not only to the Government of Canada, but the cost that will be passed on to the users of these services and to the provinces if this has ramifications for them—that we haven't really talked much about, and we haven't got much out of the department. I think if we had the minister here to talk about the estimates we could kill two birds with one stone if we focused our discussion on some of the economic and cost implications of our particular bill.

Those would be my two arguments in favour of the motion, Madam Chairman.

The Chair: Thank you, Mr. Manning. Are there any questions or comments?

(Motion agreed to)

The Chair: Thank you.

Mr. Preston Manning: I'm just amazed at my persuasiveness. Why doesn't this work on other days?

The Chair: You're a solo performer.

A voice: You could be rethinking your business right now.

Some hon. members: Oh, oh!

Mr. Mac Harb (Ottawa Centre, Lib.): I've never been beaten so hard. It's organized democracy.

The Chair: Thank you, ladies and gentlemen.

We'll now proceed to the regular part of our agenda. This morning we are fortunate to have two witnesses to comment on our draft legislation. The first, from the University of Ottawa, is Martha Jackman, who is a professor in the faculty of law. Ms. Jackman, you have the floor.

Professor Martha Jackman (Faculty of Law, University of Ottawa): I'd like to thank the committee for inviting me to testify this morning.

As the chair mentioned, I'm a professor of constitutional law in the French common law program at the University of Ottawa. I was also very closely involved, again as a constitutional adviser, in the work of the Royal Commission on New Reproductive Technologies. My comments today, I guess, are informed both by my views as a constitutional lawyer but also by my work with the royal commission.

I'd like to address four points in my very brief preliminary comments. First of all, I'd like to address the issue of federal jurisdiction in the area of this legislation. Secondly, I'd like to talk about pre-conception or surrogacy arrangements as they are regulated in the bill. Thirdly, I'd like to address the general issue of the regulatory framework that's provided for. And finally, I'd like to comment briefly on the minister's power of regulatory exemption that's proposed under this bill.

First, on the issue of federal jurisdiction, it is my view—and I expressed it in a research paper I did for the royal commission that is reflected in the commission's report—that the federal government has all the constitutional jurisdiction it needs to not only prohibit practices deemed to be undesirable but also to regulate the provision of reproductive health services, as this bill purports to do. It's my view that the federal government's jurisdiction in this area rests not only in its criminal law power, but also in its peace, order, and good government power.

So unlike some witnesses on this bill, I do not see any constitutional objection to the regulatory aspects of the exercise of federal jurisdiction in this bill. If you have any questions about that or the basis for my view on it, I'd be happy to address them.

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My only substantive objection with regard to this bill relates to how the bill deals with surrogacy or pre-conception arrangements. The bill does prohibit commercial pre-conception arrangements by means of criminal prohibitions. The weakness of the bill, in my view, is in the way it deals with what are characterized as non-commercial surrogacy arrangements.

Now the royal commission in its report—and I refer you specifically to volume 2, chapter 23 of its report—wrote extensively about the objectionable aspects of non-commercial surrogacy arrangements. The commission agreed with this bill that commercial arrangements should be prohibited by means of criminal sanctions.

The commission was of the view that non-commercial agreements were equally objectionable. And while the commission felt it was undesirable to criminalize non-commercial surrogacy arrangements, and was of the view that these would likely continue to occur, the commission was very clear to underline the fact that it was important for Parliament not to in any way support or sanction these arrangements. And in my view this draft legislation does that.

Non-commercial surrogacy arrangements have most of the same objectionable features as commercial surrogacy arrangements. While there is not, per se, an exchange of cash for a child, the whole notion of non-commercial pre-conception arrangements rests on the idea that one person can, through her benevolence, give a child to someone else. And in my view this commodifies a child the same way an exchange of cash would.

Non-commercial arrangements have the same potential for preying upon the vulnerability of gestational mothers as commercial arrangements do. Women are under social, economic, and family pressures to enter into these types of arrangements, and in my view—and this was the view of the commission—these should be discouraged at all costs.

What is most objectionable about this draft bill, in my view, is the exemption that's provided under subclause 4(4) with respect to the brokering, advertising, and other involvement in surrogacy arrangements by those providing legal, medical, or psychological services. The royal commission in fact recommended that provincial self-regulating professions of health and law adopt clear, punitive regulatory measures with respect to any involvement by health and medical professionals in the arrangement of surrogacy arrangements.

The commission did not distinguish between commercial and non-commercial arrangements. In fact the commission recommended that law societies and societies governing physicians consider removing the license to practice of those who were involved in surrogacy arrangements, be they commercial or non-commercial. So, as I say, the commission did not see the commercial aspect of the transaction as being the most egregious aspect of these arrangements.

I believe the bill tacitly approves non-commercial pre-conception arrangements by drawing this distinction. What is worse, in my view, it provides a very wide exception for the provision of surrogacy-related services by lawyers, doctors, and psychologists. You're essentially legalizing certain classes of providers of surrogacy arrangements, be they commercial or non-commercial.

I know there's a whole debate around the question of whether, when physicians provide medical services, it is a for-profit or a not-for-profit activity. The bottom line is that both lawyers and doctors, in providing services, earn a livelihood. How do you distinguish between a commercial arrangement and a professional arrangement for which money is paid?

I strongly object to this aspect of the bill and would strongly recommend to your committee to report to the minister that these provisions of the bill should be amended, both to remove the distinction between commercial and non-commercial arrangements, but in particular to remove the exemption provided under subclause 4(4) with respect to lawyers, doctors, and those providing psychological counselling services around surrogacy arrangements.

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Next, with respect to the regulatory framework provided for in the bill, as I suggested at the outset, I believe Parliament has jurisdiction to regulate new reproductive and genetic technologies, including the delivery of health services in this area, by virtue not only of its criminal law power but also its peace, order, and good government power, because, in my view, NRTs are matters of national significance.

For this reason, I have difficulty with the idea that the Minister of Health and the Department of Health have the human, financial, and other resources to appropriately regulate this area. I would support the recommendations of the royal commission arrived at after many months of consultation and research: the most appropriate entity for regulating the delivery of services, as well as research information, etc., in this area is an independent administrative agency—an independent administrative commission. This was the royal commission's recommendation.

It recommended the establishment of a reproductive technologies commission of 12 permanent members and that the membership of this commission predominantly include women; be representative of the groups most affected by these services, including women with infertilities, people with disabilities, members of socially and economically disadvantaged groups—and the link here to surrogacy is clear; and that the body be pluri-disciplinary, including membership not only of doctors, but also of persons with legal expertise, and expertise in ethics and the social sciences generally.

The committee recommended a wide range of functions for the commission, including licensing and regulation, but also research, the overseeing of information in this area, etc. It recommended that the independent commission established to regulate new reproductive technologies report directly to Parliament rather than to the Minister of Health. Again, this was to underline the national dimensions and importance of this area and the need for independent monitoring of practices in this area.

I in the questions I was sent by the clerk of the committee, I was asked how this would impact upon the provisions of clauses 33 and 41 of the proposed bill. Clause 33 deals with the issue of enforcement, essentially the contracting out of enforcement of the bill. I do not believe this is appropriate as a free-standing provision, and in fact it would be incompatible with the model I'm proposing of an independent free-standing regulatory agency in this area. Clearly, this agency would require corresponding enforcement powers.

However, I do believe this recommendation is compatible with the provisions of clause 41 of the proposed legislation in relation to equivalency agreements. If a province were in a position to and willing to establish a regulatory framework equivalent in all regards, substantive and procedural, to what the federal government put in place, I see no objection to that province opting out from the federal regulatory regime.

It may well be that some provinces, including in particular the Province of Quebec, may wish to avail themselves of these equivalency provisions; many other provinces simply won't. This is a complex area requiring a considerable degree of expertise. I share with the commission the view that it is far more effective for this to occur at the national rather than the provincial level.

My last comment on the proposed legislation is in relation to the minister's power of regulatory exemption under paragraph 40(1)(m) of the proposed bill, and if I may simply read the provision, it states that the Governor in Council may make regulations under paragraph (m)

exempting a class of controlled activity, generally or in circumstances prescribed by the regulations, from the provisions of this Act or the regulations, subject to any terms and conditions prescribed in the regulations.

Paragraph (m) essentially allows the minister to unilaterally exempt, through regulation via the Governor in Council, an area of previously regulated activity from the bill by regulation. I consider this to be an inappropriate use of the regulatory power. One unfortunately finds this in much federal legislation—the ability to use the regulatory power to in effect supersede the statute and bypass Parliament.

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I think Mr. Manning and I would probably be on the same page on this issue. I believe this provision is inappropriate and should be repealed from the proposed legislation. If the need arises to exempt a class of controlled activity under the bill from regulation, it should be done by Parliament and not through regulation.

Those are my comments on the bill.

The Chair: Thank you very much, Ms. Jackman. It's very helpful.

We'll move on to Gerald Chipeur, who is here as an independent lawyer.

Mr. Chipeur.

Mr. Gerald Chipeur (Individual Presentation): Thank you very much for that introduction, and thank you for the opportunity to speak to you this morning.

I've been invited by the committee to provide my views concerning a number of issues. I will focus my comments on the question of constitutional jurisdiction of Parliament to pass legislation governing assisted human reproduction. I will provide my comments and my opinion on that question and then I will address a few other questions put to me by the clerk of the committee on behalf of the committee.

It is my opinion that the Parliament of Canada has the jurisdiction under section 91.27 of the Constitution Act to legislate in this area of the criminal law head of power. I do agree with my colleague, Ms. Jackman, that in fact there is a basis for this legislation under the Constitution.

Clauses 3 to 11 of the proposed bill create prohibitions against certain activities. Effectively, these actions are criminalized. It's my opinion that Parliament has the jurisdiction to achieve the objectives set forth in clauses 3 to 11. However, it's my opinion that the drafters have stepped over the line with respect to the area of regulation and licensing.

In other words, by creating exemptions and exceptions within the act and then creating a federal regulatory body to license certain activities under the act, the Parliament of Canada has created an agency—even though in this case it's the minister—that is acting outside of the constitutional jurisdiction provided to Parliament under section 91.27 or under the peace, order, and good government clause in the Constitution.

Let me take you through the most important case in this area, the case of Jamieson and Co. versus Canada, and explain why I came to this conclusion. It's a 1987 decision of Justice Muldoon from the Federal Court Trial Division. It's reported at 46 D.L.R. (4th), 582.

He thoroughly canvassed this area in his decision, and I would encourage anyone interested in this question to actually read his decision, because it's very instructive. It's only trial level, but it's the only decision that thoroughly reviews this kind of issue. It does also reference all of the Supreme Court of Canada authorities in the area.

But at page 601 of the reported decision, Justice Muldoon took a look at the Food and Drugs Act. This is what he said about it:

[It] cannot be sustained by Parliament's authority to legislate in regard to the regulation of trade and commerce within...head 2, s. 91....

This means the trade and commerce power, 91.2, cannot be a basis for the legislation you're considering.

I don't think anyone is suggesting that it is, but in the past some argued that since these kinds of transactions have some aspects of a commercial nature, maybe we could hang this legislation on the trade and commerce area.

Page 615 of his decision looks at the question of criminal law. This is what he had to say about the criminal law area of jurisdiction:

[Under the Food and Drugs Act] applications for [drug identification numbers] submitted from anywhere in Canada may be verified and approved or rejected according to standard criteria. This is not criminal law.

While he has said it's clear that you can prohibit activities in the health area—or any other area—under your criminal law power, when you get into licensing and all of the intricate questions that must be addressed when dealing with these personal, private, and very complex health care matters, which create different ethical questions everyday, you are no longer dealing within the jurisdiction of criminal law.

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So we know the prohibition is okay under criminal law, but the regulation can't be okay under criminal law and can't be okay under trade and commerce.

Then we go to page 616, where he says, with respect to the Food and Drugs Act, there are two federal purposes, and they are necessarily incidental to each other in the Food and Drugs Act. He goes on to say the Food and Drugs Act regulation is not a matter of merely local and private nature, but rather of concern to the whole nation. Then he asks the question: When does the subject matter of such regulations become of such concern? He answers it—and this is important because this is the only kind of regulation in this area that Parliament can enact—by saying, on page 615:

An appropriate test of national interest, endorsed by Professor Hogg...enunciated by Professor R. Dale Gibson...cited...Hogg's work. Is the “provincial inability” test whereby, if a problem of wide import in Canada cannot realistically be solved by provincial co-operation, because it is beyond the power of the provinces to deal with it, the subject-matter resides within the “national interest” scope of [peace, order, and good government].

So the question Parliament needs to ask itself is whether this is something the provinces can't do. Parliament asked itself that question with respect to temperance legislation in the early part of the last century, and they said, no, the provinces cannot. They asked themselves the same question with respect to the Food and Drugs Act and the regulation of pharmaceuticals. They asked themselves that with respect to tobacco, and then with respect to liquor. Well, the Federal Court said, “No, you made the wrong decision with respect to liquor.” Liquor is not one of these things the provinces can't regulate.

And Parliament, at least the minister, is suggesting in this bill as drafted that in fact it is possible for the provinces to address this issue.

There's a specific clause that says if the provinces have a regulatory scheme in place to deal with these issues, then we'll leave it to the provinces. Well, if that's possible, it is my submission that it's necessary. In other words, Parliament cannot conclude that it is a national interest that the provinces can't do and then rest its power to regulate and create an agency under that, and at the same admit that the provinces can do it. So if you conclude that the provinces can do it, and the minister, obviously, is of that opinion today, then what you must do is take a look at the Criminal Code, sections 206 and 207, for your answer.

I'm not suggesting you should not go ahead with this legislation substantially as it is. I think it's good legislation. I think it's good just as it is, with one change, and that is to follow the model in sections 206 and 207 of the Criminal Code, which says lotteries are illegal, prohibited. But if a province has a lottery regulatory body and licenses a lottery, then that lottery is not a criminal offence; it is not illegal.

In this case it makes sense because you have universities, colleges, medical associations, and provincial health departments across the country that have established ethics boards and are used to dealing with the kinds of ethical issues that will arise when licensing the kinds of activities that are regulated in this legislation. So you already have an entire regulatory scheme in place. They're not operational in this area in a legislative way, but they are operational today with respect to any ethical activities. So none of these things can happen in a university today unless they go through an ethics review board.

They have to be reviewed as it relates to research. Any activity that happens in a hospital or clinic has to be approved by the medical associations in a province. And there is a very significant body of professionals and regulators who are ready to take on this kind of responsibility in a province if they are told they'd better get some legislation in place and be prepared for this legislation coming down, because after this legislation is proclaimed, it will then be illegal across Canada to do any of these things unless the provinces have addressed the issue and created a regulatory framework that meets the criteria set forth in the act.

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The criteria in the bill today are just fine. The only question is, do you have the Minister of Health or an independent agency do it, on the one hand, or do you say to the provinces, this is your constitutional jurisdiction, you must deal with it? Parliament can't deal with it. If this is going to happen in your province, you need to make sure you have a regulatory scheme in place to deal with it.

Those are my submissions on the constitutional question you have before you.

On the other questions that were raised with me by the clerk, I would suggest the following.

The federal prohibition of the activities identified in clauses 3 to 11 is appropriate, as the provinces do not have the constitutional authority to enact laws that are criminal in nature and prohibitory. They can regulate only.

Second, for the reasons set forth earlier, neither the Minister of Health nor a separate arm's-length agency should administer the bill. Instead, the individual provinces should set up their own regulatory agencies or oversight bodies—which are largely in place anyway. All that would have to happen is the responsibilities would be expanded.

Third, for the reasons set forth earlier, a somewhat different approach will be required with respect to enforcement. Enforcement can take place through the provincial justice departments, just as any other Criminal Code or criminal law breach is addressed in Canada today.

Fourth, you've asked whether my province, Alberta, currently has legislation similar to the federal proposals for the licensing of IVF clinics, semen banks, and research institutes. Alberta does not have legislation similar to the federal proposals for licensing of these clinics, banks, or institutes. In Alberta, reproductive and genetic technology clinics are located in hospitals, which fall under the jurisdiction of the provincial government and are operated by regional health authorities. The legislation governing regional health authorities is not similar to the proposed bill on assisted human reproduction today.

Fifth, you've asked whether my province has databases collecting health information similar to that specified in clauses 18 to 22. I can advise that Alberta does not have databases collecting such health information today.

Finally, I'd like to conclude by saying that with respect to the privacy of health information, this proposed bill is sound. In particular, I note that subclause 21(3) maintains the privacy of the patient and prohibits the disclosure of personal health information without the consent of the patient.

Most importantly, subclause 21(5) does not allow the disclosure of private health information for research purposes or for management purposes without the consent of the patient. I raise that because unfortunately in Canada today there are some provinces, including my own, that allow the disclosure of confidential health information for research or general management purposes without the consent of the patient. This, in my opinion, is both unethical and unconstitutional under section 7 of the charter, and I applaud the legislative drafters for respecting the citizen's right to health care privacy.

The Chair: Thank you very much, Mr. Chipeur.

I think we will proceed to the questioning portion of this. We'll begin with Mr. Manning.

Mr. Preston Manning: I have several questions.

Maybe, Mr. Chipeur, you can comment on this. I've had worries about the jurisdictional aspect of this from the very beginning. I'm afraid what's really required in this case is both federal and provincial jurisdictions to do everything we're trying to do here. I am concerned, if this is passed in the current form, we're going to end up having all kinds of litigation on the regulation of assisted human reproduction, on whether it's a federal or provincial responsibility—the age-old Canadian question.

But let me ask you this first. The problem is, right now Canada is way behind in this whole area. We don't have a proper legislative or regulatory framework for dealing, not so much with assisted human reproduction, but with the related science. This bill is going to become a cornerstone for the regulation of the genetic revolution, in my opinion.

So we're way behind the ball. The provinces have not taken initiatives in this area. There appears to be a lack of desire on the part of the provinces to do it, mainly for political reasons. This is shot full of moral and ethical issues that the government of your province—the Government of Ontario, to take an example—does not want to touch with a ten-foot pole. They are almost content to say let the federal Parliament thrash it out, and most of the politicians will say let the courts thrash it out, more by default.

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In addition, at the provincial level there is a competitive interest in this. I think part of Quebec's interest in actually keeping jurisdiction in this area is that they want to get a competitive edge on the biotech industry side of it, and it's better to have the regulation under your jurisdiction, if you want to do that, than under the feds.

So my long question is, even if in theory what you're suggesting is right, isn't the delay, the lack of enthusiasm, and some of the competitive reasons maybe for the provinces to act in this area presenting huge obstacles to getting the provinces to carry the ball in the way you have argued they should?

Mr. Gerald Chipeur: You've raised some interesting policy questions, and I really can't answer them from a policy perspective because I'm saying, constitutionally, it can't be done. I can assure you that you're right; this will be litigated. We already saw what happened last time when there was legislation like this. Dr. Morgantaler challenged every single law and used these same arguments and said “Well, federal government, if you step one inch over the line to regulate me, I'm going to challenge your ability to do that; and provinces, if you go too far the other way and try to regulate me on a criminal law basis, I'm going to challenge that.”

As a result, you know that the clinics that are regulated here are going to be there to make you do it right anyway, so you may as well do it right, even though it may be difficult for the provinces to come to the table and do the job they are supposed to do under our Constitution. I would suggest it's better to do it right from the beginning than to mess it up and just invite legislation.

I am not so sure that we're that far behind the rest of the world; the rest of the world has all of the same problems we do. I think if the federal government tells the provinces that this is going to be illegal after this date if you don't have legislation in place, they'll step up, just like they did with lotteries and just like they've done in other areas. For example, when there used to be an abortion law in Canada, this model was followed. It was illegal to procure or to be involved in an abortion unless the local hospital committee approved it. That legislation was found to be constitutionally sound because the questions that were raised were questions that needed to be answered locally on an individual basis.

I know the provinces don't want to do that today with respect to abortion, and they don't want to do it today with respect to all of the other very serious issues we're dealing with, but they have to. That's the only way it can be done under our Constitution, from my perspective.

Mr. Preston Manning: Then your argument, I think you're really saying, is based on the legal side, not on the policy side.

Mr. Gerald Chipeur: This is not policy. I'm saying this is a matter of constitutional law. Just because it's a good idea.... It was a great idea to have unemployment insurance and natural farm product licensing—there was a whole host of things that the federal government wanted to do 100 years ago and they couldn't do it. It wasn't because it was a bad idea; it was just that they couldn't do it.

Mr. Preston Manning: Did you want to comment on that, Professor Jackman?

Prof. Martha Jackman: I absolutely would like to comment.

Mr. Preston Manning: We have a good panel here, because we have two sides to the....

Prof. Martha Jackman: I know, two lawyers. What can you do?

Mr. Preston Manning: We'll let you debate.

Prof. Martha Jackman: Perhaps I could comment on that, please, because I really do not share my colleague's view.

First, the case that he refers to, a late 1980s case from the Federal Court Trial Division, has been superseded quite resoundingly by subsequent Supreme Court of Canada case law, both on the peace, order, and good government power under the Crown Zellerbach case, but more importantly and recently, the RJR Macdonald case and the Hydro-Québec case make it clear that relying exclusively on section 91.27 of Parliament's criminal law power, the federal government cannot only prohibit conduct that's deemed to be harmful to health, it can also regulate it.

For instance, the entire federal regulatory regime around the environment was deemed to be legitimate federal criminal law, and clearly you must not pollute. If you pollute, we'll put you in jail. This is a complex regulatory scheme, and the majority of the court in that case, as well as the RJR Macdonald case relating to regulation of tobacco products, held that this was valid federal criminal law. So Parliament could enact this legislation, including the regulatory aspects of the bill, relying only on section 91.27.

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In terms of the peace, order, and good government powers, I argued earlier, and my colleague has pointed out to you, that there are some requirements for Parliament to exercise that power. First of all, Parliament must demonstrate that the matter being regulated is one of national importance. I don't think anyone would doubt that new reproductive and genetic technologies are a matter of national concern.

The second thing Parliament must demonstrate is that recognizing federal jurisdiction in this area would not undermine the existing division of powers. One of the ways in which the court will determine whether this is occurring is in relation to the inability of the provinces to effectively regulate the matter in question, including the extra-provincial effects on residents of another province if one province does nothing.

In this area it is clear that by the total inaction of the provinces in effectively regulating these activities, both in terms of the licensing of the provision of services and the crucial information aspects that are covered by this bill, the provinces, individually and collectively, are unable to effectively regulate this area. We can call inability unwillingness, or we can call it some other type of inability, but the bottom line is that if they don't act—and none of them have—it's hard to characterize them as being able to act.

In addition, the key consideration here, because it is a matter of national interest, is the negative impact on other Canadians of the unwillingness or inability of one province to regulate in this area. Perhaps I can go to two examples. The first one was provided by Mr. Manning: the issue of biotech. If one province decided that economically it was extremely advantageous to become a haven for this type of unethical research, then clearly this would have negative spillover effects on residents of other provinces. Again, that would create the constitutional basis for federal action.

I go back to the situation of pre-conception arrangements. If one province, for whatever reason, decided there was nothing wrong with either commercial or non-commercial pre-conception arrangements, and in fact created a legislative regime that favoured these, again, this would have extremely negative effects for women in other provinces because the recognition and legitimation of surrogacy arrangements is extremely harmful in terms of women's substantive equality rights. The fact that I didn't live in the province where this was being allowed would not reduce the fact that the legitimation and regulation of the practice would have harmful effects on me, living elsewhere.

In short, I would maintain that most clearly under section 91.27, after the cumulative effects of RJR MacDonald and Hydro-Québec, there's absolutely no question that this legislation is permissible. Sure, we have litigation. The gun control legislation is an example of litigation that went all the way to the Supreme Court of Canada because somebody wasn't happy with the bill. That doesn't mean their argument was constitutionally sound. As I say, quite apart from the criminal law jurisdiction, which is clear in this area, I would maintain that there is a strong peace, order, and good government foundation for this bill reflected in the inaction of all provinces in this area at the moment.

The royal commission found—even with the provision of some of the practices that are considered most benign, for example, in vitro fertilization—through extensive research that what was happening was experimentation on women. You had provincially licensed and regulated in vitro fertilization clinics that would advertise 10% or 20% success rates to women, so that a woman going into the clinic thought that if she would undergo the treatments they were providing, she would have a 10% to 20% chance of having and going home with a healthy, happy baby.

Once this was looked at, what you saw was that, following treatment, there was a 10% to 20% likelihood of a chemical pregnancy occurring with no live birth from the program at all. This is the kind of practice that is being regulated in the provinces at the moment, and, in my view, there is a very strong need for the federal government to step in here and take some leadership.

This is occurring in other countries, and I know the model that's most often pointed to is the British one. As I say, I think the royal commission spent some $20 million or $25 million of Canadian taxpayers' money. It spent many years looking at this not very long ago, and it behooves this committee to look at what the commission recommended.

Mr. Preston Manning: Could I ask another question?

The Chair: You have only less than a minute. Could we move on?

Mr. Preston Manning: Yes, sure, that's fine.

The Chair: Mr. Dromisky.

Mr. Stan Dromisky (Thunder Bay—Atikokan, Lib.): Thank you very much.

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I'd like to direct myself to Ms. Jackman. In the question of commercial versus non-commercial surrogacy arrangements, I have the impression that, as you pointed out, there are some negative aspects pertaining to both. From your viewpoint as a lawyer, because surrogacy is going to take place, what model do you envisage would be acceptable? In other words, I'm asking you to provide guidance to this committee.

Prof. Martha Jackman: Thank you. What I would suggest is that the proposed legislation currently criminalizes commercial surrogacy arrangements, and I believe that is absolutely appropriate. I agree with the proposed legislation as well that it would be counterproductive to criminalize the behaviour of gestational mothers. This would not be appropriate, and I agree with the bill in this regard.

What I would suggest, though, is that the legislation should not create an exemption for lawyers, physicians, and psychologists who are brokering arrangements. In a sense they, too, would be recognized as engaging in prohibited conduct if they got involved in this. This is clearly an effective way to reduce the incidence of it, because if you can't get a physician to assist you and you can't get a lawyer to write up your contract, then your incentive to try to get involved in this kind of activity is severely reduced.

Now, this is beyond federal jurisdiction. But again, I think the federal government can recommend to the provinces, and your committee should recommend to the provinces, that they amend their family law legislation to make it clear that for legal family law purposes, the biological birth mother of any child is the legal mother. Again, what this does is eliminate the possibility of contracting out of family law regimes by essentially signing a contract that says that although you're the biological mother—the surrogate mother—the baby is not yours, so that the day after the birth I can walk away with the baby, by contract, as mine.

Provincial family law legislation needs to be amended to provide explicitly that the birth mother remains the legal mother of a child. And provincial family law should make it clear that surrogacy contracts, or pre-conception contracts, are legally unenforceable. Again, this will not prevent the practice from occurring, but it creates a huge disincentive. If you know that the contract you're writing without the assistance of a lawyer or a physician is unenforceable and that the birth mother remains the mother of the child unless she voluntarily relinquishes the child through provincial adoption procedures, with the normal waiting period that we provide for in any other adoption context, this creates a much greater disincentive for families to get involved in these kinds of arrangements. This is what I would recommend to the committee.

Again, I refer you to the recommendations of the royal commission on this, which are quite detailed in terms of how—without criminalizing birth mothers—to deter the practice. I would say that the bill you're looking at is far, far away from doing that, because of the exemption for doctors, lawyers, and psychologists.

Mr. Stan Dromisky: In the model you're presenting, let's say two sisters make an arrangement and one of them is going to be the birth mother. Blood tests would have to be done and other medical strategies would have to be implemented to make sure everything is okay. In your model, would that mean the doctor who does the blood tests and participates in the other strategies is committing a criminal offence?

Prof. Martha Jackman: I would say that if a physician is providing health services to a pregnant woman, that is absolutely fine. But if a physician is knowingly promoting a pre-conception agreement, then that falls within the provisions of the bill to the extent that one can demonstrate that he or she is deriving a commercial benefit from it. Of course, it then becomes the issue of whether, when physicians are being compensated for medical services under provincial health insurance regimes, this is a commercial benefit. Probably not. But what it does is essentially create a disincentive for physicians to become surrogacy brokers. I have to say that—

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Mr. Stan Dromisky: I'm not saying he's a broker. I'm saying that, in other words, he's providing information to see whether or not the conditions are appropriate for the birth mother to be the carrier. Surely there must be medical procedures that are followed before two women become involved in this kind of arrangement.

Prof. Martha Jackman: At the moment it's an unlicensed area, so it essentially depends on the sophistication of the parties. I know that in some states in the United States the contracts are very explicit. In order to become a surrogate mother with appropriate financial compensation, there's a whole barrage of tests you go through to make sure everything is okay, and there are all kinds of prenatal diagnoses as well. Then we have cases where a child is born with a disability; the contracting parents walk away, and you have legal issues there.

I understand that criminalizing physicians' services relating to reproduction creates hazards. You don't want to discourage physicians from providing the ordinary services they do for pregnant women. But I think there is space between that and giving carte blanche to physicians, lawyers, and psychological counsellors to make money doing this as a commercial proposition. I think that by removing the exemption in favour of those three groups you essentially put them in the situation—

Mr. Stan Dromisky: But you're talking about a situation.... From what I can gather from what you're saying, this is a big city kind of business you're talking about. What about a small town where there's one doctor, a family doctor, and an arrangement is being made between two sisters? They go to their family doctor and say, “Can we possibly do this? Can my sister be the carrier?” Is that doctor liable if he does carry out certain procedures?

Prof. Martha Jackman: What I would suggest is this. Look at proposed subclause 4(2) under the current draft bill. If the physician could be shown to have—that is to say, if the exemption is removed, as I'm suggesting—accepted consideration for arranging the services of a female person as a surrogate mother, offered to arrange the services, or advertised it, the physician would be liable in the same way any other surrogacy broker would be. So if in the most benign imaginable case of two sisters coming to the physician and saying, we want to do this, the physician would be under a professional obligation—and the commission recommended that self-governing bodies of physicians should be telling their members this—to explain to the women that it's an inappropriate activity.

If they decide to go ahead with this, the physician can continue to provide appropriate medical services to the pregnant woman. But according to this legislation as it's drafted, if this provision were removed, a physician could not engage in brokering activities, just as nobody else could. The reason that's in there is that surrogacy is inappropriate. It's unethical, and it's effectively an equality rights violation in terms of women.

Mr. Stan Dromisky: Yes, we have a dilemma there.

Thank you.

The Chair: Ms. Sgro.

Ms. Judy Sgro (York West, Lib.): Ms. Jackman, from what I'm hearing, quite clearly you're not a supporter of surrogate parenthood, period.

Prof. Martha Jackman: Absolutely, period.

Ms. Judy Sgro: Your suggestions here are helpful to us as we try to deal with a whole lot of those challenges. The concern is that if we literally ban that completely...I don't think we particularly like the practice either, but is it not possible that this issue will be driven further underground if we don't deal with it in some way or another?

Prof. Martha Jackman: I think that to take into account the concern around physicians' services, you could certainly create an exemption that provided explicitly that a physician providing health services to a pregnant woman would not be considered as having engaged in a prohibited practice under this bill. That way, you would certainly ensure explicitly that physicians would not feel any reluctance in providing health services pregnant women need. It might well be advantageous to spell that out clearly, since the bill does criminalize surrogacy-related activities.

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If I could, I'll go back to what the commission said about non-commercial arrangements. Essentially what the commission said is that its conclusions with respect to non-commercial arrangements are similar to those with respect to commercial arrangements. We do not believe such arrangements should be undertaken, sanctioned, or encouraged. The motivation might be sincere and generous, but the arrangement still results in the commodification of a child and the reproductive process. Non-commercial arrangements present the potential for coercion in the form of family pressure to participate. They also give rise to the possibility of damage to family relationships. Moreover, non-commercial arrangements still result in a healthy woman being placed at medical risk for the benefit of someone else.

The commission recommended that commercial arrangements be criminalized, as they are in this bill, and that the recommendation be made to the provinces that family law explicitly protect birth mothers who are involved in these arrangements. Again, this is because we don't want to penalize birth mothers, ensuring that they remain the legal mothers of their children whether these are born through a pre-conception arrangement or any other arrangement. They also recommended that in the case of a transfer of a child to a social parent, this occur through the same adoption procedures and with the same cooling-off waiting periods as we provide for other adoptive birth mothers and parents.

So I don't think it's a question of driving it further underground. It's a question of Parliament making it clear that it is not condoning these kinds of arrangements and that these arrangements are bad for women, kids, and society. Furthermore, when they do occur, the professionals who are making money brokering them and the social families who are benefiting from them should see their interests placed below the interests of the birth mother so that the birth mother is protected in contract and law. Then families who are benefiting from these arrangements are, in a sense, the ones who are walking the edge of the law. It creates a dissuasive effect that I think is necessary.

Ms. Judy Sgro: Have you ever spoken to any of the families who have benefited from surrogacy?

Prof. Martha Jackman: Absolutely not. My views on this issue are based on the research, extensive research, I was involved in for the commission and my own work as a feminist constitutional law scholar. I know that we all read heart-rending stories of great generosity. If we weren't so preoccupied by genetic links with our children...I understand that families who are unable to have children are in a really difficult position in our society, where children are rare and valued, but I think the interest against condoning pre-conception arrangements far outweighs the harms to individual families who are unable to have children.

Ms. Judy Sgro: Thank you.

The Chair: Mr. Manning.

Mr. Preston Manning: I want to go back to the jurisdiction issue, and I have both a comment and a question. With respect to the proper regulatory regime for this, I don't think you can settle it by just saying the feds are better regulators than the provinces or that the provinces are better regulators than the feds. It depends on the characteristics of the regulatory system itself and on the people who are in it. I think we all know, with respect to who's best on this health deal, that while Professor Jackman referred to inadequacies in provincial regulation, there have been some pretty good horror stories on the inadequacy of federal regulation in the blood field, in the semen field, and—an area I'm more familiar with—in the energy field. The federal government does not have an exemplary regulatory record.

My question concerns the fact that it seems to me the proper regulatory and legislative framework involves both jurisdictions. It's not a matter of one or the other, it's a matter of both. Really, my question is, how do you marry the two? Now, Gerry says, let the feds prohibit and let the provinces regulate. Martha says, rely more on the feds, but you've acknowledged in your discussion of surrogacy that we have to have cooperation at the provincial level.

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So my real question is, is there some way of marrying the two other than by just choosing between them?

Before you answer that, let me list three things that have occurred to me and to others and that have been suggested to the committee. One is that there should have been a federal-provincial agreement on legislation and regulation in this field before we drafted the bill. The ministers should have gotten together and said, look, we're all in this together, and here's how we're going to handle it together.

Second, it should be possible, if the provinces and the federal government get together, to create a national regulatory tribunal to which both levels of government delegate the respective powers required to ensure that whatever the agency is, it has all the jurisdiction it needs.

And the third thing that's occurred to me just in going through this draft bill is that we could add a section at the end that really deals with things like the measures for the coordination and cooperation with the provinces and other stakeholders. Under that we would include things like the equivalency agreements, the incorporation of regulations by reference, and things that actually implement cooperation and coordination between federal and provincial governments.

Those are three things that either have been suggested to us or have occurred to us as ways to marry the federal and provincial jurisdictions so that the ultimate regulatory regime will have all the powers of property assembled to do the entire job.

So my long question to you is, how can you marry the federal and provincial jurisdictions? I think we all acknowledge or are all mixed up in this together; it isn't simply a question of either/or.

Prof. Martha Jackman: I'm as big a fan of cooperative federalism as any constitutional lawyer. In an ideal world, this is what would occur. When the report of the royal commission was tabled, I was pregnant. My daughter is now more than eight years old, and in that period things haven't gotten better, they've gotten worse. The commission reported, it made very clear recommendations both to Parliament and to the provinces, and nothing has happened in any province or at the federal level. If you're asking me whether I'm prepared to sit back and wait for all the provincial ministers of health, including the ministers of health of Alberta and Quebec, to agree with the federal Minister of Health to a delegation of powers to a federal-provincial reproductive commission, the answer is no.

Mr. Preston Manning: Let me pursue this. Do you think they should try? You're politically—

Prof. Martha Jackman: No, I don't. I think that if the provinces and the federal government were sufficiently exercised about the importance of intervening in this area, they would have already taken action. It's long past time that the federal government exercised the jurisdiction it has and satisfied the obligation it has to intervene. I think the concession that is made here, the potential for responsible provincial regulation, is found under proposed clause 41. If a province feels strongly that it is capable of regulating as or more effectively than the federal agency can, then this proposed legislation allows for provincial action. It's not precluded here, and I think that is a concession to federalism. I don't agree with my colleague that that concession undermines the federal government's claim that it has jurisdiction.

Mr. Preston Manning: So you'd rely on the equivalency thing to get the cooperation—

Prof. Martha Jackman: If a province wants to regulate and hasn't and it is now agreed that Parliament has entered this field, then a province can set up a parallel regulatory regime. As long as it meets the requirements of the federal legislation, then all power to it. I have no objection to local legislation in this area. My objection is to the absolute absence of government regulation in an area where women are being experimented on and where things are happening that are bad for women and children.

Mr. Preston Manning: Gerry, what's your answer? How do you coordinate and cooperate?

Mr. Gerald Chipeur: Let me answer the three questions very briefly.

First, there is already in place a process where deputy ministers of health and the ministers of health get together regularly; they're constantly in touch with each other. They've chosen not to address this issue because Parliament hasn't forced them to. I think if Parliament forces them to, they will. They have the bureaucrats, they have the lawyers, they have the mechanism in place to cooperatively address this issue and ensure that there is a coordinated response through the current mechanism. There's no need for any new consulting body to be set up.

Two, for the reasons I've already mentioned, I do not think a national agency will work, no matter who appoints it. It's just not a good idea because this is a personal, local issue. It's an individual, ethical question that each family and each professional needs to deal with at the local level. To the extent the provinces have regulations in place that allow things Parliament believes are criminal in nature and should never happen, Parliament is free to tighten the noose, if you will, and say, “No, that's not what we intended; that kind of activity is criminal.”

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Parliament can clearly create the area of regulatory responsibility within the provinces, but once they've created the circle, those within the circle should be making the decision at a local level—not a national agency that has no idea about what's actually happening in an individual case at an individual hospital.

Finally, I don't like the idea, from a constitutional perspective, of creating a national agency and then saying, “But that national agency isn't responsible in Quebec”, or “It's not responsible in Alberta because there's a duplicate agency.” Number one, I think it's constitutionally unsound. Even within the theory of our federation, that was not the way things were supposed to be done. One jurisdiction or the other was supposed to be responsible and was supposed to do a good job of it. The idea of both doing a good job of it I don't think was contemplated and I don't think there's any benefit to it.

What it does is pander to a regional view of the country; whereas, if you accept that the provinces have certain responsibilities, you're not regionalizing, just recognizing that individuals should make all the decisions for themselves whenever they can. The only decisions they shouldn't be able to make are those that would in fact be criminal in nature.

Prof. Martha Jackman: I'm sorry to belabour this, but I'd like to give a very practical illustration of why this doesn't work—the idea that the federal government would criminalize until the provinces regulate it, and since they're all regulating already, “What's the problem?”

In the area of in vitro fertilization for infertility of unknown cause, what the commission found is that across Canada in vitro fertilization is occurring as the treatment almost of first resort for couples where we have no idea why there's a fertility problem and where, for whatever reason, the couple is unwilling to start with assisted insemination using donor sperm rather than sperm of the social father.

What the commission found is that unless you have problems with your Fallopian tubes so there's a blockage in them, in vitro fertilization doesn't really work. All in vitro fertilization does is overcome the problem of sperm not being able to travel up the Fallopian tube. In a model where every province does its own thing, what is the incentive to have that practice discontinue? Physicians are doing it; clinics are doing it; it's happening. It's no problem for anyone but the pregnant woman, who's having all kinds of drug therapy to repress her immune system to hopefully become pregnant with her husband's sperm. This is who it's a problem for.

If you had one national agency that was able to actually look, from an evidence-based perspective, at what worked and what didn't, there are all kinds of practices currently happening that might well not be licensed any more. But if you talk about province-by-province regulation, there's absolutely no incentive—in fact there are all kinds of economic and human resources disincentives—to look at these individual practices and decide: Do they work or not? Are they ethical or not? Is it a problem or not?

Right now ethics boards do not look at gender harm of a systemic practice. They look at very individualistic concerns such as whether there was consent. That does not respond to the problems occurring in the area of new reproductive and genetic technologies, from my perspective.

The Chair: Can I have your approval to ask some questions?

Mr. Chipeur suggested there were regulatory bodies out there—the professional associations, the ethics committees in hospitals, etc.—that already exist. I would have to ask him if he is satisfied with the degree of inspection and/or some of the decisions that have been emanating from those. Is he willing to hand to them practices that might have an effect on the protection of the human genome?

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Mr. Gerald Chipeur: What I am comfortable with is the current legislation, as drafted, with one change. That is that instead of creating a national agency, which allows the provinces to opt out provided they have followed the regulatory scheme that's in the act, I'm suggesting it would be a matter of leaving all of the regulation criteria that are in the act there, then saying to each province, “If you would like to have these kinds of activities occur in your province, you must have a regulatory body in place that achieves all the objectives set forth in the act as written today.”

If you do, it's just as with sections 206 and 207 of the Criminal Code, where there are criteria for lottery boards. Those lottery boards are there because we don't want some of the negative aspects of gambling to occur in Canada. So we say: “Tightly regulate it. Only allow it under close regulation according to criteria approved in the Criminal Code.” I'm saying the same thing here.

I don't approve of any kind of coercive activities by these clinics or physicians or others that are counsellors. But I do suggest the provinces are able—and the Minister of Health has recognized that in the current legislation they are able—to put into place a regulatory scheme, based on the criteria in the act as written today, that will achieve that objective. Until a province does, then in fact all such activity would be absolutely prohibited as criminal under this legislation.

That's not a bad result, because then no abuse can take place until a province regulates to the standard Parliament believes it must regulate in order to be satisfied that what's happening in the province is not going to be inimical to society and therefore a criminal offence as set forth in the act right now.

The change that's necessary is only to say “We regulate at the provincial level rather than at both the federal and provincial levels.” But the criteria would be the same.

The Chair: But what would happen, Mr. Chipeur, if a province opted out and established its own regulatory system under the rules of this bill? They wouldn't be regulated from both ends; we wouldn't have federal inspectors and provincial inspectors.

Mr. Gerald Chipeur: No, but you'd have a federal inspector who was busy in Ontario, but not Quebec.

The Chair: Yes.

Mr. Gerald Chipeur: And so what you'd do is.... This is not a constitutional issue but a resource issue. Why would you create those two levels, from a pure “good government” perspective? But leaving that aside, because it's a policy question, as a matter of constitutional law I don't think it was contemplated. If it's desirable because some provinces want to go a different way, we can do it—although frankly I don't understand why it would be desirable for a province to duplicate what the federal government is doing and then be able to opt out. For anyone to say that's good policy, that's good government.... I mean, that's just a duplication of services. It's exactly the same thing; it's just different people doing it.

Why not today just say it's a provincial responsibility, and none of this is going to happen in any province in Canada unless the provinces step up and take care of their responsibilities? The provinces can't just say to the federal government, “Well, you know, we're responsible for running hospitals in our province, and now we think we're going to give the hospitals over to the federal government.” That's just not contemplated in our constitutional scheme. It can't be done even if they want to. It requires a constitutional amendment to take something that's a provincial responsibility and move it into the federal sphere or vice versa.

The Chair: Although you said that wasn't the case, because we could do it under the criminal power.

Mr. Gerald Chipeur: I'm saying you can, under the criminal power, prohibit, and you can pass regulations necessarily incidental to prohibition. For example, you can prohibit murder with a gun; then you can regulate the ownership of guns so you can try to prohibit it from happening. But you cannot, I'm suggesting in this case, prohibit certain activities—call them criminal—in the health care sphere, then exclude another set of activities and because you've excluded them therefore have carte blanche to regulate health care in its totality. I'm saying there's a limit.

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In other words, you could not say hospitals in Canada are now prohibited, it's a criminal offence to have a hospital in Canada, and then say, but if you have a hospital that's licensed by the federal Minister of Health, it's now okay and therefore you now have the right to regulate hospitals.

That is exactly what is being suggested here, that you are now going into the hospitals of this country and regulating what's happening on a minute basis. You're regulating what's happening in those test tubes. You're having inspectors, and you're getting involved in day-to-day, individual-by-individual regulation by looking at those and licensing those hospitals and clinics to do that. I'm saying you don't need to do it to do your job as in the criminal law or the peace, order and good government area, and in fact you shouldn't do it, because that's not what the Constitution contemplated.

The Chair: Okay. I want to look at clause 41, because this whole idea of provinces having a patchwork quilt of regulatory agencies, and not just a duplication but a twelve-times-one duplication of this system, really worries me. I would rather have the federal government take care of it, inspect, and do everything else. Yet I'm worried about clause 41 with this exemption.

Ms. Jackman, what do you think about getting rid of clause 41 and just saying this has so much to do with peace, order, and good government and the use of the criminal power, if we so choose, that it is definitely federal, we will take care of every piece of this puzzle and eliminate the possibility of the patchwork quilt? Could we get rid of clause 41 and still be within the Constitution?

Prof. Martha Jackman: There are two questions there.

In my view, repealing clause 41 would not affect the constitutional validity of this bill. Absolutely, you could enact this legislation without providing the provinces the opportunity to regulate instead of the federal government.

I think clause 41 is a realistic concession to cooperative federalism. In my view, no province is currently effectively licensing provision of services in this area.

I don't believe—and I hope I've made this clear—that the federal Minister of Health will necessarily greatly improve the situation. So if we're simply having a federal licence of in vitro clinics instead of a provincial licence, I agree with my colleagues that it's not necessarily going to be any more effective. What I'm suggesting is required is an arm's-length agency that will regulate this area, motivated by some clear underlying values, like the dignity and equality of every individual and the unethical notion of experimenting on humans.

But if you leave clause 41 in the bill, do I think tomorrow you'll have 12 repro-tech commissions spring up where today there are none? I think there may be one or two provinces that, for political and ideological reasons, will feel impelled to enter this field in a way that they aren't now. That may be, as I say, the province of Quebec and potentially the province of Alberta. Does it bother me if those one or two provinces are regulating as effectively as what I want to occur at the federal level? I don't find that an unpalatable situation either from a good governance or a constitutional theory perspective.

The Chair: Okay. If in fact they were just worried about the women and children that you're worried about, I would agree with you, but there's this whole possibility of economic gain by having your own regime through the biotechnology research end. Would we want to allow that, that we have certain rules, but a province has some other kinds of rules that allow more of that and it becomes the biotech centre of the nation, with all the accruing economic benefit?

Prof. Martha Jackman: So that we can be clear, all that the provinces can regulate are controlled activities. The prohibition provisions of this bill remain in place across Canada, so for any kind of biotechnological research that is deemed to be prohibited because it offends basic ideas around commodification and the value of life, that stands. What the provinces could independently regulate, if clause 41 were left in the bill, is the licensing of reproductive practices that we deem to be acceptable—that is, assisted insemination, in vitro fertilization, and so on.

The Chair: Okay. Going on to another section, you talk about....

Sorry.

Mr. Preston Manning: Madam Chair, before you move on, can I ask one other question, which relates to what you asked?

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The Chair: Yes.

Mr. Preston Manning: Can you comment quickly, is there any question at all about the constitutionality of equivalency agreements in the health field? Is that a legitimate thing, or is there a grey area as to the constitutional efficacy of equivalency agreements in health?

Prof. Martha Jackman: I think my colleague and I probably disagree on this. I'm suggesting that the prohibitions aren't subject to equivalency. So in terms of section 91.27, we agree there's no problem with the prohibitions.

Where I think we have a parting of ways is on the regulatory provisions around what is deemed to be “controlled activity”, I think the language is.

Mr. Preston Manning: And that is what clause 41 focuses on.

Prof. Martha Jackman: Yes, that's right.

In my view, those provisions can be enacted both under section 91.27 or the peace, order, and good government power. I don't consider the potential for equivalency agreements to affect the constitutionality of those provisions, because I'm looking at the Supreme Court's decision in RJR Macdonald and Hydro-Québec, where essentially you had very complex regulatory regimes that were deemed to be constitutionally unassailable.

In the environmental area, which I think is a better parallel than gaming or temperance, what we have are parallel regimes. We deem protection of the environment to be sufficiently important that it requires federal intervention, but we recognize that the Constitution also accords the provinces the ability to regulate in this area. I think we—

Mr. Preston Manning: The answer is, no, then, that there is no constitutional problem with equivalency agreements in the health area.

Prof. Martha Jackman: Sorry. The short answer is, no, I don't see that the presence of clause 41 in this bill affects the constitutional validity either under subsection 91(27) or POG.

The Chair: I have one more question for Ms. Jackman.

You gave us some strategies for tighter control over surrogacy and discouragement of it, and so on. Are there any more?

I agree with you that this bill, actually, by talking about consideration, discourages the thing on the one hand and then encourages it on the other. We have had some pretty disturbing testimony from witnesses about what they think consideration is—for example, up to about $36,000 a year for being a surrogate mother. As one of my colleagues pointed out, it looked like a new career opportunity for women.

But in any case, my reaction to all this talk about surrogacy is that, essentially, like you, I would like to ban it, even if it goes underground. But in this bill, I don't know how we could do it, other than by implementing the couple of changes you suggested. Can we not do it in a more clean-cut way than all these clauses?

Prof. Martha Jackman: If I could maybe reiterate what I was suggesting, I would leave it so that your subclause 4(1) says that:

No person shall pay any consideration to a female person to become a surrogate mother

—and so on.

From a contract law perspective, consideration is basically money. If you say I'm simply compensating you for the fact that you couldn't do any other work during those nine months, that's....

The Chair: No, I understand all that. We want to get rid of that word “consideration”. I think the majority of the committee agrees with you on all that. You don't have to explain that to us. We don't want any consideration. We want to ban it entirely—at least I do; I don't know about the rest. I want this even tougher than what you suggested.

Prof. Martha Jackman: So your fear is about driving it underground?

The Chair: No, I'm not fearful of it at all. We want to be as strong as possible.

Prof. Martha Jackman: Might I suggest that you go back to the recommendations of the royal commission, which had the same objective that I believe your committee is now saying you have?

The Chair: I read that section and I somewhat agreed with it. I don't think they were tough enough.

Prof. Martha Jackman: I do not believe it is in the interests of women or Canadian society generally to criminalize women who become surrogates, for whatever reason.

The Chair: No, I understand that concern, and we'd have to put that kind of exception in, that anyone who found themselves caught in the situation, in the role of surrogate mother or birth mother, whatever you want to call it, would not be liable to prosecution, but only the other people—the arrangers, the commissioners, the this and that. I understood that point from the royal commission.

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But to me, this still talks about it as if we really don't want it to happen, but it's going to happen, so we're going to put these clauses in our bill. To get this across to medical associations, lawyers, and various other people, we have to be even clearer.

Prof. Martha Jackman: Then I think all you really have to do in clause 41 is to add words like “encourage” and “arrange”. So “No person shall encourage, arrange, or pay” consideration to a person to become a surrogate.

The Chair: Okay.

Prof. Martha Jackman: Then you remove the exemption in clause 4. And then, to address member Dromisky's concern around physicians, you could certainly add a provision that a physician who provides medical services to a pregnant woman is not deemed to be infringing this act. So you essentially protect physicians from the concern that, oh my God, I found out through the town grapevine that this is a surrogacy arrangement; if I go near this woman, I'm liable for prosecution under this bill. That, you absolutely do not want to do, and that is easy to provide for.

Mr. Stan Dromisky: But my concern was that we need more on the initial stages of the whole process, where the doctor is going to be carrying out certain procedures to find out if this is—

Prof. Martha Jackman: Compatible.

Mr. Stan Dromisky: —fertile soil, in a sense.

Prof. Martha Jackman: There's no reason that you don't want to prohibit that. I think you want to protect physicians who are providing necessary medical services to pregnant women, but you certainly do not want to be providing any kind of exemption for physicians who are basically assisting in—

Mr. Stan Dromisky: Before the woman gets pregnant.

Prof. Martha Jackman: Yes. That's arranging, that's encouraging, that's supporting.

Mr. Preston Manning: What you're also saying, though, is that you would not assign any responsibility for the surrogacy to the surrogate mother. It seems we're going all the way from one extreme to....

We don't want to criminalize and penalize and do injury, but to go to the entire extreme where everybody who's mixed up in the surrogacy is liable for penalties except the surrogate mother, isn't that going a little too far the other way?

Prof. Martha Jackman: No. The reason for that is because I think we recognize that it may happen, that through family pressures or other pressures women may do this. I do not see the social interest, and certainly, from a gender perspective, I cannot see any reason that criminalizing a woman who becomes a surrogate can promote any kind of public policy.

The impetus for pre-conception arrangements is not coming from women who are fertile; it's coming from couples who can't have biologically related children, and they're essentially then trying to find someone to provide this for them.

I'd like to make the analogy to the whole issue of harm to fetuses, this idea that we're going to use the judicial system to punish and control pregnant women who we consider may be engaging in harmful behaviour vis-à-vis their fetuses. Again, it has been shown that putting the criminal law against pregnant women is a bad policy. That's what drives women underground.

I would say, in this area, if you provide enough disincentives for the social couple, physicians, lawyers, and other potential brokers, you're going to achieve the objective you want without penalizing the vulnerable entity in this, which is the biological mother, and without penalizing the child either, because as I say, I think you need to engage with the provinces around making provincial family law clear about who this child belongs to when he or she is born. That child remains the child of his or her biological mother until normal adoption processes kick in and we deem, as a society, that we're going to change the family unit.

The Acting Chair (Ms. Judy Sgro): Thank you very much.

Are there any further questions or comments?

On behalf of the committee, again thank you both very much for coming. It's interesting, because each time we have witnesses come before us, we learn more and more as we attempt to go forward with this very difficult issue, but hopefully with a successful resolution to put in place.

The meeting is adjourned.