Nomenclatura y estándares de codificación

The story of Canadian regulation in the field of assisted human reproduction is a

remarkable one. It is a history of progress and regress, uniquely inflected by feminist voices and involving decades of struggle to develop a clear regulatory framework for the governance of a range of biotechnologies. As it stands today, twenty-five years after the first government

commission was struck to examine the issue of new reproductive technologies, Canada still lacks many guidelines for their application. As Francoise Baylis has recently protested in frustration at this long series of regulatory failures and disappointments:

So it is that more than 30 years of hard work by dedicated Canadians committed to promoting and protecting the interests of those who use, and are born of, assisted reproduction has come to naught. Since the mid-1980s Canadians have advocated for the regulation of reproductive and genetic technologies. In 1993 the final report of the Royal Commission on New Reproductive Technologies recommended federal legislation. In 2004, after many failed attempts, legislation was passed. And, in 2010 much of that legislation was found to be unconstitutional.²⁶⁰

This chapter will canvass these decades of effort to develop and approve a comprehensive regulatory scheme to manage all clinical and research activities relating to assisted human reproduction and genetic research. This is well-traveled terrain, with many other academic and popular commentators having traced this tale across the arcs of a convoluted history.²⁶¹ Chapter Five will instead seek to apply a queer lens to this history, looking to locate the ways in which heteronormative frames and binary formulations of nature/culture (and their

260 Françoise Baylis, The Demise of Assisted Human Reproduction Canada, J Obstet Gynaecol Can 2012;34(6):511–513 at 513.

261 Such texts will form many of the touchstones of this chapter, most notably the Misconceptions books published in the wake of the controversies around the Royal Commission of New Reproductive Technology, infra note 296. For a new look at these debates, see a recently published anthology on reproduction and women’s rights in Canada:

Paterson, S., Scala, F., and Sokolon, M. (eds.) Fertile Ground: Exploring Reproduction in Canada (Montreal:

McGill-Queen’s University Press, 2014).

absences) have underscored its rationale and rhetoric. It will attend to the moments in which queer bodies do emerge from the debates, and analyze these spaces of anxiety and inclusion as produced within the larger frameworks of both feminist and ‘mainstream’ ideological positions.²⁶² Importantly it will also look to the absences of queer perspectives, and analyze how this lack of stakeholder recognition may have contributed to the current reproductive landscape faced by prospective LGBTQ parents.

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This genealogy begins with the main challenges faced by early regulators. The first problem stemmed from the difficulty of even defining what these new innovations were. When biotechnologies began to receive national press, particularly research in assisted reproduction and in vitro fertilization (IVF), they were often framed as elements of a strange and frightening scientific order. Surrogacy, test tube babies, cloning and other reproductive technologies

“became a pervasive theme in horror films and science fiction fantasies” as these new innovations “appeared to promise both amazing new control over nature and terrifying dehumanization.”²⁶³

262 This discursive binary between ‘feminist’ and ‘mainstream’ thinkers is one that settled in the work of the Royal Commission on New Reproductive Technologies, as discussed below. For example, the Commission included thirteen proposed studies of embryo/fetal tissue research, five of which were divided into a request for “one mainstream study, one feminist study.” This epistemological framing creates an obvious tension between feminist perspectives and so-called ‘popular’ thinking without indicating how or why such perspectives might differ. Such tension was evident not only in these forms of knowledge production, but across the makeup of the Commissioners themselves, who were later rent through internal divisions into ‘feminists’ and ‘everybody else’. Judy G. Morrison, Delivery Delayed, Unpublished MA Thesis, 1997. At page 130.

263 Dorothy Nelkin and M. Susan Lindee (1998). Cloning in the Popular Imagination. Cambridge Quarterly of Healthcare Ethics, 7, pp 145-149 at 145. See also Busby, Karen & Delaney Vun, “Revisiting the Handmaid's Tale:

Feminist Theory Meets Empirical Research on Surrogate Mothers,” 26 Can. J. Fam. L. 13 (2010) for a discussion of how Margaret Atwood’s popular novel fueled second-wave feminist concerns around women’s exploitation.

Functioning as a site of anxiety for the disruption of the nature/culture binary, these fears took vigorous and remarkably international form, and were perhaps most sharply clarified by radical feminist movements and their suspicion of the potential for technological domination over women’s bodies. There was particular concern about the medicalization of women’s bodies and the subjection of female reproductive functions to patriarchal control.

The concept of medicalization describes a process “in which nonmedical problems become defined and treated as medical problems, usually in terms of illnesses or disorders.”²⁶⁴ The process of diagnosing a pathology requires its marking as deviance from the norm, thereby affirming a certain set of bodies and conditions as ‘healthy’ and designating others as ‘unhealthy’

and in need of treatment. As Bryan Turner explains, the medicalization of society has involved

“the growth of medical dominance under the auspices of the state, associated with the development of a professional body of knowledge” alongside “a regulation and management of populations and bodies in the interests of a discourse which identifies and controls that which is normal.”²⁶⁵ The baseline of ‘normal’ which emerges from this professionalization is most often a white, heterosexual, middle-class, able bodied male – the standard bearer of the heterosexual imaginary.

The sexist and heterosexist gaze of medicalization has thus resulted in particularized control over women and queers, and perhaps nowhere have these bodies been more medically managed than in terms of their relationship to reproduction.²⁶⁶ As Marcia Inhorn explains in relation to studies of infertility, such projects make clear that “women’s bodies are considered

264 Conrad, P. 1992. “Medicalization and Social Control.” Annual Review of Sociology 18: 209-232 at 209.

265 Turner, B. 1995.Medical Power and Social Knowledge. Second Edition. Thousand Oaks, CA: Sage. At 208-210

266 Michelle Walks, “Breaking the Silence, Infertility, Motherhood, and Queer Culture,” Journal of the Association for Research on Mothering, Vol 9(2), 2007.

the locus of ‘disease’, and hence the site of anxious surveillance and intervention.”²⁶⁷ This concern over the gendered nature of medicalization and its specific effects on female bodies has long been a central feminist concern, and one which animated much of the response to an expanded access to reproductive assistance in the early 1980s.

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Radical feminists led the early charge against the growing prevalence of AHR. While radical feminists were a diverse set of authors without consensus on many issues, their stance may roughly be characterized by the presumption of a foundational link between new reproductive technology and patriarchal culture.²⁶⁸ Thus, new reproductive technologies were viewed as an instantiation of patriarchal culture and an intensification of male scientific rationale directed toward dominion over female reproduction.²⁶⁹ From the position of many commentators, these were dangerous and untested procedures that were being forced upon women’s bodies as guinea pigs of experimental science.²⁷⁰ These technologies were thus a force to be resisted and critiqued, and many radical feminists even expressed suspicion of other women who willingly undertook procedures such as IVF; as collaborators with the patriarchal

267 Inhorn, supra note 2.

268 Sarah Franklin, 2011 ‘Transbiology: a feminist account of being after IVF’ in The Scholar & Feminist Online, Special Issue ‘Critical Conceptions: Technology, Justice, and the Global Reproduction Market’, ed. Rebecca Jordan-Young at 1. See for example the founding anthology of feminist debates over new reproductive technology: Rita Arditti, Renate Duelli Klein, and Shelley Minden, eds., Test-Tube Women: What Future for Motherhood? (London:

Pandora, 1984). For a review of early feminist work on new reproductive technologies, see: Sarah Franklin and Maureen McNeil, "Reproductive Futures: Recent Literature and Current Debates on Reproductive Technologies,"

Feminist Studies 14.3 (1988): 545-61.

269 Ibid. Franklin, Transbiology. See also Mary O'Brien. The Politics of Reproduction (London: Routledge, 1981).

270 Albury, R. “Who Owns the Embryo?” In Rita Arditti, Renate Klein, and Shelly Minden, eds. Test-Tube Women:

What Future for Motherhood? (London: Pandora, 1984.).

reproductive order, such women were brainwashed collaborators who doubted their own power.²⁷¹

But sometimes women also collude because we have been brainwashed. The information and education we get is one-sided and male-centered and the hidden conviction creeps into our own minds that men and their technology must be better than our own body and our own experiences with it.²⁷²

This widespread unease with new technologies coalesced into a remarkably global feminist movement in the mid-1980s, with the development of a network representing women from more than thirty countries.²⁷³ FINRRAGE, or the Feminist International Network of Resistance to Reproductive and Genetic Engineering, consisted of prominent social critics Gena Corea, Janice Raymond, Renate Klein, Patricia Spallone and Deborah Steinberg, among others.

FINRRAGE was perhaps the most vocal wing of a movement concerned with guarding the

‘natural’ reproductive functions of women from male control, and produced literature, analysis and organized conferences to bring these concerns to the fore. As the FINRRAGE manifesto states:

We, women, declare that the female body, with its unique capacity for creating human life, is being exploited and dissected as raw material for the technological production of human beings. For us women, for nature, and for the exploited peoples of the world, this development is a declaration of war. Genetic and reproductive engineering is another attempt to end self determination over our own bodies.²⁷⁴

271 Yet as Sarah Franklin helpfully points out, this was by no means the only position among radical feminists (and certainly not among the feminist community at large). This easy equivocation of reproductive technology with patriarchy was also resisted by many. Franklin., supra note 268.

272 Renate Duelli Klein, “What’s ‘new’ about the ‘new’ reproductive technologies?”. In Man-Made Women: How New Reproductive Technologies Affect Women, Gena Corea et al. (eds.) (Bloomington: Indiana University Press, 1987) at 65.

273 Gena Corea et al. “FINRRAGE: The Struggle Over New Reproductive Technology,” reprinted at

http://www.finrrage.org/pdf_files/History%20of%20Finrrage/FINRRAGE.pdf. See also the prologue of Made to Order: The Myth of Genetic and Reproductive Progress, eds. Patricia Spallone and Deborah Lynn Steinberg (Oxford: Pergamon Press, 1987), 1-12.

274 Renate Duelli Klein, “Genetic and Reproductive Engineering – The Global View.” In Jocelyn A. Scutt, ed. The Baby Machine: The Commercialisation of Motherhood. (Carlton: McCulloch Publishing Ltd., 1988) at 258.

Radical feminists such as Corea understood the expansion of reproductive technology within a patriarchal order as necessarily leading to women being commodified and exploited for their biological capacities. Drawing a parallel with prostitution and the commodification of female body parts through sexual labour, Corea envisioned a dystopic future in which the reproductive elements of a woman’s body would be stripped away and sold piecemeal:

Just as the patriarchal state now finds it acceptable to market parts of a woman’s body (breast, vagina, buttocks) for sexual purposes in prostitution…so it will soon find it reasonable to market other parts of a woman (womb, ovaries, egg) for reproductive purposes.²⁷⁵

Many members of FINRRAGE were also deeply concerned with the issue of surrogate motherhood, and predicted that expanded reproductive technology would lead to the

commodification of women as factories of reproductive labour. This outcome would impact women from lower socio-economic brackets, who would be reduced merely to ‘breeders’ in this new economy. As impacted by race and nationality, women of colour and those of precarious legal status would be unable to resist the patriarchal imperative to reproduce for (someone else’s) profit. Yet white women were also seen as cogs in this patriarchal machine, forced to produce eggs of ‘superior’ value to be incubated by bodies of colour. Corea again was a powerful oracle on the matter, imagining a site of commerce she called the “reproductive brothel” where women both white and black would be used as breeding machines for the patriarchy:

As I envision it, most women in a reproductive brothel would be defined as

“nonvaluable” and sterilized and, in this way, their progeny culled…Certainly women of color would be labeled ‘nonvaluable’ and used as breeders for the embryos of ‘valuable’

women. The white women judged genetically superior and selected as egg donors would be turned into machines for producing embryos. Through superovulation, “valuable”

275 Gena Corea, “The Reproductive Brothel.” In Gena Corea and Renate D. Klein, eds. Man Made Women: How New Reproductive Technologies Affect Women. (Bloomington: Indiana University Press, 1987) at 42.

females as young as 2 years and some as old as 50 or 60 could be induced to produce eggs.²⁷⁶

There were of course many other feminist positions taken on the subject of new reproductive technologies,²⁷⁷ some of which explicitly sought to counterbalance the perceived extremism of writers like Corea and Klein. For example Naomi Pfeffer and Anne Woollett published an early 1983 account of female infertility that was sympathetic to the issues faced by women in response to the oppositional tactics of more radical commentators.²⁷⁸ From the mid-1980s onward other FINRRAGE members also produced works on how and why women were accessing IVF and other reproductive technologies, seeking to moderate the ‘hard line’ of

feminist opposition to technology “which increasingly, to some, resembled a caricature of radical feminist goals.”²⁷⁹

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In Canada during this period, the women’s movement had been recently galvanized by the 1982 patriation of the Canadian Constitution, including the development of a Charter of Rights and Freedoms that had seen sustained lobbying for constitutional reforms from organized movements in regard to Aboriginal rights and Québecois distinct society. Emerging from the same era was a campaign for women’s rights that drew speakers and leaders from across the

276 Gena Corea, The Mother Machine,: Reproductive Technologies from Artificial Insemination to Artificial Wombs (New York: Harper & Row, 1985) at 278-279.

277 For example Donna Haraway was also writing during this period, using a Marxist feminist analysis to understand the relationship between technology and reproduction. In a slightly different forum, corporeal feminists such as Luce Irigaray, Moira Gatens, Gayatri Spivak, Hélène Cixous, and Elizabeth Grosz had been developing an understanding of the body itself as the site of inquiry, and a site produced through social systems of meanings and discourse.

Irigaray, Luce. Speculum of the Other Woman. Gillian C Gill, trans. 1985. (New York: Cornell University Press, 1974.).

278 Naomi Pfeffer and Anne Woollett, The Experience of Infertility (London: Virago, 1983).

279 Franklin, Transbiology, supra note 268 at 2.

country, as “a collective and highly focused campaign, a campaign in which many women who were lawyers played some of the key roles as advisors and strategists.”²⁸⁰

This campaign successfully lobbied for the inclusion of a guarantee of equality in the wording of section 15 of the new Charter, entrenching rights to protection of the law free from discrimination based on “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”.²⁸¹ Sexual orientation was not included in this list of grounds, despite an amendment that called for its enumeration proposed by then-MP Svend Robinson.²⁸² Mr.

Robinson would later come out as Canada’s first openly gay MP in 1988.²⁸³

The wording of section 15 marked an important milestone for the nascent Canadian women’s movement.²⁸⁴ Successful organization and activism around the lobbying effort had resulted in the establishment of the Women‘s Legal Education and Action Fund (LEAF) - a body which has continued to exert a considerable influence on women’s rights in Canada.²⁸⁵ Another

280 Mossman, M.J. (1998) “The paradox of feminist engagement with the law” in N. Mandell (ed.), Feminist issues:

race, class and sexuality (2nd Ed.), pp. 180-207, (Scarborough, Ontario: Prentice Hall. At 42, 1998) at 182. See also the film: Constitute This! for archival footage of the era and the complex debates which pushed the Canadian women’s movement forward.

281 Charter, s. 15²⁸¹ Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

282 A parliamentary committee rejected the amendment by twenty-two votes against and two for, with then Minister of Justice, Jean Chrétien, saying: “We have explained that there are other grounds of discrimination that will be defined by the courts. We wanted to have an enumeration of grounds and we do not think it should be a list that can go on forever.” In Wintemute, Robert, 'Sexual Orientation and the Charter: The Achievement of Formal Legal Equality (1985-2005) and Its Limits' (2004) McGill Law Journal, 49(4), at 1146. See also: Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, 1st Sess., 32d Parl., Issue No. 48 at 48:20-21, 48:31-34.

283 Wintemute, ibid.

284 This remains the case, no matter how limited the actual gains from the Charter may have been. See Bruce Ryder’s work on Charter equality provisions, including: Ryder, Bruce and Lawrence, Emily and Faria, Cidalia,

“What's Law Good For? An Empirical Overview of Charter Equality Rights Decisions” Supreme Court Law Review (2d), Vol. 24, p. 103, 2004; Ryder, Bruce and Hashmani, Taufiq, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010” Supreme Court Law Review (2d), Vol. 51, 2010. See also Margot Young’s critical work in this area, including: Young, Margot E.,

“Blissed Out: Section 15 at Twenty” Supreme Court Law Review, 2d, Vol. 33, pp. 45-69, 2006; Young, Margot E.,

“Unequal to the Task: ‘Kapp’ing the Substantive Potential of Section 15” Supreme Court Law Review, Vol. 50, 2010.

285 LEAF is a national, charitable, non-profit organization, founded in 1985. LEAF works to advance the substantive equality rights of women and girls in Canada through litigation, law reform and public education using the

Canadian Charter of Rights and Freedoms. LEAF works to ensure Canadian courts provide the equality rights

central body representing women’s issues at the time was the National Action Committee on the Status of Women (NAC), which emerged from the Charter debates as a strong force in dialogue with government.

Issues of women and reproductive technology were already on the Canadian map by the time of the Charter discussions. The 1978 birth of Louise Brown in Britain as the world’s first successful IVF baby had global impact, indicating the potential for heretofore unseen ethical issues in human reproduction. Four years later, there was a much-publicized case of a Scarborough, Ontario couple arranging a traditional surrogate contract with a woman from Florida, which used the genetic material of the husband to impregnate the American surrogate.²⁸⁶ The Canadian couple paid $20,000 to the woman, who traveled to Canada to give birth to the child and left the country shortly afterward.²⁸⁷ Although the child was initially seized by the Metro Toronto Catholic Children’s Aid Society, the baby was eventually returned to the couple, with the Ontario Supreme Court ruling that the Scarborough man was the legal and biological father.²⁸⁸

The absence of government regulation over these emerging reproductive technologies became a cause of concern for many Canadian women, with local perspectives often impacted by the international forum of feminist discussion of how biotechnologies were to be understood.

Some women echoed FINRRAGE in expressing a range of concerns based primarily on concern for the exploitation of women based on race, (dis)ability, and class, as well as the potential loss of autonomy over women’s health and their bodies.

guaranteed to women and girls by Section 15 of the Canadian Charter, and is a frequent intervener in Supreme Court cases involving gender issues.

286 Somer Brodribb, “Off the Pedestal and Onto the Block? Motherhood, Reproductive Technologies, and

286 Somer Brodribb, “Off the Pedestal and Onto the Block? Motherhood, Reproductive Technologies, and