Joint Report by Scottish and English Law Reform Commissions on Surrogacy

The Scottish Law Commission and the Law Commission of England and Wales have published a joint report on surrogacy.

It comes in three parts:

• a Core Report
• a Full Report
• a Draft Surrogacy Bill

Surrogacy is where a woman – the surrogate – bears a child on behalf of someone else or a couple, who intend to become the child’s legal parents.

The main focus of the suggested reforms involves screening before conception, allowing meaningful scrutiny at an early stage by a regulated surrogacy organization, rather than the current law, which only involves scrutiny by the court after the child is born. The reforms would respect the autonomy of the surrogate – if she withdraws her consent, the courts will make the final decision on parental status. 

The recommendations would also ensure that surrogacy remains non-commercial by prohibiting payments to the surrogate for carrying or delivering the child, ensuring that surrogacy agreements remain unenforceable, and requiring surrogacy organizations to operate on a non-profit-making basis.

Law Commission of England Consultation on Surrogacy

The English Law Commission has published a consultation document on the law of surrogacy.

From the description of the project:

"Surrogacy is where a woman – the surrogate – bears a child on behalf of someone else or a couple, who intend to become the child’s parents.|

"As society changes, surrogacy is becoming more common – the number of children born this way could be 10 times higher than it was a decade ago."

"In the UK, surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008."

"But there are significant problems with the law. Currently, intended parents have to wait until the child has been born and then apply to court to become the child’s parents. The process can take many months to complete and doesn’t reflect the reality of the child’s family life, and affects the intended parents’ ability to take decisions about the child in their care (...)"

"In the paper, we make provisional proposals to improve surrogacy laws so they better support the child, surrogates and intended parents. Key proposals include:

• Creating a new surrogacy pathway that will allow, in many cases, the intended parents to be the legal parents of the child from the moment of birth.
• Introducing specific regulation for surrogacy arrangements and safeguards such as counselling and independent legal advice. This should reduce risk of arrangements breaking down.
• Allowing international surrogacy arrangements to be recognised here, on a country-by-country basis."

Th consultation period ends in September 2019.

Law Reform Commission of Saskatchewan Report on Assisted Reproduction & Parentage

The Law Reform Commission of Saskatchewan recently published its Final Report on Assisted Reproduction & Parentage:

"The use of assisted reproduction to conceive children is increasing in Canada, however, Saskatchewan’s parentage legislation does not provide clear rules on who the parents of a child born through assisted reproduction should be. The Commission’s recommendations are based on the need to ensure certainty and clarity at the earliest possible time for intended parents and their children, the need for all individuals to receive equal treatment before the law, the best interests of children, and a desire for Saskatchewan’s parentage legislation to be as harmonious as possible with other Canadian jurisdictions."

The report looks at reform attempts in other Canadian provinces and in foreign jurisdictions such as New Zealand, Australia and the United Kingdom.

Library of Parliament Publication on Assisted Human Reproduction in Canada

The Library of Parliament has published a revised version of its research publication on Legal Status at the Federal Level of Assisted Human Reproduction in Canada:

"The world’s first 'test-tube baby,' the result of fertilizing a human ovum in vitro and transferring the resulting embryo to a woman’s uterus, was born in England in 1978. This achievement followed decades of clinical and laboratory research. It also catalyzed interest in a new area of medical ethics as multiple technological advances, along with their implications for genetics, posed new ethical questions and responsibilities."

"This paper provides an overview of the many steps that the Canadian federal government has taken to establish a legislative and regulatory framework for reproductive technologies and related research. This background includes a description of the Royal Commission on New Reproductive Technologies, early attempts at legislation and a discussion of the Assisted Human Reproduction Act, in force since 2004, including its list of prohibited activities. The constitutional challenge to the legislation that was brought by the Attorney General of Quebec and ultimately heard by the Supreme Court of Canada is reviewed. Finally, the federal government’s response to the Supreme Court decision in the form of amendments to the Act is summarized. This paper does not examine how activities related to assisted human reproduction may be regulated by the provinces."

Alberta Law Reform Institute Final Report on Assisted Reproduction After Death

The Alberta Law Reform Institute has published its Final Report on Assisted Reproduction After Death: Parentage and Implications:

"The idea of recognising parentage and inheritance rights for children born after the death of one of their genetic parents has been part of the common law for centuries. However, these provisions have only applied to children en ventre sa mère. In other words, parentage and inheritance rights are bestowed upon those children who are in utero at the time of a parent’s death, provided they are subsequently born alive."

"Advancements in reproductive technology mean that storage of reproductive materials and conception by assisted reproduction are achievable. Further, it is possible for assisted reproduction to occur after the death of one of the genetic donors. In other words, children may be conceived after the death of one of their genetic parents by using the deceased parent’s stored reproductive material. Given this prospect, it is appropriate to consider the legal status of such 'after-born' children."

The report makes a number of recommendations:

• Where a person provides reproductive material or an embryo and consents to its use for reproductive purposes after his or her death by a surviving spouse or partner, the court may, on application, declare that person to be a parent of a child conceived after that person’s death on the same basis as if the child had been conceived through assisted reproduction during the person’s lifetime.
• Where a person provides reproductive material or an embryo and consents to its use for reproductive purposes after his or her death by a surviving spouse or partner, the surviving spouse or partner should have standing to apply for a declaration of the deceased’s parentage where a child is conceived using the deceased’s reproductive material or embryo and the child’s birth mother is a surrogate.
• Where a person provides reproductive material or embryos and consents to its use for reproductive purposes after his or her death by a surviving spouse or partner, the surviving spouse or partner should be recognized as a parent on the same basis as if the child had been conceived through assisted reproduction during the deceased’s lifetime.

The report examines the policies of a number of other Canadian jurisdictions.

Law Library of Congress Report on Abortion Legislation in Europe

The Law Library of Congress in Washington has released a new comparative report on Abortion Legislation in Europe:

"This report summarizing laws on abortion in selected European countries shows diverse approaches to the regulation of abortion in Europe. A majority of the surveyed countries allow abortion upon the woman’s request in the early weeks of pregnancy, and allow abortion under specified circumstances in later periods. Some countries impose a waiting period of a certain number of days following counseling. Some require consultation with medical personnel before an abortion may be performed. Several countries require that medical personnel certify the abortion is for a reason permitted by law. The most restrictive country surveyed here, Ireland, allows abortion only when there is a real and substantial risk to the woman’s life (...)"

"At the supranational level, all of the countries surveyed are members of the European Convention on Human Rights. The European Court of Human Rights (ECtHR), which hears allegations of violations of the Convention, has issued some decisions on procedural aspects of abortion access. For example, in Open Door Counselling v. Ireland, the ECtHR ruled that an injunction by an Irish court prohibiting family planning clinics from informing patients of the availability of abortion in England violated the right to freedom of information and expression found in article 10 of the Convention. In Tysiac v. Poland, the ECtHR ruled that where doctors failed to certify the availability of an abortion to a woman whose continued pregnancy threatened her health, the government’s failure to establish a procedure for determining whether an abortion was lawful violated the right to respect for private life under article 8 of the Convention. Similarly, in A, B & C v. Ireland, the ECtHR ruled that Ireland’s failure to provide a mechanism for establishing whether a woman was lawfully entitled to an abortion on health grounds violated article 8 of the Convention."

The Law Library of Congress is the world’s largest law library, with a collection of over 2.65 million volumes from all ages of history and virtually every jurisdiction in the world.

It has produced many comparative law reports on a large range of topics.

November/December 2013 Issue of LawNow: Birth & the Law

The most recent issue of LawNow is available online.

The magazine is published by the Centre for Public Legal Education Alberta.

The current issue is devoted to birth and the law:

• Who is a Parent? Not a Simple Question!: It used to be pretty straightforward, the definition of a mother or father but modern technology and evolving relationships have led to changing definitions.
• No Right to Know One’s Past: One British Columbia woman’s quest to find the identity of her sperm donor dad has ended in failure.
• Legal and Ethical Support for Newborn Safe Havens: The safe placing of a newborn by a parent began in the Middle Ages and now is provided in Canada.
• Midwifery in Canada: Midwifery is its own health care profession created by provincial legislation and with its own rules, Codes of Conduct and professional associations.
• Birth, Families and Employment: It is an economic reality that most parents must return to work after the birth of a child: there are laws that can help.

New European Court of Human Rights Factsheet on Reproductive Rights

The European Court of Human Rights (ECHR) in Strasbourg has published a series of Factsheets that describe important jurisprudence of the institution on a number of subjects.

The ECHR recently added a new Factsheet on reproductive rights. It includes key cases and pending applications before the Court.

The ECHR hears complaints from individuals living in any of the member states of the Council of Europe about violations of the European Convention of Human Rights. The Council of Europe is one of the continent's oldest political organizations, founded in 1949. It has 47 member countries.

20th Anniversary of the Supreme Court of Canada Morgenthaler Decision on Abortion

Today marks the 20th anniversary of the Supreme Court of Canada's Morgenthaler decision that struck down the provisions of the Criminal Code restricting abortion.

Commentary:

• Abortion debate refuses to die, 20 years after historic court ruling (Canadian Press, January 26, 2008): "The ruling was hailed by feminists as a symbolic victory in the wider struggle for women's rights - with good reason, says Sanda Rodgers, a University of Ottawa law professor. 'The ability to plan your reproductive life is absolutely fundamental,' she says. 'If you can't control your own reproduction you can't control anything, your education, the size of your family, your economic status. It was appropriate that it was a defining issue'."
• Advocates acclaim ruling (Montreal Gazette, January 28, 2008): "Attitudes have changed in the 20 years since the landmark decision freed physicians to perform abortions without fear of prosecution - but not before a few doctors and abortion clinics were physically attacked by radical anti-abortionists. Polling data in recent years indicate most Canadians support women's right to abortion, though the issue continues to stir controversy. No longer a taboo, abortion services are openly listed on the Internet. While getting an abortion carries less stigma today, not one of the women who spoke about undergoing the procedure wanted her name published in this story, however. Safe, legal abortions are available in most parts of Canada. There are about 330,000 live births and 100,000 abortions annually in this country."
• Celebrating a victory for women (National Post, January 26, 2008): "After eight years of battles in the courts, in the streets and in the media, we had won our argument at the highest court in the land and in the court of public opinion. The next day riding the streetcar, everyone was talking about the victory. Dr. Morgentaler had become a hero to most Canadians -- the little guy fighting against the system. He had gone to jail for his beliefs in the 1970s in Quebec, but still was willing to risk incarceration again in Ontario. He stood up to death threats, bombing of his clinic, anti-Semitism, ridicule and every other tactic that some pro-life opponents used to try to stop him. He never wavered."
• Pro-life v. pro-choice: The debate beats on (National Post, January 26, 2008): "Canada's old abortion law, Section 251 of the Criminal Code, banned all forms of abortion until 1969, when then justice minister Pierre Trudeau introduced an amendment to allow it in certain cases, to protect a woman's life or health (...) The 'life and health' standard was further diminished when it became apparent that the strongest predictors of a woman's access to abortion were her doctor's age, sex, whether it was a rural or urban practice, and her own age and marital status, none of which say very much about threats to her 'life and health.' Dr. Morgentaler, who had set up a clinic in Montreal, pushed this state of affairs to its crisis by placing the decision solely with the woman, and it was his prosecution that ultimately led the Supreme Court to rule the criminal law against abortion unconstitutional."
• Michael Coren on the Morgentaler decision: An anniversary of death (National Post, January 28, 2008): "The last 20 years have also seen a curious twisting of the debate around the issue and a monumentally successful campaign to marginalize pro-life opinion. Politicians are told that to even discuss the policy would cost them votes — though polls repeatedly show Canadians are divided on the subject — and opponents of abortion, whatever their views on other issues, are portrayed as wide-eyed zealots. The discussion itself, of course, is seldom heard. In the past week alone yet another university student union, this time at Lakehead University in Thunder Bay, Ont., has effectively banned a pro-life association. A city council in the same province has removed all pro-life literature from its property, even though the space was legally rented. It is the love that dare not speak its name. The genuine love that dare not speak its name. The love for children, from their earliest and most vulnerable."

New Library of Parliament Research Publications

The Parliamentary Information and Research Service of the Library of Parliament has recently made the following research publications available:

• Assisted Human Reproduction and Informed Consent: "On 17 September 2005, Health Canada published the proposed Assisted Human Reproduction (Section 8) Regulations pursuant to the Assisted Human Reproduction Act (Act). As a result of the public consultation process, the regulations were amended, and a revised version was presented to the House and referred to the Standing Committee on Health on 27 October 2006 (...) Section 8 deals with written consent that must be obtained from the donor in order to use human reproductive material for the creation of an embryo or the use of an in vitro embryo for any purpose. This section also provides that human reproductive material shall not be removed posthumously from the donor’s body without the prior written consent of the donor."
• Human Trafficking: "Trafficking in persons is not the same as migrant smuggling. The key distinction is that smuggled migrants are usually free once they arrive at their intended destination, whereas trafficking victims may be held against their will and subject to forced labour or prostitution(...) The U.S. Department of State released the most recent Trafficking in Persons Report in June 2006. The report states that between 600,000 and 800,000 people are trafficked across transnational borders, or from one country to another, each year. When intra-country or 'within country' estimates are included, the figure rises into the millions. The 2006 Trafficking in Persons Report also indicates that 'Canada is a source, transit, and destination country …' Some 800 people are trafficked into this country each year, while an additional 1,500 to 2,200 are trafficked through Canada to the United States."
• The "Spanking" Law: Section 43 of the Criminal Code: "Section 43 of the Criminal Code is controversial in that it expressly offers parents and teachers a defence when they use reasonable force to discipline a child. Given an increased recognition of the rights and best interests of children, many have called for an end to any form of physical punishment of children and youth in Canada, which would necessarily include the repeal of s. 43. Others, while acknowledging that abuse itself is never justified, have argued that minor physical correction is acceptable in certain circumstances and that individuals should not risk criminal prosecution as a result of their parenting techniques. This paper reviews the content of s. 43 and its relatively recent judicial interpretation by the Supreme Court of Canada, a majority of which upheld the provision in 2004. It then discusses past proposals to repeal the section, and the legal effects that such a repeal would have, given the definition of assault in Canada’s Criminal Code and the availability of common law defences. Finally, public opinion on abolishing s. 43, research regarding the effects of physical punishment and international perspectives on the issue are briefly examined. "

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Abortion Laws Around the World

The Pew Forum on Religion and Public Life has published Abortion Laws Around the World, a free resource that includes summaries of the laws and practices in countries in North America, Latin America, Western Europe, Eastern Europe, Africa, the Middle East and Asia.

The Pew Forum on Religion and Public Life is an independent organization based in Washington, DC that "seeks to promote a deeper understanding of issues at the intersection of religion and public affairs".