Corps de l’article


Canada is one of the few countries worldwide without a specific piece of legislation directly regulating abortion.[1] When positioned along a global spectrum, Canada may be said to occupy an “extreme” position in its (dis)regard for the in utero embryo or fetus, and its (high) value for the integrity of women’s bodies and their reproductive lives.[2] But the abortion debate is not the only venue where questions and arguments regarding the moral status of the human embryo circulate. Embryonic stem cell research and the miracles it portends have caught the imagination of scientists, politicians, and the public alike, for reasons not the least of which involves the fate of in vitro embryos, which are vital to this form of stem cell research. Although this area is not as ubiquitously regulated as abortion, a substantial number of countries have passed legislation specifying the scope of embryonic stem cell research that they find acceptable. Canada is among these countries and, interestingly, as discussed below, has adopted a middle position when compared to its peers, generally permitting research on existing embryos under certain conditions, but not the creation of new ones.

While Canada’s tempered position in the debate may appear to be a sensible compromise, further query gives reason for pause. If the rationale for the midway position is indeed a desire to afford human embryo life some respect and dignity, it is a striking one since Canadian law has (1) held that the fetus and thus, presumably, the embryo, which is even further removed from the moment of birth, is not a person and therefore is denied the rights and ethical significance that that legal status entails;[3] and (2) not acknowledged that embryos, while not persons, are nonetheless to be respected.[4] A restrictive stem cell regime is understandable in jurisdictions where restrictive abortion regimes also exist, or where, if not personhood, there is at least some explicit legal recognition of the value of human embryonic life. It seems discordant in a country where pro-life discourse is not predominant in public discourse and the criminalization or even targeted regulation of abortion is not a live political issue.[5]

The main goal of this article is to investigate the extent and impact of such a discourse of respect and dignity for the embryo in the stem cell debate on the legal and cultural discourse surrounding the embryo when abortion and women’s bodies are in issue. The paper is thus aimed at evaluating the current restrictions on embryo research in the Assisted Human Reproduction Act[6] and whether they should receive pro-choice feminist support. Of course, whether the AHRA fortifies a pro-life position is but just one measure by which to calibrate the benefits of assistive reproductive technologies and embryo research in general. There are other reasons for pro-choice feminists to withhold or apply support that do not focus on the human embryo’s moral status and that should be considered in any exhaustive feminist inquiry into the ethics of embryo research.[7] I have narrowed my focus by considering whether pro-choice feminists in Canada, who are generally cautious about reproductive technologies due to the perceived threats these technologies pose to women’s bodies, should welcome the embryo research restrictions the AHRA now provides. Given the strong feminist involvement at the early stages of lobbying for regulation of new reproductive technologies,[8] should feminists view the current legislation as a victory in feminist advocacy on this issue? Or, instead, should these feminists be cautious about the AHRA restrictions on embryo research due to AHRA’s cohesion with pro-life views regarding the value and meaning of the human embryo?

Part I sketches the disconnect animating this query and provides some background on the debate surrounding embryonic stem cell research. Part II, drawing from government and media discourse, briefly sets out the various rationales for the restrictions on the embryo provisions and the shifting influence of feminist interpretations of a restricted embryo research regime.

This background being laid out, Part III begins to take up the main query of the article to explore whether it is possible for pro-choice feminists to accord respect to the in vitro embryo. This part canvasses the theoretical possibilities of this position by comparing the compatibility of feminist articulations of a right to abortion (bodily integrity, equality, etc.) with possible feminist arguments against the expansive use of embryos in research (commodification, exploitation, and the scientific instrumentalization of life in general). Part III then moves into a consideration of whether the level of “respect” and “dignity” for embryos ascertained earlier in Part II is logically compatible with liberal abortion regimes, such as the Canadian regime, and argues that it is.

With the theoretical possibilities charted of how feminist views on abortion may coexist with respect and dignity for the in vitro embryo, Part IV proceeds to explore the viability of a feminist understanding of a restricted embryo research regime permeating public consciousness, even though this understanding is theoretically possible. This part explains why the more likely result for the public sphere will be an unqualified discourse of respect and dignity for embryos in general, which could then problematically seep into abortion politics. Part IV revisits the discourse analysis in Part II to distill how public commentary about the AHRA fails to draw a sharp boundary between the in vitro and in utero embryos to assist the public in seeing the issues as distinct (such that giving respect to one would not entail giving respect to the other). The conclusion in Part IV is that pro-choice feminists need to be concerned with the embryocentric discourse generated by the public commentary about the AHRA’s embryo research restrictions and need to revisit their theoretical support for the statute in its current form in light of this contrary public reading. Part V concludes with recommendations of how the AHRA should be revised to align with a pro-choice feminist position and ensure that restrictions on embryo research are interpreted in a manner supportive of a woman’s right to choose.

I. The Disconnect

Stem cells are cells that have the ability to regenerate and turn into, upon the correct signal, virtually every type of tissue and organ within the body.[9] Scientists hope to use stem cells to cultivate stem cell lines that would generate an abundance of healthy and genetically compatible tissue to replace diseased or damaged tissue characterizing an array of human disorders. They also hope such research will enhance knowledge of these disorders and human development in general.[10] Embryonic stem cells, as opposed to adult stem cells, are credited with having more research potential due to their unique capacities to turn into many types of tissue.[11]

Embryonic stem cell research, however, is especially controversial because of the importance of the human embryo—a symbol caught in cultural politics over the origins and meaning of life, gender roles, and what it is to be human—which is destroyed in this research.[12] The debate over embryonic stem cell research thus involves deeply contested ethical claims, many animated by religious values that human embryos are legal and moral persons and thus should not be treated instrumentally, let alone destroyed.[13] Religious voices have prominently opposed such research while scientists, those interested in biotechnological enterprises, and some persons with disabilities have vocally supported it.[14] An intermediate position between complete prohibition and complete support of all embryo research is to favour embryonic research carried out on existing embryos only, that is, those “left over” from in vitro fertilization procedures, since these embryos would very likely be discarded anyway.[15] The religious and pro-life imprint of the debate is perhaps best elucidated by the American federal position under President George W. Bush, who blocked federal funds to create new embryos but allowed continuing work with existing ones because, for these, “a life and death decision has already been made.”[16] The complexity of the issue materializes, however, when one realizes that many religious and pro-life Republicans support embryonic stem cell research.[17]

Canada’s legislated response to this difficult ethical debate came in March 2004 through the enactment of the AHRA, which is generally intended to facilitate responsible reproduction by promoting human health, safety, and dignity.[18] The AHRA governs a wide range of practices and procedures, prohibiting things like animal-human chimeras and hybrids, commercial surrogacy, and sex selection, while regulating other assisted human reproductive practices used in fertility clinics and beyond.[19] With respect to stem cell research, the AHRA permits research on existing embryos, but only where the research occurs during the first fourteen days of the embryo's life, and performed with the written consent of the gamete donor.[20] The deliberate creation of embryos for purposes not related to reproduction is prohibited.[21] An overall assessment indicates that Canada has adopted an intermediate position by permitting research on existing embryos, but not the creation of embryos purely for research.[22] That only carefully circumscribed uses may be made of these perceived “surplus” embryos (i.e., those discarded after in vitro fertilization) is suggestive of the AHRA’s acceptance of the principle that the human embryo is due some form of respect and retains a level of dignity and moral status.[23] The next part uncovers the reasons behind this legislative stance.

II. Embryonic Stem Cell Research Rationales—A Discourse of Respect and/or Dignity or Something Else?

An examination of the long legislative history preceding the enactment of Canada’s assisted human reproduction legislation identifies more than one possible source of support for the restrictions on the embryo research provisions found in the AHRA. The AHRA’s early history reveals the prominence of feminist arguments and critiques, which were focused on the implications of new reproductive technologies for women’s health.[24] Feminists drew particular attention to the many risks faced by women who underwent in vitro fertilization (IVF) procedures.[25] Feminists demanded that the government, not just the medical and research communities, take control of the regulation of these procedures in order to ensure women’s safety.[26] On the subject of human embryo research, many feminists articulated a concern that, as the need for embryos (and, by implication, women’s eggs) with which to conduct research increased, exploitation of women’s bodies would follow.[27]

Even in the early stages of the assisted human reproduction debate, feminist concern for women’s health was not the sole basis of overall opposition to this research. The 1993 report of the Royal Commission on New Reproductive Technologies (Commission), Proceed with Care, largely framed the acceptability of human embryo research in terms of the moral status of the embryo and respect for human life.[28] This is interesting as the Commission was appointed by the government in response to feminist lobbying, and feminist voices are considered to be influential throughout the Commission’s report, often referred to in the literature as the Baird Report after the Commission’s (embattled) chair.[29] Despite the great deal of attention paid by the Commission to issues of women’s reproductive health and freedom, the section entitled ‘The Ethical Uses of Human Zygotes in Research” ultimately sought to assess what research, if any, would be compatible with the level of respect owed to the embryo by virtue of its connections to the human community.[30] Proceed with Care emphasized the diversity of Canadians’ views on the moral status of the embryo.[31] It recognized important questions, such as the distinction between in vitro and in utero embryos, and acknowledged that affording a particular status to the in vitro embryo might affect the status of the in utero embryo.[32] In the end, the Commission stated its view that “the moral status of the embryo before day 14 after fertilization does not preclude research under certain defined conditions.”[33] The fourteenth day reflects the scientific consensus that prior to the fourteenth day individuation has not occurred.[34] The Commission defended its view as “a morally acceptable compromise in a pluralistic society.”[35] In choosing to ascribe significance to the fourteenth day in the eventual statute, Canada follows several other Western liberal democracies.[36] It is critical to note, however, that Canada’s counterparts regulate abortion in ways that Canada does not.[37]

Despite the Commission’s attention to the “moral status of the embryo” line of reasoning as a basis of support for restricted embryo research regimes, this was by no means the dominant argument made during the early stages of debate in Canada. It was not until the discovery of a technique to isolate and grow stem cells in 1998 by Dr. James Thomson that religious and pro-life arguments in defence of the embryo began to come to the fore.[38] Thomson’s discovery initiated the almost immediate takeoff of embryonic stem cell research (ESCR)—research that entails the destruction of the embryo. It was not long before religious and pro-life groups began to outnumber those feminist organizations being invited to speak during government stakeholder consultations on ESCR.[39] In December 2001, after conducting extensive consultations with Canadians on the subject of assisted human reproduction, the House of Commons Standing Committee on Health issued a report entitled Building Families,[40] which recommended that embryo research “be strictly regulated and limited to using only embryos created but not used for IVF.”[41] Underlying this recommendation was the principle of “respect for human individuality, dignity and integrity”[42]—an overarching consideration used by the committee to determine that the embryo has “a particular status” and deserves “a measure of respect and protection ... based on its potential for personhood.”[43] Interestingly, the committee justified its view that some embryo research should be allowed on the basis of its belief that continued embryo research was necessary to ensure the health of the women being treated by fertility techniques.[44]

During the parliamentary debates on the assisted human reproduction legislation, however, the issue of concern for women’s health and safety was all but invisible. These debates revealed an aggressive pro-life political agenda on the part of many Canadian Alliance and Liberal Party members whose voices dominated the debates.[45] The arguments presented in the House were indistinguishable from those that have been made for decades by the anti-abortion lobby.[46] This is of particular concern given that the intention of Canada’s Parliament is often discerned, at least in part, by making reference to Hansard debates.[47] A review of these debates would suggest that any restrictions on human embryo research found in the AHRA are the result of a moral concern for the embryo’s so-called right to life, no matter what the circumstances and to the subordination of all other interests.[48]

The declining presence of feminist concerns about reproductive technologies in general, compared to the rising visibility of voices expressing anxiety over embryo treatment in the legislative deliberations, was also reflected in the communication strategy of the federal government. Between May 2001 and March 2004, when the AHRA became law, Health Canada issued a number of press releases providing justification for the AHRA’s provisions. Health Canada consistently appealed to the legislation’s two major objectives. First, Health Canada emphasized that the legislation seeks to protect the health and safety of Canadians who use the technologies.[49]

Second, Health Canada asserted that the AHRA prohibits those activities deemed ethically “unacceptable” by Canadians and creates a regulatory framework for other assisted human reproduction technologies.[50] Health Canada was careful to single out embryo research from the array of technologies at stake to declare that the AHRA does not promote embryo research but rather “establishes clear boundaries ... as to what constitutes acceptable research.”[51] The government did not provide any indication of what grounds make some embryo research ethically “unacceptable”, nor did the “moral status of the embryo” argument (or discussion thereof) arise anywhere in these documents. Ultimately, the AHRA was justified as a Canadian approach to the issues at stake, and its provisions were said to enjoy widespread support among Canadians.[52] While there may well be a consensus among Canadians in terms of the final outcome (i.e., a restrictive embryo research regime), the two primary lines of reasoning underlying the support for this outcome are in stark contrast. Unfortunately, the vaguely phrased support for the AHRA’s embryo research provisions provided by Health Canada makes it difficult to decipher the true basis for the restrictions.

Despite the government’s lack of reference to the moral status of the embryo, the dominant presence of pro-life discourse in the later stages of the assisted human reproduction debate was not lost on the media. Canadian newspapers interpreted the AHRA’s provisions as a “compromise” position—meant to appease (as far as possible) Canada’s pro-life movement while simultaneously taking care not to alienate the Canadian science and research community.[53] A compromise position on this basis is particularly striking, as serious legal and political contemplation of pro-life arguments is widely recognized to be something relegated to Canada’s past.[54] It is perhaps unsurprising, then, that those media reports that made reference to the “human dignity” and “respect for human life” arguments in defence of restricted embryo research did so with skepticism.[55] These reports were quick to point out the remarkable similarities between these arguments, made in the in vitro context, and those that have long appeared legally settled in the in utero context.[56] A series of articles in the National Post closely followed, and poked fun at, the most explicit and outrageous anti-abortion arguments levelled in Parliament by a group of particularly vocal pro-life members.[57] If anything, media reports appeared to be more sympathetic to the position of scientists who had advocated less stringent research restrictions.[58]

Neither the parliamentary debates nor related media reports addressing the AHRA revealed to Canadians that the embryo protections located in Canada’s assisted human reproduction legislation are founded on values apart from those promoted for decades by the anti-abortion lobby. The principles of “human dignity” and “respect for human life” appear either to retain strong pro-life associations or to remain largely unpacked within Canadian consciousness. While this tenor of the debates and reports preceding the AHRA’s enactment is of concern, it is still possible for feminists to embrace the statute on the original, feminist terms that had prompted the Royal Commission on New Reproductive Technologies in the first place. But would such an embrace carry adverse consequences for a pro-choice position? Part III begins to provide an answer. It canvasses the possibility of housing feminist respect for in vitro embryo life under some other feminist principle that does not conflict with the principles of bodily autonomy and equality that matter to pro-choice actors.

III. “Respecting” Embryos and Abortion Rights—Theoretically Possible?

Many feminist arguments in favour of reproductive rights, including abortion, frame these rights in the language of choice based on the principles of equality, liberty, and bodily integrity.[59] Legal abortion services are positioned as crucial within these arguments for women to experience full and equal individuation, personhood, and citizenship.[60] Rarely is the legal or moral status, or both, of the embryo or fetus recognized in these arguments, with many feminists writing against the rise in visual technologies that encourage the public to view the fetus as a free-floating entity separate from a woman’s body.[61]

In addition to this type of rights-based feminist pro-choice scholarship, a history also exists of feminist pro-choice arguments that include the embryo or fetus as a separate being due some sort of advertence or regard. While not explicitly framed in the terms of “respect” or “dignity”, these pro-choice arguments accord the fetus some significance as an entity whose fate feminists should consider. A classic version of this type of argument is found in Judith Jarvis Thomson’s influential essay “A Defense of Abortion”, which allows personhood to the fetus at the outset.[62] Thomson sought to defuse anti-choice arguments that fetuses are persons by conceding this point for the sake of argument and then demonstrating why the value of liberal autonomy still requires the recognition of a woman’s right to abort. Newer arguments that acknowledge or permit the beingness of the fetus depart from classic liberal articulations of autonomy to emphasize the fetus’s relationality with the mother and thus use relational values to defend a pro-choice position. How these newer arguments arrive at the conclusion that abortion is an ethical outcome and should be legal will be instructive for our purposes in considering how respecting or ascribing dignity to the in vitro embryo does not undermine a pro-choice position.

A. Feminist Pro-choice Arguments that Ethically Advert to the Embryo

Stimulated in part by a desire to avoid the stalemate over abortion politics that permeates the United States due to entrenched and dichotomous pro-life and pro-choice positions, some feminists have approached the issue from another angle. This approach is exemplified in arguments that reject the rights-based model and instead focus on the values of care, nurturance, need, and responsibility. Critiques of rights-based approaches are skeptical that justifications for abortion located in the language of property, privacy, and even equality can capture the social nexus of multiple elements—family and work pressures, cultural and religious traditions, class identity, social constructions of sexuality—that impact a woman’s decision to become and stay pregnant.[63] “Reconceptualizing reproductive rights” through this social nexus is meant to avoid the pitfalls of the ideology of the “unencumbered liberal citizen.”[64]

These “social nexus” approaches are moved less by formalistic rights language than by the pursuit of non-oppressive relationships and conditions for women within their particular community contexts. As such, these approaches are better positioned to focus on a full range of reproductive freedoms (not just abortion) and demonstrate a “deep commitment to structural change encompassing imperialism, racism, poverty and sexism” that influences particular ideologies of motherhood.[65] As racialized feminists have pointed out, for women marginalized by their race, (dis)ability, and class, their reproductive struggles may lie more in avoiding state sterilization programs rather than in accessing abortion services.[66] Arguments for reproductive choice that rely on the liberal language of “my body is my property” may too easily place the focus on the white, middle-class rights claimant whose primary concern may be the legality of abortion, rather than on non-elite women and the “material conditions of poverty and oppression restricting their choices.”[67]

In addition to better representing the breadth of reproductive concerns, the focus on context, community, and material needs has brought the fetus more to the foreground than standard equality, liberty, and bodily integrity rights articulations. For example, Joan Williams and Shauna Shames make the case for reproductive choice through a child-centred paradigm. They argue that access to abortion allows women to make the best decisions about responsible child rearing, given the economic costs of motherhood and the inability of many single women to support children.[68] They discuss women’s hopes to be effective mothers, supported by sufficient resources for high quality care and nurturance. Given prevailing socio-economic conditions affecting and marginalizing nonaffluent women (“family-hostile workplace”,[69] lack of health care, poor maternity leave provisions, living wage), supportive conditions are not regularly available. This makes the ability to terminate a pregnancy critical to prevent mothering when adequate supports are lacking.[70] This line of pro-choice reasoning is clearly contextual and focused on women’s desire to act in the best interests of children.[71] At the same time, this analysis dissociates itself from the adversarial, individualistic, and abstract orientation said to characterize rights-based models in order to consider the relationships that women are striving to create, including those with a current fetus.

These “social nexus” examples indicate that it is possible for feminists to grant ethical consideration to fetuses without abandoning a pro-choice position. It is even possible for this ethical consideration to reach the level of personhood. More to the point, thinking about abortion ethics need not be a conflict of two rights asserted by individualist rights claimants, but instead could be a relational inquiry into the social, political, economic, and cultural conditions that structure women’s decision making around having children and the need to stop the development of the growing embryos and fetuses inside them. I would like to be clear that I am not advocating here that these approaches that give more status to embryos and fetuses are to be preferred to those that do not in defending abortion. The aim of this section has been to reveal the existing feminist arguments that do not deny the beingness of fetuses and embryos or rule out the application of “respect” and “dignity” concepts to them, but yet still reach pro-choice conclusions.

B. Feminist Critiques of Reproductive Technologies that Advert to the Embryo

Given that “respecting” embryos and abortion rights need not be a conceptual impossibility in the abortion context, the same conclusion can be presumed in the embryo research context where women’s bodies are not required to carry and sustain the embryos and fetuses. Indeed, it is in the laboratory context where the interests of embryos and women may seem to be more in alignment. Recall that feminists have long raised concerns about the alienation, exploitation, and commodification of women’s reproductive and genetic labour and material,[72] which new reproductive technologies would foster, as well as the diminished appreciation and respect for children commodified as “potential life”.[73] Feminists continue to stress that embryo research requires women’s bodies to source the eggs that will become the embryos on which scientists wish to research and which biotech companies wish to mine for lucrative genetic information; although in vitro embryos do not grow inside a uterus, they nonetheless emanate from an egg harvested from a woman’s body.[74] Feminists have underscored the need for regulation to monitor such processes closely in order to “give women a fair chance of escaping the many potential sources of coercion and exploitation surrounding stem cell research involving the use of eggs, embryos, or fetal tissue.”[75]

More to the point, feminists have also flagged concerns about the embryo involved in reproductive technologies. They have been concerned with embryo commodification and alienability in biotechnological practices and with the ascent of property rights and property discourse in general with respect to human tissue.[76] As Carolyn McLeod and Françoise Baylis have noted, feminists have articulated multiple arguments against this commodification with respect to the embryo.[77] Those objecting to commodification on the ground that an embryo is a person or otherwise “intimately connected” to or constitutive of personhood or selfhood, McLeod and Baylis classify as incompatible with a pro-choice position and relational feminist understandings of autonomy in general.[78] Yet, McLeod and Baylis allow that a feminist concern for reproductive and relational autonomy does not rule out ethical regard for the embryo in vitro and specifically state that “commodification of human embryos is a legitimate feminist concern.”[79]

In building their argument, McLeod and Baylis list Cynthia Cohen’s five reasons that human gametes are deserving of a “derivative dignity”: they (1) originate from humans; (2) are “life-giving bodily bits and pieces integral to a function of special import to human beings, reproduction”; (3) exhibit the genetic distinctiveness of their human originators; (4) are “the medium through which unique human beings are created”; and (5) are integral to our relational lives.[80] McLeod and Baylis note that these features also extend to human embryos.[81] While impugning a conclusion of blanket inalienability based on these features or other considerations,[82] McLeod and Baylis leave open the idea of ascribing embryos with dignity and respect, especially, it would appear, in situations where women involved in assisted reproductive procedures develop a particular attachment to their embryos.[83]

Jennifer Nedelsky echoes this sensibility in her arguments against the application of a property discourse or property as a legal category for in vitro embryos. She also worries that selecting property as the legal category to describe human potential life such as gametes, zygotes, and embryos would do violence to the sense of attachment that women and men have to the potential life they have created.[84] Nedelsky believes that these materials of potential life are due a separate legal regard if we are to respect the attachment of persons to them as well as the children ultimately born from them. She also believes that “the common sense flinching at thinking of a fetus as property ... [is] not simply [an] emotional respons[e] that we should discount.”[85] She is clear, however, that this nonproperty treatment should in no way interfere with a woman’s ability to terminate her pregnancy, which is an essential ingredient of a relational view, according to Nedelsky, of what autonomy requires.[86]

Marie Fox has also allowed the human embryo an ethical status. She wishes to step out of paradigms that query whether the human embryo should be classified as a person or as property, as she finds the embryo’s residence in either category to be inappropriate.[87] Mindful of the “emerging international consensus on the legal status of the embryo” as “halfway between person and property,” Fox counsels a different, nondualistic, and nonanthropocentric paradigm to imagine the embryo.[88] She advances the conceptualization of the human embryo as a cyborg entity—part organism and part machine—not only to bypass the polarizing choice of designating it as either property or a person in law, but also to connect it to other marginal beings in law. As Fox writes:

Designating embryo bodies as cyborgs opens up productive new ways of thinking in which we can acknowledge that as a technological life-form they certainly matter, but leave open for debate the question of how much they matter ... Situating [the cryo-preserved human embryo] within this complex matrix of biotechnological entities ... forces us to confront the more important question of how much cyro-preserved embryos matter relative to other creatures. Thus we are faced with the question whether they matter more than the women whose eggs produced them or the sentient animals who were subjected to experimentation to bring them into existence.[89]

Fox, much like Nedelsky, and McLeod and Baylis, promotes a relational way of “seeing” embryos by inviting us to consider the broader relations of power that animate their existence and the anxiety over their status.

C. Philosophical Compatibility

In the feminist arguments canvassed, I do not see widespread application of the concepts of “respect and dignity” for embryos, but rather efforts to embed and embody the embryo in relation to women and, in the case of Fox, to nonhuman animals. This renders more understandable the unease with the commodification of embryos and thus the conclusions that embryos merit some type of ethical regard that distinguishes them from property or mere thinghood. If anticommodification concerns formed the rationale for critical scholars to protect human tissue, including embryos and fetuses, by applying the concepts of “respect” and “dignity” to them, then this ethical move would appear compatible with a pro-choice feminist position on abortion.

It appears, then, that it is possible to ascribe an ethical regard to embryos amounting to respect and dignity under feminist positionings without investing in sanctity of life or even (nonhuman-unfriendly) human dignity arguments. But this philosophical compatibility does not address the question we need to ask to evaluate the impact of feminist support for something like the AHRA—namely whether, in practice, a discourse of respect for in vitro embryos promotes a feminist understanding of the issues at stake to the public or whether it imparts, instead, a pro-life viewpoint. The next part takes up this question.

IV. “Respecting” Embryos and Abortion Rights—Practically Possible?

As Samantha King has noted in discussing the limits of the AHRA, feminists reviewing limits on embryo research can “fall into dualistic thinking due to a fear that any perceived concern about embryos will cede territory to anti-choice forces.”[90] This proclivity to adhere to an absolutist position may prevail despite theoretical agreement (as per one or more arguments above) that respect or dignity for both embryos and women can co-exist. While the dualism is unfortunate, there seems to be real cause for worry, even in Canada, where the influence of anti-choice forces is notable in a statute like the AHRA, which does not make any stipulations regarding the in utero embryo, but only the in vitro one. The potential for competing public discourses to occlude feminist explanations for the legislation is thus an important element to consider in deciding whether feminists are able to support the AHRA in its current form. This part discusses three reasons to be concerned.

A. Inactive Regulator

On January 12, 2006, nearly two years after the enactment of AHRA, the Assisted Human Reproduction Agency of Canada (the AHRAC) was established.[91] It was immediately responsible under the AHRA for overseeing the regulation of assisted human reproduction activities and enforcing prohibitions in the legislation.[92] Yet, it was not until almost three years after the AHRA’s enactment that the federal government, led by Conservative Prime Minister Stephen Harper, announced the appointments of a president, chair, and eight board members to the AHRAC.[93] Canadian media sources heavily criticized the makeup of the board as one with strongly conservative social ideals in this area, and even a decidedly anti-abortion agenda.[94] Since then, it has been observed that the AHRAC has not carried out any discernible substantive regulatory work other than organizing conferences for its staff.[95] Interestingly, in its March 2012 budget, the federal government announced that the AHRAC would be disbanded by March 2013. The provisions in place requiring the licensing of research facilities would also be disbanded.

Even with the AHRAC scheduled to discontinue in March 2013, someone will need to enforce the regulatory framework developed with respect to the parameters around the use of in vitro embryos for research purposes under section 10 of the AHRA. It is difficult to predict the outcome of this process, as Health Canada has not yet developed regulations for this section.[96] Health Canada has as of now developed regulations only for section 8 of the AHRA, which requires that the consent of donors be obtained prior to the use of their reproductive material or in vitro embryos.[97] Given Health Canada’s low public profile with respect to this issue so far, it is unlikely that any discourse used to familiarize the public with the scope of section 10 regulations will materialize to include a conscious distinction between protection for in vitro embryos, and protection for embryos generally. The likelihood of this forecast is further supported by the disappointing realization that, to date, neither the AHRAC nor Health Canada has made any attempt to distinguish between in vitro and in utero embryos in order to help Canadians understand that the basis for providing protections for one does not automatically translate into protections for the other. Even if Health Canada were to articulate this distinction to Canadians, it seems unlikely that it would enjoy political support from the current federal cabinet, given the latter’s pro-life leanings.

B. Rise of Pro-life Initiatives at the Federal Level

While Canada is a global leader in legalizing abortion and, as mentioned at the onset, one of three countries that do not specifically regulate the practice, arguments about the sanctity of (human) embryonic life have become visible again in Canadian public debate. Evidence of this was found in the more recent consultation and parliamentary debates surrounding embryo research.[98] This constituency was also behind the Conservative private member’s bill seeking to introduce an Unborn Victims of Crime Act.[99] Most recently, this issue has gathered public attention through M-312, a motion introduced by Stephen Woodworth (Kitchener Centre, CPC) calling for a special committee to debate the definition of “human being” in subsection 223(1) of the Criminal Code.[100] Pro-life sensibilities have also affected the Government’s international policies: witness its controversial decision to exclude abortion from its G8 health care initiative regarding “maternal and child health.”[101] Pro-life elements are even resurfacing and acquiring influence in the more moderate Liberal Party.[102]

Despite these legislative and executive initiatives, and the significant and growing number of MPs that have indicated that they are anti-choice, the majority of Canadian MPs are not. Thus, the likelihood of the Conservative government introducing legislation to regulate abortion and having it enacted is minimal. Yet, with a politically conservative cabinet able to influence the main government messages surrounding embryo research,[103] it is equally unlikely that articulating a distinction between the moral status of in vitro and in utero embryos will be a government priority. It seems that it will be up to civil society voices to provide a more complicated discourse from which the public can grasp the feminist rationales behind the regulation.

C. Rationales for Embryo Research Restrictions in Mainstream Media

A good source for this public education on feminist concerns would be the mainstream media. It is difficult, however, to find media discussion outlining feminist rationales for respecting the restrictions on embryo research, let alone other prohibitions in the statute. Indeed, it is difficult to find material regarding feminist messaging on reproductive freedom in general or evidence of public scientific and cultural literacy regarding new reproductive technologies. Since the enactment of the AHRA in 2004, a wide range of issues affected by the legislation have been debated in mainstream media.[104] While there seems to be much discussion regarding certain issues, such as the AHRA’s impact on cloning research or on fertility treatment options, there has been much more limited discourse around the rationales for the embryo research restriction provisions.[105] Perhaps more disconcerting, and as discussed below, this already limited discourse is predominantly framed in terms of a dichotomy between those advocating for values that have traditionally been promoted by the anti-abortion lobby, and scientists working in the field who favour more relaxed restrictions.

In fact, there are only a few media voices articulating any concern for the risk to women and women’s health as a reason to support the research restrictions. A review of online databases of mainstream Canadian media since the AHRA’s enactment[106] reveals some public discourse in which women’s bodies are visible in discussions related to the research restrictions. In particular, while the AHRA does not differentiate between the use of “fresh” (i.e., created specifically for research) versus “frozen” embryos, the debate over whether the use of fresh embryos should now be expressly prohibited has addressed the issue of women’s health. As Françoise Baylis and her colleagues explain, allowing the use of fresh embryos:

risks harming women because it increase the likelihood they will need to undergo additional IVF cycles to have children. ... [W]omen who have given away their fresh embryos instead of freezing them may have to agree—yet again—to the risky and painful procedures of ovarian stimulation and egg collection surgery.[107]

Baylis has also criticized the “unrealistic hopes” fostered by advocates of stem cell research in swaying governments and other funders “to divert or waste intellectual and financial resources, all the while paying little or no attention to the impact all of this has on the women who are expected to provide the scientists with the eggs for their cloning research.”[108] In another commentary, Jeff Nisker and Angela White express similar concerns for the welfare of women if the use of fresh embryos is allowed, and specifically, if physicians are not explicitly prohibited from asking women undergoing fertility treatments to donate fresh embryos for stem cell research. The authors believe that IVF patients may comply with this request because they trust that their physician would act in their best interest, they fear “offending the professional on whom they depend to help them deliver a child,” or they are influenced by the media.[109] Academics Baylis and Nisker are two of the few prominent commentators in Canadian news sources articulating concern for women’s health in discussions regarding embryo research.[110]

Apart from these cases in the fresh embryo debate,[111] most of the limited discussion on the rationales behind the research restrictions ignores any feminist concerns, instead situating the issue between traditional pro-life values and the interests of scientists. For example, in one article entitled “Restricting Stem Cell Research Is a Mistake,”[112] the author notes: “[T]he most troubling aspects of the legislation ... are the standards set for stem cell research” in relation to the fact that scientists are only permitted to use existing embryos for research purposes.[113] The author believes this restriction “is based on a lack of understanding about the science of stem cell research and what an embryo really is” and goes on to state that using the “moral standards” of stem cell research opponents is “misguided.”[114] Significantly, the author attributes the research restrictions entirely to embryocentric “moral” issues and displays no understanding that there may be other reasons to uphold the research restrictions. Indeed, the embryocentric moral basis for the research restrictions is often assumed. In one editorial piece, the author writes, “if it is illegal under the [AHRA] to produce human embryos for research, on what moral basis is it acceptable to conduct research upon embryos created for a different purpose, that of possible insemination? They are the same thing.”[115] The writer has not only assumed that the prohibitions in the AHRA against producing embryos purely for research purposes are embryocentric, but has also extended this morally based rationale to explaining why research on existing embryos should be prohibited on the same grounds.

Reports in mainstream media seem to have exclusively associated the research restrictions with traditional anti-abortion values, thereby rendering feminist rationales seeking to protect women’s bodies from exploitation invisible in the discussion.[116] In several contributions to mainstream media outlets, prominent bioethicist Margaret Somerville has articulated her concern with the research restrictions in terms of “respect for the transmission of human life,” which she explains is one of the “new kinds of respect for human life.”[117] Somerville states, “the prohibition in the [AHRA] on creating embryos other than for in-vitro fertilization—that is, allowing their creation only if there is a possibility that they will be given a chance at life—helps to establish this kind of respect.”[118] In a more disconcerting statement, Somerville states: “[the AHRA] reflects the view that to create embryos other than by sexual reproduction and other than to help people have children is inherently wrong.”[119] Not only does this marginalize feminist rationales for prohibiting the creation of embryos for research purposes but it also assumes the embryocentric basis of the prohibition.

It would appear that, as with the statute itself, “with concern about the embryo front and centre, women’s bodies have become all but invisible” in media discussions.[120] This absence is worrisome given that cultural iconography of the pro-life movement circulates even in Canada.[121] While the “ideological power” of pro-life messages may be much more resonant in the United States and elsewhere, the image of the free-floating “public fetus” made popular by visual media, pro-life “documentaries”, and the routinization of ultrasound technology in obstetrics is also familiar to Canadians.[122] Despite their urgent need, American feminists have not been able to counter these messages with their own cultural images.[123] Canadian feminists thus do not have ready access to strategies and tactics that can work to entrench respect for pro-choice positions should a rise in resistance to abortion materialize from this media messaging. Pro-choice feminists consequently find themselves in the difficult situation of supporting a statute, in theory, due to feminist reasons that are not transparent or accessible to the larger Canadian public and, in fact, have been displaced by a pro-life reading of the statute.

D. Embodying Embryos in Law

Given this context, it becomes difficult to approve of the AHRA in its current wording. Nedelsky’s work, in promoting women’s autonomy but counselling against property as a legal category for embryos implicated in reproductive technologies, is instructive here. She recognizes the arguments advanced by other feminists as to why a property discourse can be empowering for women if sufficiently contextualized and rehabilitated from property’s typical and prevailing exclusive and hierarchical meanings.[124] Yet, she is still reluctant to proceed with property as a legal category and paradigm for embryos, despite its possible recuperation. She writes:

In choosing a legal category perhaps the most important starting point of inquiry is what the presumptions are, what will require justification, what norms will have to be argued against, what values will be taken as given.[125]

Nedelsky later continues, “The choice of legal category is a strategic one. And the first step of the strategy is to ensure that the category will facilitate, rather than obstruct, the outcomes we most care about.”[126] Nedelsky worries that classifying embryos as property would ultimately detract from a relational understanding of autonomy for women and children born from these technologies.[127] Nedelsky articulates the difficulty entailed in undoing a problematic legal category (property) once assigned, especially one that is hegemonic, given the antecedent presumptions, norms, and values. But it is for this very reason that feminists must be alert to how the embryo is framed; in rejecting a property categorization, they may also have to reject those representations that imply or approach personhood for fetuses because of personhood’s antecedent presumptions, norms, and values. This is not to reinforce a dualistic property-personhood framework, as Fox warns against, but to connect and embody the liminally located human embryo, regardless of its location.[128]

Thus, despite espousing relational theoretical commitments that may be more generous to the embryo or fetus, feminists need to be concerned about how the embryo in the in vitro context is represented and legally protected because of the pro-life understandings of this protection that dominate in the public sphere. Women’s bodies need to be recentred even with respect to in vitro embryos; a disembodied representation of the in vitro embryo fortifies a reading of embryo personhood that imperils what personhood should mean for women.[129] Embodied feminist rationales, rather than pro-life understandings for the restrictions, need to be better promoted in order for pro-choice feminists to endorse the AHRA. As it stands now, feminist endorsement of the AHRA due to compatibility between feminist commitments and the statute in theory risks supporting in practice the dominant embryocentric reading of the AHRA at the expense of women. The final part of this article identifies some regulatory steps that could help recuperate and promote a feminist reading of the statute and thus enable pro-choice feminists to support the statute.

V. Recommendations for Reform

The AHRA is overdue for review.[130] Revisions proposed by the federal government so far are (1) to eliminate the AHRAC as of 2013 and (2) to update the AHRA in light of the recent Supreme Court of Canada reference that struck down large sections (none pertaining to embryo research) on federalism grounds after complaints from Quebec that the AHRA intruded on provincial jurisdiction in relation to health care.[131] None of these proposed revisions, however, would address the concerns that have been outlined thus far in this article. It is, then, still critical to consider how the AHRA should be revised by feminists.

Feminist organizations have been working on proposals for revisions with respect to the entire statute.[132] I am unable to address here all the revisions of the AHRA that could ensue from these feminist deliberations. As Fox comments in her review of the reform process of parallel UK legislation from 1990 that culminated in an amending statute in 2008, there were at least three other issues in addition to the regulation of embryo research that attracted feminist attention, and rightfully so: the definition of the “family”; access to data held by the regulating authority; and genetic screening of embryos intended for IVF.[133] Similar observations can no doubt be made about the AHRA—that it requires an overhaul beyond its embryo research provisions and apart from the constitutional issues regarding federalism or the elimination of the regulator. This part focuses on embryo research only, specifically the provisions relating to the AHRA’s restrictions on the use of the in vitro embryo and the problematic embryo-centred reading they impart. Three changes to the statutory wording are proposed to undo this centring.

A. Articulate the Feminist Reasons to be Concerned about the In Vitro Embryo

Currently, the ethical principles underlying the AHRA are delineated in its section 2. This section includes a specific subsection highlighting the heightened concerns that reproductive technologies present for women. It reads:

The Parliament of Canada recognizes and declares that


(c) while all persons are affected by these technologies, women more than men are directly and significantly affected by their application and the health and well-being of women must be protected in the application of these technologies;

The current wording in subsection 2(c) recognizes that women’s bodies are more involved than men’s in assisted reproduction. While this is a promising statement, it is inadequate to link concerns about “health and well-being” to the rationale for embryo-use restrictions. More needs to be inserted into the statute to articulate this link and thus preclude the embryocentric reading of the statute that would suggest a moral status has been ascribed to the embryo.[134] Further wording could be inserted directly into subsection 2(c) as follows:

(c) while all persons are affected by these technologies, women more than men are directly and significantly affected by their application and the health and well-being of women must be protected in the application of these technologies, especially in relation to the creation and use of in vitro embryos;

In a statutory environment such as the AHRA, which implements significant restrictions on embryo use, including research, the feminist basis for the restrictions should be made explicit so that embryocentric rationales do not dominate and obscure the concerns that embryo research raises in regard to women’s bodies.

For greater clarity that embryo research restrictions are adopted to protect women and are not meant to assign a legal status to the embryo in vitro due to an embryocentric vision, a provision such as the one that follows would be useful:

Section 2.1. Nothing in this Act is to be i) interpreted as ascribing personhood or any other legal status to an in vitro or in utero embryo, fetus or other unborn entity...

This type of wording does not frustrate a viewpoint that would imbue the human embryo with dignity and respect. Yet, it bars an interpretation that the statute is supportive of personhood or any new legal status for the in vitro embryo and thus, by eventual extension, the in utero embryo. It pre-empts arguments that would seek to conflate the in vitro embryo with the in utero embryo and thus attempt to unsettle the jurisprudence that denies personhood to unborn entities.

B. Affirm Women’s Rights to Bodily Integrity and the Need for Abortion Services Irrespective of the Moral Status of the Embryo

Although the legal status of abortion in Canada appears secure for the foreseeable future, it is still useful to signal respect for women’s reproductive freedoms in, at the very least, the policies the AHRAC is empowered to create, if not in the statute itself. While feminists have shown why the recognition of fetal personhood is not fatal to the defensibility of women’s right to abort,[135] a provision affirming abortion rights would clarify the precise scope of the AHRA. This could be accomplished by adding onto the recommended provision above as follows:

Section 2.1. Nothing in this Act is to be interpreted as i) ascribing personhood to an in vitro or in utero embryo, fetus or other unborn entity; or ii) infringing on a woman’s right to security of the person including, in particular, the right to choose whether to terminate her pregnancy.

Such a provision would clarify that nothing in the AHRA, or in the way it is interpreted or applied, competes or contradicts with the legal availability of abortion. The inclusion of “security of the person” would signal the legislative intent that the availability of abortion is protected by women’s section 7 Charter rights and would comply with feminist conclusions discussed above on how best to locate this right for women (i.e., not in privacy but in bodily autonomy).[136]

C. Distinguish Between the In Vitro and In Utero Context in Terms of the Ethics Raised

For clarity as to the AHRA’s purpose and scope, the in vitro embryo and the ethical issues it raises in the context of assisted reproduction should be identified as distinct to it and not transportable to the in utero context where other considerations prevail. For example:

Section 2.2. Nothing in this Act suggestive of ethical concerns regarding the creation and use of in vitro embryos extends to embryos created in the in utero context, where a woman’s decision-making capacity about her body is paramount.

To the extent that the AHRA institutes “respect” or “dignity” for the in vitro embryo, a provision such as this would guard against the extension of these concepts to the in utero context. While some may still wish to visualize a separate entity in a woman’s body as worthy of “respect” and “dignity”, at least the legislative intent would be clearer that it is not necessary to start thinking of in utero embryos in this fashion; the AHRA would not serve to jump-start this conceptualization in public discourse. For in utero embryos, their spatial location inside women’s bodies and their inseparability from this corporeality would be a critical point of ethical distinction.

Taken together, these three recommendations—(1) highlight feminist rationales for embryo concern; (2) affirm the right to abortion; and (3) distinguish between in vitro and in utero embryos as to how the AHRA should be revised—would make the statute more amenable to pro-choice feminist support. If the recent reform process with respect to the UK legislation in this area is a model to follow, obtaining these amendments may well be a difficult task requiring, at the very least, a sustained messaging campaign to make the feminist impact of these changes more apparent to the public and Members of Parliament.[137] It is instructive to learn from Fox that feminist input on reforms to embryo research regulation in the recent UK reform process was largely absent preceding the 2008 amending statute. This absence occurred despite the fact that embryo research regulation was an area closely associated with feminist impact in the debate leading to the original statute (as with the AHRA in Canada).[138] Fox observes that the focus on the ethics of embryo research and the status of the embryo preceding the enactment of the original 1990 UK statute was displaced by a different anxiety over embryos by the time the 1990 statute came up for reform—the spectre of human-animal embryonic combinations.[139] As Fox notes, “Dislodging the human embryo from its central and problematic role in reprotechnologies has thus created the space for other, less familiar, embryos to emerge and become the repositories of our hopes and fears.”[140]

Given the swift pace of reproductive and regenerative technology, by the time the review process for the AHRA proceeds, the contours of the reform debate as compared with those of the debates leading up to the original 2004 statute may also shift. Canadian feminists will need to scrutinize any new discourses commanding public attention for their feminist implications. But, at the very least, for all the reasons mentioned here, feminists will have to make embryo research regulation, and in particular, the question of the status of the embryo, a part of their contributions. Adoption of the three steps outlined above would be a welcome feminist development to help maintain the current Canadian permissive legal position on abortion.


In Canada, feminists provided the early catalyst for government deliberations that eventually culminated in the enactment of the AHRA in 2004. With respect to regulating in vitro embryo research, feminists supported restrictions due to concerns about the exploitation of women that might occur in the pursuit of eggs from which to create research embryos. Others, however, spoke of the need to respect embryos as a basis for restrictions on their use in research. This position raises the theoretical question of whether it is possible for pro-choice feminists to advocate “respect” for the in vitro embryo based on rationales that do not imperil pro-choice arguments. I have argued here that it is possible to do so by locating this recognition of respect for in vitro embryos in feminist values of anticommodification, anti-exploitation, and relational thinking.

Despite this theoretical consistency, however, it is unlikely that such a feminist understanding of the restrictions occupy a marked place in the minds of the public. Instead, pro-life sensibilities about why embryos deserve respect have emerged as dominant, encouraging the discursive connection between pro-life protection of embryos and the current legislation. Apart from a few contributions in the context of the fresh or research embryo issue, it is difficult to find publicly available reports outlining any feminist reasons for respecting the embryo research restrictions now legislated in the statute, much less nuanced discussion of these rationales. Given this void in mainstream media and official government publications, particularly on the AHRAC website[141] and in Hansard debates after the AHRA’s passage, it seems unlikely that the public would understand feminist rationales for the research restrictions.

Instead, the public is more likely to view the restrictions as a compromise position between scientists and those promoting anti-abortion values, despite the feminist forces that advocated for such provisions in the first place. Indeed, this is how the issue was taken up in parliamentary debates preceding the AHRA’s enactment. This distorted understanding of the rationale for embryo research restrictions may have detrimental effects on how the public perceives embryos in general and thus affect the public perception and support of abortion practices. To counter this potential spillover effect and popularize feminist explanations of the statute that do no imperil support for abortion, the AHRA should be revised with provisions that make the connection between embodied feminist rationales and embryo research restrictions clearer. The change should (1) articulate the feminist reasons to be concerned about the in vitro embryo; (2) affirm women’s rights to bodily integrity and the need for abortion services irrespective of the moral status of the embryo; and (3) distinguish between the in vitro and in utero context in terms of the ethics raised.