Long before phrases such as
“democratic deficit” and “empowerment of MPs” became fashionable the 1985
Report of the Special Committee on Reform of the House of Commons (McGrath
Report) called for a strengthened role for standing committees of the House in
shaping public policy. It recommended “wider use of parliamentary
committees to review draft legislation, to conduct general inquiries when
policy choices have not been made, and to bring in draft bills.” Overall,
it insisted that standing committees should play an important part in
influencing policy through the legislative process. As a result the Standing
Orders were modified to allow some Bills to be send to committee before Second
Reading. This has been done on a few occasions. However it was not until
very recently that the government went even further and following the
recommendation of the McGrath Report asked a Parliamentary Committee to review
and report on draft legislation before it was even introduced in the House.
The issue was assisted human reproduction and in 2001, Allan Rock,
Minister of Health, asked the Standing Committee on Health to examine and
formulate policy on this complex and controversial topic. This article reflects
upon the use of this approach to giving members of Parliament a greater role in
the legislative and policy process.
When the Health Committee
began its consultation, assisted human reproduction had for more than a decade
been the focus of numerous government and societal activities. From 1989
to 1993, a Royal Commission on the New Reproductive Technologies (RCNRT)
studied the social, ethical, health, research, legal and economic implications.
In its lengthy 1993 report entitled Proceed with Care, the
Commission made 293 recommendations. A central recommendation declared that
reproductive technologies required a federal legislative framework immediately
to implement prohibitions in areas such as selling human eggs, sperm, zygotes,
or fetal tissue; advertising for, paying for, or acting as an intermediary for
surrogacy; and using embryos in research related to cloning. The report also focused
on the creation of the National Reproductive Technologies Commission (NRTC) to
oversee licensing and to monitor reproductive technologies and practices.
In 1995, then Health Minister,
Diane Marleau announced a voluntary moratorium on certain related practices,
such as cloning of human embryos, commercial surrogacy, buying and selling of
eggs, sperm and embryos, and other activities that were deemed to be unethical
and socially unacceptable. In 1996, the new Minister of Health, David
Dingwall, introduced Bill C-47, cited as the Human Reproductive and Genetic
Technologies Act, in order to establish boundaries around some of the
technologies and prohibit certain practices. This Bill included
additional prohibitions against the use of human sperm, eggs, or embryos
without the informed consent of the donor and against research on human embryos
later than 14 days after conception or their creation for research purposes
only. After receiving some legislative scrutiny in a House of Commons
sub-committee, the Bill died on the order paper with the call of the 1997
Over the same period and behind the scenes, public
servants were working on the issues raised by the Royal Commission. From 1993
to 1996, Health Canada coordinated a Federal-Provincial-Territorial Working
Group to advise deputy ministers of Health. In 1996, departmental officials
worked with an advisory committee of knowledgeable Canadians established to
track moratorium compliance and emerging reproductive and genetic technologies.1 In 1999, Health Canada brought forward
an overview discussion paper2, and followed the next year with a workbook and feedback document.3
Against this background of
continuous but incomplete efforts to regulate assisted human reproduction,
Minister Rock turned to the House of Commons Health Committee. In May
2001, he tabled in Parliament a document entitled Proposals for Legislation
Governing Assisted Human Reproduction. This draft of the legislation
was accompanied by an implicit commitment to introduce legislation dependent
upon the review by the Committee.
The Minister of Health
indicated that the federal government was ready to move to the comprehensive
approach advocated by the RCNRT.4 The Minister had reasons to seek the perspectives of a
committee representing diverse personal and political views. As he noted,
“The issues raised by assisted human reproduction leave no one indifferent.
They are complex and are important to many Canadians and to our society
as a whole. The Government believes that it is important at this juncture
that Canadians and their elected representatives in Parliament have an
opportunity to discuss the draft legislation”.
In agreeing to review the
draft legislative proposals, the Health Committee was consenting to a process
seen as one element of crucial reform for parliamentarians. At this
point, the Standing Committee on Health became: a forum for public
consultation, a filter for contentious debate, and an agent for policy
development on an issue that had already consumed more than a decade of debate
The Committee as a Forum for Public Consultation
When the Minister of Health
approached the Standing Committee on Health, he wanted an open public avenue
for an examination of the draft legislation on assisted human reproduction;
advice on options for a possible regulatory body that would govern the
implementation of the legislation and monitor developments, and a consideration
of the structure and responsibilities of international regulatory bodies that
oversee similar projects in other countries. In addition to the readily
available evidence gathered from witnesses at meetings, the Committee would
provide overall advice through its report and recommendations.
play a key role in organizing public consultation through their inquiries into
Public meetings provide a
particular focus for public interaction and input into policy formulation.
They are a place where Canadians, sometimes as individuals and often as
representatives of a group, can meet, place their views on public record, and
then examine and react to other views. In the process, Committee members
can become aware of some of the choices that must be made among competing ideas
and of some of the interests that promote specific choices. At the same
time, department officials and ministerial advisers can use these public forums
to stay abreast of any changes in the direction of the debate.
As the Health Committee
organized its public meetings to gain understanding of the dimensions of
assisted human reproduction, members became aware of the multiple demands that
confront policymakers. Following an initial meeting with the Health
Minister, officials from the department provided explanatory information over
three meetings. To meet its information needs and to encourage public
participation from involved groups, the Committee organized meetings that
included the former Chair of the Royal Commission on Reproductive and Genetic
Technologies and members of the Health Canada Advisory Committee on the Interim
Moratorium on Reproductive Technology. Small groups of witnesses then
addressed issues related to the medical technologies and medical practices,
ethical and faith perspectives, surrogacy, embryonic and adult stem cell research,
anonymous gamete and embryo donation, enforcement and inspection, therapeutic
cloning, databases, registries and privacy, informed consent, regulatory bodies
and federal versus provincial jurisdictional issues.
In the absence of a travel
budget, the Committee issued invitations to representatives from provincial
governments as well as many fertility clinic directors to attend meetings in
Ottawa. However, these efforts to elicit public testimony or written
contributions produced little acknowledgement from provincial representatives
while clinic directors seemed to rely on various medical associations to
present their views. In addition to written briefs received from
individuals affected by infertility, the collective concerns of the infertile
community were represented on many of the diverse issue panels through related
To gain knowledge from other
countries, the Committee staff collected information and documentation from the
United Kingdom, Australia, Germany, the United States, and others with relevant
experiences of regulation. After this information was assessed to identify the
structures and responsibilities that could be pertinent to the Canadian
context, it provided background for teleconferenced meetings with international
The Committee hearings were
the source of many new ideas and suggestions for changing the proposals.
Children produced though assisted human reproduction and other witnesses
told Committee members of the negative effect of a secretive, anonymous system
of donation of sperm, eggs and embryos. A panel of Catholic, Muslim,
Jewish, Buddhist and Evangelical Christian representatives informed members of
the widely divergent religious views about the status of the embryo.
Ethicists revealed the divergent and evolving ethical views in their
community. Scientists and other presenters provided revelations about new
scientific or medical breakthroughs, revealing the speed of change in the
field. Committee members learned more clearly the role of the fertility
clinics and how they specifically interact with the research community.
Some groups expressed their
discontent with the proposals and with the Committee process by sending
multiple representatives to inflate the size of panels and by showing up in
large numbers at significant meetings. Other witnesses representing the
views of people who used or wanted access to the reproductive technologies
pressed individual Committee members to hear their concerns.
Throughout the hearings,
departmental officials were ready witnesses, frequently available on short
notice for clarification of legal, scientific and policy questions arising from
the “proposals for legislation”. Along with ministerial advisers, they
were regular attendees at the public meetings of the Committee. They
provided a key source of advice to the Committee while at the same time keeping
the Minister informed of changes in the direction of the debate among committee
members and of additional or new issues raised by witnesses.
Addressing the Complexities of Assisted Human Reproduction
In the public hearings and in
other encounters, the Committee members heard from a wide variety of
individuals and groups. They learned about the many different outcomes
expected and desired from the assisted human reproduction legislation.
For some, the primary concern was the well-being of the children
resulting from the procedures; for others, it was the health and safety of the
women undergoing the interventions. Some supported the potential benefits
for scientific and medical research accruing from the ongoing work while
opponents to this view called for an end to all research in the field.
Among the scientific research
community, many expressed the desire to pursue research on embryonic stem
cells. While embryonic research continued in areas such fertility, miscarriages
and congenital illness, researchers had felt restrained in their pursuit of
embryo research involving stem cells. The scientific community was
sensitive to the controversy surrounding this research and as legislation was
anticipated, they took the position that embryonic stem cell research would not
be pursued until legislation was in place. This position was supported by the
Canadian Institutes of Health Research and by various associations representing
ill Canadians who perceived embryonic stem cell research as their best hope for
a cure and who hoped that it would soon be undertaken. In general, the
scientific research community supported the legislation including the
restrictions that it placed on researchers.
Numerous individuals in the
infertile community and in fertility clinics indicated that they had continued to
pursue their respective goals freely in the period following the Royal
Commission report. Various commercial activities had developed around
assisted human reproduction procedures. Infertile couples had
successfully built their families on the services offered for a price by
physicians, lawyers, and others. While these players claimed to welcome
some regulation to the field, they were generally opposed to those parts of the
Bill that restricted their activities. In some instances, the infertile community
and others were involved in practices that were non-compliant with the
moratorium. For example, there was a continuation of payment to sperm and egg
donors as well as for surrogacy arrangements.
Other individuals and groups
in the community were adamantly opposed to the use of human embryos in any
research endeavour and were supportive of restrictions on the commercial
activities of the infertility industry. Many were strongly in favour of the
clauses that outlawed payment to donors and surrogate mothers. People who
themselves had been born as a result of reproductive technologies wanted an end
to the anonymity of sperm and egg donors. Some witnesses questioned the
appropriateness of federal criminal sanctions in the area of reproduction.
From this diversity of
opinion, members of the Health Committee tried to find the path that could be
supported by a broad range of Canadians who had no compelling personal or other
interest in the subject matter of the Bill.
To achieve consistency, the
members developed a framework of principles that was then used to assess
particular options. Their effort to find a consensus across the range of issues
(ethical, scientific, health, economic, legal, political) posed a tremendous
challenge. Ultimately, their report reflected the collective process of
clarifying and making alternative proposals in the multiple problematic policy
The Committee as an Agent of Public Policy
In the broadest sense, policy
is whatever governments choose to do or not to do and Parliament is not always
involved in the act of choosing. In many policy situations, the selection
of the outcomes and the mechanisms for achieving them within a specified
situation fall to other institutions. In 2001, however, the Health
Committee agreed to participate in the development of the broad policy
framework within which decisions about assisted human reproduction could be
taken. Action was needed in relation to the issue and Parliament was
asked to get involved in sorting out the multiple ideas and values.
While the Committee accepted
the offer of the Minister to undertake the project, it quickly indicated that
it did not feel constrained in its review. As its study proceeded,
members were clear that they did not accept all of the policy directions suggested
in the draft proposals. Most importantly, they identified a lack of
connection between and among the various thrusts of the legislation. They
could not find an underlying philosophical principle animating the proposals.
They agreed generally with the
list of prohibited activities and with the broad areas designated for control.
They saw the need for national oversight of many aspects of assisted
human reproduction. They were particularly pleased that there would be data
collection that could be used to assess the short and long-term health effects
of the infertility drugs and the various procedures for women and for the
However, they also had
numerous and varied questions that highlighted the enormous complexities of the
subject covered in the draft proposals. Was research an appropriate use
of embryos created for Assisted Human Reproduction (AHR) but no longer needed
for that purpose? Was provincial equivalency a useful way to encourage
uniform provincial legislative action in AHR? Were there enough
limitations on surrogacy arrangements? Should the donors of sperm, eggs
and embryos be compensated? Should donors remain anonymous? Could
ensuring the availability of objective and independent counselling strengthen
the informed consent provisions? Should the AHR proposals be administered
by the Minister or by officials in an arms-length regulatory body? Should
the legislation distinguish between clinical procedures and research?
As the Committee proceeded
with its study, members applied their own perceptions to the various elements
of the proposals and in so doing; they gained valuable insights into the
underlying problems. As policy agents, they saw the tension among the
medical, scientific, social and ethical perspectives. This in turn led
them to develop different options than those proposed by the department in the
In common with other public
policy agents, the Committee members tried to put a ranking order on the
various options and attempted to ensure a balance among the often-contradictory
ideas underlying each proposal. In doing so, they identified areas where
the health department appeared willing to take action and other areas where it
appeared to prefer inaction, or, at the least, a more passive role.
At the beginning of the
process, MPs on the committee were enthusiastic about the challenge they faced.
When they tabled their report in December 2001 called Assisted Human
Reproduction: Building Families, they felt satisfied with a task well done.
They demonstrated an increased awareness of specific practices and of
particular legislative issues. They were more conscious of the competing
policy and legislative demands of various individuals and groups across Canada.
In January 2002, the
commissioning Minister, Allan Rock was replaced by Anne McLellan who tabled
legislation in the House of Commons in May of that year.5 Although Committee members were
disappointed that key areas in the Bill did not follow the recommendations of
their report, they undertook the work of hearing witnesses and reviewing the
Bill on a clause-by-clause basis. This work was now complicated by a change in
Committee membership and the appointment of new members who had neither been
part of the earlier knowledge-gathering process nor of the consensus it had
However, the Committee did
manage to amend the Bill to make it more reflective of many earlier efforts
before reporting it back to the House. Committee members continued to reveal
strong disagreement with several of the legislative clauses. For example,
members pushed for more controls on surrogacy and an obligation for independent
professional counselling prior to all AHR procedures. In considering the
particular form and composition of the regulatory authority and its relation to
the Minister of Health and to Parliament, they called for guards against
conflict of interest of members and a requirement for at least 50%
representation by women on that Board.
Members continued to seek
changes during debate in the House of Commons and during Report stage between
January and March 2003, the Bill underwent seventeen additional amendments, ten
of which were government amendments while the remainder came from Liberal
members of the governing party. However, not all the changes reflected
the earlier thinking of the Committee report. Two of the government amendments
actually reversed changes made in the Committee during clause-by-clause
consideration; specifically the calls for at least 50 per cent female membership
and guards against conflict-of-interest on the proposed board of the regulatory
From the perspective of
parliamentary reform, there are several key observations from this committee
experience. It is important to point out that this committee, composed of
individuals from five different political parties and diverse personal and
professional backgrounds, demonstrated the ability and willingness to work
collectively and consistently in a very consensual fashion on a very difficult
In a process that was new for
all members, they examined in an open and responsive way a wide range of
disparate policy, and ultimately legislative, options. They explored the
nature of various tradeoffs that were important in arriving at a final decision
on each aspect. In the process of hearings with the Canadian public and with
the health department, they enhanced their own knowledge and that of the public
during committee discussions. They set aside large amounts of time following
the public hearings to consider the drafting of the report. Enormous efforts
were made to resolve differences through discussion and through compromises in
particular wording of the report.
In taking on the task of
reviewing draft legislation in a public way, the Health Committee demonstrated
the value of informed parliamentary input into policy considerations. The
process provided an opportunity for serious learning by parliamentarians about
a complicated and controversial issue. In turn, it permitted an open and
accessible dialogue among the general public, specific interests, departmental
officials and parliamentarians that improved the legislative outcome.
While many speak blithely
about parliamentary reform and empowerment of MPs, the AHR case demonstrates
that it is more easily said than done. To be successful, Cabinet Ministers and
their officials must make a genuine commitment to share their decision-making
Once embarked on a course of
power sharing, it is important that a Cabinet Minister should remain in place until
the project is concluded. If a new Minister is installed, his or her
predecessor’s commitment to share power should be honoured. When the power is
to be shared with a Standing Committee, the membership of that committee should
remain the same from start to finish.
The advantage to the
Government is that group of MPs representing all political parties and all
regions of the country have time to work out a consensus. When the consensus is
reflected in the legislation that follows, the law is more likely to be one
that most Canadians can and will support.
Editor’s Note: At the time this article was
written, before the House reconvened in September 2003, the Bill was still
awaiting Third Reading.
1. Health Canada, News Release, “Comprehensive
National Policy on Management of New Reproductive and Genetic Technologies
Proposed,” June 14, 1996.
2. Health Canada, “Workbook for Purposes of
Discussion Only – Issues and Related Questions, Ottawa, February 2000.
3. Health Canada, Feedback Report –
Discussions and Written Comments on Proposed Federal RGTs Legislation,
Ottawa, June 2000.
4. Health Canada, News Release, Ottawa,
May 3, 2001.
5. Bill C-56, An Act respecting Assisted
Human Reproduction was tabled in May 2002 and was reintroduced without
change as Bill C-13 following prorogation in September 2002.