The August 4 issue of New England Journal of Medicine contains an article by Prof. George Annas entitled Assisted Reproduction – Canada’s Supreme Court and the “Global Baby“. He adopts the phrase “global baby” from a Wall Street Journal article found here about the growth of human surrogacy as an international trade. Prof. Annas notes the difficulty of regulating assisted reproduction at the national or local level, and observes that attempts to use international law often suffer from a lack of enforcement mechanisms. He summarizes an opinion of the Canadian Supreme Court in Attorney General of Canada v. Attorney General of Quebec, 410 N.R. 199, 2010 SCC 61 (2010), which deals primarily with the question of whether Canada’s federal government has the constitutional authority to regulate the practice of reproductive medicine and medical research. The Court split 4-4-1, with a majority finding that the federal government could regulate some aspects of reproductive medicine.
Prof. Annas articulates the implications of the Canadian opinion this way:
“The Canadian experience illustrates the multifaceted barriers to regulating assisted human reproduction. Perhaps existing legal regulatory mechanisms, rather than medical ethics and professional standards, are incapable of performing this task. Currently, however, international ethical norms are inadequate to set practice standards for reproductive tourism or to keep pace with the reach of modern communications. Trafficking in babies can (and probably will) get worse.20 Governments should consistently categorize assisted reproduction as the practice of medicine, and physicians should set and follow high ethical standards to protect the health and welfare of women and children. If the medical community cannot control assisted reproductive procedures that require the application of medical skills, an unregulated market will determine the price, place, and manner in which human sperm, ova, embryos, and services of surrogate mothers will be made available as well as how family relationships with the resulting babies will be structured. The “global baby” has arrived in practice, but neither legal theory nor medical ethics has kept pace with the globalization of human reproduction.”
With the drive to obtain international treaties and interpretation of existing international law creating and promoting a right to abortion, prolife scholars and lawyers should consider the jurisdictional and substantive limitations on various law making bodies and use those limitations to protect human life.