Is research in Canada limited to "surplus" embryos?

Introduction From the moment Canada's Assisted Human Reproduction Act (then known as Bill C-56) was introduced to Parliament in May 2002, much public debate focused on those few provisions that would affect embryonic stem cell research. Specifically, debate centered around the Bill's prohibitions against creating a cloned embryo and against creating an embryo for any purpose other than creating a human being or improving or providing instruction in assisted reproduction procedures. (1) By these two prohibitions, the Bill effectively prohibited the creation, by cloning or other means, of embryos specifically for use in many kinds of research, including stem cell research. Contravention of these prohibitions became a criminal offence when the Bill became law on March 29, 2004, with guilty persons liable for fines of up to $500,000, ten years imprisonment, or both. (2) It has been assumed that the prohibitions in the Assisted Human Reproduction Act [the Act] limit embryo research to what are sometimes called unused, spare, or embryos. That is, that the Act limits research to embryos originally created in the course of fertility treatment that were not in fact used by the woman or couple undergoing fertility treatment and that are now in frozen storage pending destruction or donation to another woman or couple. (3) While it is clear that such surplus embryos exist in Canada (although the numbers are much lower than is often suggested, simply because many frozen embryos are not yet surplus (4)), it is not clear that the Act limits research to these surplus embryos. As this commentary will show, a strict reading of the Act permits the creation of embryos for certain kinds of research as well as the conduct of research on embryos that are not-yet-surplus, including on fresh embryos that might otherwise be frozen for later use in a pregnancy attempt. The Assisted Human Reproduction Act The Act primarily serves to regulate the provision of assisted reproductive services. However, because it became law at a time of great scientific interest in, and significant debate over, embryonic stem cell research, much of the parliamentary and public debate accompanying the passage of the Act focused on two of its prohibitions. These prohibitions are contained in paragraphs (a) and (b) of section 5(1) of the Act and they outlaw the creation of a cloned embryo and the creation of an embryo for any purpose other than creating a human being or improving or providing instruction in assisted reproduction procedures. (5) The prohibitions were seen by some critics as hindering the progress of scientific research (particularly stem cell research), as inappropriately using criminal sanctions to regulate scientific research, (6) and as instituting cumbersome prohibitions instead of flexible regulation. (7) These same provisions were criticized by other groups and individuals for not containing a blanket ban on the use of embryos in research, and for thus implicitly condoning the intentional destruction of human life for the sake of scientific research. (8) In defending both the prohibition contained in section 5(1)(b) and the absence of a complete prohibition on the research use of embryos, Canada's Health Minister, Anne McLellan, argued in the House that [i]t would be up to the couple to choose whether their unused embryos would be discarded or donated either for research or to other infertile Canadians. (9) In discussion with the media, McLellan asked reporters: you know what happens to surplus embryos? Do you know what happens? They go in the garbage. (10) In both these comments, McLellan assumed that the Act would limit research to surplus embryos as defined above: that is, to embryos originally created in the course of fertility treatment that were not in fact used by the woman or couple undergoing fertility treatment and that were in frozen storage pending destruction (McLellan did not mention the possibility of donation to another woman or couple). …

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