The court heard an appeal of last June’s Quebec Court of Appeal ruling that put human reproduction under provincial jurisdiction. In that case the judge ruled: “Only the individual safety of the participants in assisted reproduction and the children that result from it require protection.”

The Catholic bishops and the EFC argued assisted human reproduction biotechnology must be controlled in the public interest because it involves moral and ethical issues of national concern. 

Though none of the provinces challenged the act’s prohibitions against human cloning or the creation of animal/human hybrids, the bishops and EFC factum outlined the dangers if other sections of the act regulating assisted human reproduction are struck down.

The factum also raised concerns about the commodification of human beings, warning of “a number of troubling consequences such as designer babies, sex selection, ‘saviour’ babies (created for bone marrow or other body parts to save the life of an existing child), improper screening based on genetic testing and so on.”

“The tone of the questioning gave the sense that there was sympathy to both the presentation for maintaining the legislation intact and allowing for consideration of the provinces’ position,” said EFC counsel Don Hutchinson. He and associate counsel Faye Sonier represented both the EFC and the bishops in the court. William Sammon was retained by both in the preparation of the factum.  

“Our factum reflects on what we believe was an error by the Quebec Court of Appeal and their conclusions concerning whether or not the legislation could have been enacted under the peace, order and good government provisions of the Constitution,” Hutchinson said. “We carried forward from that national interest issue to a similar but different concern in regard to criminal law.

“The arguments presented in our factum and noted in the oral arguments of the federal government were an indication of the standard of the nation as a whole in regard to the uniqueness and the dignity of human life,” he said.

Lawyer Jocelyne Provost argued for the Quebec Attorney General that treatment of infertility was a medical procedure between a doctor and patient and therefore under provincial jurisdiction. She said no one wants to “play around” with creating hybrids because it “goes against nature.” However, treatment of fertility is a “good thing” that should not be dealt with by criminal law that is designed to prevent “an intrinsic evil,” she said.

Hutchinson noted the importance of focusing on common ground that allowed the CCCB and the EFC to work together as opposed to being preoccupied by theological differences.

The Supreme Court justices have reserved judgment on the case.