Protection of Conscience Project
Protection of Conscience Project
Service, not Servitude

Service, not Servitude

Physicians and the Ontario Human Rights Code

Ontario Human Rights Commission attempts to suppress freedom of conscience (August-September, 2008)

Official threats to Canadian doctors reveal weak thinking on human rights

Canadian Centre for Policy Studies
28 September, 2008
Reproduced with permission

Louis DeSerres*

Basing itself on the flawed policy of the Ontario Human Rights Commission, the CPSO assumed that no moral ambiguity was possible and that, therefore, none should be tolerated.

The recent controversy surrounding the College of Physicians and Surgeons of Ontario draft policy on conscience and ethical behaviour is an illustration of how our system of human rights commissions, relying on a limited set of legal precedents, oversimplify complex ethical matters, leaving the unsuspecting observer with the impression that the issues at hand have been definitely settled.

Basing itself on the flawed policy of the Ontario Human Rights Commission, the CPSO assumed that no moral ambiguity was possible and that, therefore, none should be tolerated. The proposition that doctors could be compelled to "leave their conscience at the door" when considering the provision of certain medical services, was predicated on the view that existing laws are a perfect reflection of society's moral values.

Unfortunately, the rights of only certain individuals were being taken into full consideration when determining how best to serve patients and simultaneously respect human rights legislation. By expanding the discussion to include the rights of other interested parties, and not just doctors and patients, it becomes obvious that there are issues regarding which neither Parliament nor the Courts have been able to resolve the moral ambiguities.

Abortion is one such issue, pitting mothers' rights against the 'non-personhood' of the unborn child. While there is currently no law against abortion in Canada, the Supreme Court has never said that none should exist. Rather, the Court has deemed the issue too complicated to resolve on its own, clearly indicating that it is Parliament's responsibility. And Parliament has been grossly negligent in failing to adopt any abortion legislation.

Another issue where there is a great deal of moral ambiguity is in the area of assisted reproduction, where medical technology is made available to one or more adults desiring a child. Some of these services involve treatments to enhance fertility, while others require third party participation. In all cases, there is, by definition, another human being who is in no position to express him(her)self, but whose interests doctors may legitimately feel obligated to consider. The 'yet to be conceived' child can't participate in decisions, but it is that very child who will be burdened with the often serious consequences of those decisions.

When a child is conceived through anonymous sperm donation (or surrogacy), it is always deprived of at least one of his biological parents. Sperm donors and surrogate mothers are required to abandon their offspring. Thus, the natural bonds between the child and its biological parents are purposely destroyed and all the benefits of thess bonds for the child are lost. And if 'conceived' by a single woman, or by two same-sex partners, the child will also be rendered fatherless or motherless on purpose.

One has to wonder about the basic humanity of a system whereby adults are encouraged to abandon their offspring. This is only possible when any consideration of children's best and long term interests is conveniently ignored, or worse, subordinated to adult desires.

Existing laws in this area are confusing and contradictory. While the Assisted Human Reproduction (AHR) Act prohibits discrimination based on "sexual orientation or marital status" (art. 2e), it also affirms that "the health and well being of children... must be given priority" (2a) and speaks of "taking appropriate measures for the protection and promotion of human health, safety, dignity and rights" (2b). How can the bonding rights and well-being of children be advanced when they are prevented from having their mother or father?

The argument that the unborn child, and particularly 'the yet to be conceived child', has no rights under existing Canadian law is nonsense. The AHR Act includes a Charter inspired protection which prohibits sex selection (art. 5e) and repeatedly speaks about "creating a human being" (5b, c, e, h). The Act also prohibits cloning (2g, 5a). These protections all apply at the moment of conception, well before the child acquires legal personhood. Isn't it abundantly clear from these that our legislators intended to protect children, not only before they were born, but before they were even conceived, and that the needs of the child 'must be given priority'?

The most successful and widely supported international convention is the UN Convention on the Rights of the Child (CRC) of 1989. Only two countries have failed to ratify it. This convention has implications both for Canadian law and for how doctors may wish to approach issues around the provision of abortion services and fertility treatments.

The Convention contains three provisions which are particularly relevant. The child shall have "as far as possible, the right to know and be cared for by his or her parents" (Art. 7.1); "States Parties undertake to respect the right of the child to preserve his or her identity, including ... family relations as recognized by law without unlawful interference." (8.1) and "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." (3.1)

Few countries have successfully thought through how to implement these provisions, most preferring not to deal with them at all. France, however, is an exception.

In 2006, after conducting exhaustive scientific and legal research, a special French Parliamentary Commission published a report reiterating that country's assisted reproduction laws. Surrogacy is illegal in France because it commercializes the human body and a child's filiation. Access to medically assisted reproduction is available only to married or committed heterosexual couples (minimum of two years in a stable relationship), thus guaranteeing each child both a father and a mother. Furthermore, because it is analogous to adoption, access to assisted reproduction requires judicial approval. In explaining its reasons, the report's authors pointed out, quite sensibly, that "the child now has rights and the aspirations of adults can no longer be systematically placed ahead of respect for these rights."

The fact that Canadian, or for that matter Ontario, legislation fails to recognize the full extent of personal rights of the child from the moment of conception hardly means, as was implied by the draft CPSO policy, that the moral issues at stake have been settled, any more than the absence of laws against slavery meant that slavery was a morally defensible practice.

To prevent doctors from making moral judgments about certain medical procedures, often elective, would have been inconsistent with the spirit of existing human rights legislation, further entrenching the systemic discrimination that currently exists against very real persons who, by definition, cannot defend their own rights - children.