“Understanding the role that consent plays in the realm of reproductive technology at large in Canada, and more specifically in the realm of in vitro embryo use, provides an important context against which the operative provisions must be considered.
The crucial importance placed upon consent in the area of reproductive technology, and the requirement that it be voluntary and informed, was squarely addressed in the lead-up to the enactment of the AHRA [Assisted Human Reproduction Act, S.C. 2004, c. 2]. For instance, as noted in the House of Commons Standing Committee on Health, Assisted Human Reproduction: Building Families (Ottawa: Public Works and Government Services Canada, December 2001) (Chair: Bonnie Brown) at 6:
[I]nformed choice can lead to either informed refusal or informed consent. We want individuals participating in assisted human reproduction to be able to choose freely on the basis of full information of risks as well as benefits pertaining to medical, legal, ethical, social, or psychological implications. For the resulting children, they must be able to rely on the involved adults. For participating adults, this can mean having full understanding of short-term as well as long-term ramifications including the consequences for others who may be involved. We want to ensure that consent is given freely for all aspects of assisted human reproduction such as treatment, donation, and research. We also want continual assessment of the consent that is given and an acknowledgement that, for most activities, consent may be withdrawn at any time. [Emphasis added.]
Free and informed consent lies at the heart of the entire AHRA, “central to the scheme established by the Act” and “intimately tied to moral concerns”: Reference re AHRA, at para. 142. The statement of principles in s. 2(d) of the AHRA underscores the statutory emphasis on consent:
[T]he principle of free and informed consent must be promoted and applied as a fundamental condition of the use of human reproductive technologies[.] [Emphasis added.]
Parliament’s deliberate decision to criminalize the use of reproductive material and in vitro embryos in the absence of written donor consent reflects deep moral concerns about human reproduction and its intersection with human autonomy. Those moral concerns were front and centre when considering whether it was acceptable for the criminal law to govern donor consent under s. 8 of the AHRA. As McLachlin C.J. said inReference re AHRA, at para. 90:
At the heart of s. 8 lies the fundamental importance that we ascribe to human autonomy. The combination of the embryo’s moral status and the individual’s interest in his or her own genetic material justify the incursion of the criminal law into the field of consent. There is a consensus in society that the consensual use of reproductive material implicates fundamental notions of morality. This confirms that s. 8 is valid criminal law.
It is against that statutory context – where consent plays such a pivotal role in protecting human autonomy – that the legal contours of donor consent and, more importantly for this case, donor withdrawal of consent to in vitro embryo use must be considered. The idea that donor consent can become frozen in time, rendered unsusceptible to changes of mind, belies the central importance placed upon consent in the statutory scheme.”