[1] Every generation faces unique moral issues. And historically, every generation has turned to the criminal law to address them. Among the most important moral issues faced by this generation are questions arising from technologically assisted reproduction — the artificial creation of human life. Parliament has passed a law dealing with these issues under its criminal law power. The question on appeal is whether this law represents a proper exercise of Parliament’s criminal law power. I conclude that it does.
[2] Since time immemorial, human beings have been conceived naturally. Human beings have sought to enhance this process, to be sure; fertility rites, prayers and various medical and quasi-medical prescriptives to enhance fertility are part of human history. Human beings have also sought to constrain the process, through rules governing sexual conduct and marriage. These rules are deeply embedded in morality, which speaks to our conception of how human beings should behave for their own good and the greater good of society. Through morality, often abetted by the criminal law, society has traditionally found collective answers to reproductive issues. Yet until recently, the fundamental processes by which new human beings were conceived remained largely beyond technological manipulation.
[3] This changed in the latter part of the 20th century, with the development of technology that allowed ova and sperm to be captured and united to form a zygote outside the human body. Refining the process even further, scientists found ways to disassemble and recombine genetic material within the ova. Implantation techniques allowed couples and surrogate mothers to carry pregnancies created in a petri dish to term. At the far end of the spectrum lay the possibility of combining animal and human forms or reproducing an individual through cloning.
[4] These new techniques raise important moral, religious and juridical questions. The new questions do not fit neatly within the traditional legal frameworks that have developed in a world of natural conception. These challenges have opened a dialogue between ethicists, religious leaders and the public. Different people have taken different moral views on the issues. Fears have been expressed as to the possibility that some may abuse the new techniques in ways that might damage individuals — both existing and yet to be conceived — and ultimately society. Traditional criminal law imposed no obvious restraints and offered no clear answers to these questions.
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