Clones, Controversy, Confusion, and Criminal Law: A Reply to Professor Caulfield
![handle is hein.journals/alblr40 and id is 503 raw text is: A REPLY TO PROFESSOR CAULFIELD 493
CLONES, CONTROVERSY, CONFUSION, AND CRIMINAL LAW:
A REPLY TO PROFESSOR CAULFIELD
SANJEEV ANAND*
I. INTRODUCTION
Professor Caulfield is undoubtedly disappointed with the statutory criminal
prohibitions contained within Bill C-56, An Act Respecting Assisted Human
Reproduction.' Last year, he wrote an article in which he denounced the federal
government's plan to pass a criminal statute proscribing certain procedures associated
with new reproductive technologies, such as human cloning.'
Caulfield's article is problematic in some respects. Although his position on the use
of criminal statutes to govern this area is clear, the exact form of legislative regime he
thinks is appropriate is difficult to discern. Moreover, a close reading of his article
reveals a misunderstanding of the nature of criminal legislation. Perhaps most troubling
is the undemocratic form of some of Caulfield's recommendations.
If there is to be a uniform legislative regime in Canada governing assisted human
reproduction, it must be criminal in nature. The appropriate scheme could consist of
statutory prohibitions such as those contained in Bill C-56, or a more complex
mechanism involving subordinate legislation. If the latter option is chosen, the
regulation-making body's work must be reviewable by elected officials.
II. AN AMBIGUOUS THESIS
The bulk of Caulfield's article is devoted to showing why criminal law should not
be used in the areas of genetics and reproductive technologies. Indeed, the abstract of
the article states, [I]t is argued that the use of the criminal law as a regulatory
mechanism is neither warranted nor appropriate.3 In the body of the article, Caulfield
describes the proposal to use criminal prohibitions to ban specific activities in this
sphere as weak.' He buttresses his position by arguing that issues concerning new
reproductive technologies do not engender a high degree of social consensus and that
criminal laws should be reserved for areas where this degree of consensus exists.5
Moreover, he endorses the statement that criminal prohibitions have the potential to cast
Assistant Professor, Faculty of Law, University of Alberta. The author thanks Catherine McMaster
for her tireless research assistance, Nicholette Anand for her invaluable editing, and Priya Anand
for her patience during the writing process. The author also appreciates the comments provided
by two anonymous external reviewers.
Bill C-56, An Act Respecting Assisted Human Reproduction, 1st Sess., 37th Parl., 2002 (passed
second reading and referred to Committee 28 May 2002).
2 T. Caulfield, Clones, Controversy, and Criminal Law: A Comment on the Proposal for Legislation
Governing Assisted Human Reproduction (2001) 39 Alta. L. Rev. 335.
Ibid. at 335.
Ibid. at 337.
Ibid. at 338.](ViewImageLocal?handle=hein.journals/alblr40&div=25&collection=&method=preview&ext=.png&size=3)
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Clones, Controversy, Confusion, and Criminal Law: A Reply to Professor Caulfield
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