voices of women in law // voix des femmes en droit


Written by Pat Nowakowska

Our western society has witnessed successive waves of feminism. These brought us recognition as equals in terms of voting, property ownership, participation in the work-force, the right to choose our marital unions, the right to be protected against sexual assault within our unions, the right to leave these unions, the right to contraception and the right to decide whether to carry an early pregnancy to term. These are our legal rights and their tenor is harmonious with a certain categorical morality: one that affirms that we can make choices with respect to our bodies, our sexuality, our reproduction, and our participation in social and economic life. The state proudly aligns itself with this morality…


It is mind-boggling how a province as officially committed to women’s rights as Quebec would table a Bill that so blatantly undermines a woman’s right to choose. This commentary explores the amendments proposed by Bill 20 and, in the spirit of trying to understand its logic, explores the possible underlying reasoning for its regressive policy regarding women and their reproductive choices.

Recently, Quebec’s Health Minister, Gaétan Barrette, introduced Bill 20: An Act to enact the Act to promote access to family medicine and specialized medicine services and to amend various legislative provisions relating to assisted procreation, with an eye to “optimize the utilization of the medical and financial resources of the health system with a view to improving access to family medicine and specialized medicine services.” The Bill purports to meet its objectives through two principal motions: the first part concerns family physicians, imposing quota obligations on practitioners at the penalty of reduced remuneration; part two pertains to assisted procreation activities, namely in vitro fertilization (IVF) with an aim to reduce, if not completely overturn, public funding for practice.

On its face, the two rather unrelated parts speak to an increase in services provided in the former, and a reduction in costs in the latter. Budgetary austerity clearly forms the principal motivation; how the cuts in IVF funding will affect families, and/or individuals of lower socio-economic status is an argument that is equally important, albeit not the focus of this commentary.

For the sake of this critique, let us focus on women, educated and actively contributing to the tax base as professionals: women who chose to focus on supplying society with their skills before turning their attention to populating this society with children. Both of these contributions are important and we must abstain from judging the prioritization of one contribution over another (read: the right to choose remains with us!). But in terms of an economical utilitarian approach, those who choose to enrich the workforce and the tax base during their “reproductive primes,” and then subsequently brave the biological challenges and bring us children, are valuable members of society. The choice to balance motherhood with work has been long fought for but it is undeniable that the main beneficiary of this choice is society.

Let us suppose then, that funding cuts to IVF are a message that declares: you can finance your own tribulations of assisted reproduction, our pockets are empty. Unfortunate and unfair as it is, this is a choice the state is in a position to make. To stipulate that there be an age cut-off for IVF financial assistance is likewise very unfortunate, but in the hands of the legislator. The justification for this limitation relies on greater risks of health complications which will “burden” our fragile health care system.

However, Bill 20 crosses the line by making a 42-year-old woman’s choice to go through IVF an offence, and making the physician consulting this woman a co-offender. According to the Bill, physicians who treat women undergoing or considering IVF above the age of 42 will be liable to a fine between $5,000 and $50,000. The underlying assumption implied by this offence is that women over 42 considering IVF, and their physicians, are somehow negligent of the health risks associated with such a delicate undertaking. Or perhaps the underlying assumption is that the physicians aiding these women are a wasted resource, whose time and energy are better spent on other patients with other issues. The first assumption contradicts the idea that women can make intelligent choices with respect to their health and the well-being of their offspring; the second assumption creates a sort of hierarchy for health and patient needs that offends morality altogether.

Compound this with the fact that even if said women are willing to pay for the services out of their own pockets, the choice to even consider IVF past the age of 42 is still an offence. Even if these women travel to another province or country, this choice still remains an offence and no physician is permitted to give subsequent care to said women. Likewise, any healthcare worker who directs a person to an assisted reproduction clinic outside of Quebec could be similarly fined.

Age discrimination? Class discrimination? Gender discrimination? Constitutional issues? Wait, there’s more! Article 10.2 of the tabled Bill stipulates that parties to a parental project involving outside genetic material must submit to a psychosocial assessment at their own expense, before embarking on assisted procreation activities. The Minister will decide (has not yet, but will) on the assessment criteria. The implications here do not touch only on women past their “reproductive primes” but on all individuals with fertility problems, including same sex couples, as well as individuals considering donating genetic material to such a project. What is the underlying assumption of this clause? “Y’all must be crazy” is the only one that comes to mind.

That’s not all. One article states that “except in cases determined by government regulation, the physician must make sure that an in vitro fertilization activity has been preceded, as applicable, by a period of sexual relations or a number of artificial inseminations determined by government regulation.” The logic? Supposedly (a) that IVF is the first choice for women desiring a pregnancy and this must be stopped; (b) perhaps that heterosexual relations are a forgotten art and must be a revisited option; or (c) artificial insemination is not getting its fair share of attention in a parental project…? How this physician “must make sure,” and the appropriate “period” of these preliminary steps, is still to be decided by government regulation. The utilitarian argument for this clause escapes all rationale. Will there be a legislative meeting consecrated to mulling over regulation on how doctors will gain knowledge of their patients’ sex lives and how rich these ought to be before considering IVF? Does our National Assembly have no better issues to attend to?

The abovementioned amendments have been critiqued through only one optic: the perspective of a woman choosing a pregnancy late in life, a hypothetical woman that chose to establish herself professionally before embarking on motherhood. The implications are no less insidious for all men and women, of all ages, who experience fertility problems including individuals rendered infertile after being treated for cancer by chemotherapy or radiation, same-sex couples, and couples simply unable to conceive. Returning to the perspective of the 42-year-old woman, science is not on the side of the legislator: the American Society for Reproductive Medicine recommends age 55 as a maximum for IVF treatment and the McGill University Health Centre’s Reproductive Centre treats women until age 50.

As a final slap to the feminist face, Bill 20 tables a motion that imposes minimum caseloads on family physicians at the penalty of grossly reduced remuneration. This stands to disproportionally affect practitioners that strive to create a balance in their commitments to their practice and their family (most often female practitioners). The underlying assumption must be that family doctors, when not seeing loads of patients, must be spending precious time on the golf course, ignoring the fact that family doctors, on their off-times, can also be family people. This matter is however amply addressed by the Quebec Federation of Medical Specialists and the Quebec Federation of General Practitioners.

What is still needed in the chorus of the voices decrying this Bill are the women’s rights groups: those of us that hold the right to choose as dear and inalienable. Our right to choice and our right to care stand hand-in-hand here. We have banded together as a society and as women to chase the state out of bedrooms, but Bill 20, it would seem, threatens not only to impose itself into our sexual practices, but infiltrate deep into our wombs — an imposition repugnant in every sense and without any justification. Bill 20 is slated for approval this spring. Writing to your Member of National Assembly is one way to let your voice be heard.

Contours is made possible by funding from the McGill Law Students’ Association / L’Association des étudiant-e-s en droit de McGill. All rights reserved. No part of this publication may be reproduced in whole or in part without permission from the authors.

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