Christian Legal Fellowship: Business Corporations, Assisted Human Reproduction, and Religious Freedom

By: Jonathan Turner

My six-week Summer Internship with Christian Legal Fellowship in London, ON, Canada, is coming to an end soon, although I will continue to work for them this fall remotely. I have thoroughly enjoyed investing in the hard work of CLF in the area of religious freedom, human rights, and the intersection of these areas in various sectors of Canadian public life. I also had the opportunity to try another Canadian hallmark restaurant – Swiss Chalet (fried chicken, French fries and gravy . . . Canadians seem to love fries).

During the past two to three weeks, I have had the opportunity to join and/or sit in with Derek Ross (Executive Director for CLF) for his interviews with Faytene TV (Canada) and Australian Christian Lobby (Australia), where discussion focused on the implications of the ruling in Law Society of British Columbia v. Trinity Western University on religious liberty in Canada. Furthermore, Derek explained the relevance and benefit of ensuring robust religious freedoms for all citizens within society, religious or not:

Diverse associations and institutions are necessary to a free and democratic society, but such communities cease to exist when the state dictates what their core beliefs ought to be or requires them to deny such beliefs . . . The government’s role is to allow for difference, not to mandate approval or acceptance.[1]

Moreover, I performed research and writing on two topics in particular these past two to three weeks: (1) Religious Freedom and Business; and (2) Assisted Human Reproduction.

Concerning Religious Freedom and Business, I researched and wrote on whether religious motives/expression/freedoms/obligations should be attributed to corporations under the law. The Supreme Court of Canada has not directly ruled on the question of whether corporations can assert religious freedom rights. I analyzed the current state of Canadian law and analyzed the approach taken in the United States under the Supreme Court’s ruling in Burwell v. Hobby Lobby.

Advocating that a corporation should be able to exercise religious freedom rights, I analyzed the article Business Corporations as Religious Freedom Claimants in Canada by Howard Kislowitcz, a former Assistant Professor at the University of New Brunswick Faculty of Law, emphasizing that:

While one might expect religious organizations to be particularly well suited to [the role of advancing religious causes], a large and liberal view of religious freedom should be open to the possibility that some might put their religious principles into action through a corporation, perhaps in concert with others. Accordingly, it would be appropriate for the law’s approach to whether corporations can assert religious freedom rights to follow the example set in expressive freedom jurisprudence, and do directly what [two Canadian Supreme Court cases] do indirectly and incompletely. This, of course would not guarantee success to every corporate religious freedom claimant. The risk that a corporation would illegitimately take advantage of this opportunity is balanced by the corporation’s need to prove a rights infringement, and government actors’ ability to justify any proven infringement. On the other hand, if corporations can never institute a religious freedom claim, religious freedom violations may go uncorrected. In short, the risk of false negative is worse than the risk of false positive, which the law can correct through established doctrine.

This view reflects American Supreme Court jurisprudence as set forth by Alito J. in Hobby Lobby:

[I]t is important to keep in mind that the purpose of [the legal fiction employed by Congress to protect natural persons and corporations under RFRA] is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.[2]

He critiqued the analysis of the Third Circuit Court of Appeals that corporations should not receive religious freedom protections. The Third Circuit stated that:

General business corporations do not, separate and apart from the actions or belief systems of their individual owners, or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.[3]

Alito J. rebutted:

All of this is true – but quite beside the point. Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all.[4]

Concerning Assisted Human Reproduction, I performed legal research and writing on the complex bioethical considerations of legalizing commercial surrogacy and the sale of gametes in Canada.

In 2004, the Assisted Human Reproduction Act was enacted as a means of federally regulating and prohibiting certain assisted human reproductive practices in Canada – including commercial surrogacy and the sale of gametes.

While AHRA currently prohibits commercial surrogacy in Canada,[5] there is a growing movement to legalize the practice. MP Anthony Housefather, chair of the Standing Committee on Justice and Human Rights, recently introduced Bill C-404 to amend AHRA in an effort to decriminalize commercial surrogacy and the sale of gametes.[6]

While some argue commercial surrogacy is a victimless crime, we must consider that the commodification of wombs, babies, and gametes for use by others raises complex human rights issues and has the potential to create a dangerous supply and demand culture in Canada – whereby the surrogate women are seen as a means to an end for reproductive purposes – as it has in other countries where commercial surrogacy has been legalized. Potential human rights issues include the coercion of egg donors; eugenic commodification of egg providers; health risks to suppliers and recipients; and effects of third party reproduction on the children produced.[7]

Moreover, in much of the world the legalization of commercial surrogacy and the sale of gametes could lead to women and children becoming victims of powerful commercial interests. Indeed, ARPA states, this is by no means unprecedented:

Commercial surrogacy destinations, such as India and Thailand, have banned or proposed to ban commercial surrogacy because of evident exploitation. In India, women are frequently “pimped” into becoming surrogate mothers for foreign buyers. If Canada legalized commercial surrogacy, we would be in the minority of nations that permit paying women (or paying agencies which pay women) for the use of their wombs. France, Germany, and Italy have banned both altruistic and commercial surrogacy because of its inherent dangers.[8]

Indeed, even in the Western world, the legalization of commercial surrogacy and the sale of gametes can be an avenue for exploitation. A Report of the Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material delivered to and presented at the Human Rights Council (37^th Session) in March of 2018, addressed the issue of the sale of children in the context of surrogacy exhaustively.[9]

It unveiled the fact that many abuse instances occur in cases involving intending parents in Western countries that utilize “for-profit intermediaries to contract with vulnerable surrogate mothers in developing countries,”[10] and in “purportedly well-regulated” communities where commercial surrogacy is legal, such as the State of California – where two prominent surrogacy attorneys were convicted of engaging in a “baby-selling ring.”[11] According to the Special Rapporteur, one of the attorneys in that case testified that, as to the illicit business, she was the “tip of the iceberg” of a “corrupt” “billion-dollar industry.”[12] Indeed, the Special Rapporteur stated that, even in some well-regulated jurisdictions, surrogacy regulations are “designed to enforce contracts, obtain children for intending parents, maintain the industry’s profits, and intentionally reject most protections for children or surrogate mothers” which lead to abusive practices and the sale of children (potentially into sex-trafficking services).[13]