Amici Curiae : The Political Battle Behind U.S. Healthcare Reform, the Mandatory Minimum Sentence Justifiability Question, and Regulation of Fertility Tourism

Congress Wants the Last Word on Health Care Reform

The celebrations did not last long. Before you even finish saying, the Patient Protection and Affordable Care Act, Congress has already started jostling to overturn the Supreme Court’s decision. Less than two weeks ago, the Supreme Court of the United States kept the Act intact, thereby allowing President Obama and the Democrats to go ahead with their health care reform.  This Wednesday, however, Republican lawmakers (and a handful of Democrats) expressed their deep displeasure with the Court’s decision in Congress by putting the law to a vote, a vote that would run contrary to this landmark decision.

The House of Representatives voted to repeal the health care overhaul. The bill was approved by a vote of 244 to 185 – predictably, along party lines – with the exception of five Democrats who voted with the Republicans. There is really no chance that the law will actually be repealed; Democrats control the Senate and, even if it got beyond Congress, President Obama could swiftly veto it.

Despite what many lawmakers consider to be a waste of energy, the vote belies a highly charged political battle. The Republicans, according to some commentators, are using this polarizing piece of legislation to shore up their support base – essentially, a winning issue for them. Recent polls suggest that Americans remain just as skeptical, if not antagonistic, toward President Obama’s health care reform as they did in 2010 when it was first passed by Congress.

So the vote can be said to be symbolic, namely a political maneuver on the part of the Republicans. (They promise to fight the law until the bitter end, so we can expect more of the same in the next few months.) The same polls suggest that Americans are more invested in fixing the economy than quashing the Act, and they will vote for the presidential candidate who will deliver this goal. Governor Mitt Romney, the Republican candidate challenging President Obama in the 2012 elections, has already promised to repeal the Act. And his reasoning is strategic; it is primarily economic. Demonizing ‘Obamacare’ as a tax that will further burden middle-class America, Republicans (and a few sympathetic Democrats) will continue to put up political, as opposed to legal, hurdles before the Affordable Care Act up until the November presidential elections.

Mandatory Minimums Are Not So Mandatory

On July 6, Justice Bellefontaine of the Ontario Court of Justice found that the minimum three year period of imprisonment imposed on convictions for possession of  firearms is unconstitutional. The decision focused on Christopher Lewis, a cocaine dealer, who faced a mandatory sentence minimum of 3 years. Ironically, Lewis neither had access to the gun, nor an intent to finalize the sale when the charge was laid. For the cocaine and possession charges, the Court sentenced him to three years in totality.

Lewis' lawyer argued that a three year minimum period of imprisonment for the offence, which in his case was nothing more than an ill advised sale pitch, would be cruel and unusual punishment contrary to s. 12 of the Charter. The Crown pushed further citing Lewis' youth record asking for a greater sentence to be imposed.

Section 95 of the Criminal Code is a new and highly contentious provision. In short it stipulates that everyone who commits an offence in possession of a prohibited firearm, and in the case of first time offenders, faces a mandatory term in prison of three years. Justice Bellefontaine found that the three year minimum sentence is cruel and unusual punishment and cannot be justified under s 1 of the Charter (at page 17). He deemed that the "minimum three year sentence does not address the different degrees of moral blameworthiness associated with the different circumstances."

As the Globe and Mail wrote in April, this is going to be a big year for the Supreme Court and the Charter. The final word on the Court's acceptance or rejection of the provision will be a matter of Charter interpretation, as it will likely trickle its way up to the highest courts. It begins, however, with the lower courts.

Fertility Tourism: India’s Attempt to Regulate the Rent-a-Womb Trade

In recent years, medical tourism, or the practice where “consumers elect to travel across borders or to overseas destinations to receive their treatment” has gained increasing popularity. Used as an inexpensive, efficient and quick form of medical treatment by people from the developed world, medical tourism has also helped to boost the economies of countries like India, Thailand and Singapore, which are deemed to be the top destinations for such treatments.  And an extension to this practice is fertility or reproductive tourism, or the practice of travelling abroad, mostly to a developing country, from a developed one, to either receive fertility treatments, or to find candidates for surrogacy. India, with its exploding population and enormous economic disparity, has always been the prime destination to find poor, young women who are willing to serve as surrogates for fertilized eggs of rich, but infertile couples from across the world. If this sounds a bit like something out of the latest sci-fi novel, it has also gained India the dubious reputation of being called the world’s “designer baby factory.”

The industry has sparked increasing concerns of being exploitative, and recently, the Indian government has finally decided to take notice, by drafting a bill that aims to regulate fertility tourism in the country. First introduced in 2010, the Assisted Reproductive Technology Regulation Bill will now require that assisted reproductive technology (ART) clinics be registered with the government, that surrogate mothers not be below 21 or above 35, and that any one woman can only give birth to 5 children at the very most, including her own. The bill also aims to toughen the standards, costs and responsibilities of the foreign parents, making them accountable for the health of the mother during pregnancy through guardians, and by bearing monetary costs. All in all, the bill tries to prevent the exploitation of the surrogate mother, both by fertility companies, as well as by foreign nationals. While its aims are admirable, and certainly necessary, it remains to be seen how strictly compliance will be enforced, and whether the rights of surrogate mothers will actually be protected.

Incidentally, Canada has been listed as one of the top countries whose citizens go to India in the quest for a surrogate, and the 2012 federal budget has already introduced some changes in our domestic process for regulation ARTs. While the Supreme Court has already dealt with the constitutionality of several provisions of the federal Assisted Human Reproduction Act (SC 2004, c 2) in 2010, the government has recently announced the closure of Assisted Human Reproduction Canada (ARHC), the federal agency that oversaw compliance with the Act. While the efficiency and usefulness of the agency has been debated, its demise brings a lesser level of regulation in the ART industry in Canada. If other developed nations follow suit, this would place a greater enforcement responsibility on host countries like India, with the definite possibility of surrogate mothers being left worse off than before.