₁ La Historia Oficial [The Official Story], directed by Luis Puenzo (1985).

₂ Sara Wilson’s research compared the disclosure of the biological parents’ identity in the case of the children of the disappeared (Argentina), with adoption and donor insemination regulation (United Kingdom). She justifies her methodology from a child’s rights standpoint: “[F]rom the perspective of the children, on which I concentrate in this paper, there are marked similarities between the situation of the children in all three cases: many of them have had very little or no contact with their biological ‘genitors,’ and have very little or no information about them, or even that they exist.” “Identity, Genealogy and the Social Family: The Case of Donor Insemination” (1997) 11 Int’lJ. L., Pol’y & Family 270 at 279.

₃ An Act Respecting Assisted Human Reproduction and Related Research, S.C. 2004, c. 2 at s. 18 (3) [Assisted Human Reproduction Act].

₄ This section explores the universal and the American human rights systems. Concerning the American regional human rights system, Canada is not a party to either the American Convention on Human Rights, infra note 89, or the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, infra note 90. The study of the European and the African regional human rights systems is beyond the scope of this article.

₅ International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, UNGA Resolution 2106 (XX), Can. T. S. 1970/28 at art. 5(e)(iv) (entered into force on 4January 1969; entered into force for Canada 14 October 1970) [ICERD].

Early attempts to regulate this right can be found in the Geneva Declaration of the Rights of the Child, 26 September 1924, G.A. Res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, UN Doc. A/4354 (1959) at art. 2 (adopted and proclaimed by the League of Nations): “[T]he child that is sick must be nursed”; in the Universal Declaration of Human Rights, 10 December 1948, UNGA Resolution 217 A III at art. 25(1 ) [UDHR]: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services”; in the American Declaration on the Rights and Duties of Man, 1948, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992) at Article XI [ADRDM]: “Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources”; and in the Declaration of the Rights of the Child, 20 November 1959 UNGA Resolution 1386 (XIV) at principle 4: “The child shall enjoy the benefits of social security. He shall be entitled to grow and develop in health; to this end, special care and protection shall be provided both to him and to his mother, including adequate pre-natal and postnatal care.”

₆ International Covenant on Economic, Social, and Cultural Rights, 16 December 1966 UNGA Resolution 2200A (XXI) Can. T.S. 1976/46 at art. 12(1) (entered into force on 3 January 1976; entered into force for Canada 19 August 1976) [ICESCR].

₇ Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, Can. T.S. 1982/31 at art. 12(1) (entered into force on 3 September 1981; entered into force for Canada 9 January 1982) [CEDAW]. With regard to health rights in the work environment, see Article 11 (1)(f).

₈ Convention on the Rights of the Child, 20 November 1989, UNGA Resolution 44/ 25, Can. T. S. 1992/3 at art. 24(1) (entered into force on 2 September 1990; entered into force for Canada 12 January 1992 ) [CRC].

₉ During the negotiations of the text of the CRC, there were two unsuccessful attempts to regulate genetic engineering. One was brought by the government of Colombia, as a comment to the first Polish draft to the convention (1978). The second attempt was a proposal submitted to the Commission on Human Rights by the World Association of Children’s Friends (a non-governmental organization) following the second reading of the convention (1989). Office of the United Nations High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child, volume II (New York and Geneva: United Nations, 2007) 898-99, <http://www.ohchr.org/EN/PublicationsResources/Pages/ReferenceMaterial.asp>.

₁₀ ICESCR, supra note 6 at art. 12(2).

₁₁ The Committee on Economic, Social and Cultural Rights (CESCR) is the monitoring body of the ICESCR, supra note 6 at Part IV. See also United Nations Economic and Social Council, Resolution 1985/17 Establishing the Committee on Economic, Social and Cultural Rights, 28 May 1985.

₁₂ CESCR, General Comment 3 on the Nature of States Parties Obligations (Article 2, part 1), 14 December 1990, at para. 3, Office of the High Commissioner for Human Rights <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument> [General Comment 3].

₁₃ ICESCR, supra note 6 at art. 2(1) [emphasis added].

₁₄ General Comment 3, supra note 12 at para. 9. Audrey Chapman is against the notion of “progressive realization” for assessing states parties’ compliance with economic, social, and cultural rights since, as she argues, this “is inexact and renders these rights difficult to monitor.” Chapman, Audrey, “A ‘Violation Approach’ for Monitoring the International Covenant on Economic, Social and Cultural Rights” (1996) 18 Hum. Rights Q. 23 at 23.CrossRefGoogle Scholar

₁₅ ICESCR, supra note 6 at art. 2(2) [emphasis added].

₁₆ Comité Consultatif National d’Éthique pour les sciences de la vie et de la santé, Avis no. 90. Accès aux origines, anonymat et secret de la filiation (2005) at 4, Comité Consultatif National d’Éthique pour les sciences de la vie et de la santé, <http://www.ccne-ethique.fr/docs/fr/avis090.pdf>. Eric Blyth reports how donor-conceived people have identified the lack of updated information about donors as a health issue: “With increasing awareness of the importance of genetics and of personal genetic biographies, donor-conceived people have begun to itemize the information they want about their genetic and social heritage and to emphasize the need for this information to be updated and not to cease at the point of donation.” “Information on Genetic Origins in Donor-Assisted Conception: Is Knowing Who You Are a Human Rights Issue?” (2002) 5 Human Fertility 185 at 187 [emphasis added]. See also Joanna Rose’s and E.M.’s personal accounts on the relevance of the subject in Rose & Anor v. Secretary of State for Health Human Fertilisation and Embryology Authority, [2002] E.W.H.C. 1593 (Admin) (26 July 2002) at paras. 7 and 12, respectively.

₁₇ CESCR, General Comment 14 on the Right to the Highest Attainable Standard of Health (Article 12 of the ICESCR), 11 May 2000, at para. 8, Office of the High Commissioner for Human Rights <http://www2.ohchr.org/english/bodies/cescr/comments.htm> [emphasis added] [General Comment 14].

₁₈ Ibid. at para. 11 [emphasis added].

₁₉ Ibid. at para. 12(b)(iv).

₂₀ Ibid.

₂₁ The Committee on the Rights of the Child is the monitoring body of the CRC, supra note 8 at Part II.

₂₂ Committee on the Rights of the Child, General Comment 4 on Adolescent Health and Development in the Context of the Convention on the Rights of the Child, 1 July 2003, at para. 41 (b) and para. 24, Office of the High Commissioner for Human Rights <http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/309e8c3807aa8cb7c1256d2d0038caaa/$FILE/G0340816.pdf >: “Adolescents have the right to access adequate information essential for their health and development and for their ability to participate meaningfully in society.”

₂₃ Ibid.

₂₄ Universal Declaration on the Human Genome and Human Rights, 11 November 1997, General Conference of the United Nations Educational, Scientific and Cultural Organisation, 29th Sess. UNGA Resolution 53/152, 9 December 1998 [emphasis added].

₂₅ For a similar perspective, see Eide, Asbjørn and Eide, Wenche Barth, “Article 24 The Right to Health,” in Alen, André et al., eds., A Commentary on the United Nations Conventions on the Rights of the Child (Leiden: Martinus Nijhoff Publishers, 2006) at 22.Google Scholar Michael Freeman, also writing for this series ofvolumes that intended to discuss the “scope” of different articles of the CRC, has critically commented about the authors’ lack of discussion of children’s health rights in the assisted reproduction domain: “What obligations are there [Article 24 of the CRC] to the children of reproductive technology?” Freeman, Michael, “Book Review: A. Eide and W.B. Eide ‘Article 24: The Right to Health’” (2007) 15 Int’l J. Children’s Rights 315 at 317.CrossRefGoogle Scholar

₂₆ General Comment 14, supra note 17 at para. 24. See also Eide and Eide, supra note 25 at 5.

₂₇ CRC, supra note 8 at art. 4(1).

₂₈ Rishmawi, Mervat, “Article 4: The Nature of States Parties’ Obligations,” in Alen, et al., supra note 25 at 4.Google Scholar

₂₉ General Comment 14, supra note 17 at para. 33.

₃₀ Eide and Eide, supra note 25 at 6–7 [emphasis added].

₃₁ General Comment 14, supra note 17 at para. 36.

₃₂ Committee on the Rights of the Child, supra note 22 at para. 39 [emphasis added]. See as well Eide and Eide, supra note 25 at 1: “[The CRC] does not provide a right of the child to be healthy — no legal instrument can do that — but it spells out obligations of States Parties to adopt measures which, if implemented, will ensure the highest attainable standard of health taking into account the genetic and other biological predispositions of the individual child and the risks that children are exposed to.”

₃₃ Freeman, Michael, “The New Birth Right? Identity and the Child of the Reproduction Revolution” (1996) 4 Int’l J. Children’s Rights 273 at 277.CrossRefGoogle Scholar See also O’Donovan, Katherine, “A Right to Know One’s Parentage?” (1988) 2 Int’l J. L. & Family 27 CrossRefGoogle Scholar; Wilson, supra note 2.

₃₄ Hodgson, Douglas, “The International Legal Protection of the Child’s Right to a Legal Identity and the Problem of Statelessness” (1993) 7 Int’l J. L. & Family 255 at 256.Google Scholar

₃₅ The Committee to Consider the Social, Ethical and Legal Issues Arising from In Fertilization, Vitro (Waller, Louis Chair), Report on the Disposition of Embryos Produced by In Vitro Fertilization (Melbourne: F.D. Atkinson Government Printer, 1984), para. 3.30, 26 Google Scholar; cited in Waller, Louis and Mortimer, Debbie, “The Gifts of Life-Donating Gametes and the Consequences,” in Freeman, Michael and Lewis, Andrew D.E., eds., Law and Medicine: Current Legal Issues 2000, vol. 3 (New York: Oxford University Press, 2000) 303 at 304.Google Scholar

₃₆ CRC, supra note 8 at art. 8. A different attempt to regulate identity rights can be found in the Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, Can. T.S. 1949/27 at art. II (e) (entered into force on 12 January 1951): “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such … Forcibly transferring children of the group to another group.”

₃₇ Office of the United Nations High Commissioner for Human Rights, Legislative History of the Convention on the Rights of the Child, volume I (New York and Geneva: United Nations, 2007) at 383, Office of the High Commissioner for Human Rights <http://www.ohchr.org/EN/PublicationsResources/Pages/ReferenceMaterial.asp>.

₃₈ The partial relocation of these children has been an extremely difficult task since many of them had been registered as having been born in the families who had really adopted them. During the Argentinean military government, individuals associated with the militia or the police forces had access to the official registries and were able to falsify the information related to the kidnapped child. Up to the present, many children (adults) do not know their biological origins. See Informe de la Comisión Nacional sobre la Desaparición de Personas, Nunca Más (Buenos Aires: EUDEBA, 1984), Proyecto Desaparecidos, <http://www.desaparecidos.org/arg/conadep/nuncamas/nuncamas.html>.

₃₉ Office of the United Nations High Commissioner for Human Rights, supra note 37 at 383.

₄₀ Ibid. at 385.

₄₁ Ibid.

₄₂ Ibid. at 387.

₄₃ Doek, Jaap E., “Article 8: The Right to Preservation of Identity, and Article 9: The Right Not to Be Separated from His or Her Parents,” in Alen, et al., supra note 25 at 12.Google Scholar Freeman understands the right to identity in a negative — and maybe broader — fashion. He argues “that the right to identity is a right not to be deceived about one’s true origins.” Freeman, supra note 33 at 291.

₄₄ Van Bueren, Geraldine, The International Law on the Rights of the Child (The Hague: Martinus Nijhoff Publishers, 1998) at 119 Google Scholar; Doek, supra note 43 at 8; Cerda, Jaime Sergio, “The Draft Convention on the Rights of the Child: New Rights” (1990) 12(1) Hum. Rights Q. 115 at 116 CrossRefGoogle Scholar (Cerda was the Argentinean sponsor of Article 8 of the CRC); George Stewart, “Interpreting the Child’s Right to Identity in the U.N. Convention on the Rights of the Child” (1992) 26(3) Family L. Q. 221 at 224.

₄₅ Doek, supra note 43 at 13.

₄₆ Van Bueren, supra note 44 at 119.

₄₇ ADRDM, supra note 5 at art. V.

₄₈ Ibid. at art. VI.

₄₉ UDHR, supra note 5 at art. 12.

₅₀ Ibid. at art. 16( 3).

₅₁ ICESCR, supra note 6 at art. 10(1).

₅₂ International Covenant on Civil and Political Rights, 16 December 1966, UNGA Resolution 2200A (XXI), Can. T. S. 1976/47 at art. 17(1) (entered into force on 23 March 1976; entered into force for Canada 19 August 1976) [ICCPR].

₅₃ Ibid. at art. 23(1).

₅₄ CRC, supra note 8 at art. 16(1). See also the para. 5 of the preamble to the CRC.

₅₅ Ibid. at art. 20(1).

₅₆ Ibid. at art. 7(1).

₅₇ Blyth, Eric, “Donor Assisted Conception and Donor Offspring Rights to Genetic Origins Information” (1998) 6 Int’l J. Children’s Rights 237 at 244–45CrossRefGoogle Scholar; Blyth, supra note 16 at 188.

₅₈ Dwyer, James G., The Relationship Rights of Children (Cambridge: Cambridge University Press, 2006) at 59–60.CrossRefGoogle Scholar

₅₉ Van Bueren, supra note 44 at 83.

₆₀ UDHR, supra note 5 at art. 12; ICCPR supra note 52 at art. 17(1) (respectively).

₆₁ CRC, supra note 8 at art. 2(1).

₆₂ Ibid.

₆₃ UDHR, supra note 5 at art. 2(1); ICCPR, supra note 52 at art. 2(1).

₆₄ CRC, supra note 8 at art. 16(1); UDHR, supra note 5 at art. 12; and ICCPR, supra note 52 at art. 17(1).

₆₅ Doek, supra note 43 at 12.

₆₆ For example, the enactment of legislation by a state party to the CRC that does not observe the international human rights law recognized to individuals therein.

₆₇ Human Rights Committee, General Comment 16 on the Right to Respect of Privacy, Family, and Home and Correspondence, and Protection of Honour and Reputation (Art. 17), 8 April 1988, at para. 3, Office of the High Commissioner for Human Rights, <http://www2.ohchr.org/english/bodies/hrc/comments.htm>. The Human Rights Committee is the monitoring body of the ICCPR, supra note 52 at Part IV [emphasis added].

₆₈ Ibid. at para. 4.

₆₉ CRC, supra note 8 at art. 7(1). Nigel Cantwell and Anna Holzscheiter understand that Articles 7(1) and 20 of the CRC are closely related. Cantwell, Nigel and Holzscheiter, Anna, “Article 20: Children Deprived of Their Family Environment,” in Alen, et al., supra note 25 at 5.Google Scholar

₇₀ Ziemele, Ineta, “Article 7: The Right to Birth Registration, Name and Nationality, and the Right to Know and Be Cared for by Parents,” in Alen, et al., supra note 25 at 26 [emphasis added].Google Scholar

₇₁ Freeman, Michael, “The Rights of the Artificially Procreated Child,” in The Moral Status of Children: Essays on the Rights of the Child (The Hague: Kluwer Law International, 1997) at 196.Google Scholar

₇₂ Office of the United Nations High Commissioner for Human Rights, supra note 37 at 370.

₇₃ Ibid. at 376.

₇₄ Ibid. at 378.

₇₅ Ibid. [emphasis added].

₇₆ Ibid.

₇₇ Ibid. at 379.

₇₈ Ibid.

₇₉ Ibid.

₈₀ Ibid.

₈₁ Ibid. at 380.

₈₂ Ziemele, supra note 70 at 27 [emphasis added].

₈₃ CRC, supra note 8 at art. 2(1).

₈₄ Blyth, Eric and Farrand, Abigail, “Anonymity in Donor-Assisted Conception and the UN Convention on the Rights of the Child” (2004) 12 Int’l J’ on Children’s Right 89 at 94–95.CrossRefGoogle Scholar

₈₅ Renvoi fait par le gouvernement du Québec en vertu de la Loi sur les renvois à la Cour d’appel, L.R.Q. ch. R-23, relativement à la constitutionnalité des articles 8 à 19, 40 à 53, 60, 61 et 68 de la Loi sur la procréation assistée, L.C. 2004, ch. 2 (Dans l’affaire du), 2008 Q.C.C.A. 1167, leave to appeal to S.C.C. requested (Docket 32750). On 11 March 2009, the Attorney General of British Columbia gave notice of withdrawal.

₈₆ Assisted Human Reproduction Act, supra note 3. For a discussion supporting Parliament’s legislative power for regulating assisted human reproduction, see Jackman, Martha, “The Constitution and the Regulation of New Reproductive Technologies,” in Overview of Legal Issues in New Reproductive Technologies, volume 3 of the Research Studies of the Royal Commission on New Reproductive Technologies (Ottawa: Supply and Services Canada, 1994) at 1.Google Scholar

₈₇ As a result, an analysis of Article 27 of the Vienna Convention on the Laws of Treaties is beyond the scope of this article (“[a] Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46”). Vienna Convention on the Law of Treaties, 23 May 1969, Can. T.S. 1980/37 (entered into force on 27 January 1980; entered into force for Canada 27 January 1980 [Vienna Convention].

₈₈ Vienna Convention, supra note 87 at art. 26.

₈₉ American Convention on Human Rights, 22 November 1969, OAS Treaty Series No. 36; 1144 UNTS 123; 9 ILM 99 (1969) (entered into force on 18 July 1978).

₉₀ Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights, 17 November 1988, O.A.S. Treaty Series No. 69 (1988), Basic Documents Pertaining to Human Rights in the Inter-American System, Doc. OEA/Ser.L.V/II.82 doc.6 rev.1 at 67 (1992) (entered into force on 16 November 1999).

₉₁ ADRDM, supra note 5.

₉₂ Inter-American Court on Human Rights, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 (14 July 1989) at paras. 35-45; Inter-American Commission on Human Rights, James Terry Roach and Jay Pinkerton (United States), Resolution no. 3/87, Case 9647 (22 September 1987) at paras. 46-49; Inter-American Commission on Human Rights, Rafael Ferrer-Mazorra et al. (United States), Report 51/01, Case 9903 (4 April 2001) at para. 171; Statute of the Inter-American Commission on Human Rights (approved by Resolution no. 447 of the General Assembly of the Organization of American States, October 1979) at art. 20.

₉₃ Inter-American Commission on Human Rights, Grand Chief Michael Mitchell (Canada), Report no. 74/03, Petition 790/01 (22 October 2003) at para. 30.

₉₄ Ibid.

₉₅ Ibid. at para. 31.

₉₆ Actually, a necessary “in-between” step is to determine whether Canada introduced a unilateral statement (reservation or statement of understanding) to any of the human rights instruments identified in section 1 that would limit Canadian international obligations. See Vienna Convention, supra note 87 at arts. 19-23. When becoming a state party to the CRC, Canada only entered two reservations (detention of young offenders along with adult offenders and Aboriginal customary adoption) and one statement of understanding (Aboriginal rights). Canada did not enter any reservation or statement of understanding when accessing the ICESCR. With respect to the ICCPR, Canada objected a reservation made by the government of Maldives and made a declaration recognizing the competence of the Human Rights Committee. See Office of the United Nations High Commissioner for Human Rights, United Nations Treaty Collection, <http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en>.

₉₇ van Ert, Gibran, Using International Law in Canadian Courts, 2nd edition (Toronto: Irwin Law, 2008) at 3.Google Scholar

₉₈ Ibid. at 150 and 163.

₉₉ Canada, Standing Senate Committee on Human Rights, Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children (November 2005) at 35, Parliament of Canada <http://www.parl.gc.ca/38/1/parlbus/commbus/senate/com-e/huma-e/rep-e/rep19nov05-e.htm>; Elizabeth Eid, “Interaction between International and Domestic Human Rights Law: A Canadian Perspective,” paper presented at the Sino-Canadian International Conference on the Ratification and Implementation of Human Rights Covenants: Beijing, China, October 2001, at 2-3, International Centre for Criminal Law Reform and Criminal Justice Policy <http://www.icclr.law.ubc.ca/Publications/Reports/E-Eid.PDF>.

₁₀₀ Constitution Act, 1867 (U.K.) 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5 at ss. 91-92. Donald Fleming and John McEvoy contend that the principle of pacta sunt servanda also applies to the provinces: “[I]t is wrong, in our view, to consider that only federal Canada is obliged to international human rights obligations to which the provinces have agreed to bind themselves. In such cases, the provinces (and territories) are also subject to the pacta sunt servanda principle.” Fleming, Donald J. and McEvoy, John P., “Domestic Implementation of Canada’s International Human Rights Obligations,” in Fitzgerald, Oonagh E., eds., The Globalized Rule of Law: Relationships between International and Domestic Law (Toronto: Irwin Law, 2006) at 542.Google Scholar

₁₀₁ Eid, Elizabeth and Hamboyan, Hoori “Implementation by Canada of Its International Human Rights Treaty Obligations: Making Sense Out of the Nonsensical,” in Fitzgerald, , supra note 100 at 451.Google Scholar

₁₀₂ For a more comprehensive list, see De Mestral, Armand and Fox-Decent, Evan, “Implementation and Reception: The Congeniality of Canada’s Legal Order to International Law,” in Fitzgerald, , supra note 100 at 42–56.Google Scholar

₁₀₃ An Act in Respect of Criminal Justice for Young Persons and to Amend and Repeal Other Acts, S.C. 2002, c. 1.

₁₀₄ Eid and Hamboyan, supra note 101 at 455.

₁₀₅ Ibid. at 451–52; van Ert, supra note 97 at 234, 246, and 249.

₁₀₆ Fleming and McEvoy, supra note 100 at 527.

₁₀₇ “Prior to accession [to the ICCPR and the ICESCR] the federal government obtained the agreement of the provinces, all of whom undertook to take measures for implementation of the Covenants in their respective jurisdiction,” Re Public Service Employee Relations Act (Alberta) [1987] 1 S.C.R. 313 at para. 61.

₁₀₈ Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 69 [Baker].

₁₀₉ Ibid. at para. 70. See Brunnée, Jutta and Toope, Stephen J., “A Hesitant Embrace: The Application of International Law by Canadian Courts” (2002) 49 C.Y.I.L. 3 at 5.Google Scholar

₁₁₀ Baker, supra note 108 at para. 75

₁₁₁ Ibid. at para. 80.

₁₁₂ Freeman, Mark and van Ert, Gibran, International Human Rights Law (Toronto: Irwin Law, 2004) at 165.Google Scholar

₁₁₃ Idahosa v. Canada (Public Safety and Emergency Preparedness), 2007 FC 1200 (T.D.) at para. 25; Okoloubu v. Canada (Minister of Citizenship and Immigration), 2007 FC 1069 (T.D.) at para. 9; Lennox and Addington Famiy and Children’s Services v. T.S., (2000) 6 R.F.L. (5th) 331 at para. 23; Paterson v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 139 (T.D.) at para. 17; Holder v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. 956 (T.D.) at para. 5; Suresh v. Canada (Minister of Citizenship and Immigration), [ 1999] F.C.J 865 (T.D.) at para. 44; Strachan v. Canada (Minister of Citizenship and Immigration), [ 1998] F.C.J. No. 1715 (T.D.) at para. 9; R. v. James, [1998] O.J. No. 1438 at para. 10; Baker v. Canada (Minister of Citizenship and Immigration), [ 1996] F.C.J. 1570 (C.A.) at paras. 18 and 40; Baker v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. 1441 (T.D.) at para. 39; Langner v. Canada (Minister of Employment and Immigration), [1995] F.C.J. 469 (C.A.) at para. 11. In comparison, see R. v. Sharpe, [1999] B.C.J. 1555 (C.A.) at para. 236 (J. McEachern dissenting); R. v. B.M., [1998] O.J. No. 3398 at paras. 8 and 21.

₁₁₄ Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

₁₁₅ Canada, Standing Senate Committee on Human Rights, supra note 99 at 4, see also 43–44 and 62–63.

₁₁₆ Ibid. at 63. See also Eid, supra note 99 at 4–5.

₁₁₇ Canada, Initial Reports of States Parties Due in 1994: Canada, 28 July 1994, Doc. CRC/C/ 11/Add.3 at para. 1, Office of the United Nations High Commissioner for Human Rights, <http://www2.ohchr.org/english/bodies/crc/past02.htm#9>.

₁₁₈ Canada, Second Periodic Reports of States Parties Due in 1999: Canada, 12 March 2003, Doc. CRC/C/83/Add.6 at para. 7, Committee on the Rights of the Child <http://www2.ohchr.org/english/bodies/crc/past.htm#34>. The third and four reports were due on 11 January 2009, Canadian Heritage <http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/995a15056ca61d16c1256df000310995/$FILE/G0344648.pdf>.

₁₁₉ Eid and Hamboyan, supra note 101 at 461.

₁₂₀ Forsythe, David, “Human Rights, The United States and The Organization of American States” (1991) 13 Hum. Rights Q. 66 at 76–77.CrossRefGoogle Scholar

₁₂₁ Inter-American Court on Human Rights, supra note 92.

₁₂₂ Canada, Standing Senate Committee on Human Rights, Enhancing Canada’s Role in the OAS: Canadian Adherence to the American Convention on Human Rights (May 2003) at 134, Parliament of Canada <http://www.parl.gc.ca/37/2/parlbus/commbus/senate/com-e/huma-e/rep-e/rep04may03-e.htm>.

₁₂₃ Ikejiani Ebele Okoloubu v. The Minister of Citizenship and Immigration, 2007 FC 1069 (T.D.) at para. 6: “The American Declaration on the Rights and Duties of Men, which actually precedes the Covenant [ICCPR], is not in fact a treaty.”

₁₂₄ Oumou Diakité v. The Minister of Citizenship and Immigration and of Public Safety and Emerrgenicy Preparedness, 2009 FC 165 (T.D.) at para. 1: Shore J. found that the ADRDM imposed a persuasive interpretation on the court to take into account the best interests of the child and that “[t]he principles and obligations should be considered while making a decision in this case.” See, e.g., Jeanne Mauricette v. the Minister of Public Safety and Emergency Preparedness, 2008 FC 420 at para. 27

₁₂₅ Contra Ahani v. Canada (A.G.) (2002), 58 O.R. (3d) 107 (C.A.) at paras. 16 and 31 : “Although Canada is a Party to the Covenant [ICCPR] and to the Protocol [Optional Protocol to the ICCPR], it has not incorporated either into its domestic law”: “Canada has never incorporated either the Covenant or the Protocol into Canadian law by implementing legislation. Absent implementing legislation, neither has any legal effect in Canada” (respectively). However, Rosenberg J. was in dissent in this decision, relying on Articles 26 and 27 of the Vienna Convention (instead of on the convention being implicitly implemented), and he noted that “[t]he federal government has undertaken to perform this Covenant in good faith. It has also undertaken not to invoke the provision of its internal law as justification for failure to perform.” Ibid. at para. 70. He was referring here to the requisite of domestic implementation of international treaties for them having legal effect within Canada.

₁₂₆ Brunnée and Toope, supra note 109 at 6-7. Regarding non-ratified treaties, signatories states still have the obligation not to defeat the object and purpose of the treaty. Vienna Convention, supra note 87 at art. 18(1).

₁₂₇ Brunnée and Toope, supra note 109 at 27; Attorney General for Canada v. Attorney General for Ontario, [1937] A.C. 326 (P.C.) at 347.

₁₂₈ CESCR, General Comment 9 on the Domestic Application of the Covenant, 3 December 1998, at para. 4, Office of the High Commissioner for Human Rights, <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4ceb75c5492497d9802566d500516036?Opendocument> [General Comment 9].

₁₂₉ Statute of the International Court of Justice, annexed to the Charter of the United Nations, 26 June 1945, Can. T. S. 1945/7 at art. 38(1). Brunnée and Toope, supra note 109 at 12, note that general principles of law are rarely argued before Canadian courts.

₁₃₀ The Human Rights Committee, when regulating the matters that could be entered as reservations by states parties to the ICCPR and its protocols, identified some provisions in the covenant that represent customary international law. Human Rights Committee, General Comment 24 on Issues Relating to Reservations Made Upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations under Article 41 of the Covenant, 4 November 1994, at paras. 8-9, Office of the High Commissioner for Human Rights, <http://www2.ohchr.org/english/bodies/hrc/comments.htm>.

₁₃₁ In Francis (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration, [1998] O.J. No. 1791 at para. 10, McNeely J. seems to suggest that the CRC could be considered part of international customary law: “Since fundamental justice like natural justice is not the creation of any particular national judicial system, the United Nations Convention on the Rights of the Child may be looked at. This convention does not purport to create rights but to declare them. Its ratification by so many countries including Canada suggests that the rights declared therein are consistent with the views of justice in the adopting countries.”

₁₃₂ Brunnée and Toope, supra note 109 at 15.

₁₃₃ See De Lorenzi, Mariana and Pinero, Verónica, “Assisted Human Reproduction Offspring and the Fundamental Right to Identity: the Recognition of the Right to Know One’s Origins under the European Convention on Human Rights” (2009) 6(1) Personalized Medicine 79.Google Scholar

₁₃₄ Baker, supra note 108 at para. 75

₁₃₅ Young v. Young, [1993] 4 S.C.R. 3 at para. 91 [Young]. L’Heureux-Dubé J. held a similar position in P.(D.) v. S.(C)., [1993] 4 S.C.R. 141 at para. 101 (this time for the majority).

₁₃₆ Young, supra note 135 at para. 95.

₁₃₇ V.W. v. D.S., [1996] 2 S.C.R. 108 at para. 76.

₁₃₈ Ibid.

₁₃₉ Gordon v. Goertz, [1996] 2 S.C.R. 26 at 87.

₁₄₀ Baker, supra note 108 at para. 75.

₁₄₁ Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 at para. 9 [Canadian Foundation]. Criminal Code, R.S.C. 1985, c. C-46, s. 264.

₁₄₂ Canadian Foundation, supra note 141 at para. 10.

₁₄₃ Ibid. Actually, the latter formulation belongs to the Declaration of the Rights of the Child: “[T]he best interests of the child shall be the paramount consideration.” Declaration of the Rights of the Child, 20 November 1959, UNGA Resolution 1386(XIV) at principle 2.

₁₄₄ Canadian Foundation, supra note 141 at para. 9. See Khadr v. Canada (Prime Minister), 2009 FC 405 (T.D.) at para. 73. In the R. v. D.B., 2008 SCC 25 at paras. 59-60, the Supreme Court of Canada found that the “presumption of diminished moral culpability for young persons is a long-standing legal principle. It is also a legal principle that finds expression in Canada’s international commitment [CRC].”

₁₄₅ Canadian Foundation, supra note 141 at para. 10.

₁₄₆ Royal Commission on New Reproductive Technologies, Proceed with Care: Final Report (Ottawa: Minister of Government Services Canada, 1993).

₁₄₇ House of Commons, Standing Committee on Health, Assisted Human Reproduction: Building Families (December 2001), Parliament of Canada <http://www2.parl.gc.ca/content/hoc/Committee/371/HEAL/Reports/RP1032041/healrp02/healrp02-e.pdf>.

₁₄₈ Bill C-47, Human Reproductive and Genetic Technologies Act, 2nd Sess., 35th Parl., 1996; Bill C-56, Act Respecting Human Assisted Reproduction, 1 st Sess., 37th Parl., 2002; Bill C-13, Act Respecting Assisted Human Reproduction, 2nd Sess., 37th Parl., 2002; Bill C-6, Act Respecting Assisted Human Reproductive Technologies and Related Research. 3rd Sess., 37th Parl., 2004.

₁₄₉ Assisted Human Reproduction Act, supra note 3.

₁₅₀ Van Ert discusses the Canadian leading cases on the presumption of observance of international law as a judicial policy chronologically. Van Ert, supra note 97 at 139–59.

₁₅₁ Bill C-47, Human Reproductive and Genetic Technologies Act, 2nd Sess., 35th Parl., 1996.

₁₅₂ House of Commons, supra note 147.

₁₅₃ Ibid. at 21.

₁₅₄ Ibid. at 38 (Recommendation 19.a). This report had four dissenting minority reports.

₁₅₅ Ibid. at 81.

₁₅₆ Ibid. at 22.

₁₅₇ Bill C-56, Act Respecting Human Assisted Reproduction, 1st Sess., 37th Parl., 2002.

₁₅₈ House of Commons Debates (21 May 2002) at 11528, 11572 (Hon. Rob Merrifield); House of Commons Debates (21 May 2002) at 11530, 11534 (Hon. Réal Ménard); House of Commons Debates (21 May 2002) at 11540 (Hon. André Bachand); House of Commons Debates (21 May 2002) at 11545 (Hon. Paul Szabo); House of Commons Debates (21 May 2002) at 11547–11548 (Hon. Diane Ablonczy); House of Commons Debates (21 May 2002) at 11548 [Hon. Betty Hinton]; House of Commons Debates (21 May 2002) at 11570 [Hon. Reg Alcock]; House of Commons Debates (21 May 2002) at 11572 [Hon. Bev Desjarlais]; House of Commons Debates (21 May 2002) at 11572 [Hon. Reg Alcock]; House of Commons Debates (21 May 2002) at 11575, 11579 [Hon. James Lunney]; House of Commons Debates (21 May 2002) at 11579 [Hon. Joe Comartin]; House of Commons Debates (22 May 2002) at 11607 [Hon. Gary Lunn]; House of Commons Debates (22 May 2002) at 11610 [Hon. Larry Spencer]; House of Commons Debates (22 May 2002) at 11616 [Hon. Gurmant Grewal]; House of Commons Debates (24 May 2002) at 11727 [Hon. Ken Epp]; House of Commons Debates (27 May 2002) at 11739, 11749 [Hon. Reed Elley]; House of Commons Debates (27 May 2002) at 11743 [Hon. Jim Gouk].

₁₅₉ House of Commons Debates (27 May 2002) at 11771 [Hon. Rahim Jaffer].

₁₆₀ Canada, House of Commons Standing Committee on Health, Evidence (30 May 2002); Canada, House of Commons Standing Committee on Health, Evidence (12 June 2002); Canada, House of Commons Standing Committee on Health, Evidence ( 13 June 2002).

₁₆₁ Canada, House of Commons Standing Committee on Health, Evidence (30 May 2002); Canada, House of Commons Standing Committee on Health, Evidence (12 June 2002).

₁₆₂ Bill C-13, Act Respecting Assisted Human Reproduction, 2nd Sess., 37th Parl., 2002. On 12 December 2002, when the bill was reprinted as amended by the Standing Committee on Health, the title of the bill was changed into the Act Respecting Assisted Human Reproductive Technologies and Related Research.

₁₆₃ Canada, House of Commons Standing Committee on Health, Evidence (21 November 2002) (George Radwanski). Jennifer Stoddart, current Privacy Com-missioner of Canada, reversed this position and held that “donors should have the right to control access to their identities, except in specific circumstances that raise health or safety concerns.” Standing Senate Committee on Social Affairs, Science and Technology, Bill C-6, Act Respecting Assisted Human Reproduction and Related Research (3 March 2004) at 3:17.

Suzi Leather, chair of the Human Fertilisation and Embryology Authority of the United Kingdom, presented an argument similar to Radwanski’s. According to her, “there should be a move toward the removal of donor anonymity.” However, this should not applied retroactively. Canada, House of Commons Standing Committee on Health, Evidence (2 December 2002, morning meeting) (Suzi Leather). See also Olivia Pratten’s and Barry Stevens’ testimonies (assisted human reproduction offspring): Canada, House of Commons Standing Committee on Health, Evidence (2 December 2002, afternoon meeting).

₁₆₄ Canada, House of Commons Standing Committee on Health, Evidence (20 November 2002).

₁₆₅ Bill C-13, An Act Respecting Assisted Human Reproductive Technologies and Related Research, 2nd Sess., 37th Parl., 2002 (reprinted on 12 December 2002) at clause 2.

₁₆₆ Canada, House of Commons Standing Committee on Health, Evidence (3 December 2002, afternoon meeting) (Hon. Yolande Thibeault).

₁₆₇ Bill C-13, supra note 165 at clause 18(3).

₁₆₈ The proposed amendment read: “Despite subsection (3), the identity of a donor referred to in that subsection shall be disclosed to any person conceived by means of an assisted reproduction procedure and to any descendant of a person so conceived upon application by the person or descendant at any time after they have attained the age of 18 years. Canada, House of Commons Standing Committee on Health, Evidence (9 December 2002, morning meeting) (Hon. Rob Merrifield).

₁₆₉ Canada, House of Commons Standing Committee on Health, Evidence (9 December 2002, morning meeting) (Hon. Glenn Rivard).

₁₇₀ Canada, House of Commons Standing Committee on Health, Evidence (9 December 2002, afternoon meeting). There was an attempt to re-examine the vote on that amendment the following day since its text was available only in English; yet this was unsuccessful. Canada, House of Commons Standing Committee on Health, Evidence (10 December 2002, morning and afternoon meetings) (Hon. Réal Ménard).

₁₇₁ House of Commons Debates (28 October 2003) at 8882.

₁₇₂ Pursuant to the order made on 10 February 2004, Bill C-6 (previously Bill C-13, 2nd Session, 37th Parliament) was deemed to have been read the second time in the House of Commons and referred to a committee, reported with amendments, concurred in at the report stage, and read the third time and passed to the Senate; House of Commons Debates (10 February 2004). In the Senate, the bill received its first and second reading and was referred to the committee. Senate Debates (11 February 2004) at 130; and Senate Debates (13 February 2004) at 187.

₁₇₃ Bill C-6, An Act respecting assisted human reproduction and related research (3 March 2004), 3rd Sess., 37th Parl., at 3:5.

₁₇₄ Ibid. at 3:6.

₁₇₅ Ibid. at 3:9.

₁₇₆ R v. Hape, 2007 SCC 26 at para. 53.

₁₇₇ Ibid., at para. 15. On the notion of states parties’ violations to the right to health and determining which actions or omissions amount to a violation of this right, see General Comment 14, supra note 17 at part III.

₁₇₈ Human Rights Committee, General Comment 31 on the Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 26 May 2004, at para. 13, Office of the High Commissioner for Human Rights, <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.21.Rev.1.Add.13.En?Opendocument>.

₁₇₉ Assisted Human Reproduction Act, supra note 3.

₁₈₀ Canada, Standing Senate Committee on Human Rights, supra note 99 at 68. Rishmawi, supra note 28 at 24, notes that “the CRC Committee if of the view that, in the event of a conflict between the CRC and national legislation or practice, the Convention should prevail. This is based on Article 27 of the Vienna Convention on the Law of Treaties.”

₁₈₁ Canada, Standing Senate Committee on Human Rights, Children: The Silenced Citizens. Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, Final Report of the Standing Senate Committee on Human Rights (April 2007) at 113, Parliament of Canada <http://www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/huma-e/rep-e/rep10apr07-e.htm> [emphasis added]. Accordingly, the committee recommended that “federal-provincial-territorial negotiations on adoption proposed in Recommendation 10 should include consideration of access to a biological parent’s identity and of the benefits of identity disclosure vetos. The Committee also recommends that Assisted Human Reproduction Canada review the legal and regulatory regime surrounding sperm donor identity and access to a donor’s medical history to determine how the best interests of the child can better be served” (at 115).

₁₈₂ Giroux, Michelle, “Le droit fondamental de connaître ses origines biologiques,” in Collins, Tara et al, eds., Droits de l’enfant. Actes de la Conférence internationale / Ottawa 2007. Rights of the Child. Proceedings of the International Conference / Ottawa 2007 (Montreal: Wilson and Lafleur, 2008) at 371.Google Scholar

₁₈₃ Freeman and van Ert, supra note 112 at 35. See also Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (12 July 1993) at para. 5 (adopted at the World Conference on Human Rights): “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.”

₁₈₄ Assisted Human Reproduction Act, supra note 3 at s. 2 (a) [emphasis added].