Canada is one of the few United Nations member states that ‘does not have a constitutionally protected right to a healthy environment.’
As the year draws to an end, we highlight some non-fiction by regional writers in 2022. In today’s excerpt from Fertility, 40 Years of Change, Maureen McTeer warns of the growing global environmental problems leading to sterility and infertility.
In all the discussions of how to regulate fertility clinics, to ensure the safe and effective use of reproductive technologies, and the ways in which we can regulate research on IVF-created human embryos, there is precious little real discussion about, and funding of, the prevention of infertility and sterility in the first place.
Even though social factors, like the decision of many women to delay childbearing into their late thirties, play a role in reducing individual fertility, environmental factors also contribute a great deal to the growing problems leading to infertility and sterility.
One concern is the increase of genital, sperm, and related abnormalities in both animals and humans, caused by chemicals and pollutants of all kinds that are all around us: in the products we use; the air we breathe; the ground in which we grow our food; and the water we drink, bathe, and swim in each day. Some of the most vicious of these are “endocrine disruptors,” which mimic the body’s hormones.
These can seriously affect the developing fetus, whose sexual differentiation occurs early in pregnancy. The World Health Organization’s definition of an endocrine disruptor, which has been adopted by the Organisation for Economic Co-Operation and Development, is frightening: “An endocrine disruptor is an exogenous substance or mixture that alters function(s) of the endocrine system and consequently causes adverse health effects in an intact organism, or its progeny, or (sub) populations.”
This class of chemicals increasingly affects human reproductive systems. According to one leading reproductive health scholar, “from 1973 to 2011, the sperm count of average men in Western countries had fallen by 59 per cent.”
Few countries have acted to ban this class of chemicals and others that are in products that are used every day. Canada recently sought to join the European Union by introducing legislation to regulate this and other classes of these disruptive chemicals. This Bill was introduced after more than a decade of work within federal government departments to address the problem. The Science Committee of the Chemicals Management Plan, established in 2013, later offered its scientific and policy advice on how the federal government could improve its identification and assessment mechanisms dealing with current and potential endocrine-disrupting chemicals. These high-level discussions on several fronts, including such aspects as international best practices and improved methodologies and data, coincided with increased expert and public concern about these types of pollutants and their impact on human health and the environment.
One of the more important recommendations coming from the high-level talks among various federal government departments was that the bureaucrats, scientists, and experts should act together in a respectful inter-disciplinary way, across and within the departments involved.
Parliament was seized of the experts’ reports, and on 15 June 2017, the Standing Committee on the Environment and Sustainable Development presented its report to the House of Commons. Four years later, on 13 April 2021, the federal government introduced Bill C-28 in the House of Commons, which received first reading, but died on the Order Paper with the call of the general election. If reintroduced in its current form in the new session of Parliament, the Bill will amend the Canadian Environmental Protection Act, 1999 (CEPA, 1999) to “recognize that every individual in Canada has a right to a healthy environment as provided by the Act.” At the moment, Canada is “among one of the few remaining United Nations member states that does not have a constitutionally protected right to a healthy environment.”
The proposed Bill would require the environment minister to “compile a list of substances that that Minister and the Minister of Health have reason to suspect are capable of becoming toxic or that have been determined to be capable of becoming toxic.”
As part of this process of determining actual or likely toxicity, and by using a public/population health lens, the health implications of these pollutants on the fertility of Canadians, and the healthy development of the embryo and fetus in utero, can be assessed. The health implications of the use of these toxic pollutants that contribute to human infertility and sterility, and that negatively affect the healthy development of the embryo and fetus in utero, need to be specific parts of that assessment.
Further, the Bill provides that “certain substances be classified as substances that pose the highest risk, based on, among other things, their properties or characteristics.” However, the requirement that those two ministers “give priority to the total, partial or conditional prohibition of activities in relation to toxic substances (that are specified in Part 1 of Schedule 1 of the Canadian Environmental Protection Act, 1999), or to the total, partial or conditional prohibition of releases of those substances into the environment,” could result in delays to implementation and enforcement.
Any delay in action adds to the problem, and after all these years of scientific and expert preparation, Canadians should expect the immediate introduction of the regulations and instruments that will prevent or control these toxic substances. The same should apply to the establishment of a right to a healthy environment. Otherwise, the right established under the proposed legislation would only exist once an implementation framework has been considered in the actual administration of CEPA, 1999, and only after more research, studies, or monitoring activities are conducted. This means it could take years before any right to a healthy environment is more than a mere proposal on paper.
Maureen McTeer is a leading advocate for gender equality in Canada. An expert in medical law and public policy, she served as an original member of the federal Royal Commission on New Reproductive Technologies and as a member of the Global Commission on Pollution, Health and Development. This article is excerpted with permission from Fertility: 40 Years of Change. © Delve Books, an imprint of Irwin Law Inc, 2022.
Addendum: Bill S-5, which would amend the Canadian Environmental Protection Act to “recognize that every individual in Canada has a right to a healthy environment,” was recently passed by the Senate. It is now at the committee stage in the House of Commons.
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