Pediatric research and the parens patriae jurisdiction in Canada and England

This paper considers the issue of enrolling non-autonomous minors as participants in pediatric research in light of two high court decisions concerning the sterilization of non-autonomous individuals in Canada and England. In particular, this paper looks at the 1986 case of Re Eve in which the Supreme Court of Canada found that sterilization of such persons under the parens patriae jurisdiction can be justified only if direct, therapeutic benefit to the person has been established. It is compared to the 1987 decision in Re B (a minor), in which the English Law Lords repudiated the Canadian decision and upheld the broader, traditional interpretation of the parens patriae jurisdiction which allowed best interests as justification for the non-therapeutic sterilization of non-autonomous persons. With reference to differences in the interpretations of the parens patriae jurisdiction by these two courts, it is suggested that until such time that the Canadian courts consider a case directly on point, pediatric researchers in that country must presume greater restrictions when enrolling non-autonomous subjects in research protocols than in countries such as England.