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Canadian Law and Assisted Human Reproduction: A History and Current Challenges

Osgoode Health Law Association: Perspectives in Health

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Over the past few decades, assisted human reproduction has undergone significant developments in Canada.  Increases in technology have led to incredible developments, such as embryonic cloning and in vitro fertilization (IVF), resulting in a growth of study in assisted reproduction policy.  In 2004, the federal government passed the Assisted Human Reproduction Act (AHRA) to help address the various social and ethical issues surrounding the practice of assisted human reproduction.  Although this Act was recognized as one of the most comprehensive frameworks in the world, constitutional challenges have cast a shadow on its reputation. Consequently, the resulting judicial outcomes have caused confusion when it comes to the landscape of assisted reproduction.

 

In 2004, the AHRA banned a variety of activities, from human cloning to payment for surrogacy, and regulations were outlined for donor consent, licensing, and genetic record storage.  The Act also produced “Assisted Human Reproduction Canada,” a federal agency responsible for broad regulatory powers. This Act was enforced as a response to the Royal Commission’s recommendations in 1993 to provide a continuing response towards evolving technologies. However, there were immediate concerns that certain provisions, like embryonic cloning, compensation for sperm donation, and surrogacy, negatively affected an individual’s Charter rights to liberty and equality. This specific issue has not yet been challenged, but rather, challenges to the AHRA have revolved around the division of powers. Sections 91 and 92 of the Constitution Act, 1867 outline the heads of power through which both the federal and provincial levels of government may legislate.  The wording, however, is broad and consists of general terms, resulting in inevitable conflicts, in particular when dealing with issues surrounding health care. In general, health care is considered to be a provincial jurisdictional issue, but there is no explicit mention of assisted human reproduction technology in the Constitution.  Rather, there is considerable overlap within the Act. For example, prohibitions on human cloning or payment for surrogacy fall within criminal law, which is a federal jurisdictional power under s. 91(27). The AHRA was a national centralizing strategy adopted by the federal government, which led certain provinces like Quebec to challenge its constitutionality on the grounds that Parliament did not have jurisdiction over parts of the law dealing with certain issues. These issues included matters such as the treatment for infertility on a national level.

 

In 2008, the Quebec Court of Appeal ruled in favour of Quebec, outlining that certain parts of the law were unconstitutional because they violated the 130-year status quo of the right of provinces to regulate health care. The federal government appealed, and in 2010 in the Reference re Assisted Human Reproduction Act case, the Supreme Court of Canada delivered a split decision. The court upheld a considerable amount of the Court of Appeal’s ruling, confirming the right of provinces to regulate health care, which included fertility clinics. The Court, however, claimed that Parliament was within its jurisdiction to ban human cloning and regulate the payment of fees for gamete donation.

 

Former Chief Justice McLachlin and three other justices would have upheld the entire Act. She accepted the federal government’s claim that the dominant purpose was to “prohibit practices that would undercut moral values, produce public health evils, and threaten the security” of individuals interacting with any forms of assisted reproduction. She classified the regulatory provisions as “ancillary” to the criminal prohibitions and that they were essential to achieve the Act’s criminal purpose. Justices LeBel and Deschamps (joined by two other justices) ruled in favour of the provinces and decided that the regulatory provisions had the purpose of encouraging a public good rather than eliminating an evil. They established that the criminal prohibitions did not rely on the regulatory scheme. As a result, they were of the belief that all of the Act’s regulations should be struck down. They maintained that the criminal prohibitions were a valid exercise of Parliament’s jurisdiction over criminal law. Lastly, Justice Cromwell delivered the tie-breaking vote, concurring with LeBel and Deschamps. He determined that the majority of the regulations violated provincial jurisdiction over health care, as the purpose of the Act was “the regulation of virtually every aspect of research and clinical practice in relation to assisted human reproduction.”

 

Although this judgment resulted in a win for the provinces, it still left Canada divided in its opinions. Generally, those who prefer a “national framework” to assisted reproduction remain disappointed as a result of the Supreme Court’s decision because the provinces now have complete authority to control their research pertaining to the storage of human reproductive material, as well as the licensing and oversight of fertility clinics. However, one cannot deny that there is good reason to provide our provinces with a certain degree of autonomy, especially relating to a matter that impacts so many Canadian families. It cannot be assumed that a ‘federal framework’ would automatically bring more justice for our citizens as opposed to a provincial one. This further justifies why our Former Chief Justice’s attempt to uphold the federal regulatory framework was ultimately unsuccessful pertaining to the issue at hand.

 

One potential concern that may arise with the implementation of the provincial framework could be the resulting variation in provincial decision-making. For instance, a province like Quebec will continue to both regulate and partially fund IVF procedures, whereas other provinces will not. However, it is important to note that the variation in decisions do not necessarily justify marking this as a ‘rash conclusion.’ Individual provinces are not necessarily deciding incorrectly. Inevitably, the field of reproductive law, specifically assisted human reproduction, is still growing and evolving. By allowing our provinces to treat this matter on an individual basis with a degree of deference, we are allowing this growing field of law to evolve consistently with the new procedures that come forth to enhance assisted human reproduction. There is no doubt that the future of Canadian policy on assisted reproduction technology remains unknown at this time. However, Canadian citizens can be assured that the enforced decisions on this matter will be used to better accommodate their desires and well-being on a nation-wide level, even if the provinces themselves are giving the ability to enforce their respective decisions.

 

This article was written by Nareesa Nathoo, who received her BHSc (Honours), with an honours specialization in rehabilitation sciences from the School of Health Studies at Western University, and Neda Foroughian who received her BSc in Chemistry, with a thesis that focused on the formation of liquid crystal compounds from Wilfrid Laurier University.

 

This article is part of the Osgoode Health Law Association’s Perspectives in Health column. Keep up to date with the HLA on Facebook (Osgoode Health Law Association, Osgoode Health Law Association Forum) and Twitter (@OsgoodeHLA).

 

If you would like to write with the Osgoode HLA, please contact Adrienne Shnier (AdrienneShnier2016@osgoode.yorku.ca).