Assisted Human Reproduction in Canada: a call to action

Friday, September 30, 2011

The Supreme Court of Canada, in its decision on the Assisted Human Reproduction Act released late last year, increased the potential for serious harm to women and children. In its decision, the Court struck down important provisions of the Assisted Human Reproduction Act, which attempted to regulate the use of reproductive technologies such as in vitro fertilization across the country. Asked to rule on the defensibility of the federal government’s intervention, the court decided that provincial jurisdiction over health care rendered the Act invalid.

We have a problem with that. Reproductive technology treatments are applied primarily to the bodies of women, even where they are being used to overcome male factor infertility. And the Supreme Court’s decision will almost certainly have a negative impact on both women using these technologies and on the children they bear.

The ruling has left an enormous gap in the regulation of reproductive technologies and left the door open for potential abuse. For example, the federal government can no longer standardize practices across the country, such as limit the number of embryos that can be implanted into a woman’s uterus. Yet the health risks to women and children arising from the implantation of multiple embryos are well-recognized. Indeed, a panel of experts commissioned by the Ontario government recently confirmed the severity of these, citing pre-eclampsia, gestational diabetes, anemia and premature labour as threats to the pregnant woman, and low birth weight and prematurity as risks to any resulting children.

Further, the Court’s ruling means that the federal government can no longer create an information registry for sperm and egg donors and the children conceived from donated materials. Such a registry is vital to ensuring that these children receive important genetic health information about their biological heritage. Family medical history is fundamental to the treatment of illness and disease: awareness of what diseases affected your genetic relatives influences prevention and therapeutic strategies for everything from heart disease and diabetes to breast cancer and arthritis. Unfortunately, the national registry contemplated in the Act, which would have ensured that children receive not only this information, but also personal data about the donor, was struck down.

The majority of the Supreme Court who wrote the decision have left vital aspects of the regulation of these technologies to provincial governments. This is deeply unfortunate. After the 1993 Royal Commission on Reproductive Technologies, it took more than a decade for protective legislation to be passed into law. The Court's decision almost certainly means that if and when replacement legislation is enacted at the provincial level, it will be a patchwork approach. Women and children in different provinces will be subject to different rules and will receive varying levels of protection. Indeed, some provinces may choose not to regulate the use of these technologies at all. Each province may set different requirements for the collection and disclosure of information. In one jurisdiction, a donor-conceived child may receive extensive information from her biological progenitor, while children born in identical circumstances elsewhere in Canada, may receive little or no information.

We understand and respect the principles of federalism and the division of powers between levels of government. However, at the end of the day, our federal government must bear responsibility for ensuring that it’s able to regulate and set national standards for important moral, ethical and public health issues.

The majority of the Supreme Court of Canada has weakened Canada’s ability to do this, and in doing so, has placed the health and safety of women and children using reproductive technologies in jeopardy. To date, Quebec is the only province who has enacted legislation in this are. We implore other provincial governments to respond as well. We urge them to regulate the use of reproductive technologies, and to co-ordinate their efforts to ensure consistency across Canada; the lives of Canadian women and their children are at stake.

Vanessa Gruben and Angela Cameron are both Professors at the University of Ottawa Faculty of Law
Designed by Rachel Gold.