Background Paper on Legal Status of Assisted Human Reproduction
The Library of Parliament’s Information and Research Service has released a background paper, “Legal Status at the Federal Level of Assisted Human Reproduction in Canada” [PDF] by Sonya Noris and Marlisa Tiedemann. The paper takes the reader though the recent history (1990 – present) of federal attempts at the regulation of this set of developing medical practices, culminating in a brief analysis of the Quebec constitutional challenge to the Assisted Human Reproduction Act culminating in the ambiguous / ambivalent response of the Supreme Court (4-4-1, so to speak) in Reference re Assisted Human Reproduction Act 2010 SCC 61.
According to the backgrounder, “the federal Minister of Health’s office simply noted that they would ‘take the necessary time to review the decision.'” Nothing has been forthcoming since that time, though it may be that the existence of the background paper bespeaks a revival of government interest. For, if the legal situation isn’t busy developing, the technology certainly will be, bringing with it trying ethical and legal questions.
Just to remind you about what that technology might entail, here’s a list of practices from the backgrounder that have at one time or another been forbidden or heavily frowned on:
- cloning of human embryos;
- commercial preconception or “surrogacy” arrangements;
- buying and selling of eggs, sperm and embryos;
- egg donation in exchange for in vitro fertilization services;
- germ-line genetic alteration (genetic alteration that can be passed to subsequent generations);
- ectogenesis (creation of an artificial womb);
- sex selection for non-medical purposes;
- creation of animal/human hybrids;
- retrieval of eggs from cadavers and fetuses for donation, fertilization or research;
- transfer of embryos between humans and another species;
- research on embryos beyond 14 days of development;
- creation of embryos solely for research purposes;
- use of human eggs, sperm or embryos for a reproductive procedure or for medical research without the informed consent of the donor; and
- offers to provide or pay for any prohibited practices.
The federal law was never an artful, well considered piece of legislation. Parts of the Act were never proclaimed, and now significant parts of it have been deemed outside the jurisdiction of the Federal government. The industry does a fair job of regulating itself, but if we are to have federal legislation, wouldn’t it be nice to have a piece of law that was well considered, thoughtful and reasonable?
I agree with Ms. Levitan. The AHRA was never a reasonable or realistic piece of legislation. The SCC Reference re AHRA decision gouged out large pieces of the legislation leaving the state of fertility law in Canada a huge question mark.
When the Baird Commission was appointed in 1989, our understanding of assisted reproductive technologies (ARTs) and our comfort with their use were very different than they are today, 23 years later. The Handmaid’s Tale-esque nightmare envisioned has not come to pass, and in recent times, we finally have empirical evidence to prove it. As stated by Justices Abella Lebel and Deschamps, “The purpose [of the AHRA] was not…to protect those who might resort to assisted human reproduction on the basis that it was inherently harmful. Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act, brings benefits to many Canadians.”
The AHRA is a mess. It’s time for new, clear and reasonable legislation based on the empirical evidence now available to us about the use of ARTs, instead of legislation based on a fear of the unknown.