Assisted human reproduction and the law

An air of confusion surrounds Canada’s rules governing fertility issues, such as assisted human reproduction.

Although the federal government passed a law in 2004 that tackled a wide swath of the socially and ethically controversial issues surrounding reproduction, covering everything from human cloning to payment for sperm, the law hasn't lived up to expectations. 

Key parts have since been struck down and others were never clarified. The recent announcement that Ottawa plans to axe the regulatory body in charge of enforcing the law has created added uncertainty.

Sherry Levitan, a Toronto lawyer specializing in assisted reproductive technology, describes the assisted reproductive landscape as "very complicated." Others venture further, calling it "dysfunctional" and a "mess."

Enacted in March 2004, the Assisted Reproduction Act was the most comprehensive attempt to regulate assisted human reproduction in Canada.

The act came more than a decade after a Royal Commission debated reproductive technologies in 1993, touching on a quagmire of legal, social and ethical issues that included the exploitation of surrogates and the sale of sperm and eggs. It concluded there was an urgent need for boundaries in the field.

Challenging the law

In 2006 Assisted Human Reproduction Canada (AHRC), was created to administer a regulatory framework and enforce the law.

But before long, the Province of Quebec — with the support of Alberta, Saskatchewan and New Brunswick — launched a constitutional challenge of the Assisted Reproduction Act, arguing the federal government didn’t have jurisdiction on parts of the law dealing with issues such as treatment for infertility. 

Quebec, however, didn't have qualms with Ottawa legislating other parts, such as human cloning.

"Normally, health services, medical services, regulating the medical profession have for 130 years been the jurisdiction of the province," said Jocelyne Provost, a lawyer representing Quebec.

The Quebec Court of Appeal ruled in favour of the province in 2008, agreeing that parts of the law were unconstitutional because they violated the right of provinces to regulate health care. The federal government appealed.

The question of jurisdiction ended up before Canada’s highest court. In 2010, the Supreme Court of Canada released a 5-4 split decision.

The ruling upheld the right of provinces to regulate health care, including fertility clinics, but stated that Ottawa was within its jurisdiction in banning human cloning and regulating the payment of fees for gamete donation.

Essentially, the judgment cleared the way for provincial and territorial governments to re-examine their laws and regulations governing fertility. But the ruling left Ottawa with the right to determine what paid expenses will be allowable with respect to surrogacy, organ donation and sperm donation.

In fact, Levitan says one of the largest holes in current legislation surrounds expenses. It is forbidden to pay a surrogate or purchase eggs and sperm, but reimbursement of reasonable out-of-pocket expenses to a surrogate or gamete donor is allowed.

Part of the problem, she says, is regulations were never created to clarify limits on what is deemed an expense. "We just don’t know where the line is," says Levitan.

Beyond the issue of expenses, the law itself is not crystal clear and allows for a lot of "wiggle room," she says.

'No one is in charge'

While certain provisions in the Assisted Reproduction Act were ruled constitutional, they were not put into force. Health Canada, she says, was supposed to draft those sections and the regulatory agency was expected to roll them out.

But with the impending closure in early 2013 of the regulatory agency, Assisted Human Reproduction Canada, "no one is in charge of fertility regulation in Canada right now," says Levitan.

Critics of the regulatory agency say it was "easy prey" for a government looking to cut costs.

Françoise Baylis, a bio-ethicist at Dalhousie University who quit the agency’s board in early 2010, says she is not troubled by the agency's demise since it never was able to "do what it was created to do," but she laments the oversight gap it leaves.

Health Canada is slated to take over responsibility for the AHRC's functions such as compliance, enforcement and outreach.

But the agency's demise has some hoping for a re-assessment of fertility regulation in the country, which has been largely stagnant since the act’s creation.

"I think it’s actually a travesty that in Canada we have these criminal sanctions for people who are suffering infertility," Sara Cohen, a Toronto-based lawyer specializing in fertility law, told CBC Radio's The Current.

Cohen takes particular issue with the fact that both purchasing donor sperm and implanting a human fetus into a non-human are equally punishable with up to 10 years jail time.

She wants provisions that ban payment to surrogate mothers and/or to an agency arranging a surrogacy to be struck down, plus the sections banning payment for donor gametes.

"I don't think that they make sense any more," says Cohen. "We don’t have in Canada the ability to attract donors without any compensation."

Some argue that the core aim of the assisted human reproduction act is still valid.

"The point of the legislation is to stop exploitation, to stop the commodification of children and those important values that we ought to protect and that's what this legislation is doing," Dalhousie University's Françoise Baylis told The Current.