Divided Supreme Court Guts Assisted Human Reproduction Law

In 2004 Canada’s federal government enacted legislation intended to govern a burgeoning fertility industry. The Assisted Human Reproduction Act provided national standards and practices surrounding eggs, sperm and embryos, including rules forbidding payment for egg and sperm donors and surrogacy services. Other activities such as human cloning and sex selection were also banned and breaches of the legislation could lead to fines of up to $500,000 and ten years imprisonment.

Yesterday’s ruling from the Supreme Court of Canada began as a challenge from the Government of Quebec who argued that the federal government had overstepped its jurisdiction in making laws concerning medical matters.

Four Judges of the Supreme Court of Canada ruled that the present law should remain in place, while four others held that the law was unconstitutional, as it provided for medical issues which should be governed by the Provinces. The ninth Judge came down somewhere in the middle, finding that the federal legislation should continue to cover the criminal aspects of human reproduction while the medical issues should be controlled provincially.

So how does this decision affect Canadians? First of all, plans for a federal registry to collect health and genetic information from anonymous donors and track infants born in this manner will not proceed. The loss of a national agency means that it is possible that one sperm donor could “father” multiple children and those children could have intimate relationships with each other. As well, without a central registry it will be more difficult to monitor genetic diseases as a result of sibling marriage.

It is now up to each Province to decide how fertility clinics should operate, what research is permissible, how sperm and egg donations should be used or stored and how many embryos should be transferred to a prospective mother.

Critics say that patchwork legislation or provinces with no legislation will only contribute to “fertility tourism” which is now rampant in the United States and India.

Lawdiva aka Georgialee Lang

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