Page URL:

Canadian court hands fertility regulation to provinces

17 January 2011
Appeared in BioNews 591

The Supreme Court of Canada has ruled that several key powers to regulate and licence fertility practices under Canada's Assisted Human Reproduction Act (the Act) should fall under provincial jurisdiction and are not a matter for federal government. Other powers, including the federal regulation of research on embryos, were upheld.

The Court held certain sections of the Act exceeded the legislative authority of Parliament, including many provisions governing the use of human reproductive material. But it upheld others prohibiting the use of reproductive material without consent and those that control the remuneration of sperm or egg donors for expenditures, not yet in force, as constitutional.

The full implications of the decision issued by a divided court are as yet unclear but some have regarded the decision as a victory for the Quebec province, which launched legal proceedings six years ago. The Attorney General of Quebec challenged the constitutional balance of the Act arguing the administration of healthcare practice and research, including IVF, was the domain of the provinces and as such the federal government had exceeded its competency and acted ultra vires (beyond its powers).

Canada's constitutional arrangements permit the federal government to legislate in areas of criminal law, under which some of the provisions of the Act were valid, but the Supreme Court ruled that other provisions did encroach on the jurisdiction of the provinces.

But because many provinces lack regulation for reproductive technologies, some experts anticipate gaps in the law causing problems. 'Many provinces haven't said very much at all about the regulation of reproductive technologies. It's quite possible that there will be a regulatory void in a number of provinces', said Dr Vanessa Gruben, an assistant professor of law from the University of Ottawa.

Journalist Tom Blackwell said in Canada’s National Post the: ‘decision is expected to breathe life into the assisted-reproduction law, which has sat virtually in limbo since it was passed in 2004. The agency it set up, Assisted Human Reproduction Canada, is supposed to police the industry but has done little of that, citing the fact that the government had not brought in detailed regulations to guide it. The government said it was waiting for the court’s decision before passing regulations’.

The split judgment from the Supreme Court is unlikely to provide definitive guidance on the matter to lower courts and others responsible for its implementation and enforcement. Some believe it is likely to generate greater confusion on the matter with there being a strong possibility the issue will continue to be battled out at the provincial level. However, until then, one expert speaking to BioNews anticipates that the status quo will remain intact.


Alberta fertility industry to remain unregulated
Calgary Herald |  4 January 2011
Court rules parts of Reproduction Act unconstitutional
Toronto Sun |  22 December 2010
Court ruling good for patients: doctor
Toronto Sun |  22 December 2010
Fertility facts
Vancouver Sun |  23 December 2010
Fertility industry hangs on ruling
National Post |  22 December 2010
Fertility ruling spawns new round of confusion
The Globe and Mail |  22 December 2010
Provinces given control of fertility industry
Vancouver Sun |  23 December 2010
Reference re Assisted Human Reproduction Act, 2010 SCC 61 (CanLII)
Canadian Legal Information Institute |  22 December 2010
11 July 2011 - by Professor Eric Blyth 
It is not so long since I applauded the decision of the Supreme Court of British Columbia (BC) for promoting the disclosure of the identity of gamete and embryo donors to their offspring [1]. News that the BC Attorney-General is appealing the judgment to the federal Supreme Court indicates that my enthusiasm was a case of premature elation [2]. The good news for those of us who believe that non-anonymous donation is the only ethical form of gamete and embryo donation is that if the federal Su...
6 June 2011 - by Professor Eric Blyth and Dr Marilyn Crawshaw 
The regulation of assisted human reproduction in Canada has had a long and tortuous history. Twenty one years after a Royal Commission appointed by the federal government recommended legislation (1), and following several failed attempts to get legislation through the Canadian parliament, the Assisted Human Reproduction Act 2004 came into force (2)...
23 May 2011 - by Sarah Pritchard 
Anonymous egg and sperm donation will no longer be permitted in British Columbia (BC), Canada, after a donor-conceived woman, Olivia Pratten, took the provincial government to court to argue that its adoption laws discriminated against individuals such as herself....
25 October 2010 - by Antony Starza-Allen 
A Canadian woman conceived through donor insemination has been allowed to bring legal action against the province of British Columbia to obtain information about her biological heritage, which may include the identity of the sperm donor involved....
21 June 2010 - by Dr Gabrielle Samuel 
A Canadian MP has suggested that Canada's fertility-industry watchdog, Assisted Human Reproduction Canada (AHRC) should be shut down because it is doing so little with its annual $10 million budget....
7 June 2010 - by Professor Jocelyn Downie 
In the past three months, three members of the Board of Directors of Assisted Human Reproduction Canada (AHRC) have resigned. This set of resignations is cause for serious concern and requires urgent attention from the federal Parliamentary Standing Committee on Health and Parliament itself....
to add a Comment.

By posting a comment you agree to abide by the BioNews terms and conditions

Syndicate this story - click here to enquire about using this story.