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ART regulation in Canada – birth much delayed

11 July 2011
By Professor Eric Blyth
Professor of Social Work, University of Huddersfield
Appeared in BioNews 615
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 Supreme Court upholds the views of the BC Supreme Court, all Canadian provinces will be compelled to prohibit donor anonymity. The more sobering take on this is that the establishment of effective regulation of assisted reproductive technology (ART) across the whole of Canada will be much delayed.

It is now 18 years since a Royal Commission appointed by the federal government produced a report recommending regulation of ART. The intervening period has seen several failed attempts by respective federal administrations to introduce legislation for the whole country (3). When such legislation, the Assisted Human Reproduction Act, eventually appeared in 2004, the provincial government of Québec complained that it encroached on the powers of Canada's provincial governments. In December 2010 the federal Supreme Court upheld much of the Québec government's claim and determined that significant elements of the Act were unconstitutional (4). Given that the Canadian federation has been in existence for more than 140 years, an impartial onlooker might have reasonably expected Canadian lawmakers - and especially their legal advisors - to have developed a more accurate sense of what was rightly the responsibility of the federal government and what was the provincial governments' remit. Be that as it may, very little of the Assisted Human Reproduction Act has ever been implemented, and the decisions of the two supreme courts seem set to push Canada's regulatory saga into its third decade.

The federal government is still considering the implications of the federal Supreme Court ruling for the fate both of its legislative intentions and of the federal regulatory body, Assisted Human Reproduction Canada. Since - like all western countries adversely affected by the 2008 global financial tsunami - the Canadian government is seeking to cut costs, this will doubtless include the rationalisation of government bodies through mergers and transfer of responsibilities. Given that flagship ART regulatory bodies in other jurisdictions have either been abolished, face abolition or have seen their functions significantly changed (for example the abolition of South Australia's Council on Reproductive Technology, the proposed abolition of the UK's Human Fertilisation and Embryology Authority and the redesignation of Victoria's Infertility Treatment Authority as the Victorian Assisted Reproductive Treatment Authority), it seems unlikely that Assisted Human Reproduction Canada will survive in anything like its current form, if at all.

Canada's troubled history in this field does not suggest that the prospects of Canadian federal and provincial lawmakers making the most of the current legal imbroglio are good. Until it does so, professionals working in the field, those seeking fertility treatment and others personally affected by ARTs, such as those who are born as a result of reproductive technologies, embryo and gamete donors and surrogates, will have to get by as best they can. They deserve much, much better from their elected representatives – as indeed do Canadian taxpayers more generally, who have had to foot the bill with very little to show for it.

While ART regulation is never going to be the top priority of any government, it can nevertheless be hoped that Canadian politicians will accept that they cannot risk the humiliation of getting it wrong again. The wish to avoid further embarrassment - if nothing else - might act as an incentive for federal and provincial lawmakers and their advisors to hammer out an effective regulatory framework that is fit for Canadians in the 21st century.

1) Blyth, E. and Crawshaw, M. (2011) 'Countdown begins for ending donor anonymity in British Columbia'
BioNews |  6 June 2011
2) Hall. N.  (2011) 'B.C. government appeals landmark sperm donor ruling'
The Vancouver Sun |  17 June 2011
3) Royal Commission on New Reproductive Technologies (1993) Proceed with care: final report of the Royal Commission on New reproductive technologies
Ottawa: Minister of Government Services Canada. |  20 May 2022
4) Supreme Court of Canada (2010) Reference re Assisted Human Reproduction Act 2010 SCC 61
Supreme Court of Canada |  22 December 2010
20 February 2012 - by Julianna Photopoulos 
Lawyers representing British Columbia's government were at the Canadian province's Court of Appeal last Tuesday attempting to overturn an earlier ruling which would effectively end anonymous gamete donation...
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....
17 January 2011 - by MacKenna Roberts 
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....
22 November 2010 - by Dr Juliet Guichon 
Last Tuesday, the embattled head of the Canadian federal assisted human reproduction agency, Assisted Human Reproduction Canada, returned to defend herself before a Parliamentary committee. This Parliamentary grilling was different from the one Dr Elinor Wilson experienced in June...
29 October 2010 - by Professor Eric Blyth 
As reported in BioNews on 25 October 2010 (1), Olivia Pratten, a 28-year old Toronto journalist who was conceived as a result of anonymous donor conception provided by a Vancouver physician, Dr Gerald Korn, is challenging the protection of donor anonymity in the Supreme Court of British Columbia. The Court agreed to hear the case despite claims made in September by lawyers acting for the Government of British Columbia that the physician's records have been destroyed, and despite an injunction...
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