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Reproductive laws remain in limbo

|Written By Robert Todd

While legal experts continue to debate the merits of the Supreme Court of Canada’s contentious decision in a reference case on the Assisted Human Reproduction Act, many people agree that it deals with a topic of increasing importance to Canadian society.

‘Criminalizing payment, all it does is it forces people underground,’ says Shirley Levitan

In Reference re Assisted Human Reproduction Act, the top court had the task of issuing a constitutional ruling on the federal legislation passed in 2004. The Assisted Human Reproduction Act was the result of a long process of study and consultation that began with the 1989 establishment of the Royal Commission on New Reproductive Technologies led by geneticist Patricia Baird.

Quebec’s attorney general challenged the constitutionality of various parts of the act and sought a reference decision from the Quebec Court of Appeal.

The provincial government claimed that various sections of the act attempted to regulate the entire sector of medical practice and research toward assisted reproduction and was thereby ultra vires the federal government. The Quebec Court of Appeal agreed.

The case proved contentious at the Supreme Court of Canada, where Chief Justice Beverley McLachlin noted the importance of the issue.

“Every generation faces unique moral issues,” she wrote. “And historically, every generation has turned to the criminal law to address them. Among the most important moral issues faced by this generation are questions arising from technologically assisted reproduction — the artificial creation of human life.”

McLachlin went on to note in her reasons that modern fertility techniques also raise important religious and juridical questions.

“The new questions do not fit neatly within the traditional legal frameworks that have developed in a world of natural conception,” wrote McLachlin.

“These challenges have opened a dialogue between ethicists, religious leaders, and the public. Different people have taken different moral views on the issues.

Fears have been expressed as to the possibility that some may abuse the new techniques in ways that might damage individuals — both existing and yet to be conceived — and ultimately society. Traditional criminal law imposed no obvious restraints and offered no clear answers to these questions.”

McLachlin, along with justices Ian Binnie, Morris Fish, and Louise Charron, went on to rule that the legislation is valid criminal law. But justices Louis LeBel and Marie Deschamps were joined by justices Rosalie Abella and Marshall Rothstein in ruling that the entire legislation should be ruled invalid because the provisions in question were, in pith and substance, related to health law.

With that 4-4 split, it fell to Justice Thomas Cromwell to issue a deciding opinion, and he ruled largely in favour of the Quebec government’s view of the issue.

Shirley Levitan, a partner at Dickson MacGregor Appell LLP, says there’s little indication at this point as to how the top court’s reference case will influence the government’s adjusted approach to the legislation.

She says rumours have swirled that the government had put together regulations for s. 12 of the act, which deals with the expenses payable to a surrogate or a donor, prior to the top court’s ruling. She says it appeared that the expenses would be very narrowly defined, but that remains speculation at this point.

“The feds have to go back to the drawing board,” says Levitan. “They’re going to have to rewrite all of those sections.”

Meanwhile, there may still be some confusion among health-care practitioners and patients in terms of what types of fertility procedures are permitted.

“People are still doing it,” Levitan says. “There’s always this looming fear that it will be further shut down. It’s a huge issue, and fertility is a huge issue that isn’t really discussed frequently or very openly because it’s very private and very painful.”

Meanwhile, Levitan says she’s disheartened by the fact that the case seems to indicate a view held by the Supreme Court judges that it’s up to Parliament to legislate morality.

“Who sets that standard?” she asks. “Who’s responsible to set that standard? That’s what’s frightening. It seems to be, is there a cross between church and state? I don’t know. To me, that may be an implication. For me, that was concerning.”

Levitan says there was hope among those who practise in this area of law that the court would strike s. 12, which would afford further consultation with the provinces and a recalibration of the approach laid out within the legislation.

Kelly Jordan of Jordan Battista LLP believes the result of the decision will be an increase in the volume of reproductive tourism. “Increasingly, we’ll see people who need these services and need to obtain third-party reproductive material going to countries where it’s easier to access that material because you can pay the donors or the surrogate,” she says.

“The problem with that is that the aim of the legislation was to prevent commercialization, but the result of the legislation is that commercialization is increased. It makes it more expensive for Canadians to access these types of treatment and it means that access to this type of health treatment is obtainable only by a few.”

Jordan questions whether there ever was a problem with commercialization in Canada. Regardless, the legislation was informed by the Baird commission, which fostered a belief that third-party material and surrogates should be altruistic in nature. Jordan says that view has prompted a general shortage of egg and sperm donors in the country as well as difficulty in finding surrogates.

As a result, the regulations released by the government in relation to s. 12 are even more important now as they’ll outline which expenses are payable. “It depends how restrictive they are on expenses, whether we will realistically be able to find donors and surrogates here who are willing to go through that if their expenses won’t be reimbursed,” Jordan notes.

The current scheme doesn’t contemplate that an egg donor can receive compensation for loss of work income, for example. But Jordan believes it would be difficult to find many donors willing to go through the difficult procedure while at the same time foregoing their regular income.

Levitan, meanwhile, emphasizes that the law surrounding assisted human reproduction remains in a state of flux. She believes there’s a need for greater efforts to educate the public on the issue.

She also notes that there remain some damaging misconceptions about fertility treatments.

“I still think that there’s a camp that demonstrates a bias that this is something rich women do because they don’t want to get pregnant, which is absurd,” says Levitan.

“Because really, the intended parents are a very, very vulnerable population. They’re the ones who need the help, and adoption laws are becoming more restricted. International adoption laws are becoming more restricted, and now this is becoming more restricted.”

These combined forces have made it increasingly frustrating for people who need third parties in order to have children either through adoption or reproductive technologies.

“It seems the opportunities for them to do this are becoming increasingly restricted,” says Levitan.

At the end of the day, Levitan believes reproductive technologies are best handled through regulation rather than criminalization.

“Criminalizing payment, all it does is it forces people underground,” she says.

“It forces people to become more desperate, and you have nothing there to help them. You have no checks and balances.”

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