Fertility under provincial jurisdiction: top court

The Supreme Court of Canada has ruled that provinces have the right to regulate in-vitro fertilization and some other forms of assisted human reproduction.

Ruling could drive some couples seeking surrogacy underground: lawyer

The Supreme Court of Canada ruled Wednesday that provinces have the right to regulate in-vitro fertilization and some other forms of assisted human reproduction.

The top court ruled on contentious portions of the federal Assisted Human Reproduction Act, which the Quebec government successfully argued infringes on provincial jurisdiction. 

The split decision allows provinces to regulate health aspects of fertility clinics.

The ruling upholds parts of a 2008 Quebec Court of Appeal decision that said Ottawa had overstepped in asserting control over assisted reproduction. 

''What's very salient in this decision is that the federal government still has the authority to define what expenses will be allowable with respect to surrogacy … and sperm donation.'— Shirley Levitan, Toronto lawyer

Quebec filed a constitutional challenge to the act and was supported by three other provincial governments — New Brunswick, Saskatchewan and Alberta. 

The 2004 act regulated the use of sperm, eggs and embryos, while banning cloning "and the use, manipulation and transplantation of reproductive material of a non-human life form, chimeras or hybrids, in order to create a human being."

Ottawa maintained it had the right to make criminal laws, and the purpose of the act was to protect the "health, safety and public morals" of Canadians.

'Moral and ethical questions' raised

In the majority decision, Justices Louis LeBel and Marie Deschamps, writing on behalf of a couple of other justices, said that while the whole area raises "moral and ethical questions," it doesn’t mean Ottawa’s exercise of criminal law power "is justified on the basis that there is an evil to be suppressed."

The judges were split 4-4-1 in deciding which sections of the federal legislation are constitutional and which needed to be relegated to the provinces.

Four justices, including Chief Justice Beverley McLachlin, essentially backed the federal law, with Justice Thomas Cromwell casting the deciding vote for the majority.

"Assisted reproduction raises weighty moral concerns," McLachlin wrote.

"Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers. Taken as a whole, the act seeks to avert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants."

The most important thing is that people are going to continue to have treatment as before, said Quebec Health Minister Yves Bolduc.

Dr. François Bissonnette, medical director of the Ovo Clinic in Montreal, said it was a relief the Supreme Court did not say in-vitro fertilization is a technique that should be prohibited or criminalized.

For-profit sperm donation or surrogate motherhood remains illegal.

The court also ruled that the federal government has the right to control how much a sperm or egg donor can be compensated for expenses incurred — a potential loophole that worries people who advocate for the right of the infertile to seek out help from a third person.

Depending on how expenses are defined, couples seeking an altruistic surrogate mother could be driven further underground, said Shirley Levitan, a Toronto lawyer who specializes in reproductive rights.

"What's very salient in this decision is that the federal government still has the authority to define what expenses will be allowable with respect to surrogacy …  and sperm donation," Levitan said.

Levitan said it is not a victory for the average person, noting Canadians who can afford to travel to expensive fertility clinics in the U.S. likely will continue to do so, while others could seek treatment in overseas countries where clinics are less regulated.

The Supreme Court's judgment offers legal advice to governments and serves as a precedent to guide lower courts. Provincial and territorial governments could now re-examine their laws and regulations governing fertility.

What happens next is unclear, said Timothy Caulfield, Canada research chair in health law and policy at the University of Alberta in Edmonton.

"I don't think there is political will at the federal level to try and craft a law that would satisfy this decision and expand the reach of 'the agency,'" Caulfield said in an email, referring to the agency that aims to oversee the federal act. "Now that provinces have the green light, will they regulate?"

Ottawa hasn't yet responded to the decision.

With files from The Canadian Press