Accounting for Law

Bill impacts assisted human reproduction in Canada

Sara Cohen

A recent omnibus bill has sweeping socio-legal implications to the use of assisted reproductive technologies in Canada beyond the highly publicized closing of the country’s assisted human reproduction agency, says Toronto fertility law lawyer Sara Cohen.  

In a recent presentation at the annual meeting of the Canadian Fertility and Andrology Society, Cohen and Alana Cattapan of York University’s Political Science Department discussed the socio-legal implications of Bill C-38, also known as the Omnibus Bill, on assisted reproductive technologies.  

The bill, Cohen explains, ostensibly repeals provisions in the Assisted Human Reproduction Act (AHRA) that were found by the Supreme Court of Canada (SCC) to be unconstitutional for infringing on provincial jurisdiction along with abolishing Assisted Human Reproduction Canada (AHRC), an agency established to oversee assisted human reproduction, but in fact, goes further and makes some other significant changes to the AHRA and the regulation of assisted reproductive technologies in Canada that are not related to the budget or the SCC decision.

Changes under the bill, says Cohen, include the fact that the Food and Drugs Act will no longer apply in respect of sperm and ova to be used for the purpose of assisted human reproduction, but instead Bill C-38 amends the AHRA to refer to future regulations for the quarantining and labelling of both third-party sperm and ova to be used for assisted reproductive technologies. Other changes include removing the criminal provisions for a breach of s. 8 of the AHRA and introducing a revised version of the former s. 10 legislation, which will now include prohibitions and regulations regarding the use and importing of donor sperm and ova or an ovum meant for the donor’s use as a surrogate mother.

Earlier legislation, she says, did not deal with the reality that technology has advanced such that ova is now being imported into Canada from egg banks just as sperm is imported from sperm banks. Bill C-38, explains Cohen, demonstrates that ova will likely be dealt with in the same manner as sperm.

The unknowns, she says, include when the changes are coming into effect, which tests will be required for sperm/ova importation, quarantine requirements and donor’s suitability requirements.

The presentation notes that despite its widely known shortcomings, AHRC facilitated discussion on reproductive tourism, created a symbolic space for stakeholder participation and engaged in consultation with important stakeholders. Its closure will “eliminate any provisional space for the formal inclusion of stakeholders in the policy process,” and disrupt the already tenuous legitimacy of the AHRA, which risks inciting more enforcement, the presentation says.

The inclusion of stakeholders in the AHRA “promotes a sense of democratic inclusion,” and “enables policy legitimacy,” making the policy credible to the public, the presentation states.

Without stakeholders, ensuring widespread compliance with the Act is problematic.

Ultimately, Cohen says she would like to see balance between health and safety and equality and reproductive freedom.

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