In the Reference re Assisted Human Reproduction Act (2010 SCC 61), the Supreme Court of Canada issued a divided 4-4-1 opinion that declared several provisions of the federal Assisted Human Reproduction Act ("AHRA") ultra vires. As a result, many core provisions of the AHRA were declared unconstitutional, particularly those related to the introduction of a federal licensing and control system. Other provisions, for example those related to the federal government's power to regulate the reimbursement of expenses for surrogacy or gamete donation, remain intact.
On November 4 and 5, the Health Law Group, the Faculty of Law and the David Asper Centre for Constitutional Rights jointly hosted a conference on the implications of the decision. The sessions included discussion on constitutional law, federalism and the regulation of health care, family law and reproductive rights, and the contribution of empirical evidence and ethics. Speakers included U of T professors Colleen Flood, Trudo Lemmens, Carol Rogerson, and Ian Lee as well as many distinguished scholars visiting from other Canadian and international institutions, in addition to legal and medical practitioners.
The conference explored the impact of the decision from a variety of perspectives. Professor Emeritus Bernard Dickens presented an overview of the case. One panel, which included Prof. Lee, presented a constitutional law perspective, reflecting the significant disagreement on the Court about the application of the 'pith and substance' doctrine and the use of the criminal law power to ground federal power over a whole set of activities related to new technology. The panellists also noted that the decision also evokes important questions about Canadian federalism: how federal and provincial legislators and governments can work together to regulate activities that straddle between federal and provincial jurisdiction.
Many speakers noted that the decision creates a legal vacuum that will have to be filled by federal and provincial collaboration. Most provinces have no comprehensive regulations in this area (Quebec being the exception); and the federal power to regulate more widely has clearly been limited. Finally, because the decision undermines the possibility to have a coherent federal legislative framework and will require new provincial legislative initiatives, it will necessarily reinvigorate the debate about some of the ethical, social and economic issues raised in the context of AHR. As a result of the decision, there is renewed debate about how AHR should be regulated, and what the roles of federal and provincial governments are in this context.
The conference presenters highlighted that the decision has immediate and significant practical repercussions for the regulation of assisted human reproduction and related health care activities. Prof. Flood, addressing the provision of assisted reproduction services, emphasized the need for regulation that focuses on consumer protection and address patient safety and quality of care so that the profit motive for the provision of these services does not undermine patient safety. Prof. Lemmens argued that the decision was correct in upholding the provisions that prohibit the commodification of reproduction. Prof. Rogerson, on a panel which discussed the family law implications of assisted human reproduction, provided an overview of the existing legislative frameworks governing parentage in the various provinces and emphasized the pressing need for provincial legislative reform in respect of who is considered a parent. Other speakers noted the need for clear rules respecting donor information and questioned the legal justification and practical need for donor anonymity. Others addressed the implications for surrogacy, research technologies and the practical impacts on patients and children.
Keynote Discussion
A highlight of the conference was a keynote dialogue between Preston Manning, leader of the previous opposition Reform Party of Canada; Dr. Carolyn Bennett, Liberal MP for St. Paul's; Peter Hogg, resident scholar at Blake, Cassels & Graydon LLP; and Alison Motluk, a freelance journalist who has published extensively on fertility laws and assisted reproduction. Steve Paiken of TVO's The Agenda with Steve Paikin guided the discussion and asked challenging questions of the expert panelists.
The primary focus of the keynote session was how to proceed following the Supreme Court's decision. Manning emphasized the long-standing need for a regulatory scheme on assisted human reproduction in Canada. Hogg clarified that in the wake of the reference decision, the onus for this regulatory scheme is on the provinces. Bennett emphasized the need for a Canada-wide strategy in order to avoid "reproductive tourism," and Motluk advocated for transparency and increased discussion regarding the impact that the legislative vacuum is having on individuals and families who rely on the health care scheme.
Publication
The Asper Centre and the Health Law Group are now reviewing and editing the various papers presented at the conference for publication in a comprehensive book that will provide a wide variety of critical perspectives on the family law, human rights, and ethical implications of AHR in the global context. The book will reflect the various aspects of the decision to promote further discussion about its implications and the options for future regulation of AHR.
Prepared from notes taken by the Asper Centre Equality Rights Working Group at the conference and a summary of the issues by Professor Trudo Lemmens.
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