OTTAWA—The Supreme Court of Canada hands down a landmark ruling on Quebec’s challenge of the federal power to control human reproductive technologies on Wednesday morning.
It’s the oldest outstanding case on the top court’s docket, on a question of far-reaching scope and complexity.
But it all comes down to this — what level of government gets to say what would-be parents, sperm or egg donors can do in the quest to reproduce?
It’s a question bedevilling many Canadians who sometimes go to great lengths to have children.
The Star reported Tuesday on a Canadian couple now stranded in India with twins — children born of a surrogate mother and an unknown donor’s egg but later determined not to be the genetic offspring of the father as thought.
Under Canadian law it is illegal to pay for sperm donors, egg donors or surrogates.
The family is now in a legal immigration limbo.
Quebec does not challenge Ottawa’s attempt to stop the commercialization of assisted human reproductive technologies.
Nor does Quebec oppose the federal ban on cloning, or reproductive technologies that would produce human/non-human hybrids.
But the province says Ottawa went too far when it assumed the power to regulate a whole other range of activities that Quebec says fall under medical services. Quebec says such services are between a doctor and a patient and come under its jurisdiction, not under criminal law as the federal government contends.
Quebec objects to Ottawa’s regulating the area of consent, as well as its intent to license fertility clinics, to control the import, export or transplant of eggs, sperm or embryos, to control the reimbursement of donors for expenses, to impose privacy controls or carry out inspections, searches and seizures of clinical premises.
In reality, while the law was enacted in 2004, Health Canada has only enacted one regulation — requiring the written consent of donors for the use of eggs, sperm or embryos.
The rest of the field is a grey zone, with much riding on Wednesday’s ruling.
If the court upholds Quebec’s arguments, it would have broad implications for provinces to proceed to regulate many assisted reproductive activities as they see fit, and could lead to a patchwork of practices across Canada.
However, that’s the case with many medical procedures which are regulated by provinces now.
As it stands, the federal law — the Assisted Human Reproduction Act — carries heavy penalties.
Breaches are criminal offences, and carry maximum penalties of up to $250,000 in fines or five years in jail for certain violations of “controlled activities.” For breaches of the outright bans on other practices, the penalties can range up to $500,000 fines or up to 10 years in jail.
Quebec’s challenge was backed by the governments of New Brunswick, Saskatchewan and Alberta which intervened when the appeal was heard in April 2009.
The Canadian Conference of Catholic Bishops and the Evangelical Fellowship of Canada intervened in support of the federal government’s side.
On June 19, 2008, the Quebec Court of Appeal agreed with the province, and ruled the provisions went beyond the federal criminal law-making power to protect public health, morality and security of persons who are the offspring of assisted fertility treatments.
The appeal court concluded Ottawa wasn’t trying to prevent wrongdoing, but rather trying to control a medical activity to promote uniform Canadian national standards.