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Assisted Reproduction

Canadian Supreme Court Ruling Creates Legal Chaos In the Field of Assisted Reproduction

Our friends to the North are responding to a very divided Supreme Court ruling that has put the entire field of assisted reproduction in Canada in turmoil:

A Supreme Court ruling placing much of Canada’s burgeoning fertility industry under provincial control leaves an enormous gap in the regulation of artificial procreation and exposes women who use the technologies and the children born from them to potential harm, critics say.

A sharply divided court struck down key federal powers to regulate assisted human reproduction Wednesday, concluding that several parts of a new law fall under provincial jurisdiction over health care.

The ruling effectively stops a federal move toward national standards and guts Assisted Human Reproduction Canada — an embattled federal agency that was struck four years ago to monitor how assisted procreation is carried out at more than two dozen fertility clinics across the country.

The decision left in place key and controversial prohibitions against paying for sperm or egg donors or surrogacy services — outlawed activities that some say are driving infertile Canadians to the black market or abroad for fertility services that would carry fines of up to $500,000 and 10 years in jail at home.

The judges also said that the federal government retains control over deciding how donors can be compensated for their expenses.

The court majority concluded, however, that much of the oversight of the fertility industry is up to the provinces, rather than the federal government, including control of clinics and research governing the use and care of human embryos, eggs and sperm. For instance, it will be up to each province to decide how many embryos can be transferred to a prospective mother.

There was room in the federal law to restrict the number of embryos transplanted during each cycle of IVF, or in vitro fertilization, where eggs are extracted from a woman, mixed with her partner’s sperm and the resulting embryos transferred into her uterus.

“That no longer exists; the federal government would no longer have the constitutional authority to enact that type of regulation that would protect the health of women who are using the technologies and the children who result,” said Vanessa Gruben, an assistant professor in the University of Ottawa’s faculty of law.

Babies born in multiple deliveries are born earlier and smaller than single-birth babies, they’re less likely to survive their first year of life and are far more likely to suffer long-term disability when they do survive. Risks to women include pre-eclampsia, or high blood pressure, anemia, gestational diabetes and premature labour.

Although clinics are moving toward more single-embryo transfers, doctors have routinely transferred three or more embryos in order to increase the odds that at least one would implant and a baby would result. That has led to a surge in multiple births in Canada.

“Although a male partner may be involved, when we talk about reproductive technologies, it’s the women who are taking the drugs, it’s the women who are having the embryos transferred into them and it’s really the women who are bearing the brunt of the technology,” said Gruben, who specializes in human reproduction and health law.

The absence of federal standards for clinics will lead to a patchwork approach across the country, she says.

“Many provinces haven’t said very much at all about the regulation of reproductive technologies. It’s quite possible that there will be a regulatory void in a number of provinces.”

As a result of this ruling, the involuntarily childless get victimized yet again.


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