Earlier today, Mark Warawa's Motion 408 to condemn gender based abortion was unanimously declared unvotable. According to an article
in the pro-life website LifeSiteNews.com
, Motion 408 was declared to be unvotable as parliament had already taken up the issue. Moreover, and from my perspective more interestingly, Motion 408 was also found to be unvoteable because abortion is a health matter and therefore properly dealt with under provincial jurisdiction rather than federal jurisdiction. Putting on my fertility lawyer's cap here, if abortion is clearly a health issue and therefore provincial, isn't it only logical that fertility treatments are also a health issue and therefore ought to be governed on a provincial basis rather than federally by the Assisted Human Reproduction Act
and Health Canada? The 2010 Supreme Court of Canada Reference Re AHRA
determined that the impugned sections of the AHRA were overreaching as they were properly health matters and therefore outside of the jurisdiction of the federal government. However, it seems to me that the Reference decision failed to go far enough by failing to challenge the legislation in its entirety. For example, IVF and the consent thereto - health matter or criminal matter? To my mind, the answer is clear - health matter. However, section 8 of the Assisted Human Reproduction Act requires a doctor to obtain the written consent from a patient using his or her own gametes for in vitro fertilization treatments, among other things. So far, makes sense. Here is the problem - failure to obtain the consent (in line with fifteen pages of regulations) remains a criminal matter under the AHRA, punishable by up to ten years in jail.
The answer seems obvious to me - fertility is a health matter, and not criminal. Let's start over and perhaps the provincial government will have more success than has the federal government in providing logical, evidence-based legislation and regulation that allows doctors to provide medical care and patients to receive it without the threat of incarceration.