The Mess that is Fertility Law in Canada: Comment on Parliament's Background Paper, Legal Status at the Federal Level of Assisted Human Reproduction in Canada

After what feels like years of silence, Parliament recently released a background paper entitled, Legal Status at the Federal Level of Assisted Human Reproduction in Canada.  The brief paper reviews the history of the legislative and legal processes through which we have arrived at the mess referred to as fertility law, or reproductive technology law, in Canada.  Unfortunately, the paper provides no indication of whether Parliament intends to repeal or amend the Assisted Human Reproduction Act, S.C. 2004, c.2,  nor do the authors of the paper provide any suggestions to improve upon the legislation.

The AHRA was never a reasonable or realistic piece of legislation.  The December 2010 Supreme Court of Canada Reference re Assisted Human Reproduction Act gouged out large pieces of the legislation leaving the state of fertility law in Canada in the form of an enormous question mark. When the Baird Commission was appointed in 1989, our understanding of assisted reproductive technologies (ARTs) and our comfort with their use were very different than they are today, 23 years later. A prime example of this can be found in the AHRA itself where sections 5 - 9 are grouped together as "prohibited activities" and are subject to the same penalties (section 60 - a fine up to $500,000 and/or imprisonment for a term not exceeding ten years) .  These prohibited activities, though, range across a wide ethical spectrum, including purchasing or offering to purchase donor sperm or donor ova (section 7), paying consideration or offering to pay consideration to another person to arrange for the services of a surrogate mother (section 6), creating a human clone (section 5a), transplanting a fetus of a non-human life into a human (section 5g), creating a chimera (section 5i) and creating a hybrid (section 5j).   From my vantage point, it seems obvious that any evil (if any exists, which I don't believe it does) inherent in paying someone to match a gestational carrier with intended parents is on a completely different ethical playing field than is creating a chimera or a hybrid, and the law ought to reflect this.  The Handmaid's Tale-esque nightmare envisioned has not come to pass, and in recent times, we finally have empirical evidence to prove it (see Professor Karen Busby's influential paper, Revisiting The Handmaid's Tale: Feminist Theory Meets Empirical Research on Surrogate Mothers). As stated by Justices Abella Lebel and Deschamps, "The purpose [of the AHRA] was not…to protect those who might resort to assisted human reproduction on the basis that it was inherently harmful. Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed. In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act, brings benefits to many Canadians."

The AHRA is a mess and no longer reflects Canadians' values with respect to the use of ARTs, if it ever did. It's time for new, clear and reasonable legislation based on the empirical evidence now available to us about the use of ARTs, instead of legislation based on a fear of the unknown.