The biggest news in fertility law in Canada: Assisted Human Reproduction Canada scrapped - what does this mean for fertility law in Canada?

The federal government of Canada announced its budget today.  Noticeably absent is any funding for Assisted Human Reproduction Canada (AHRC), the federal corporate body enacted to implement the Assisted Human Reproduction Act and its regulations.  By scrapping the AHRC, Canada will save nearly $10 million per year (see Health care a target in Tories’ deficit reduction plan).

In December 2010, the Supreme Court of Canada found that many aspects of the assisted reproductive technologies (ARTs) were within provincial jurisdiction as they are health, and not criminal, matters.  Accordingly, much of the Assisted Human Reproduction Act was found to be unconstitutional (see the Supreme Court of Canada decision here).  However, sections 5 through 9 (among others) remain.  Notably, sections 6 (which prohibits the payment of a surrogate mother) and 7 (which prohibits the payment for eggs or sperm from a donor or a person acting on behalf of a donor) remain in force.

Eliminating the AHRC does not legalize any of the prohibitions in sections 5 through 9.  However, it will undoubtedly affect the enforcement of the AHRA, and further demonstrates just how unrealistic and unworkable the current state of fertility law in Canada really is.  Let's hope that the federal government scraps the AHRA completely instead of holding on to a poorly constructed piece of legislation and flogging a dead horse.  

As stated by Justices LeBel and Deschamps at para 251 of the SCC Reference re Assisted Human Reproduction Act,
"...Parliament, in adopting the Baird Report’s recommendation on controlled activities, intended to establish
national standards for assisted human reproduction.  The purpose was not, therefore, 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."