Fertility Law in Canada - Surrogacy law, ART law, egg, sperm and embryo donor law
Fertility law, or third party reproductive technology law, is regulated in Canada by the Assisted Human Reproduction Act, 2004, s.c. 2004, c.2., often referred to as the AHRA. Contrary to popular belief, the AHRA does not prohibit surrogacy, egg donation, embryo donation or sperm donation in Canada. Rather, it prohibits, among other things, the payment of surrogates or donors. The AHRA is a complicated piece of legislation, without the benefit of much caselaw to illuminate the path for those bound by it. Penalties for contravening the AHRA may be severe.
To further complicate matters, in December 2010, the Supreme Court of Canada released its long-awaited Reference re Assisted Human Reproduction Act. In a confusing 4-4-1 split, the Court held that certain sections of the AHRA are unconstitutional, because the federal government infringed on the provincial government's jurisdiction by imposing its powers in the health arena. However, sections 5 through 9 of the AHRA continue to be in force. Regulations to the AHRA, other than the Section 8 Consent Regulations, have not yet been released.
Legal parentage, however, is determined by provincial law. The relevant legislative scheme is that of the province where the child is born. In some situations, a declaration of parentage or an adoption application are necessary to ensure that the intended parents are recognized as the legal parent of the child born through ART. In Ontario, there is currently no provincial legislation which specifically addresses the legal parentage of children born through assisted reproduction technologies.
Link to the Assisted Human Reprodution Act, 2004, s.c. 2004, c.2
http://www.canlii.org/en/ca/laws/stat/sc-2004-c-2/latest/sc-2004-c-2.html
Link to the Supreme Court of Canada decision Reference re Assisted Human Reproduction Act, 2010 SCC 61
http://scc.lexum.org/en/2010/2010scc61/2010scc61.html
To further complicate matters, in December 2010, the Supreme Court of Canada released its long-awaited Reference re Assisted Human Reproduction Act. In a confusing 4-4-1 split, the Court held that certain sections of the AHRA are unconstitutional, because the federal government infringed on the provincial government's jurisdiction by imposing its powers in the health arena. However, sections 5 through 9 of the AHRA continue to be in force. Regulations to the AHRA, other than the Section 8 Consent Regulations, have not yet been released.
Legal parentage, however, is determined by provincial law. The relevant legislative scheme is that of the province where the child is born. In some situations, a declaration of parentage or an adoption application are necessary to ensure that the intended parents are recognized as the legal parent of the child born through ART. In Ontario, there is currently no provincial legislation which specifically addresses the legal parentage of children born through assisted reproduction technologies.
Link to the Assisted Human Reprodution Act, 2004, s.c. 2004, c.2
http://www.canlii.org/en/ca/laws/stat/sc-2004-c-2/latest/sc-2004-c-2.html
Link to the Supreme Court of Canada decision Reference re Assisted Human Reproduction Act, 2010 SCC 61
http://scc.lexum.org/en/2010/2010scc61/2010scc61.html
