The Supreme Court of Canada has ruled that several key powers to regulate and licence fertility practices under Canada's Assisted Human Reproduction Act (the Act) should fall under provincial jurisdiction and are not a matter for federal government. Other powers, including the federal regulation of research on embryos, were upheld.

The Court held certain sections of the Act exceeded the legislative authority of Parliament, including many provisions governing the use of human reproductive material. But it upheld others prohibiting the use of reproductive material without consent and those that control the remuneration of sperm or egg donors for expenditures, not yet in force, as constitutional.

The full implications of the decision issued by a divided court are as yet unclear but some have regarded the decision as a victory for the Quebec province, which launched legal proceedings six years ago. The Attorney General of Quebec challenged the constitutional balance of the Act arguing the administration of healthcare practice and research, includingIVF, was the domain of the provinces and as such the federal government had exceeded its competency and acted ultra vires (beyond its powers).

Canada's constitutional arrangements permit the federal government to legislate in areas of criminal law, under which some of the provisions of the Act were valid, but the Supreme Court ruled that other provisions did encroach on the jurisdiction of the provinces. 

But because many provinces lack regulation for reproductive technologies, some experts anticipate gaps in the law causing problems. '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', said Dr Vanessa Gruben, an assistant professor of law from the University of Ottawa.

Journalist Tom Blackwell said in Canada’s National Post the: ‘decision is expected to breathe life into the assisted-reproduction law, which has sat virtually in limbo since it was passed in 2004. The agency it set up, Assisted Human Reproduction Canada, is supposed to police the industry but has done little of that, citing the fact that the government had not brought in detailed regulations to guide it. The government said it was waiting for the court’s decision before passing regulations’.

The split judgment from the Supreme Court is unlikely to provide definitive guidance on the matter to lower courts and others responsible for its implementation and enforcement. Some believe it is likely to generate greater confusion on the matter with there being a strong possibility the issue will continue to be battled out at the provincial level. However, until then, one expert speaking to BioNews anticipates that the status quo will remain intact.

Reproduced from BioNews with permission, a web- and email-based source of news, information and comment on assisted reproduction and human genetics, published by Progress Educational Trust.