Re Assisted Human Reproduction Act

The Attorney General (AG) of Quebec challenged the constitutionality of sections 8 to 19, 40 to 53, 60, 61 and 68 of Canada’s Assisted Human Reproduction Act (the “Act”) on federalism grounds.

Some of these provisions create or relate to prohibitions on human cloning and various aspects of the commercialization of reproductive materials and functions. Some create a licensing regime for aspects of these activities.

The AG of Quebec argued that these sections are an attempt to regulate the sector of medical practice and research related to assisted reproduction and should be regulated by the province. He argued that the activities in question are neither harmful nor morally reprehensible, but are in fact desirable from a health standpoint. He argued that the risks in the field of assisted reproduction do not distinguish it from other medicinal fields, such as organ transplantation, where new technologies and medical advances raise social, moral and ethical issues and are the purview of the province.

The AG of Canada argued that the purpose of the legislative scheme was to prohibit practices that would undercut moral values, produce public health evils, threaten the security of donors, donees, and persons conceived by assisted reproduction and, therefore, under Federal jurisdiction as valid criminal law. He submits that the moral and ethical dilemma’s raised in assisted reproduction and its potential for abuse distinguish it from other medical fields.

The Quebec Court of Appeal held that the challenged sections were ultra vires Federal jurisdiction because they were not valid criminal law. This decision was appeal to the Supreme Court of Canada.

The Court held that sections 8, 9, 12, 19 and 60 of the Act are constitutional.

The Court held that sections 10, 11, 13, 14 to 18, 40(2), (3), (3.1), (4) and (5) and ss. 44(2) and (3) exceed the legislative authority of the Parliament of Canada under the Constitution Act, 1867.

The Court held that sections 40(1), (6) and (7), 41 to 43, 44(1) and (4), 45 to 53, 61 and 68 are constitutional to the extent that they relate to the constitutionally valid provisions.

The Supreme Court of Canada sat 9 judges who came to a 4-4-1 split decision. Four justices upheld all of the challenged provisions as constitutional. Four justices held that all the challenged provisions, except for sections 60 and 61, were unconstitutional.

Accordingly, the constitutionality of the remaining provisions depended on the holding Cromwell J., who held that parliament attempted to inappropriately combine two very different aspects of genetic manipulation under a single piece of legislation.

Cromwell J. held that sections 8 and 9 are provisions that deal with consent to otherwise prohibited activities, which is within the federal criminal power.

Cromwell J. held that that section 12 must be read with sections 6 and 7, provisions that are not challenged in this reference. Accordingly, it is thus also valid criminal law. Sections 6 and 7 prohibit the commercialization of reproduction. Section 12 is a form of exemption from that strictness, allowing for the reimbursement of a donor or surrogate for an expenditure incurred in accordance with the regulations and a license. He held that this provision draws a line between acceptable reimbursement and inappropriate commodification and Parliament is permitted to prohibit that which falls on the side of commodification.

 “Every generation faces unique moral issues. And historically, every generation has turned to the criminal law to address them. Among the most important moral issues faced by this generation are questions arising from technologically assisted reproduction - the artificial creation of human life. Parliament has passed a law dealing with these issues under its criminal law power. The question on appeal is whether this law represents a proper exercise of Parliament’s criminal law power.” (Para 1)

 “Conception no longer occurs by necessity within a woman’s body, but may, through in vitro fertilization technologies, take place outside of it. Life, traditionally “created” by sexual reproduction, may now be created by the asexual replication technique of cloning. The genetic make-up of offspring, once determined by the natural process of DNA recombination, may now be artificially altered through genetic manipulation and germ cell line intervention. And the sex of a child may be determined at early stages of development … these developments raise the prospect of novel harms to society … the commodification of women and children; sex-selective abortions; cross-species hybrids; ectogenesis with the potential to “dehumanize motherhood”; “baby farms”; saviour siblings …; devaluation of persons with disabilities; discrimination based on ethnicity or genetic status; and exploitation of the vulnerable - these are but some of the moral concerns identified in the Report” (Paras 99 – 100)

“Medical advances are not limited to the field of assisted human reproduction, and many such advances can raise issues related to ethics, morality, safety and public health. Neither a desire for uniformity nor the very novelty of a medical technology can serve as the basis for an exercise of the federal criminal law power.” (Para 255)