Law Times

PAGE 12 FOCUS August 22, 2011 • LAw times Reproductive laws remain in limbo Couples struggle as uncertainty continues over what government will do BY ROBERT TODD Law Times W hile legal experts continue to debate the merits of the Su- preme Court of Canada's conten- tious decision in a reference case on the Assisted Human Repro- duction Act, many people agree that it deals with a topic of in- creasing importance to Canadian society. In Reference re Assisted Hu- man Reproduction Act, the top court had the task of issuing a constitutional ruling on the federal legislation passed in 2004. Th e Assisted Human Re- production Act was the result of a long process of study and consultation that began with the 1989 establishment of the Royal Commission on New Re- productive Technologies led by geneticist Patricia Baird. Quebec's attorney general challenged the constitutional- ity of various parts of the act and sought a reference deci- sion from the Quebec Court of Appeal. Th e provincial gov- ernment claimed that various sections of the act attempted "Every generation faces unique moral issues," she wrote. "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 aris- ing from technologically assisted reproduction — the artifi cial cre- ation of human life." McLachlin went on to note in 'Criminalizing payment, all it does is it forces people under- ground,' says Shirley Levitan. to regulate the entire sector of medical practice and research toward assisted reproduction and was thereby ultra vires the federal government. Th e Que- bec Court of Appeal agreed. Th e case proved contentious at the Supreme Court of Cana- da, where Chief Justice Beverley McLachlin noted the importance of the issue. her reasons that modern fertility techniques also raise important religious and juridical questions. "Th e new questions do not fi t neatly within the traditional legal frameworks that have developed in a world of natural concep- tion," wrote McLachlin. "Th ese challenges have opened a dia- logue between ethicists, religious leaders, and the public. Diff erent people have taken diff erent mor- al views on the issues. Fears have been expressed as to the possibil- ity that some may abuse the new techniques in ways that might damage individuals — both ex- isting and yet to be conceived — and ultimately society. Tradi- tional criminal law imposed no obvious restraints and off ered no clear answers to these questions." McLachlin, along with justices EXPERT GUIDANCE TO HELP YOU ANALYZE FEDERAL LABOUR AND EMPLOYMENT LAW THE 2011 ANNOTATED CANADA LABOUR CODE RONALD M. SNYDER Stay up to date with legal developments applicable to Federal union and non-union employees with The 2011 Annotated Canada Labour Code. 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Price subject to change without notice and subject to applicable taxes. Ian Binnie, Morris Fish, and Lou- ise Charron, went on to rule that the legislation is valid criminal law. But justices Louis LeBel and Marie Deschamps were joined by justices Rosalie Abella and Mar- shall Rothstein in ruling that the entire legislation should be ruled invalid because the provisions in question were, in pith and sub- stance, related to health law. With that 4-4 split, it fell to Justice Th omas Cromwell to is- sue a deciding opinion, and he ruled largely in favour of the Quebec government's view of the issue. Shirley Levitan, a partner at Dickson MacGregor Appell LLP, says there's little indication at this point as to how the top court's reference case will infl uence the government's adjusted approach to the legislation. She says ru- mours have swirled that the gov- ernment had put together regula- tions for s. 12 of the act, which deals with the expenses payable to a surrogate or a donor, prior to the top court's ruling. She says it appeared that the expenses would be very narrowly defi ned, but that remains speculation at this point. "Th e feds have to go back to the drawing board," says Levitan. "Th ey're going to have to rewrite all of those sections." Meanwhile, there may still be some confusion among health- care practitioners and patients in terms of what types of fertility procedures are permitted. "People are still doing it," Levitan says. "Th ere's always this looming fear that it will be fur- ther shut down. It's a huge issue, and fertility is a huge issue that isn't really discussed frequently or very openly because it's very pri- vate and very painful." Meanwhile, Levitan says she's disheartened by the fact that the case seems to indicate a view held by the Supreme Court judges that it's up to Parliament to legislate morality. "Who sets that standard?" she asks. "Who's responsible to set that standard? Th at's what's frightening. It seems to be, is there a cross between church and state? I don't know. To me, that may be an implication. For me, that was concerning." Levitan says there was hope among those who practise in this area of law that the court would strike s. 12, which would aff ord further consultation with the provinces and a recalibration of the approach laid out within the legislation. Kelly Jordan of Jordan Bat- AVAILABLE RISK FREE FOR 30 DAYS In Toronto: 416-609-3800 Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 tista LLP believes the result of the decision will be an increase in the volume of reproductive tourism. "Increasingly, we'll see people who need these services and need to obtain third-party reproductive material going to countries where it's easier to ac- cess that material because you can pay the donors or the surro- gate," she says. "Th e problem with that is that the aim of the legislation was to Untitled-1 1 www.lawtimesnews.com 8/3/11 10:59:39 AM prevent commercialization, but the result of the legislation is that commercialization is increased. It makes it more expensive for Ca- nadians to access these types of treatment and it means that access to this type of health treatment is obtainable only by a few." Jordan questions whether there ever was a problem with commercialization in Canada. Regardless, the legislation was informed by the Baird com- mission, which fostered a belief that third-party material and surrogates should be altruistic in nature. Jordan says that view has prompted a general shortage of egg and sperm donors in the country as well as diffi culty in fi nding surrogates. As a result, the regulations released by the government in relation to s. 12 are even more important now as they'll outline which expenses are payable. "It depends how restrictive they are on expenses, whether we will re- alistically be able to fi nd donors and surrogates here who are will- ing to go through that if their expenses won't be reimbursed," Jordan notes. Th e current scheme doesn't contemplate that an egg donor can receive compensation for loss of work income, for example. But Jordan believes it would be diffi cult to fi nd many donors willing to go through the diffi cult procedure while at the same time foregoing their regular income. Levitan, meanwhile, empha- sizes that the law surrounding assisted human reproduction remains in a state of fl ux. She believes there's a need for greater eff orts to educate the public on the issue. She also notes that there re- main some damaging misconcep- tions about fertility treatments. "I still think that there's a camp that demonstrates a bias that this is something rich women do be- cause they don't want to get preg- nant, which is absurd," says Levi- tan. "Because really, the intended parents are a very, very vulnerable population. Th ey're the ones who need the help, and adoption laws are becoming more restricted. In- ternational adoption laws are be- coming more restricted, and now this is becoming more restricted." Th ese combined forces have made it increasingly frustrating for people who need third parties in order to have children either through adoption or reproduc- tive technologies. "It seems the opportunities for them to do this are becom- ing increasingly restricted," says Levitan. At the end of the day, Levitan believes reproductive technolo- gies are best handled through regulation rather than criminal- ization. "Criminalizing payment, all it does is it forces people un- derground," she says. "It forces people to become more desper- ate, and you have nothing there to help them. You have no checks and balances."

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• Provocative Comments
• Cautionary Note
• Focus On Health/Life Sciences Law