Canada high court strikes down sections of federal fertility law

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[JURIST] The Supreme Court of Canada [official website] ruled [judgment text] 4-4-1 Wednesday that various sections of the national law regulating the use of human embryos and other aspects of reproduction fall outside the scope of Parliament’s legislative authority. In its advisory opinion [Ottawa Sun report], the divided court held that the power to regulate the clinics and doctors conducting fertility treatments and embryonic research, previously delegated to the federal government by the Assisted Human Reproduction Act [text, PDF], rightly belongs to the provinces, which have jurisdiction over hospitals and other important local matters. The case was originally brought by the Attorney General of Quebec [official profile], who challenged the constitutionality of certain sections on the basis that they were not valid criminal law, limited only to prohibiting wrongful acts, but that they instead sought to regulate medical practice and research. In 2008, the Court of Appeal of Quebec [official website] ruled [JURIST report] that the challenged sections did constitute an attempt by Parliament to regulate hospitals and medical research and declared them unconstitutional. The Attorney General of Canada [official profile] appealed to the Supreme Court. While the court did concede that those sections fall outside of the scope of the federal government, much of the Act remains intact. In her reasoning, the Chief Justice stated:

The text of the Act suggests that its dominant purpose is to prohibit inappropriate practices, rather than to promote beneficial ones. It is true that the Act establishes a scheme to control assisted reproduction on a national level, and this initiative necessarily touches on provincial jurisdiction over medical research and practice. However, the dominant thrust of the Act is prohibitory, and the aspects that concern the provision of health services do not rise to the level of pith and substance. As s. 2 of the Act explains, the purpose of the Act is to safeguard against practices that may offend fundamental values and rights and harm human health, safety and dignity. The emphasis is on preventing practices that offend these values and produce this harm. The Act accomplishes its purpose of prohibiting reprehensible conduct by imposing sanctions. The Act is essentially a series of prohibitions, followed by a set of subsidiary provisions for their administration.

While Quebec has already passed legislation regulating the issues of fertility and reproduction, other provinces that have not yet done so would be required to enact their own.

Canada’s ban on human cloning [JURIST news archive] was first introduced [JURIST report] in 2003, and the Assisted Human Reproduction Act has been praised [press release] by the Center for Genetics and Society [advocacy website], a group seeking comprehensive regulation of embryonic use. In 2007, the UN University Institute for Advanced Studies [official website] called for a universal ban on human cloning, but numerous countries and US states [JURIST reports] have increasingly liberalized non-cloning use of human embryos [JURIST news archive].

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