By as split 4-4-1 advisory decision, the Supreme Court of Canada upheld a 2008 Quebec Court of Appeal decision that found some of the federal Assisted Human Reproduction Act intruded on province’s jurisdiction over health. Pro-life and faith groups condemned the decision because it gave provinces control of the creation, destruction and manipulation of human embryos.

The Supreme Court upheld in part the Quebec government’s constitutional challenge against the 2004 Assisted Human Reproduction Act (AHRA), ruling that key sections intrude on the provinces’ jurisdiction over health. The AHRA regulated the artificial reproduction industry, banning such activities as creating animal-human hybrids, human cloning, sex selection prior to implantation, and paying for surrogacy, sperm, and eggs.

The Supreme Court left these bans in place, but granted the provinces jurisdictions over the handling of human “reproductive material,” including licensing how it is obtained, stored, destroyed, imported, exported, and manipulated. The Court also struck down a section regulating transgenic manipulation (the combining of human and animal genomes).

Four justices supported upholding the Act, four favouring provincial jurisdiction, and one, Justice Thomas Cromwell, who sought a middle compromise that resulted in provinces gaining control over most matters covering fertility.

Justices Louis LeBel and Marie Deschamps wrote the majority decision and said while the Assisted Human Reproduction Act touches upon important “moral and ethical issues,” federal legislation is not “justified on the basis that there is an evil to be suppressed.” They wrote the federal law “upsets the constitutional balance of powers in the field of health” and “undermines the very definition of federalism.”

Chief Justice Beverley McLachlin wrote the opinion in favour of upholding the law. She wrote: “Parliament has a strong interest in ensuring that basic moral standards govern the creation and destruction of life, as well as their impact on persons like donors and mothers … The Act seeks to avert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants.” She acknowledged “medical research and practice” are necessarily “the subject of overlapping federal and provincial jurisdiction.”

Justice Cromwell agreed with the need to “prohibit negative practices associated with assisted reproduction” but agreed to very few of the prohibitions in the AHRA. He supported sections that dealt with the need for consent, but he found most other elements to be provincial matters.

The CBC reported that provinces can now “re-examine their laws and regulations governing fertility.” That is precisely the problem Campaign Life Coalition has with the decision. They fought the law in 2004 because it legitimated illicit practices including research on human embryos and the artificial creation of human embryos, but they said the decision further weakened whatever protection there was for embryonic children in reproductive treatments and scientific research. CLC national president Jim Hughes said in a press release that “the creation of new human life must not become a commodity that is bought and sold to the highest bidder in the province with the most liberal laws.”

Faye Sonier, legal counsel for the Evangelical Fellowship of Canada, agreed, writing on the Activate CFPL blog that allowing different standards in the provinces could create “competition” where some provinces would “‘push the envelope’ on the use of such technologies, forcing others to follow them or risk being found by the court to have created an inconsistent standard across the nation.” She further stated that a federal law is needed “to ensure consistency in law and in practice across Canada and to ensure the equal protection of all Canadians.”