Having read the Supreme Court’s Reference re Assisted Human Reproduction Act decision this morning, I will provide my Coles Notes take on it in a moment. A longer analysis, for which I am woefully unprepared and unqualified to write, is necessary and will appear in the February issue of the paper. Here is the takeaway: the majority of the Court have upheld most of the AHR Act by reinforcing that rules that regulate the morality of reproductive technologies and research are legitimately under federal jurisdiction while safety and point of service delivery regulations are properly provincial matters. While that sounds nice and tidy, the distinctions in real life are not nearly so clear, and now the provinces and Ottawa can fight over what is what.
UPDATE: 10:58 AM
This from the Ottawa Citizen clarifies how the court divided responsibility for oversight of reproductive technologies and research:
The majority on the court, therefore, concluded that the provinces should have power over the regulation of human embryos, eggs, and sperm, such as how many embryos can be implanted within a prospective mother and how reproductive material can be gathered and stored.
“The impugned provisions represent an overflow of the exercise of criminal law power,” wrote justices Marie Deschamps and Louis Lebel, who were in the voting block that would have handed over regulations to the provinces.
They concluded that the federal law amounts to regulation of a health service that “seriously affects the practice of medicine.”
On the other hand, the federal government retains control over other provisions of the 2004 act, including a sweeping ban on underage donors, and permitting sperm and egg donors to be reimbursed for their expenses, but not for their reproductive material.
“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,” wrote Justice Beverley McLachlin, whose group would have upheld the entire act as a federal power.
“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.”
That gives a rough idea of what is a moral issue that can be regulated by the feds, and what is a health care provision/safety issue regulated by the province. The court has created a legal regime that will lead to jurisdictional conflict for years, but under Canada’s division of powers, this seems defensible. Of course, the division would be moot if Ottawa would simply ban morally dubious practices like IVF.