Like Supreme Court, reactions divided on fertility industry ruling

OTTAWA – A Supreme Court ruling placing much of Canada’s burgeoning fertility industry under provincial control leaves an enormous gap in the regulation of artificial procreation and exposes women who use the technologies and the children born from them to potential harm, critics say.

A sharply divided court struck down key federal powers to regulate assisted human reproduction Wednesday, concluding that several parts of a new law fall under provincial jurisdiction over health care.

The ruling effectively stops a federal move toward national standards and guts Assisted Human Reproduction Canada – an embattled federal agency that was struck four years ago to monitor how assisted procreation is carried out at more than two dozen fertility clinics across the country.

The decision left in place key and controversial prohibitions against paying for sperm or egg donors or surrogacy services – outlawed activities that some say are driving infertile Canadians to the black market or abroad for fertility services that would carry fines of up to $500,000 and 10 years in jail at home.

The judges also said that the federal government retains control over deciding how donors can be compensated for their expenses.

The court majority concluded, however, that much of the oversight of the fertility industry is up to the provinces, rather than the federal government, including control of clinics and research governing the use and care of human embryos, eggs and sperm. For instance, it will be up to each province to decide how many embryos can be transferred to a prospective mother.

There was room in the federal law to restrict the number of embryos transplanted during each cycle of IVF, or in vitro fertilization, where eggs are extracted from a woman, mixed with her partner’s sperm and the resulting embryos transferred into her uterus.

"That no longer exists; the federal government would no longer have the constitutional authority to enact that type of regulation that would protect the health of women who are using the technologies and the children who result," said Vanessa Gruben, an assistant professor in the University of Ottawa’s faculty of law.

Babies born in multiple deliveries are born earlier and smaller than single-birth babies, they’re less likely to survive their first year of life and are far more likely to suffer long-term disability when they do survive. Risks to women include pre-eclampsia, or high blood pressure, anemia, gestational diabetes and premature labour.

Although clinics are moving toward more single-embryo transfers, doctors have routinely transferred three or more embryos in order to increase the odds that at least one would implant and a baby would result. That has led to a surge in multiple births in Canada.

"Although a male partner may be involved, when we talk about reproductive technologies, it’s the women who are taking the drugs, it’s the women who are having the embryos transferred into them and it’s really the women who are bearing the brunt of the technology," said Gruben, who specializes in human reproduction and health law.

The absence of federal standards for clinics will lead to a patchwork approach across the country, she says.

"Many provinces haven’t said very much at all about the regulation of reproductive technologies. It’s quite possible that there will be a regulatory void in a number of provinces."

But fertility experts say the ruling won’t mean a sudden free-for-all.

Dr. Roger Pierson, a professor of obstetrics, gynecology and reproductive sciences at the University of Saskatchewan and a past president of the Canadian Fertility and Andrology Society, said the Supreme Court ruling "allows us to work toward providing the very best care that we can across the country for people that suffer from infertility."

But "it doesn’t seem to me at first reading that there (will be) a substantive difference in the way patients are going to be looked after," he said.

"Are Canadians going to be well cared for by their physicians in their provinces? Yes. Is anybody going to be abused by the information released in this judgment? No."

The Supreme Court ruling also effectively kills plans for a national registry to collect health and genetic information on anonymous sperm and egg donors, as well as to track infants born from assisted human reproduction and the women and men who undergo the treatments.

"A single sperm donor can conceivably create any number of babies. If these are anonymous donations, it’s possible that those babies will grow up and have intimate relationships with half siblings and never know it, or produce clusters of genetic diseases," said Raywat Deonandan, a former scientific adviser to Assisted Human Reproduction Canada.

"All these things are quite possible and the way to control for that is to have a surveillance system that tracks gamete donation."

The deeply divided ruling was a significant victory for the province of Quebec, which launched a constitutional challenge against the federal government six years ago after Ottawa passed its Assisted Human Reproduction Act.

After taking 20 months to render a decision, the court’s ruling confirms health remains essentially a provincial jurisdiction, Quebec Health and Social Services Minister Yves Bolduc said.

"We’re happy with the decision and we respect the decision of the Supreme Court," Bolduc told a Quebec City news conference. "The most important thing is that our people are going to continue to have the same treatment as before, and also our program, you know, is the best in North America."

"The provisions of the act concerning controlled activities, namely those involving assisted human reproduction and related research activities, do not fall under the criminal law power, but belong to the jurisdiction over hospitals, property and civil rights, and matters of a merely local nature," wrote justices Marie Deschamps and Louis LeBel.

Also, the federal government cannot claim criminal jurisdiction because the regulations do not "suppress an evil," they wrote.

"While it is true that certain groups in Canadian society are opposed to assisted human reproduction, the evidence shows that assisted human reproduction is usually regarded as a form of scientific progress that is of great value to individuals dealing with infertility problems."

The judgment noted that Health Canada estimated a decade ago that every 100th baby in the industrialized world was conceived through assisted human reproduction technology.

The ruling was one of the most divisive in years, splitting the court into camps of four, four, and one. Four judges thought the federal government should control all, four voted for provincial oversight, leaving the most junior member, Justice Thomas Cromwell, to cast the deciding vote. He went down the middle, declaring some parts of the act to be federal and others to be provincial.

The majority ruling was a break from the court’s consistent pattern of siding with the federal government in its power over criminal law.

A spokeswoman for Deb Matthews, Ontario’s Minister of Health and Long-Term Care, said the province is reviewing the ruling.

"From a health perspective, the government’s No. 1 concern is patient safety and we’re going to continue to work with the College of Physicians and Surgeons of Ontario to ensure that anyone seeking fertility treatment is going to get the safest possible care," press secretary Neala Barton said in an email.

Saskatchewan, which supported Quebec’s challenge to the act, "is very pleased with the Supreme Court ruling," said Joan Petrie, a spokeswoman for the Saskatchewan Ministry of Health.

She said it’s too early to determine what it might mean for any future policy decisions.

-With files from the Montreal Gazette

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