Assisted reproduction policy in Canada hasn’t quite worked out as planned. After a 1993 royal commission recommended sweeping national legislation, Parliament passed the Assisted Human Reproduction Act in 2004. This legislation was supposed to be one of the most comprehensive frameworks in the world: it contained criminal prohibitions to prevent ostensibly harmful technologies and behaviours; a framework for “controlled activities,” which were supposed to be accompanied by detailed regulations; and a national agency to oversee it all, including the licensing of fertility clinics. In Canada’s otherwise decentralized system, this new law was supposed to prove that Parliament could legislate to create national standards in areas where they were sorely needed.
The victory was short-lived. Quebec soon challenged the law, saying that the bulk of it — basically everything except the criminal prohibitions — violated provincial jurisdiction over health. In 2010, a narrow Supreme Court majority agreed. The legislation was gutted and the national agency was shut down. Today we’re left with a smattering of outdated criminal prohibitions, coupled with what many criticize as a “patchwork” of clinical standards across the country. Far from showing the capacity for national leadership, assisted reproduction policy has only reinforced Canada’s fragmented and decentralized social policy framework.
How did we get here? Much has to do with the way federal policy-makers framed their constitutional justifications for national legislation. Broadly speaking, the Canadian Constitution grants authority over health care policy-making to the provinces. Yet two grants of power permit Parliament to legislate in fields that could otherwise implicate provincial jurisdiction over health care. The first is Parliament’s power to make laws for the “Peace, Order, and good Government” (POGG) of Canada. POGG can justify national legislation responding to a national emergency (which assisted reproduction was not), and to issues of inherent “national concern.” The second instrument is Parliament’s power to define the criminal law. Canadian courts have interpreted this criminal law power quite broadly, even allowing Parliament to pass regulations that are necessary to the achievement of criminal prohibitions.
The Royal Commission on New Reproductive Technologies had justified national legislation for assisted reproduction almost entirely under POGG’s “national concern” branch. It claimed reproductive technologies contained “a degree of singleness, distinctiveness, and indivisibility” that made national legislation necessary. However, from a constitutional law perspective, the royal commission’s argument was not persuasive. The federal government abandoned POGG entirely, instead justifying the legislation on the much narrower criminal law power. In the Supreme Court decision, POGG wasn’t even mentioned, and a majority of justices were not persuaded by the criminal law justification either. As Justices LeBel and Deschamps wrote, “Neither a desire for uniformity nor the very novelty of a medical technology can serve as the basis for an exercise of the federal criminal law power.” Put differently, the federal government can ban whatever it wants, but when it comes to the regulation of health and medicine, the connection to a criminal prohibition must be clearer.
At the federal level, the criminal prohibitions remain and ancillary regulations are forthcoming, but the scope for national action has been severely limited. Meanwhile, provincial policy-making following the Supreme Court decision has been minimal. Quebec has a fairly robust regulatory and licensing framework, and it briefly funded in vitro fertilization (IVF) from 2010 to 2015. Ontario funds IVF but regulates little else. Several provinces have made important changes that legally recognize parents of children born through assisted reproduction, including streamlining rules for surrogacy. Yet policy across the country looks nothing like what the architects of the Assisted Human Reproduction Act envisioned.
Some have lamented the lack of national standards for assisted reproduction. I am less troubled. In Canadian health care, a patchwork is the norm and can produce the diffusion of best practices from one jurisdiction to another. Moreover, just because something is regulated by the federal government does not mean it will be better regulated. One need only look to those aspects of assisted reproduction policy that remain uniform across Canada — the illiberal and outdated criminal prohibitions against payment for eggs, sperm and surrogacy — to see how heavy-handed federal law can be. These prohibitions criminalize the actions of would-be parents, inhibit family making for the LGBTQ community and reduce the ability of those struggling with infertility to access reproductive material. Why should we expect Parliament, armed only with its power to make policy attached to criminal prohibitions, to get future assisted reproduction policy right?
The constitutional law implications of Canada’s assisted reproduction history — in particular, the hollowing out of Parliament’s authority to legislate in areas of inherent national concern — go well beyond assisted reproduction. After the Supreme Court’s assisted reproduction reference case in 2010, some (myself included) predicted POGG was dead. It turns out POGG was just sleeping: in the Saskatchewan Court of Appeal this February, the Attorney General for Canada defended the Trudeau government’s Greenhouse Gas Pollution Pricing Act solely on the basis that greenhouse gases constitute a matter of national concern under POGG — single, distinct and indivisible, the cumulative dimensions of which cannot be adequately addressed by provincial legislation.
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Will the Greenhouse Gas Pollution Pricing Act be upheld as a legitimate matter of national concern? It certainly stands a better chance than the Assisted Human Reproduction Act, the dangers of which were far more easily contained within provincial boundaries or by criminal prohibitions. Yet, as Saskatchewan argued in court, the federal government has not sufficiently made the case that provinces are unable to address greenhouse gas emissions. The federal climate change strategy, which permits a patchwork so long as provincial policies meet a certain standard, clearly assumes that provinces have the capacity to reduce carbon emissions. The federal government would have been better off arguing that the law was justified based on POGG’s more temporary “national emergency” doctrine, especially given the gravity of climate change. However, as counsel for Saskatchewan noted, invocation of the emergency power would have “acknowledge[d] too explicitly” that the Greenhouse Gas Pollution Pricing Act seeks “a displacement of provincial powers.”
How the Saskatchewan Court of Appeal — and, likely, the Supreme Court of Canada after it — will decide is anyone’s guess. If assisted reproduction policy tells us anything, it is that we should not expect the courts to simply accept that Parliament can regulate an area because it is important. Constitutional law and Supreme Court doctrine can foil the best-laid plans. But all is not lost. The federal government clearly believes provinces are capable of introducing policy to reduce emissions. If enough of them cannot be persuaded, then a truly national carbon tax remains an option. All we know is that the courts will have an important role to play in shaping climate change policy, just as they have for so many other policy fields, assisted reproduction included.
This article is part of the Addressing the Gaps in Canada’s Assisted Reproduction Policy special feature.
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