Dr. Calvin Greene holds some odious views when it comes to racially mixed children. The physician at Calgary’s only privately owned fertility clinic recently refused to impregnate a woman with sperm from a donor who did not share her skin colour, because of his belief that it is better for children to be raised by parents of the same race. The Dr. Greene case is an easy one, legally and ethically speaking: he’s wrong. But many other issues surrounding fertility are more fraught. And there are real questions about how fertility clinics are regulated, at a time when Canadians are seeking IVF treatments in record numbers, and several provinces fund them or have plans to begin funding.
Until the Supreme Court struck down large parts of it in 2010, the federal Assisted Human Reproduction Act governed the licensing, monitoring, inspection and enforcement of rules around fertility clinics. The Court ruled these are health issues rather than criminal matters – and under the Constitution, health care is largely a provincial jurisdiction.
The court’s instinct was right. Fertility treatments are medical treatments, and fertility doctors are no different from other medical professionals. They are governed by provincial professional bodies – colleges of physicians and surgeons – which guide their practice of medicine and have the ability to discipline doctors. But when it comes to the myriad of other ethical issues around IVF, provincial governments – especially those that fund IVF treatments – have a role to play. Some provinces, including Alberta and Ontario, are reluctant to do so. The result is lax oversight and patchy enforcement of rules, or barely any rules at all.
The Assisted Human Reproduction Act’s starting point was that that fertility belonged in the realm of federal criminal law. That wasn’t an ideal place to begin. Fertility belongs in the wider world of medicine and should be regulated as such, with rigorous rules of clinical practice. But without sensible oversight, fertility clinics are free to essentially set their own policy. Provincial governments need to step in to ensure the health and best interests of patients are better protected.