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(Kiyoshi Takahase Segundo/Kiyoshi Takahase Segundo / iStockphoto)
(Kiyoshi Takahase Segundo/Kiyoshi Takahase Segundo / iStockphoto)

Fertility ruling spawns new round of confusion Add to ...

A long-awaited Supreme Court ruling that takes the business of regulating the clinical world of baby-making out of Ottawa's hands has raised questions about the future of fertility treatments in Canada, and fears that the black market for human eggs and sperm will continue to thrive.

Judges found the power to regulate and license doctors and clinics offering fertility treatments belongs to the provinces, as an area involving the practice of medicine. But the ruling, released Wednesday, upholds other elements of the federal Assisted Human Reproduction Act, including those governing the use of human embryos in stem cell research.

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Reaction has been mixed, and muddled, to the dense 163-page decision. Everyone from the federal government to fertility doctors has enlisted lawyers to dissect its implications for an area of medicine that routinely raises ethical quandaries society has never confronted.

Patients, for instance, feel the court did not go far enough in banning the federal government from their child-bearing decisions. Since it still allows Ottawa to prohibit payment to surrogate mothers and limit reimbursement to egg and sperm donors, patient advocates predict couples anxious for a child will still have to resort to buying from out-of-country donors or dubious services they discover on the Internet.

Fertility doctors, meanwhile, are pleased the court ruled that their specialty falls under provincial jurisdiction, because it gives their provincial professional bodies - the colleges of physicians and surgeons - more say over how they practise medicine, not an outside federal agency. But they do worry about the regulatory void ahead.

"There should be regulations in place," said Carl Laskin, president of the Canadian Fertility and Andrology Society. Quoting a line from the film Jurassic Park, Dr. Laskin said the field is rife with instances where "you are excited to think that you could do something - but no one stopped for a moment to ask if you should."

In recent years, those questions have involved in vitro fertilization treatments that have resulted in the multiple births of more than half a dozen children at once, the implanting of embryos in elderly women, screening embryos for sex or other specific genetic traits and the practice of freezing eggs for later use.

Chief Justice Beverley McLachlin wrote that the law, as a whole, was a valid exercise of federal power: "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 divert serious damage to the fabric of our society by prohibiting practices that tend to devalue human life and degrade participants."

Tim Caulfield, a lawyer and bioethicist with the University of Alberta who has closely followed the law for a decade before it was passed, noted that the act would have allowed a "standardization of practices and collection of information that could have benefited patients.

"Now the provinces have been given a green light to regulate this area - but are they going to take it up?" he said. If they do, he added, will different provinces allow different practices, making it possible that a "patchwork" of access to reproductive medicine technologies could emerge in Canada?

"Will we have reproductive tourism within the country?" he asked. "What will governments do, that remains to be seen."

It was Quebec, later joined by New Brunswick, Saskatchewan and Alberta, that challenged the federal assisted human reproduction law shortly after it was passed in 2004. Quebec had argued that regulatory control over reproductive technologies is a provincial matter.

In agreeing with the Quebec position, the ruling not only dilutes legislation more than a decade in the making, it casts doubt on the future of the multimillion-dollar agency the Harper Conservatives created in 2006 to police the act. That agency, known as Assisted Human Reproduction Canada, has operated under a cloud of criticism since its inception.

It was initially struck to license doctors and clinics offering fertility treatments, and oversee the practice of deriving stem cells from human embryos donated for research through fertility clinics.

But the court ruling makes it unclear what the agency, which has a large staff, offices in Ottawa and Vancouver and a $10-million budget, will do if it has only a small area of responsibility in collecting statistics or information on patients and donors or policing reimbursements. At the same time, the research demand for stem cells derived from human embryos in Canada has dwindled. Canadian scientists tend to import embryonic stem cells from other countries and focus their work on adult stem cells.

"It's a real mess, there's nothing for this agency and their big staff to do," said Michael Rudnicki, head of Canada's Stem Cell Network.

A spokesperson for the agency said Wednesday that all comment on the matter would have to come from Health Canada. But Health Canada spokesman Gary Holub said only that the department "will take the necessary time to review the decision."

Critics had initially argued that the federal Tories had stacked the agency board with social conservatives, while including few experts or patient representatives. But more recently, it has come under scrutiny for inaction and the sudden, and mysterious, departure of three board members.

Dr. Laskin, however, said the agency "had its hands tied" because of the court challenge. Still, he feels, "it should be the provinces [to regulate reproductive medicine] Health care comes under provincial jurisdiction and the colleges [of physicians and surgeons]regulate the profession - why take this out and put it under a separate authority?"

But Bev Hanck, executive director of the Infertility Awareness Association of Canada, a national support and advocacy group for fertility patients, said the decision "contains no good news for patients."

While there are administrative changes as to who regulates what, "everything remains status quo, which in some senses is a disappointment," said Ms. Hanck, referring to the section of the law that still allows the federal government to limit reimbursable expenses to donors of egg and sperm and ban payment to surrogate mothers.

"Parliamentarians talk about the commercialization of body parts … this is not about that, this is about helping your fellow man to have a child, a family," said Ms. Hanck, whose association includes 30 support groups across the country.

By making it illegal for patients to pay donors and surrogates for their services and not just their expenses, patients will turn to the black market, she said. "They haven't stopped the importation of [donor]eggs and sperm. … Our sperm regulations in this country are more rigid than anywhere else in the world."





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