Court grapples with fertilization

Manitoba will review the impact of a Supreme Court ruling that upholds the right of provinces to regulate in vitro fertilization.
The Supreme Court of Canada issued a divided advisory opinion on Wednesday that grappled with the "weighty moral concerns" of assisted human reproduction. It declared Ottawa overstepped itself in asserting its right to regulate the use of human sperm, eggs and embryos, but said the federal government is within its rights in banning cloning and human hybrids.
Karen Busby, a University of Manitoba law professor, said the ruling paves the way for the provinces to examine how they will regulate clinics and how information about donors is collected, stored and disclosed. She said it could mean Manitoba and other provinces regulate how many embryos are implanted for in vitro fertilization or introduce screening mechanisms to ensure surrogate mothers meet certain criteria.
A government spokesman said it will take a bit of time to assess how the ruling may affect Manitoba regulations, and the assessment should be complete early in the new year.
"Nothing's been happening for six years in Canada, so thank goodness the decision is finally out," Busby said. "The next step is for provinces to determine what extent they need to regulate practices in clinics."
Quebec filed a constitutional challenge to the 2004 federal Assisted Human Reproduction Act and was supported by three other provinces. The province argued that Ottawa was treading on provincial jurisdiction over health care.
The act regulated the use of sperm, eggs and embryos, while banning clones and hybrids. Ottawa maintained it had the right to make criminal laws and that the purpose of the act was to protect the "health, safety and public morals" of Canadians.
The court split, with Justice Thomas Cromwell offering the determining view in what amounted to a complex analysis of the time-honoured constitutional rights of provinces to control health care.
Busby said the ruling upheld the right of the federal government to prohibit negative practices associated with assisted human reproduction, including who has the right to use donated sperm. For example, she said, if a man battling cancer chose to freeze his sperm but later died, the law prohibits anyone from using the sperm without his clear consent.
The court challenge left many regulations in limbo and Busby expects provinces will move fairly quickly to fill the void. Currently, Busby said, there are no clear guidelines on how information about sperm and egg donors is collected, so children born from donors don't have a way to access biological information.
"The real problem is a lot of that information has never been properly collected or stored," she said. "Unlike adoption where you know a record exists somewhere, here you simply might not ever have the information that Joe Blow was a sperm donor."
Busby said Manitoba could also introduce screening tools for surrogate mothers to ensure that anyone who offers to bear someone's child is doing it for the right reasons, and not because she has been illegally paid. Busby said the best surrogates are women who have already had children, enjoyed being pregnant, and had easy pregnancies.
Busby said some fertility clinics in other parts of Canada have implanted embryos in commercial surrogates, which is illegal. She said the court ruling should pave the way for provinces to put a stop to "shady" practices.

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