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Ottawa Fertility Law - Great Expectations

Assisted Human Reproduction Act

Assisted Human Reproduction ActWhen the first so-called test-tube baby, Louise Brown, was born in 1977, a brave new world of technology was confronting citizens and parliaments in Canada. In fact, governments the world over rushed to address the intersection between morals and ethics and the scientific advances. A Royal Commission was finally set up in 1989 to report to federal Parliament.

It was a classic case of society changing faster than the law. The commission took 4 years to research and report, and both its operation and final report were the subject of controversy and scrutiny. Legislators were unable to enact a statute based upon the findings of the report until 2004, at which point, the Louise Brown technology was nearly 30 years old.

Then, in 2010, the Supreme Court of Canada struck a large part of the Act because it infringed on the provincial authority for health care, as set out in the Constitution. The Constitution divides the powers into provincial authority and federal authority. It also sets out the residual power called “peace order and good government” the so-called POGG authority to legislate, which the Government of Canada invoked for the Assisted Human Reproduction Act (AHRA).

Striking parts of the AHRA was a major setback. The result is that the legal void which existed at the time of Louise Brown’s birth all those decades ago has not significantly changed (although the criminal prohibitions on commodification remain).

2012

Federal budget closes agency created in 2006 to implement AHR regulations by developing, and enforcing standards.

2010

The Supreme Court of Canada finds that the Government of Canada has legislated in provincial jurisdiction and strikes much of the AHRA. The law had just come into force in 2004 after 15 years of policy research and attempted legislation.

2008

On 19 June 2008, the Quebec Court of Appeal ruled that parts of the law were unconstitutional because they violated the right of provinces to regulate health care. The Government of Canada appealed the decision to the Supreme Court of Canada.

The Province of Quebec asks the Court of Appeal to rule on whether the federal Assisted Human Reproduction Act infringes the provincial jurisdiction over health.

2006

Federal agency created responsible for implementing regulations under the Assisted Human Reproduction Act

2004

Assisted Human Reproduction Act receives Royal Assent. The legislation is based upon public and policy research which was commissioned in the 1989 and whose report was issued in 1993.

2001

In 2001, Allan Rock, Minister of Health, asked the Standing Committee on Health to examine and formulate policy. In a break from usual practice, committee was to report on draft legislation before even being introduced in the House of Commons.

2000

Seven years after the release of the report of the Royal Commission, there are still no laws in Canada. McTeer was a founding member of the Royal Commission between 1989 and 1991.

1996

Proposed legislation on assisted human reproduction dies on the order paper.

Bill C-47 was introduced to federal Parliament. It proposed banning 13 reproductive technologies. It died when a federal election was called and Parliament was dissolved in the spring of 1997.

1993

Report of Royal Commission released.

In a hard-hitting interview, CBC journalist Wendy Mesley challenges Dr. Baird on the paternalistic nature of much of the recommendations. The prophetic question is raised of whether the restrictions will paradoxically fuel a black market in ART.

1991

Members of the Royal Commission on new reproductive technologies bring a lawsuit alleging mismanagement preventing effective research results.

On December 7, 1991, Commission members took the Commission to court in a dispute over how it was being run, claiming that certain members had preconceived ideas about what kind of information should be presented. Four of the original commissioners appointed were then fired on December 16.

Dr. Arthur Leader co-founded the IVF program at the Ottawa Hospital in 1988. Dr. Leader continues to practise fertility medicine in Ottawa. Dr. Leaders’ recommendations informed the Government of Ontario 2014 decision to cover IVF through OHIP.

1989

About 40,000 individuals and organizations advised the Royal Commission between 1989 and 1993, at an estimated cost of about $28 million.

1984

On December 25th, 1983, the first test tube baby conceived in Canada is born at Vancouver General Hospital.

1982

Dr. Margaret Somerville is interviewed by Hana Gartner. Somerville would later become the Founding Director, Centre for Medicine, Ethics and Law at McGill University. She continues to publish and lecture widely on the tension between ethics and the law of assisted reproduction technology.

1980

Years before the infamous Baby M case in the United States, the Task Force on Human Life (created by the Anglican Church of Canada) advocates against surrogacy, foreshadowing the Baby M dispute over traditional surrogacy.

1978

The doctors behind the first test tube baby argue that they aim to ‘help nature,’ not subvert it.

1961

Dr. Daniele Petrucci of Bologna, Italy, conducts one of the first major in vitro fertilization experiments.