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The Judicialization of Assisted Reproductive Technology Policy in Canada: Decentralization, Medicalization, and Mandatory Regulation*

  • Dave Snow (a1)
Abstract

This article examines the effect of two recent constitutional decisions that have altered the course of assisted-reproduction policy in Canada: Reference re Assisted Human Reproduction Act (2010) and Pratten v British Columbia (2011). Together, the cases link a socially liberal conception of morality in federalism cases with an interventionist view of the state in Canadian Charter of Rights and Freedoms cases. This could result in a trend toward judicially mandated provincial, as opposed to federal, government action. These cases also provide further evidence of the judicialization of politics in Canada, whereby controversial moral and public-policy issues are increasingly determined in the courtroom.

Cet article examine l'incidence de deux décisions constitutionnelles récentes qui ont modifié le cours des politiques sur la procréation assistée au Canada, soit le Renvoi relatif à la Loi sur la procréation assistée (2010) et Pratten c. British Columbia (2011). Considérées dans leur ensemble, ces affaires lient une conception de la moralité sociale-libérale au sein des causes fédéralistes à un point de vue interventionniste de l'état dans les causes fondées sur la charte. Cela pourrait avoir comme conséquence une évolution vers des mesures gouvernementales qui relèvent du système judiciaire provincial plutôt que fédéral. Ces affaires fournissent des éléments de preuve supplémentaires de la «judiciarisation» des politiques au Canada, par laquelle les enjeux et les intérêts publics controversés sont de plus en plus déterminés par les tribunaux.

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1 See, e.g., Acem, Elsa, “Legal Expertise, Scientific Knowledge, and Medical Ethics at a Crossroads,” Canadian Journal of Law and Society 22, 2 (2007): 231–41; Fukuyama, Francis, Our Posthuman Future: Consequences of the Biotechnology Revolution (New York: Farrar, Straus, and Giroux, 2002); Shanley, Mary Lyndon, Making Babies, Making Families: What Matters Most in an Age of Reproductive Technologies, Surrogacy, Adoption and Same-Sex and Unwed Parents (Boston: Beacon Press, 2007); Somerville, Margaret, The Ethical Imagination: Journeys of the Human Spirit (Toronto: Anansi, 2006).

2 Anderson, Christine Rothmayr, “Introduction: The Biotechnology Revolution and Comparative Policy Studies,” Journal of Comparative Policy Analysis: Research and Practice 11, 4 (2009): 413–24.

3 Jasanoff, Sheila, Designs on Nature: Science and Democracy in Europe and the United States (Princeton, NJ: Princeton University Press, 2005); Montpetit, Éric, Rothmayr, Christine, and Varone, Frédéric, “Institutional Vulnerability to Social Constructions: Federalism, Target Populations, and Policy Designs for Assisted Reproductive Technology in Six Democracies,” Comparative Political Studies 38 (2005): 119–42; Sheingate, Adam D., “Promotion versus Precaution: The Evolution of Biotechnology Policy in the United States,” British Journal of Political Science 36 (2006): 243–68.

4 Hirschl, Ran, “The New Constitutionalism and the Judicialization of Pure Politics Worldwide,” Fordham Law Review 75 (2006): 721–53; Tate, C. Neal and Vallinder, Thorsten, eds., The Global Expansion of Judicial Power (New York: New York University Press, 1995).

5 Jones, Mavis and Salter, Brian, “Learning to Regulate: Values, Actors, and Instruments in Developing Canada's Assisted Human Reproduction Framework” (GBRG Working Paper 22, July 2007), 4.

6 Reference re Assisted Human Reproduction Act, [2010] 3 SCR 457.

7 Pratten v British Columbia (AG), [2011] BCSC 656.

8 Lowi, Theodore J., “American Business, Public Policy, Case Studies, and Political Theory,” World Politics 16, 4 (1964), 688.

9 Mooney, Christopher Z., “The Public Clash of Private Values,” in The Public Clash of Private Values: The Politics of Morality Policy, ed. Mooney, Christopher Z. (Chatham, NJ: Chatham House, 2001), 34; Smith, T. Alexander and Tatalovich, Raymond, Cultures at War: Moral Conflicts in Western Democracies (Peterborough, ON: Broadview Press, 2003); Studlar, Donley, “What Constitutes Morality Policy? A Cross-National Analysis,” in The Public Clash of Private Values: The Politics of Morality Policy, ed. Mooney, Christopher Z. (Chatham, NJ: Chatham House, 2001), 39. Although there is no universal agreement on what constitutes morality policy, the list normally includes abortion, homosexuality, capital punishment, pornography, and euthanasia. See Studlar, ibid., 46, for a discussion of other types of morality policies, including alcohol, drugs, and divorce.

10 Lowi, Theodore J., “Foreword: New Dimensions in Policy and Politics,” in Moral Controversies in American Politics, 3rd ed., ed. Tatalovich, Raymond and Daynes, Bryon W. (Armonk, NY: M.E. Sharpe, 2005), xii.

11 Ibid., xiv.

12 Ginsburg, Tom, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003); Hirschl, Judicialization of Politics; Sweet, Alec Stone, The Judicial Construction of Europe (Oxford: Oxford University Press, 2005); Tate and Vallinder, Judicial Power.

13 Epp, Charles R., The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998), 197201.

14 Morton, F.L. and Knopff, Rainer, The Charter Revolution and the Court Party (Peterborough, ON: Broadview Press, 2000), 166; see also Glendon, Mary Ann, Rights Talk: The Impoverishment of Political Discourse (New York: Free Press, 1991), 569.

15 Hirschl, , Judicialization of Politics, 721.

16 Early federalism cases involved the judicial branch on morally contentious legislation, particularly in cases concerning prohibition; see Russell v The Queen, [1882] 7 AC 829; Ontario (AG) v Canada (AG), [1896] AC 348 [“Local Prohibition Case”]. However, because the Canadian Charter of Rights and Freedoms increased citizens' ability to challenge state action that harmed them directly, the judicialization of morality policy has substantially increased since 1982.

17 Unlike the US Supreme Court and other federal high courts, the Supreme Court of Canada can hear appeals concerning all components of provincial jurisdiction.

18 R v Butler, [1992] 1 SCR 152; R v Morgentaler, [1988] 1 SCR 30; Reference re Same-Sex Marriage, [2004] 3 SCR 698.

19 Most Canadian policy experts have favoured a national framework for assisted reproduction in order to achieve uniform standards across the country. Notably, Baird, Patricia, Baylis, Françoise, Guichon, Juliette, Somerville, Margaret, and the editorial board of the Canadian Medical Association Journal have preferred federal to provincial legislation (see notes 3233 below).

20 Proceed with Care: Final Report of the Royal Commission on New Reproductive Technologies (Ottawa: Minister of Government Services Canada, 1993), 1049.

21 Ibid., xxvi.

22 Assisted Human Reproduction Act, SC 2004, c 2.

23 Caulfield, Timothy and Bubela, Tania, “Why a Criminal Ban? Analyzing the Arguments against Somatic Cell Nuclear Transfer in the Canadian Parliamentary Debate,” American Journal of Bioethics 7, 2 (2007): 5161; Young, Alison Harvison, “Let's Try Again … This Time with Feeling: Bill C-6 and New Reproductive Technologies,” UBC Law Review 38, 1 (2005): 123–45; Hnatiuk, Dana, “Proceeding with Insufficient Care: A Comment on the Susceptibility of the Assisted Human Reproduction Act to Challenges under Section 7 of the Charter,” University of Toronto Faculty of Law Review 65, 1 (2007): 3961.

24 Chenier, Nancy Miller, “Intergovernmental Consultations on Health: Toward a National Framework on Reproductive Technologies” (Library of Parliament Working Paper PRB 02-34E, 2002), http://publications.gc.ca/collections/Collection-R/LoPBdP/PRB-e/PRB0234-e.pdf, 16.

25 Quebec (AG) v Canada (AG), [2008] QCCA 1167, 298 DLR (4th) 712 at para 17. Indeed, Quebec was the only province to have legislated in this area before the AHRA was passed (see note 37 below).

26 The Quebec Court of Appeal found ss 8–19, 40–53, 60, 61, and 68 of the AHRA unconstitutional; the AHRA's criminal prohibitions were never challenged.

27 Re Assisted Human Reproduction Act at para 255.

28 Ibid. at paras 276–77.

29 Ibid. at para 286 [emphasis added].

30 Ibid. at para 285.

31 These regulations were contained in ss 8, 9, and 12 of the AHRA.

32 Patchwork Regulations Likely Outcome of Reproductive Technology Ruling“ (Editorial) Canadian Medical Association Journal 183, 4 (2011), http://www.cmaj.ca/content/183/4/E215.full.pdf; Laskin, Carl A., “The Supreme Court Judgment,” Canadian Fertility and Andrology Society (December 23, 2010), http://www.cfas.ca/index.php?option=com_content&view=article&id=1061:supreme-court-judgment&catid=3:newsflash; Kirkey, Sharon and Tibbetts, Janice, “Ruling Creates Regulation Gap,” Edmonton Journal (December 23, 2010), A3. See also Guichon, Juliet, Giroux, Michelle, and Mitchell, Ian, “Once More, an Unregulated Nightmare,” Globe and Mail (June 24, 2008), http://www.theglobeandmail.com/news/opinions/article693776.ece (written in response to the initial Quebec Court of Appeal decision).

33 Those unhappy with the decision include Patricia Baird, chair of the Royal Commission on New Reproductive Technologies; Diane Allen, executive director of the Infertility Network; and the Canadian Medical Association Journal's editorial board. See Blackwell, Tom, “Observers Divided on Fertility Ruling,” National Post (December 23, 2010), A1; “Patchwork Regulations Likely”; “Law Needed for High-Tech Births” (Editorial), Victoria Times-Colonist (January 9, 2011), C2.

34 As mentioned above, regulations concerning reimbursement for out-of-pocket expenses by donors and surrogates also remain, and Assisted Human Reproduction Canada maintains the authority to investigate and enforce compliance with all its constitutional prohibitions and regulations. McClure, Matt, “Alberta Fertility Industry to Remain Unregulated,” Calgary Herald (December 23, 2010), A3.

35 Re Assisted Human Reproduction Act at para 255.

36 The Supreme Court of British Columbia is actually BC's second-highest court, as its decisions can be appealed to the British Columbia Court of Appeal. Because of Canada's unified appellate structure, all BC Court of Appeal decisions can be appealed to the Supreme Court of Canada.

37 In addition to arts 11–25 and 541 in the Civil Code of Québec, RSQ, c C-1991, Quebec legislation addressing assisted reproduction includes the Code of Ethics of Physicians, RRQ, c M-9, r 4.1; An Act respecting health services and social services, RSQ, c S-4.2 (commonly abbreviated as AHSSS in French); and, most recently, An Act respecting clinical and research activities related to assisted procreation, RSQ, c A-5.01. As of August 2010, Quebec's provincial health insurance covers three rounds of IVF. See A Quebec (AG) v Canada (AG) at para 30; Re Assisted Human Reproduction Act at paras 222–24.

38 Blackwell, Tom, “Fertility Law Leaves Us in Limbo, Doctors Say,” National Post (April 30, 2010), A1.

39 Blyth, Eric and Crawshaw, Marliyn, “Countdown Begins for Ending Donor Anonymity in British Columbia: Lessons for Us All?” BioNews (June 6, 2011), http://www.bionews.org.uk/page_96105.asp.

40 This article uses the same terminology used by Justice Adair in Pratten: the term “social father” refers to “the individual who functions in the family as the father,” while “biological father” refers to the individual who donated sperm—in this case, on an anonymous basis. Pratten at para 33.

41 Anonymous gamete donation occurs with both sperm and ova. However, because of the expense, time, invasiveness, and health risks associated with ovum donation, sperm donation is far more common.

42 Pratten and her mother appeared before the Standing Committee on Health in an attempt to convince legislators to prohibit donor anonymity in the AHRA. The committee's final report recommended an end to donor anonymity, but that recommendation did not make it into the final legislation. See Report of the Standing Committee on Health, Assisted Human Reproduction: Building Families (Ottawa: Public Works and Government Services Canada, 2001).

43 Pratten initially launched her judicial challenge against both the province of British Columbia and the College of Physicians and Surgeons in British Columbia (CPSBC). In 2010, an agreement was reached between Pratten and the CPSBC, stating that the college would amend its by-laws in the case of a Pratten victory. In return, Pratten's action against the CPSBC was dismissed, and her case focused solely on government action. Pratten at para 22.

44 Ibid. at para 335.

45 Shortly after the decision, the BC government announced that it would appeal the Pratten ruling to the BC Court of Appeal. See Hall, Neal, “B.C. Government to Appeal Landmark Decision to Identify Sperm Donors,” Vancouver Sun (June 18, 2011), A12.

46 Processing and Distribution of Semen for Assisted Conception Regulation, SOR/96-254 [“Semen Regulations”]. See Pratten at para 123.

47 Pratten at para 152.

48 Ibid. at para 19.

49 See Vriend v Alberta, [1998] 1 SCR 493.

50 Pratten at para 268.

51 Ibid. at para 251.

52 Ibid. at para 273.

53 Ibid. at para 313.

54 Gosselin v. Quebec (AG), [2002] 4 SCR 429. This case concerned the constitutionality of legislation that limited welfare benefits for individuals under age 30 who were not participating in work training programs. A majority of justices upheld the legislation as constitutional. In dissent, Justice Arbour would have accepted a “positive” right to liberty (at para 357).

55 Pratten at para 290, citing Marchand v Ontario, [2006] 81 OR (3d) 172 (SCJ); Cheskes v Ontario (AG), [2007] 87 OR (3d) 581, 288 DLR (4th) 449 (SCJ). Justice Adair also rejected any implication that the state had infringed Pratten's liberty in a more classical negative sense, claiming that “the state action in this case amounts to no more than the tacit permission given through the approval given to the of [CPSBC's] rules by the Lieutenant Governor in Council.” Pratten at para 313.

56 Gosselin at para 82–83.

57 Pratten at para 291.

58 Ibid. at paras 177, 210 [emphasis added].

59 Ibid. at para 10.

60 For example, such a registry could share some of the donor's non-identifying characteristics with the donor-conceived offspring without divulging the donor's full identity. This occurs in the case of adoption, as biological parents can decline the option to be identified by their offspring.

61 Qtd. in Dhillon, Sunny, “Landmark Ruling Ends Donor Anonymity in B.C.,” Globe and Mail (May 20, 2011), A6.

62 Re Assisted Human Reproduction Act at para 251.

63 See notes 19, 32–33. Most prominently, ethicist Margaret Somerville and health law expert Françoise Baylis have frequently argued about the need for federal legislation.

64 Re Assisted Human Reproduction Act at para 150.

65 See, e.g., Dobson (guardian ad litem of of) v Dobson, [1999] 2 SCR 753; Egan v Canada, [1995] 2 SCR 513; M v H, [1999] 2 SCR 3; R v Morgentaler, [1988] 1 SCR 30.

66 See Allison, Christine Rothmayr and L'Espérance, Audrey, “Morality Policies, Legal Mobilisation, and the Canadian Charter of Rights and Freedoms: Does Policy Determine Politics and Patterns of Judicialization?” (Paper presented at the Annual Meeting of the American Political Science Association, September 2–5, 2010).

67 See notes 32–33.

68 Pratten at para 210.

69 Bateman, Thomas M.J., “Rights Application Doctrine and the Clash of Constitutionalisms in Canada,” Canadian Journal of Political Science 31, 1 (1998), 6.

70 Pratten at para 211.

71 Guichon et al., “Unregulated Nightmare.” This article was written in response to the Quebec Court of Appeal decision in 2008.

73 Baylis, Françoise, “Supreme Court of Canada Decision on the Assisted Human Reproduction Act Creates Urgent Need for Action” (Guest Editorial), Journal of Obstetrics and Gynaecology Canada 33, 4 (2011), 318. One need only to look to the “Octomom” ordeal, during which it was revealed that 34-year-old Californian Nadya Suleman had conceived octuplets due to the transfer of a dozen embryos during IVF, to see that unregulated assisted reproduction does not always put children's best interests first. That incident led to widespread calls for greater regulation of assisted reproduction, and Suleman's doctor's medical licence was revoked in 2011. Dobuzinskis, Alex, “‘Octomom’ Doctor Loses California Medical License,” Reuters (June 1, 2011), http://www.reuters.com/article/2011/06/01/us-octomom-idUSTRE7507TL20110601.

74 Gruben, Vanessa and Cameron, Angela, “Assisted Reproduction in Canada: A Call to Action,” Slogging for Equality (September 30, 2011), http://www.bloggingforequality.ca/2011/09/assisted-human-reproduction-in-canada.html.

75 Baylis, , “Urgent Need for Action,” 318.

76 Pratten at para 177; Baylis, , “Urgent Need for Action,” 319.

77 The AHRA bans commercial surrogacy and receiving “consideration” for arranging the services of a surrogate mother, though it leaves open the possibility of compensation for certain expenses related to surrogacy itself. The act's surrogacy provisions were not struck down in the Supreme Court Reference, but the legality of contracts between commissioning parents and surrogate mothers—whether those contracts include compensation or not—is under provincial jurisdiction. The federal ban on commercial surrogacy recently came to the forefront after the RCMP raided a fertility consultant clinic in 2012. Blackwell, Tom, “The Baby Market,” National Post (March 10, 2012), A10.

78 Pratten at paras 177, 210.

79 Although the Pratten decision is 124 pages long, Justice Adair's legal analysis does not begin until page 73. The first 72 pages address the procedural background of Pratten's unique case, government studies of ARTs and adoption reform, and current practices at Canadian fertility clinics. Fully 25 of those pages detail “The Experience of Donor Offspring,” individual stories (including some from South Africa and Australia), and testimony from four experts opposed to donor anonymity.

80 Zomorodi, Sahar, “Should s. 7 Rights Impose Positive State Obligations in the Context of Donor Anonymity?Regulatory Offences and Compliances Newsletter 4, 9 (2011), 1, 4.

81 Hearings in the BC Court of Appeal began in February 2012. See Fraser, Keith, “B.C. Seeks to Overturn Anonymous Sperm Donor Ruling,” Province [Vancouver] (February 14, 2012), http://www.theprovince.com/news/seeks+overturn+anonymous+sperm+donor+ruling/6152407/story.html.

82 Re Assisted Human Reproduction Act at para 1.

83 Posyniak, Thomas, “Assisted Human Reproduction and the Constitution: Introduction and Background to the Four-Part Commentary,” Saskatchewan Law Review 74 (2011), 4.

84 On its face, the most recent Supreme Court federalism decision concerning criminal law and health care, Canada (AG) v PHS Community Services Society, [2011] SCC 44, runs counter to this line of thinking. In that case, the Supreme Court of Canada upheld the federal government's authority to close down Vancouver's supervised injection site as a valid use of the criminal-law power, but subsequently found that the government's decision violated s 7 of the Charter. Unlike Re Assisted Human Reproduction Act, however, PHS Community Services concerned an explicit criminal prohibition (illicit drugs), rather than federal regulations connected to an altogether different criminal purpose. Moreover, because the provincial government wanted the site to remain open, the Court's finding of a Charter violation has further reinforced the medicalized framework.

* The author thanks two anonymous CJLS reviewers for their helpful comments, and the Social Sciences and Humanities Research Council of Canada for its generous support. Special thanks also go to Tom Bateman, Rainer Knopff, Mark Harding, and Adam McAuley. An earlier draft of this article was presented at the International Political Science Association RC09 (Comparative Judicial Studies) conference in Irvine, California, on July 21, 2011.

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