Meanwhile, What’s Up in Canada? Is ART Becoming Less Regulated?

I confess that what with one thing and another I have fallen behind in following Canadian law.   There were some stories about criminal prosecutions connected to ART  I was meaning to cover.  (I guess I’ll come back to them.)   Now comes this story.   At least at first glance it appears that Canada is moving towards less regulation of ART.

That’s a bit surprising because I actually cannot think of any other jurisdiction about which I’d make that statement.   Of course, much of the US remains largely unregulated, which makes moving to less regulation nearly impossible.   But if I were to generalize about trends, I’d say that there is a general trend towards greater regulation–think about calls for regulation about number of offspring or anonymity of gamete providers.   Legislative action towards regulation was the topic of the last post, really.

Now to be fair, it doesn’t look to me like the move away from regulation in Canada is the result of a considered decision that regulation is bad or inappropriate.   It seems more like a convergence of circumstances that are leading to this result.   And the story told in the paper doesn’t give a full picture.   Remember that British Columbia is the where the Pratten case is being litigated.

Perhaps that is a better way to think about it.  The legislative/administrative regulation of ART–at least on a federal level–seems to have frozen up or broken down or whatever.   So, as I’ve occasionally noted in other contexts, courts/judges are left to deal with problems.   I suppose you could say that cases like Pratten’s are an inevitable consequence of the kind of paralysis that can settle in to the legislative branch.

But you must take all I’ve said here with some hefty grains of salt.  I’m not in Canada and I’m by no means an expert on what’s going on there.  I hope someone from there can fill us in a bit.


5 responses to “Meanwhile, What’s Up in Canada? Is ART Becoming Less Regulated?

  1. Julie,

    What it all comes down to is a Supreme Court of Canada ruling that parts of the ART Act are unconstitutional in that they are mandating how medicine is practiced or something like that, as well as perhaps provincial jurisdiction issues as well. Since that court ruling the law has not been updated to reflect the changes and the (can’t think of the name) governing body has been dealing with no ability to do anything, and people quiting etc. I do think the Conservative government is playing games to get votes from the infertility and LGBT sector – although primarily infertility.

    I do wonder how they could move to anonimity seeing as Canada has signed the UN Treaty on the Rights of the Child when one of the main tenents is the right to know where you came from.

    I have been working on a post regarding this news story (different than your’s) about blatant selling of eggs etc but have no idea when I will get it done. The penalty is $500K or 10 years in jail (or both?) which the 10 years if you knew our justice system is extreme jail time.

    I have read the ART Act and the statements in the above article are ridiculous – it is plain as day that buying or selling gametes is ILLEGAL.

    I would be very upset if Canada does away with the regulation that exists (after the unconstitutional aspects are dealt with).

    • 10 years? Really, even in the United States, which generally gives longer sentences than Canada does, many violent crimes don’t even get 10 years if no one dies. That’s overkill to me.

    • In some ways, I think this story evidences how difficult it is to manage this stuff via legislation/regulatory process/etc. It ends up in the court’s by default–because they have to deal with it when no one else will. Maybe we are too fractured as a society to really legislate on this–maybe it is all too unclear and complicated.

  2. Julie,

    I disagree that it can’t be legislated because adoption is legislated. I think it comes down to pressure from the industry on the policitians and that to me is a horrible practice.


    10 years is excessive and perhaps one of the reasons why no charges have been brought – who knows.

    What I don’t understand is why our Competition Bureau has not investigated. They regularly take on this type of investigation.

    • I don’t mean “can’t be legislated” in the sense that it is really impossible. It just mean to say it appears to me that this area of law is nearly politically untouchable for an elected body. I wouldn’t be at all surprised if a majority of people–even a large majority of people–wanted various forms of regulation for ART. But can enough people agree on enough of the specifics to actually enact a law? It just seems like there is so little coming out of the legislatures around the US on this.

      It’s true that there has been more movement on adoption. Maybe adoption is a little less complicated because it doesn’t includes such a vast array of procedures? Maybe the general polarization of the political process in the US makes doing everything harder these days? Maybe ART has become so much of an industry there’s extra resistance to change? (But many would say that adoption is also an industry, right?) I don’t know–I’m just guessing.

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