Assisted Human Reproduction in Common Law Canada after the Supreme Court of Canada Reference: Moving beyond Regulation by Colleges of Physicians and Surgeons

Abstract

The Supreme Court of Canada’s opinion in Reference re Assisted Human Reproduction Act effectively decided that it was for provinces and territories to regulate most aspects of assisted human reproduction. Since the 2010 ruling, only Québec has passed legislation to govern the field. Although two colleges of physicians and surgeons have adopted medical practice guidelines, approximately forty-two fertility clinics in common law Canada lack detailed regulatory oversight. This article argues that such lack of specific regulation of assisted human reproduction in common law provinces is a waste of the public money and effort invested since the 1980s. Further, physician colleges are ill positioned to be the sole provincial regulator of practices and procedures conducted primarily on women’s bodies that aim to bring new humans to life. Provincial legislatures in common law Canada should urgently adopt the values expressed both by the Royal Commission on New Reproductive Technologies and by the Canadian Parliament and use similarly open and transparent processes. They ought to collaborate to adopt a regulatory mechanism (similar to that pioneered by the Uniform Conference of Canada or adopted in securities regulation) to govern assisted human reproduction in common law Canada primarily in the interests of women and the children to be created.