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The Continuing Evolution of Fertility Law in Canada

Whether you are a single person wanting to conceive, or a couple facing challenges with conception or requiring third parties to have a child, working your way through the medical and legal issues surrounding fertility in Canada can be like navigating through a maze.

The technologies around assisted reproduction are constantly evolving, and the law can take time to catch up. In vitro fertilization (IVF), intrauterine insemination (IUI), are two common methods of assisted reproduction. The medical details vary, but the same laws apply to these different procedures.

Qualified professionals can help guide you through the many stages of your journey. Whether you are looking to be a sperm or egg donor, are looking into IVF or other assisted reproduction technologies, or considering surrogacy, consulting a recognized family law lawyer or a lawyer specializing in IVF is a good place to start.

If you are planning to have a child using assisted reproductive technologies (ART) like in vitro fertilization (IVF) in Canada, you may already be aware of some of the laws and regulations guiding the use of ART in Canada. The following provides some background on the development of today’s legislation as well as information you should know about key acts and regulations.

A Short History of IVF in Canada

The first baby to be conceived by IVF was born in England in 1978; in Canada, the first baby conceived by IVF was born in 1983. To many intended parents, the technology was revolutionary. Individuals experiencing fertility issues now had more options to conceive than was previously thought possible.

As with many new technologies, however, IVF was initially unregulated. While many embraced the new technology as a huge step forward to assist their ability to conceive, others spoke out regarding the moral implications of the procedure, such as sex selection and commercial surrogacy. As a result, the government established the Royal Commission on New Reproductive Technologies in 1989.

The Royal Commission Report was released in 1993, but it took more than a decade for legislation to be passed in the form of the Assisted Human Reproduction Act (AHRA) in 2004.

Assisted Human Reproduction Act (AHRA), 2004

The foundational principles of the AHRA were to protect the child’s health and well-being, as well as the health, safety and rights of people using IVF and other assisted reproductive technologies.

The act addresses:

  • Informed consent for all parties involved in IVF and assisted reproductive technologies.
  • Discrimination against people using and/or the children conceived by AHR technologies.
  • Banning of the commercial trade in reproductive material and procedures including the sale of sperm, eggs and surrogacy-for-hire.

While the AHRA incorporated many of the recommendations from the Royal Commission Report, technology and values had shifted significantly since its publication a decade prior. The government has attempted to address these shifts through various regulations that have been proposed or enacted since the bill’s passing.

Federal Regulations Related to IVF and Assisted Reproductive Technologies in Canada

A number of regulations have been enacted since 2004 addressing various parts of the AHRA. These include:

  • Safety of Sperm and Ova Regulations (2019)
    These regulations apply to the donation of sperm and eggs intended for use by a third party who is not the spouse, common-law partner or sexual partner of the donor, including the use of donor sperm in IVF. The objective is to protect the health of the person using the donated reproductive material.
  • Reimbursement Related to Assisted Human Reproduction Regulations (2019)
    While the AHRA does not allow compensation for surrogacy or donated reproductive material in Canada, this regulation addresses the reimbursement of out-of-pocket expenses related to surrogacy or sperm/egg donation, such as loss of work or travel.
  • Assisted Human Reproduction (Section 8 Consent) Regulations (2007)
    A critical aspect of the AHRA, these regulations lay out how consent – or withdrawal of consent – for the use of reproductive materials must be given, and the purposes for which that consent can be provided (i.e. for conception, but not research). These requirements must be met before any individual, such as a clinic or doctor, can use a donor’s reproductive material or in vitro embryo. This regulation is critical for spouses who have stored genetic material and are separating.

Provincial Jurisdiction

In 2010, the Supreme Court of Canada ruled on a constitutional challenge to the AHRA by several Provinces who argued that the federal government did not have jurisdiction over certain issues such as treatment for infertility. In a rare 4-4-1 split, the court upheld the right of the provinces to regulate health care, including fertility clinics, striking down several sections of the AHRA, while leaving others untouched.

This has left a patchwork of legislation, varying by province, including the definition of legal parentage, and the funding of assisted reproductive technologies, including IVF.

Why do you need an IVF Lawyer?

If all these regulations leave you a little confused about your rights as a recipient or donor of reproductive material, you’re not alone. For many individuals and couples, the road to deciding to use assisted reproductive technologies is a long one. When you add the medical and legal challenges on top, it can be overwhelming.

Finding trusted professionals, including a good family lawyer, to help navigate the many issues can be a huge help in your journey.

Whether you’re a sperm donor, parents looking to adopt a child, parents looking to use assisted reproduction technologies, birth parents or parents looking into surrogacy, Kelly Jordan can help you negotiate agreements and contracts that protect you, your rights and the rights of all the parties involved in the fertility and reproduction process. Contact us today.