Fake It Till You Make it: Policymaking and Assisted Human Reproduction in Canada

Journal of Obstetrics and Gynaecology Canada, June 2014

3 Pages Posted: 3 Jul 2014 Last revised: 8 Oct 2015

See all articles by Françoise Baylis

Françoise Baylis

Dalhousie University

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Dave Snow

Novel Tech Ethics, Faculty of Medicine

Date Written: June 1, 2014

Abstract

The Assisted Human Reproduction Act (AHR Act) came into effect in 2004. The AHR Act stipulates in s.12 that no reimbursement of expenditures incurred in the course of donating gametes, maintaining or transporting in vitro embryos, or providing surrogacy services is permitted, except in accordance with the regulations and with receipts. Ten years later, Health Canada still has not drafted the regulations governing reimbursement. Section 12 is therefore still not in force. Health Canada and others have asserted that there is a Health Canada policy on reimbursement and that reimbursement with receipts is legally permissible. We dispute the existence of such a policy and its legitimacy (if it exists). We also challenge the decision by Health Canada not to produce regulations and thereby make it possible for Parliament to bring s.12 into force. This intentional lack of action is worrisome on at least two fronts. First, it sidesteps the processes required for regulations and thereby ducks the Parliamentary oversight very deliberately built into the AHR Act. Second, it leaves Canadians who provide and who access assisted human reproduction uncertain about what is and is not permitted, and therefore fearful of, or at risk of, prosecution. We conclude that Health Canada should take the steps necessary to put regulations in front of Parliament so that Parliament will then be able to pass regulations and bring s.12 into force. Canadians should demand no less.

Keywords: egg donation, assisted human reproduction, Assisted Human Reproduction Act, law, policy, Canada

Suggested Citation

Baylis, Françoise and Downie, Jocelyn and Snow, Dave, Fake It Till You Make it: Policymaking and Assisted Human Reproduction in Canada (June 1, 2014). Journal of Obstetrics and Gynaecology Canada, June 2014 , Available at SSRN: https://ssrn.com/abstract=2461691

Françoise Baylis

Dalhousie University ( email )

6225 University Avenue
Halifax, Nova Scotia B3H 4H7
Canada

Jocelyn Downie (Contact Author)

Schulich School of Law & Faculty of Medicine ( email )

Halifax, Nova Scotia B3H 4H9
Canada

Dave Snow

Novel Tech Ethics, Faculty of Medicine ( email )

6225 University Avenue
Halifax, Nova Scotia B3H 4H7
Canada

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