Of all the cuts made in last Thursday’s budget, the axing of Assisted Human Reproduction Canada was one of the least contentious—even though it leaves the country without official federal oversight of assisted reproduction and fertility treatments, an arena rife with health, legal and ethical imbroglios. Only last month, the RCMP launched its first investigation into potential breaches of this country’s murky fertility law, leading to a shutdown of an Ontario fertility-treatment consultant.
Those who work in the field weren’t surprised by the AHRC’s demise: founded in 2006, the agency has been barren for years. Its original mandate was to enforce the Assisted Human Reproduction Act, legislation stemming from a 1989 Crown Commission that took 18 years of bickering to become operational. The act cut a wide swath: from prohibiting human cloning and transplantation of non-human and human life—the theme of Sarah Polley’s 2009 sci-fi flick Slice–to regulating the terms of third-party human reproduction by banning outright payment for surrogacy, donor eggs and sperm.
As it turned out, that swath was too wide. In December 2010 a Supreme Court decision stemming from a Charter challenge launched by Quebec declared sections of the act unconstitutional (though it didn’t touch the sections which prohibit the payment of a surrogate mother or donor eggs or sperm), thereby denuding the AHRC of much of its authority.
The agency’s shutdown, expected by March 2013, will save $10 million a year—an amount AHRC’s many critics say was squandered anyways. “It was an easy place to cut $10 million,” says Francoise Baylis, a bio-ethicist at Dalhousie University who quit the agency’s board along with two others in March 2010. She calls AHRC “non-functioning.” “For a long time the agency has had a range of challenges and/or difficulties that haven’t been dealt with,” she says. Not all the blame is AHRC’s, she says: “There are many things I would criticize agency for but it couldn’t do its job because Health Canada didn’t do its job. Its core business was supposed to be licensing and enforcing regulation, and there were no regulations telling it how to give out a license and no regulation around contentious issues like paying for gametes.”
Yet Health Canada will be taking over responsibility for AHRC’s remaining functions, such as compliance, enforcement and outreach, says ministry spokesman Stephane Shank. He attributes the agency’s closing to the 2010 Supreme Court ruling, which, he says, “significantly reduced the federal role in assisted human reproduction.”
Sara Cohen, a Toronto lawyer who specializes in fertility law, hopes the AHRC’s demise will force the government to reassess the legislation. Fertility law in Canada has been stagnant since the imposition of the act, which was influenced in the late 1980s by now-outdated feminist thinking and fears arising from Margaret Atwood’s The Handmaid’s Tale, says the Toronto lawyer. Cohen used to refer to the legislation as Swiss cheese with big holes in it: “Now it’s more holes than cheese,” she says. One of her objections is to the breadth of actions the act considers criminal—everything from purchasing donor sperm to implanting a human fetus into a non-human—and punishable with up to 10 years of jail time. Yet no charges have ever been laid under the act, she says (although that could change soon with the current RCMP investigation).
Cohen wants clear answers about what is legal or illegal for anyone who deals with third-party reproduction. She also wants to see the subsidized provision of fertility technology provincially mandated and treated as a health issue for anyone who needs it. The way provinces currently handle it is inconsistent: Quebec pays for limited in-vitro fertilization attempts; Ontario will cover it only if both a women’s fallopian tubes are blocked. The Alberta College of Physicians and Surgeons has issued practice guidelines on IVF, but these overlook important issues such as keeping donor records or causing multiple births by implanting more than one embryo into a woman. But despite the jungle of different and contradictory provincial practices, there’s a decided lack of political appetite to draw federal guidelines on these issue in Ottawa, Cohen says.
Dalhousie’s Baylis sees the end of the AHRC as bringing potential harm to women and children in subtle ways: “We will no longer have a way of collecting data because we won’t have an agency to do that—and not because of the government decision to shut down the agency but because of the Supreme Court decision.” We’ve abandoned standardized health reporting in reproductive technology, she says: “Canada will not be a country that will ever be able to say with confidence we did these many IVF cycles, we had these many IVF treatments, we had these many healthy babies. Clinics will still self-report this data but we will not have that data and we don’t have any incentive for clinics to advertise that they have problems with success rates or outcomes.”
Baylis would like to see the federal government transfer AHRC’s authority to Health Canada’s Assisted Human Reproduction Implementation Office. “Health Canada could start working and writing regulations and they could be passed, which would result in a law that’s operational,” she says. “And then they could license and regulate people who are allowed to reimburse people for altruistically giving up sperm, embryos and surrogates.” That would be the best of both worlds, she says: “We’d save money and the job gets done.” But she also expresses concern that the government will stop at the saving money part, without further fixing the status quo: “That would be very, very unfortunate,” she says.
Health Canada told Maclean’s in an email that the department “will continue to work with its partners to promote safe and ethical assisted human reproduction activities in Canada.” What that means remains unclear. And that’s too bad. The stakes are high, says Baylis: “We are manipulating the stuff of life. And we can’t even begin to imagine the possibilities.” Parameters need to be set, she says: “It’s one thing to be looking at people who want to become parents but when you look at those idiosyncratic decisions in a cumulative context, you’re talking about shaping the species.”