Publication of proposed Assisted Human Reproduction regulations delayed until Supreme Court Appeal is decided

Health Canada has decided to delay the prepublication of draft regulations in Canada Gazette, Part I, until an opinion is provided by the Supreme Court of Canada on the constitutionality of parts of the Assisted Human Reproduction Act (AHR Act). Work continues unabated to develop proposed regulations under the Act.

Background

The AHR Act received Royal Assent on March 29, 2004. The Act prohibits a number of AHR activities such as payment to donors for sperm and eggs, sex selection, and more, and it seeks to regulate other activities such as in vitro fertilization, through a licensing scheme.

On December 15, 2004, the Government of Quebec filed a reference with the Quebec Court of Appeal, challenging the constitutional validity of some sections of the AHR Act.

The reference was heard in the Quebec Court of Appeal on September 17-19, 2007. The Court rendered its opinion on June 19, 2008, that all challenged provisions are unconstitutional because they are outside federal powers.

A constitutional reference seeks an advisory opinion of the court. The AHR Act cannot be struck down on the basis of an advisory opinion.

After considering the Quebec Court of Appeal opinion, the Government of Canada has brought an appeal before the Supreme Court of Canada to address questions regarding the constitutionality of the Act. In the meantime, the Act remains in effect.

Out of respect for the authority of the Supreme Court of Canada in matters of constitutional law, and pending its opinion, Health Canada will not pre-publish additional regulations until the question before the Court has been resolved.

Health Canada continues to develop policy in this area. Assisted Human Reproduction Canada continues its role of providing information about the application of the Act, promoting compliance and assessing complaints related to any alleged contraventions of the AHR Act and regulations currently in force.