Why the Government of Canada Won't Regulate Assisted Human Reproduction: A Modern Mystery

McGill Journal of Law and Health 9:1, 1-15, 2015

16 Pages Posted: 8 Dec 2019

See all articles by Jocelyn Downie

Jocelyn Downie

Schulich School of Law & Faculty of Medicine

Dave Snow

Novel Tech Ethics, Faculty of Medicine

Françoise Baylis

Dalhousie University

Date Written: 2015

Abstract

The Canadian Assisted Human Reproduction Act (AHR Act), passed in 2004, prohibits both paying consideration to a surrogate mother and purchasing sperm and ova from a donor (sections 6-7). Both prohibitions are subject to section 12, which was intended to permit reimbursement of expenditures incurred by surrogate mothers and gamete donors and reimbursement for loss of work-related income for surrogate mothers. Remarkably, more than ten years after the AHR Actreceived Royal Assent, and in spite of repeated calls for greater legal clarity, Health Canada has not drafted regulations pursuant to section 12 of the AHR Act, which is not yet in force. In this paper, we speculate as to possible reasons why the Conservative government (2006-2015) did not draft regulations, and we explain in turn why each of the possible reasons for inaction is flawed. In light of our rejection of all of the reasons we could imagine, we argue that Health Canada should both explain and justify its failure to draft the regulations that would set the stage for Parliament to bring section 12 into force. It must do so if the federal government is to meet the AHR Act‘s goal of protecting children, women, and men engaged in, or affected by, surrogacy and third-party egg production.

Keywords: The Canadian Assisted Human Reproduction Act

Suggested Citation

Downie, Jocelyn and Snow, Dave and Baylis, Françoise, Why the Government of Canada Won't Regulate Assisted Human Reproduction: A Modern Mystery (2015). McGill Journal of Law and Health 9:1, 1-15, 2015, Available at SSRN: https://ssrn.com/abstract=3491391

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

Françoise Baylis

Dalhousie University ( email )

6225 University Avenue
Halifax, Nova Scotia B3H 4H7
Canada

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