Canada's attempt to regulate fertility — the early days

Maureen McTeer, a lawyer who specializes in health law and public policy, was a member of Canada's Royal Commission on New Reproductive Technologies. Via zoom, we chatted about the beginning — and where to go now.

6 minute read

Louise Brown, the first-ever person created through in vitro fertilization (IVF), was born in 1978. She was heralded as a "miracle" baby, but "experimental" baby might have been more accurate. Her mother, Lesley Brown, did not know until well into the pregnancy that no one had given birth to an IVF baby before — and she was just one of many women participating, without informed consent, in this high stakes human science experiment.

IVF was a big deal. It would change everything. The fertility industry clearly needed some oversight.

No surprise, then, that a few years later, in 1982, the UK government created a Committee of Inquiry into Human Fertilization and Embryology. It would examine developments in the field and contemplate what sorts of policies and safeguards needed to be put in place. Over two years, they held public hearings and took written submissions. The result, in 1984, was the Warnock report, and after that, in 1990, the Human Fertilisation and Embryology Act, the law that would govern assisted reproduction and related science in the UK.

Canada followed a similar path. Between 1989 and 1992, we held our own inquiry, the Royal Commission on New Reproductive Technologies, and following that we published our own report, the Baird report, in 1993. More than a decade would pass before we got our federal law, the Assisted Human Reproduction Act, in 2004.

These inquiries, reports and laws were tackling an issue of huge societal importance: how do we manage this fast-paced reproductive revolution? How do we keep women and children safe from experimentation? How do we protect people without stifling scientific advance? What should be regulated? And what, if anything, should be criminalized?

Though there were many similarities at the start of our regulatory journeys, the UK and Canada have diverged since. The UK law has remained nimble and able to change with the times; ours has not. The UK has had the benefit of a strong, effective and independent regulator; we in Canada have not.

Many of the articles I've written about assisted reproduction in Canada over the years have gone into some detail about the devastating effect that our law — for years incomplete and mostly unenforced — has had on ordinary people involved in assisted reproduction. How this law came to be — why we did what we did, what people were thinking at the time and what they think now that they've seen it play out — continues to interest me.

Recently, I had the chance to speak to Maureen McTeer, a lawyer who specializes in health law and public policy and who was an original member of the royal commission. Her book, Fertility: 40 Years of Change, published this year, looks back on (among many other things) some of the early terrain I am so eager to understand.

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For Canada, it was never going to be as simple as coming up with a single law of the land. The fact is we have ten provinces, and health care falls almost exclusively into the provincial domain.

"From the beginning of the Royal Commission's work," McTeer writes, "one of the most complex questions was how, in a federal system such as ours, the commission could propose recommendations similar to those in the Warnock Report that could actually work within the existing reality of Canada's constitutional division of powers." The commission believed that only the federal government could manage the challenges posed by reproductive technology, she writes — that leaving it up to individual provinces would not work.

One way to ensure federal oversight was to use criminal law to prohibit certain activities. A reproduction law based around the need for criminal law — which is federal — could be made to apply to all provinces. In the end, that is the approach that the royal commission recommended. And that was the approach that the Assisted Human Reproduction Act took.

It was the wrong approach, says McTeer.

Even back then, during the inquiry stage, she says, they were warned it would be challenged. "Constitutional law experts told us this is not the way to proceed," she says. "If you proceed that way, you will have a challenge, which will go all the way to the Supreme Court."

Sure enough, in 2008, the Quebec Court of Appeal held that the federal government had overstepped and that the Assisted Human Reproduction Act's use of federal power was not appropriate in certain sections. In 2010, the Supreme Court responded. Huge swathes of the law were struck down.

But it was not just the constitutionality of this approach that had concerned McTeer. She also worried that this approach would hinder legitimate research involving human embryos. It has.

At the same time, she feared that actual offenders would not be prosecuted because the requirement of proof beyond a reasonable doubt would be too onerous. This seems to be true as well. The law is violated on a regular basis, she says, and it appears there are no consequences.

McTeer was acutely aware at the time that the Supreme Court had only recently struck down a law that used criminal sanctions to limit abortion. "Against this judicial backdrop, and using the Charter as a guide, I felt that attempts by parliament to criminalize the use of ARTs, when used as part of fertility treatments, would likely also be judged as a violation of a woman's autonomy in decisions that involved her reproductive health and personal well being," she writes.

At the very least, she predicted, criminalizing infertility treatment itself would find little support among Canadians.

Many of these concerns turned out to be well-founded.

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McTeer believes it is well past time for the Canadian law to be revisited. The Supreme Court's decision made it clear that the provinces have jurisdiction over assisted reproduction. The government has also shown that it's unwilling to use the criminal powers that did survive. "If we're not going to enforce them," she told me, "then we need to remove them."

We need to bring these issues back out into the open and to discuss them, she says. We need to ask Canadians, through their parliamentarians, what they want. "These are important issues that need to be resolved," she says. "So let's start."

In September, McTeer joined forces with Art Leader, former fertility doctor and now professor emeritus at the University of Ottawa, to make a submission to the House of Commons standing committee on health, calling for a full and comprehensive parliamentary review of the Assisted Human Reproduction Act.

They believe there is a role for the federal government in both coordinating a pan-Canadian regulatory regime and in helping to fund it. "The Supreme Court of Canada's decision made it clear that the provinces have jurisdiction in the provision of reproductive medicine and related therapies and practices involving AHR technologies such as IVF. However, there remains a key co-ordinating and funding role for the federal government to provide the leadership," they write, both for pressing clinical issues and for research — much of it currently prohibited.

"There's no reason," McTeer told me, "why this can't be done."

Maureen McTeer will be talking about her book, Fertility: 40 Years of Change, in an online author's event on November 7:  Maureen McTeer: Fertility: 40 years of change

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Maureen McTeer. Fertility: 40 years of change. 2022.

Robin Marantz Henig. Pandora's Baby: How the First Test Tube Babies Sparked the Reproductive Revolution. 2004.

Things I didn't know about the world's first IVF baby. HeyReprotech. 08 Oct 2019.