Fourteen years after enacting the Assisted Human Reproduction Act, the Canadian government finally proposed regulations so that the law could be enforced. The regulations were supposed to be out this spring. But spring turned to summer last week. What's up with the regs?
In 2004, Canada passed a law governing assisted reproduction. It states, among other things, that although it is not illegal to use another person's eggs, it is illegal to pay the person providing them. Although it is not illegal to grow your child in another person's uterus, it is illegal to pay a person for that opportunity. Although it is not illegal to arrange a surrogacy, it is illegal to take or pay money to do so.
Left unwritten has been the fine print. What does it mean to pay? Is a trip to the nail salon pay? What about a trip to the Bahamas? Is a "thank you" necklace pay? What about a "thank you" car? If a surrogate gets sick, can you pay her lost wages? Who decides how sick she has to be or how long she can be compensated? Who monitors compliance?
As anyone following this field will know, the regulatory vacuum has led to a virtual free-for-all in Canada, with surrogates and egg donors routinely being paid under the table, foreign egg donors paid offshore and flown in to deliver the goods, and Canadian parents who are subject to the prohibitions competing with foreign parents who somehow aren't. The regulations, proposed last October, were supposed to put an end to some of that.
I'm told those regulations are imminent and I believe it. But I'm simultaneously confused about how that can be.
That's because the Assisted Human Reproduction Act (AHRA) sets out a clear process for how regulations must be introduced. Section 66 of the Act states clearly that new regulations have to be seen by both the Commons and the Senate and by their committees.
66. (1) Before a regulation is made..., the Minister shall lay the proposed regulation before each House of Parliament... 66. (2) A proposed regulation that is laid before Parliament shall be referred to the appropriate committee of each House... and the committee may review the proposed regulation and report its findings to the House.
The word "before" is important, says Dave Snow, an assistant professor at the University of Guelph, who has written a book about the law. Creating regulations for the AHRA has more onerous requirements than is usual, he says. Normal regulations can be scrutinized after their approval and coming into force. But not so regulations to the AHRA.
I had the pleasure of interviewing many of the members of the Commons health committee who helped craft the law — committee members were exceptionally involved in shaping this law — not to mention a couple of the Health Ministers who handled the file. I am confident this extra burden was intentional: they wanted to make sure any regulations would be well-probed.
But has this happened? According to the Clerk of the Standing Committee on Health, it has not. He told me last week:
"The committee has not studied this. The committee had its last meeting yesterday, before summer adjournment and ultimately the election. So I don't see how they would have time to study this."
According to the Act there can be exceptions. For instance, sometimes the regulation is no more than a tweak:
67. (1) A regulation may be made without being laid before either House of Parliament if the Minister is of the opinion that (a) the changes made by the regulation to an existing regulation are so immaterial or insubstantial that section 66 should not apply in the circumstances.
There is in fact a small amendment being made to the regulations regarding consent — the only regulations ever to come into force under this law. Currently, the regulations on consent are written in such a way that they might allow a signed consent form to be shared with a recipient, inadvertently naming an anonymous donor. Ever since they were created in 2007, these regulations have had a workaround to prevent this, Health Canada tells me, and a proposed change in wording simply formalizes that.
That could probably reasonably count as an "insubstantial" change to an existing regulation. But the bulk of the regulatory proposals do not pertain to any existing regulations — they are wholly new regulations — so that exception wouldn't apply.
There's one more exception, though, if the regulations are so very urgent that they simply can't wait for proper process:
(b) the regulation must be made immediately in order to protect the health or safety of any person.
Hmm. For fourteen-and-a-half years — three and a half of which came under this very government's tenure — regulations were not brought into force. Now suddenly saying that they "must be made immediately" strikes me as a bit rich.
I am no fan of the law. I think it gets a number of things wrong. But I have long argued that a law that goes unenforced and is routinely circumvented is a dangerous one, and I stand by that. Still, to bring in important regulations with such superficial public input, with not a glance from a concerned committee member, and not a single witness testifying at committee is disturbing.
Is this how it will go? A Minister not abiding by the letter of the law, but with everyone around her proceeding as though she has? Then the House breaking for summer? Even Snow does not know quite what to make of it.
Thank goodness for the Act's requirement for a "Notice of opinion":
67. (2) If a regulation is made without being laid before Parliament, the Minister shall lay before each House of Parliament a statement of the Minister's reasons.
I can't wait.
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Last fall's newsletter about the proposing of the regulations
Last fall's newsletter about the consultations
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