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Despite Supreme Court ruling, in-vitro fertilization laws still unclear

By in Opinions
The Supreme Court of Canada in Ottawa.
How far would you go to have a child? Would you risk your health, the health of your spouse or most importantly the health of the fetus?

There will always be risks when a child is born — this is an unavoidable part of life — but the job of a doctor is to lower those risks, reduce the danger of procedures and protect a patient’s wellbeing. When a doctor graduates from medical school they must swear to uphold the Hippocratic Oath, which states that they must “never do harm to anyone.” so what happens when a doctor fails his or her oath?

In-vitro fertilization is the most complete form of non-sexual reproduction available in Canada, and it is a fairly easy concept to understand. An egg is taken from a woman wanting a child or given by a willing female donor. This egg is then fertilized by donor sperm or the father’s sperm. The growing embryo is then implanted in a women’s uterine lining where if the embryo becomes attached it will begin to grow as if it were sexually reproduced.

The bonus of this procedure is that if one individual in a couple wanting to have children is sterile, then the couple still birth a child with genetic information contributed by one or both of them. The generally accepted success rate of IVF is about 30 per cent, and as more advanced techniques are developed that number is expected to increase.

As with any developing technology or procedure, a proper guideline is important. The issue with IVF is that there is no clear governing body overseeing this burgeoning medical field, or to be more exact, there is no active watchdog group. Assisted Human Reproduction Canada is the federally funded regulatory group responsible for investigating and governing the Canadian fertility industry.

Unfortunately, in 2008 the Province of Quebec challenged the federal government’s control over fertility treatments. As with all challenges presented to the federal government, the decision was left to the Supreme Court of Canada, whose 163-page ruling last year only muddied the waters further.

The court decided that IVF falls under provincial jurisdiction and is therefore subject to each province’s health laws and professional medical bodies. However, the federal government still has power over things like if or how much surrogates get paid.

It seems lawyers on all sides are still trying to figure out the legal decision, and the website for AHRC is still “under review in light of the Supreme Court of Canada opinion.” Such ambiguity can only lead to trouble.

As an example, take the case of Trudy Moore, a woman who found out that her in-vitro fertilized daughter was not actually born with the genetic code of her husband. The procedure was instead performed with a mystery donor’s semen. Given the jurisdictional fight between different levels of government, she had nowhere to go and no one to lodge an official complaint with. She was left to seek damages from the doctor who performed the procedure.

Doctors are responsible for their actions and for the mistakes they make in the procedure, but the government has a part in this too. There needs to be a clear regulatory structure that oversees IVF in Canada to help prevent more accidents like Trudy Moore’s procedure.

Photo: Ulysses/Flickr

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