Ottawa, Quebec fight for jurisdiction over fertility treatments

A jurisdictional debate between Quebec and Ottawa over fertility treatment will play out in the Supreme Court on Friday, and some specialists believe a win for the province will mean a victory for their patients.

Quebec has promised to cover in vitro fertilization (IVF) treatments for infertile patients, something Dr. Seang Lin Tan believes will occur sooner if the high court upholds an earlier legal decision in Quebec that found the federal Assisted Human Reproduction Act usurps provincial jurisdiction.

"It's difficult for me to comment as a physician on jurisdiction between the province of Quebec and the federal government but I think Quebec does have a few good points," said Tan, the McGill University Health Centre's chief obstetrician-gynecologist.

"I think the federal bill … works against patients' interest in some ways."

Tan also slammed the federal act for outlawing "egg sharing," in which a woman who can't afford in vitro agrees to donate some of her eggs to an infertile couple in exchange for a free round of treatment.

While Quebec supports the parts of the federal law that make it a crime to engage in human cloning, it believes other areas related to regulating the treatment of infertility fall under provincial jurisdiction.

The Quebec Court of Appeal upheld that view a year ago but lawyers for the federal government will ask the Supreme Court to reconsider. The high court will likely take months to render a decision.

Alberta, New Brunswick, Saskatchewan and British Columbia also have standing in the case in support of Quebec.

Federal act promotes 'reproductive tourism': Experts

Dr. Francois Bissonnette, president of the Canadian Fertility and Andrology Society and medical director of Montreal's Ovo Fertility Clinic, added the federal act promotes "reproductive tourism."

Bissonnette, who has supported the Quebec government in its bid to strike down parts of the 2004 act that deals with regulating the fertility industry, said the federal law has created a sperm and egg shortage, prompting people to seek treatment outside the country.

"We should look into programs that will make this happen within Canada and [where] we will be able to actually control.… the quality and safety for Canadians," he said, citing a provincially regulated sperm bank as an example.

Before the federal law took effect, sperm donors were paid for their sample, which meant 80 per cent of the sperm used in fertility treatments in Quebec was homegrown, he said. Now much of that is imported.

"You'd get $50 for your sample but you had to come back for blood work every three months after you give, so it was a lot [that was asked of you]," he said.

"To go though all this trouble and have no compensation at all is nonsense."

Quebec reintroduces law to reimburse women for IVF

On Wednesday, Quebec tabled a bill that would regulate the field of assisted human reproduction.

While the government has yet to set limits on the number of embryos that can be implanted in a woman's uterus, the bill would ensure women are reimbursed for the cost of in vitro for their first three tries.

"Normally, health services, medical services, regulating the medical profession have for 130 years been the jurisdiction of the province," said Jocelyne Provost, a lawyer representing Quebec.

"Even if their [Ottawa's] intentions are good — to protect from coast to coast everyone who wants to see a doctor because they can't have children — it doesn't allow them not to respect the Constitution."

Ottawa has argued the contested parts of its law are valid under both the power of Parliament to enact criminal laws and the "double aspect doctrine," which allows two levels of government to enact legislation on different aspects of a single field.

Ethics expert calls on federal government to enforce law

Margaret Somerville, founding director of the Centre for Medicine, Ethics and Law at McGill, said she supports the federal law and hopes it doesn't fall.

Still, she slammed Ottawa for failing to enforce those parts of the legislation that have taken effect.

"We know the act is being breached all the time and that nobody's doing anything about it," she said.

"It raises interesting questions such that if you're passing criminal law and not enforcing it, are you doing harm to the law?"

Should the high court uphold the decision by Quebec's Appeal Court, Somerville fears it will lead to a "patchwork" of provisions across the country.

Just as Canadians now head to the U.S. for treatment they can't get in Canada, women will travel to different provinces, she said.

"I think it's something we really need national legislation on," she said.