A previous blog dealt with this federal legislation arising in a decision of the British Columbia Supreme Court (BCSC). The opening there was as follows:
Assisted Human Reproduction or Assisted Reproductive Technology (“ART”) sounds like the inspiration for a dystopian novel or a Netflix Series. Historically the human body, its parts and products, have not been considered property in law. Each of us has always assumed that such things were personal and would be used with our consent based on our personal decision making as we lived our lives. There was, in addition, the scientific inability to make use of such material. The world’s first test tube baby, Louise Joy Brown, was not born until 1978 in England.
The first and only Canadian legislation dealing with ART was the Assisted Human Reproduction Act (“AHRA”) proclaimed in 2004. One of its objects was the principle of free and informed consent as a fundamental condition of the use of ART. It, therefore, prohibited the use of human reproductive material for the purposes of creating an embryo unless the donor had given their written consent. This prohibition is premised on the legal conclusion that there is some form of property in the material and that it belongs to the individual from whom it came. What then if the donor is unable to provide that necessary written consent?
The reference to a Netflix dystopia came true given the recent release of “I Am Mother” on Netflix. Here, human reproduction has become entirely automated in the hopes of producing a better world populated by only the “best” people as determined by an algorithm. Consent to do so was not likely present.
The issue of the use of ART without consent came before a judge of the Ontario Superior Court of Justice (ONSC) in S.H. v. D.H. The parties were now divorced. While married, they had contracted with an American lab to create embryos to further their wish to have children. The two viable embryos produced were not the product of their reproductive material, but rather from anonymous donors the couple had selected. The embryos were then shipped to a Canadian lab, where one was implanted in the Applicant wife resulting in the birth of a child. The couple later divorced.
The wife now wished to have another child and use the remaining embryo. The husband was not willing to consent to such use but was agreeable to the fetus being donated to a third party. The Canadian lab was unwilling to assist the wife without a court order given the requirement for written consent in the AHRA. The wife brought her application. She was successful based on the motions judge's analysis of contract and property law.
Many provisions of the AHRA and the Assisted Human Reproduction (Section 8 Consent) Regulations are engaged in this decision. The most central are the following:
S. 8(3) of the AHRA prohibits the use of an in vitroembryo for any purpose without regulation-compliant written consent;
S. 10(1)(b) of the Consent Regulations defines the term “donor” to include a couple who are spouses at the time the in vitro embryo is created, even where neither person within the couple contributes reproductive material to the embryo; and
S. 14(3) of the Consent Regulations provides that if the donor is a couple, either spouse may withdraw consent before the embryo is used.
For the reasons that follow, I conclude that the parties together remain the disputed embryo’s “donor” under s. 10(1)(b) despite their separation and divorce, and, even though they are no longer married, s. 14(3) allows the appellant to withdraw his consent to the respondent’s use of the embryo. The appellant’s absolute right to withdraw his consent overtakes any prior contractual agreement to the contrary and is dispositive in this case.
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The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).