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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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.