Assisted Reproduction Policy in Federal States: What Canada Should Learn From Australia

Abstract

Rapid advances in assisted reproductive technologies (ARTs) confront policymakers worldwide with dilemmas that touch on the fundamentals of human existence — life, death, and sexuality. Canada, following the lead of non-federal Britain, spent 15 years developing the comprehensive, national Assisted Human Reproduction Act (2004), only to have the Supreme Court strike much of it down in 2010 for invading provincial jurisdiction. As Canadians return to square one on many ART issues, they should seek inspiration from Australia, where the lead role of the states in this policy area has not prevented significant coordination on matters of broad consensus. Like their federal cousins down under, Canadians who wish to harmonize ART policy in a constitutionally acceptable manner must now rely more heavily on legislative modeling among provinces, intergovernmental agreements, and non-statutory (even nongovernmental) guidelines.