Implications of court decision and research ethics policy update in Canada

Author: Ubaka Ogbogu, 01/13/11

A couple of significant updates to report on from the ethics and law arena:

    1. On December 22, 2010, the Supreme Court of Canada (SCC) released its long-awaited judgment in the Reference re: Assisted Human Reproduction Act case involving a constitutional challenge brought by the province of Quebec against several sections of the Assisted Human Reproduction Act (AHRA), Canada’s premier assisted reproduction and embryo research legislation. The case came before the SCC by way of an appeal launched by the federal government against an earlier Quebec Court of Appeal (QCCA) judgment in favour of Quebec, which I have written about. The SCC judgment, which allowed the appeal in part and affirmed the QCCA decision in part, has been widely reported on—read some here.How would the decision impact on stem cell research activities in Canada? Firstly and most importantly, the judgment decides a reference question, which means that it is merely an advisory opinion and the federal government is not legally bound to follow or implement it. However, no reference opinion has ever been ignored in Canada’s history, and it is unlikely that the feds would risk the political consequences of such an act in this instance. Secondly, Quebec’s challenge did not include the sections of the Act dealing with prohibited stem cell research technologies such as embryo creation specifically for research purposes and somatic cell nuclear transfer. In effect, those provisions remain validly enacted criminal law, and as far as the scope of legally-sanctioned stem cell research goes, the status quo remains the same. Lastly, the decision does affect the regulatory scheme for stem cell research. The SCC ruled that the federal government did not have the constitutional authority to enact provisions requiring that researchers obtain a license before engaging in controlled (regulated) activities such as transgenics and the use of in vitro embryos created for lawful purposes. This portion of the judgment leaves Assisted Human Reproduction Canada—the federal agency responsible for monitoring and licensing assisted reproduction and related research—with very little to do, and there has been much speculation that the federal government will scrap the agency.




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Ubaka Ogbogu

Ubaka Ogbogu is an Assistant Professor and the Katz Group Research Fellow in Health Law at the Faculty of Law, University of Alberta. His teaching and research interests include health law, law and biotechnology, law and bioethics, science and regulation, and legal history. Ubaka is a former SCN trainee and a recipient of the SCN Canadian Alumni Award. He has done extensive research work on the ethical, legal and social issues associated with stem cell research, and continues to research and publish in this area. Ubaka holds law degrees at the bachelors and masters levels from the University of Benin in Nigeria and the University of Alberta, and is currently in the process of completing a doctorate in law at the University of Toronto. His doctoral work focuses on the legal history of early health care and biotechnology policies in Canada, particularly in relation to smallpox vaccination and infectious diseases.
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2 Responses

  1. roxanne says:

    On our blog we are featuring an article about a stem cell exhibit in Calgary. May be of interest.

  2. Stem Cell Network admin says:

    Hi Roxanne,This exhibit stems from one of our funded projects:,cntnt01,detail,0&cntnt01articleid=130&cntnt01detailtemplate=detail_currentProjects&cntnt01returnid=73&hl=engand we are very pleased with the exhibit and the coverage it’s getting. Thanks for including it on your blog – we’ll be highlighting it in the very near future.

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