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Canadian reproductive regulation ruled too broad, violates provincial authority

[JURIST] The Court of Appeal of Quebec [official website] ruled [decision, in French; summary release] Thursday that a national law which regulates the use of human embryos and bans human cloning encroaches upon provincial authority. The court held that regulatory provisions included in the Assisted Human Reproduction Act [statute materials] fell within provincial authority to generally regulate health and medical research and were beyond the scope of the federal government's claimed interest in defining criminal activity. The court emphasized that the criminalization of practices such as human cloning, the sale of embryos, and the use of in vitro embryos for any purpose other than human reproduction were clearly within the federal government's authority [Constitution Act of 1867 text].

If the impugned provisions were to be validated on the basis of the federal jurisdiction over Criminal Law, it would follow, according to the Court, that very few, if any, cutting edge medical activities would escape the possibleintervention by Parliament. There is a risk, according to the Court, that withdrawing the practice of assisted human reproduction from the head of jurisdiction of health to include it in that of Criminal Law would amount to a Trojan Horse and would reduce substantially the jurisdiction of the provinces. Hence, such jurisdiction in health is not limited to building and managing hospitals, clinics and laboratories; it extends to setting standards for these activities taking place in each province, including the clinical and research activities related to assisted human reproduction, the patient-physician relationship, the supervision of professional orders, the consent to care, etc.

Canada's ban on human cloning [JURIST news archive] was first introduced [JURIST report] in 2003 and the Assisted Human Reproduction Act has been praised [press release] by the Center for Genetics and Society [advocacy website], a group seeking comprehensive regulation of embryonic use. In 2007 the UN University Institute for Advanced Studies [official website] called for a universal ban on human cloning, but numerous countries and US states [JURIST reports] have increasingly liberalized non-cloning use of human embryos [JURIST news archive].

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