Reimbursement of Expenditures and Possible Sub-delegation of the Assisted Human Reproduction Regulations

• Author: Mark C McLeod
• Pages: 113-154

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Reimbursement of Expenditures and Possible

Sub-delegation of the Assisted Human

ReproductionRegulations

Mark C McLeod

A. INTRODUCTION

Governance by the promulgation of regulations has become a central form

of state action and the core of much national law-making.1 Indeed, the

concept of governance by the promulgation of regulations has dramatic-

ally evolved in recent years. Specically, there is now an increased pro-

pensity on the part of national governments to incorporate by reference

documents that have been drafted by foreign governments, private sector

organizations, or other entities in order to achieve government objectives.

Incorporation of documents by reference is a drafting technique whereby

the regulation-maker may bring the content of an incorporated document

into a regulation by simply referring to the title of the document, without

the need to reproduce it word for word in the regulation itself.2

1 Francesca Bignami & David Zaring, Comparative Law and Regulation: Understanding

the Global Regulatory Process (Cheltenham, UK: Edward Elgar, 2016).

2 See, for example, Government of Canada, Standing Committee for the Scrutiny

of Regulations, 39th Parliament, 2nd Session, “Second Report” (2008) at para 2,

online: www.parl.gc.ca/HousePublications/Publication.aspx?DocId=3204106&Ses=2

[“Second Report”]; Incorporation by Reference in Regulations Act, SC 2015, c 33,

summary. “This enactment amends the Statutory Instruments Act to provide for the

express power to incorporate by reference in regulations.”

114 |   

In Canada, for example, the Aviation Occupational Safety and Health

Regulations,3 the Canada Occupational Health and Safety Regulations,4 and

the Food and Drug Regulations5 utilize incorporation by reference. In this

way, the Government of Canada maintains that it can achieve several

goals related to regulatory management, including eective and respon-

sive regulations.6 Nonetheless, there are signicant pitfalls to this form of

collaborative governance.7 In this chapter, I explore the nature and scope

of this concern with particular reference to the Government of Canada’s

plans to enact regulations to clarify eligible reimbursable expenses under

section  of the Assisted Human Reproduction Act (AHRA).8

In September , the federal government announced that it intended

to “strengthen and clarify the regulatory framework governing assisted

3 Aviation Occupational Health and Safety Regulations,SOR/2011-87, s 6.5(1).

4 Canada Occupational Health and Safety Regulations,SOR/86-304, s 2.2(1).

5 See, for example, Food and Drug Regulations CRC, c 870, B.01.045; Health Canada,

“Incorporation by Reference” (2016), online: www.hc-sc.gc.ca/fn-an/legislation/acts-

lois/ibr-ipr-eng.php.

6 See, for example, Liberal MP Kevin Lamoureux, Winnipeg North, MB, on Bill S-2

(Historical), Incorporation by Reference in Regulations Act (2015), online: https://

openparliament.ca/bills/41-2/S-2/?singlepage=1. Lamoureux expressed lack of

support for Bill S-2, which provided for the express power to incorporate by refer-

ence in regulations, stating, “It is something that has caused . . . the Liberal Party

to express our concern, and it is the reason we will not be supporting Bill S-2 . . . . The

current government . . . cannot be trusted to use this power responsibly. We have

seen that time and time again. Its willingness to abuse oversight mechanisms . . .”

[emphasis added]; Canadian Food Inspection Agency, “Incorporation by Reference

Policy” (2016), online: www.inspection.gc.ca/about-the-cf‌ia/acts-and-regulations/

incorporation-by-reference/policy/eng/1450356693608/1450356805085.

7 Kevin Lamoureux, Winnipeg North, MB, above note 6: “It is important at the get-go to

recognize that incorporation by reference enables the federal government or agencies

to give legal ef‌fect to material that has been published elsewhere. We should all be

concerned about that.”

8 SC 2004, c 2 [AHRA]; Government of Canada, “Government of Canada Plans to

Introduce Regulations to Support the AHRA” (2016), online: www.canada.ca/en/health-

canada/news/2016/09/government-canada-plans-introduce-regulations-support-as-

sisted-human-reproduction-act.html [Government of Canada, “Plans to Introduce”];

Health Canada, “Assisted Human Reproduction: Legislation and Guidelines” (2016),

online: www.hc-sc.gc.ca/dhp-mps/brgtherap/legislation/reprod/index-eng.php; Cen-

ter for Genetics and Society, “Canada: The Assisted Human Reproduction Act” (2007),

online: http://geneticsandsociety.org/article.php?id=335; Mavis Jones & Brian Salter,

“Proceeding Carefully: Assisted Human Reproduction Policy in Canada” (2010) 19:4

Public Understanding of Science 420 at 425–42.

Reimbursement of Expenditures and Possible Sub-delegation | 115

human reproduction in Canada.”9 More specically, it intended to “update

the regulations for the safety of donor semen . . . [, to] develop regulations

for testing and screening the donors of ova, . . . and [to] clarify eligible reim-

bursable expenses for parties involved in surrogacy arrangements, and semen

and ova donation.”10 At the same time, the government announced that it

would allow stakeholders to provide feedback following pre-publication of

the regulatory proposals in the Canada Gazette while developing a regula-

tory framework governing assisted reproduction.11 These announcements

were then followed by an invitation from the government to comment on

policy proposals in a consultation document in July .12

Despite these public proclamations, it is possible the government

intends to promulgate regulations with respect to eligible reimbursable

expenses under section  of the AHRA using incorporation by reference.

Circumstantial evidence supports this theory. When Ottawa announced

that it would “strengthen and clarify the regulatory framework,”13 it stipu-

lated that it would “clarify” eligible reimbursable expenses.14 Arguably, the

term “clarify” is ambiguous and contrasts markedly with the commitment

to “update” pre-existing regulations for the safety of donor semen and to

“develop” regulations for testing and screening ovum donors.15 Due to this

dissimilarity in language, donors, surrogates, fertility clinics, and other inter-

ested parties16 may be unsure as to whether the government will () update

existing directives published by Health Canada,17 () develop regulations

9 Government of Canada, “Plans to Introduce,” above note 8.

10 Ibid [emphasis added].

11 Ibid.

12 Government of Canada, “Toward a Strengthened Assisted Human Reproduction Act: A

Consultation with Canadians on Key Policy Proposals” (2017), online: www.canada.ca/

en/health-canada/programs/consultation-assisted-human-reproduction/document.

html [“Toward a Strengthened AHRA”].

13 Government of Canada, “Plans to Introduce,” above note 8.

14 Ibid.

15 Ibid.

16 Other interested parties may include sperm and egg banks, importers and exporters

of sperm and eggs, as well as brokers.

17 Government of Canada, “Prohibitions Related to Purchasing Reproductive Material

and Purchasing or Selling In Vitro Embryos” (2013), online: www.hc-sc.gc.ca/dhp-

mps/brgtherap/legislation/reprod/purchasing-achat-eng.php; Government of

Canada, “Prohibitions Related to Surrogacy” (2013), online: www.hc-sc.gc.ca/dhp-

mps/brgtherap/legislation/reprod/surrogacy-substitution-eng.php [Government of

Canada, “Prohibitions”].