Implications of court decision and research ethics policy update in Canada
by Ubaka Ogbogu
A couple of significant updates to report on from the ethics and law arena:
- 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.
- Canada’s three research funding agencies have released an updated second edition of the Tri-Council Policy Statement, which governs the ethical conduct of research funded by public funds or conducted in institutions receiving such funds. I haven’t had time to study the document, but a cursory look revealed a number of interesting new provisions on reporting incidental findings revealed through genetic research, ethical review of multi-jurisdictional research, clinical trial registration, and a section that adopts the Updated Guidelines for Human Pluripotent Stem Cell Research for research involving pluripotent stem cells.