Analysis provided by: Maggie Smieszek, Legal Expert.

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Access to Reproductive Health Care on Public Funding

TheCanada Health Actis Canada's federal health insurance legislation. It establishes criteria and conditions related to health care services that the Canadian provinces and territories must meet in order to receive full federal cash contribution. TheActstates that insured medical services must be universal, accessible, portable, and comprehensive. The aim of theActis to ensure that all eligible residents of Canada have access to medically necessary services on a prepaid basis, without direct charges at the point of service. Maternity care is a medically necessary health service. Therefore, this "medicare" law supports access to health care related to pregnancy, delivery and post natal period.

Currently, all abortions in Canada are funded as a medically required service under theCanada Health Act, whether they are performed in hospitals or clinics. However, four provinces refuse to fully fund abortions in clinics. Quebec and Nova Scotia provide only partial funding to clinics, while New Brunswick and Manitoba refuse funding altogether.

Access to Contraception

In 1882, it became a crime to sell or advertise birth control in Canada. However, section 207 of theCriminal Code, which made birth control illegal, contained a clause that allowed for the distribution of birth control it if it were for the public good. The birth control pill became available in Canada in the early 1960s, but was to be prescribed for therapeutic purposes, such as regulation of the menstrual cycle. On July 1, 1969, contraception was legalized (decriminalized) by the Liberal government in power.

Schedule F to theFood and Drug Regulationsoutlines contraceptive methods that are available only by prescription from a medical practitioner, including the Birth Control pill, Depo-Provera, Intrauterine Device (IUD), Norplant and sterilization. In 1999, the emergency contraceptive pill (ECP) ("the morning after pill") was approved by Health Canada. These new progestin-only pills went through clinical trials in Canada in 1999 and became available by prescription under the name "Plan B" in 2000. However, Health Canada is consulting on changing the status of the Plan B pill to non-prescription status. Such a change would include an amendment to theFood and Drug Regulations, namely deletion of levonorgestrel from Schedule F.

Abortion

Prior to 1988, section 287 of Canada's firstCriminal Codestated that everyone who used drugs, instruments or manipulation of any kind for the purpose of carrying out their intention to procure the miscarriage of a female person, was guilty of an indictable offence and liable to imprisonment for life. TheCodeexempted doctors from criminal liability if a hospital abortion committee signed a statement to that the continuation of the pregnancy would or would likely endanger the pregnant woman's life or health.Criminal restrictions against abortion were removed in 1988 with the Supreme Court of Canada's ruling inR. v. Morgentaler[1988] 1 S.C.R. 30. Dr. Mortgentaler, through his attempts at establishing abortion clinics in a variety of Canadian provinces, forced the issue of the lawfulness of section 287 of theCriminal Code. The abortion law was struck down as unconstitutional on the basis of section 7 of theCharter of Rights and Freedomswhich affirms "the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The Supreme Court said that section 287 was of no force or effect. "Forcing a woman," wrote the Chief Justice, Brian Dickson, "by threat of criminal sanction to carry a fetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman's body and a violation of her security of the person."

Fetal Rights

InTremblay v. Daigle[1989] 2 S.C.R. 530, the issue of the rights of the fetus reached the Supreme Court of Canada when a man succeeded in getting an injunction from a Quebec court to prevent his former partner from aborting her fetus. The Supreme Court of Canada unanimously ruled in favour of the woman. The Court sidestepped the question of fetal rights under section 7 of theCharter(right to life, liberty and security of the person) by deciding that the fetus was not a "person" under Quebec's Civil Code.

In the Ontario Provincial Court case ofR. v. Drummond[1996] O.J. No. 4597, Brenda Drummond was acquitted of murder after shooting a pellet gun into her birth canal two days before her full-term fetus was born. The pellet lodged into the fetus' head and the baby was born alive a few days later. Attempted murder charges were brought under section 223 of theCriminal Codewhich says that "a person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being." The same section defines a "human being... when it has completely proceeded, in a living state, from the body of its mother whether or not it has completely breathed, it has an independent circulation or the navel string is severed." The charge of attempted murder was dismissed by the court on the basis that the child was not legally a person and therefore not included in theCriminal Code.

The rights of the fetus against the mother's autonomy were further challenged in the case ofWinnipegChild and Family Services (Northwest Area) v. G. (D.F.)[1997] 3 S.C.R. 925. In this case, a woman identified as "G" was five months pregnant and addicted to glue sniffing. Two of G's other children were born disabled due to her addiction. Child and Family Services were permitted by the Manitoba Superior Court to detain G in a health care centre for treatment until her child's birth. The Manitoba Court of Appeal overturned this ruling, saying that child protection laws cannot be extended to unborn children. The Supreme Court of Canada agreed with this ruling saying that G's child is not a legal person possessing rights, thereby affirming a woman's right to her autonomy. The Supreme Court stated that, "any right or interest the fetus may have remains inchoate and incomplete until the child's birth."

Civil Liability Cases

In the case ofDobson (Litigation Guardian of) v. Dobson[1997] S.C.C.A. No. 406., Cynthia Dobson was in a vehicle accident while pregnant with her son. The accident led to the son having mental and physical disabilities. The grandfather of the boy sued the mother on the boy's behalf, saying that the accident was due to her negligence. While the lower courts ruled that it is possible to sue for damage caused whilein utero, the Supreme Court of Canada overturned this decision saying that courts should not impose a legal obligation on pregnant mothers to provide certain conditions for her child. They stated that, "the court should not impose a duty of care upon a pregnant woman towards her fetus or subsequently born child. To do so would result in very extensive and unacceptable intrusions into the bodily integrity, privacy and autonomy rights of women."A unique area of civil law has been that of "wrongful birth" in the 2003 case ofZhang and Fung v. Kan[2003] B.C.J. No. 164. Lydia Zhang gave birth to a girl with Down's Syndrome. During her pregnancy, Zhang and her doctor discussed amnioscentesis (a test which shows whether a child has Down's Syndrome), and Zhang claims the doctor told her the test was not necessary. In the case, Zhang states that if she had known the child was disabled, she would have aborted her. The doctor was found to be negligent for not encouraging the test, and was made to pay damages.

Genetic Manipulation and Fertility Treatments

Bill C-6, TheAct Respecting Assisted Human Reproduction and Related Research, was passed by the House of Commons on February 11, 2004 and is currently before the Senate. Itprovides the statutory basis for regulation of reproductive and genetic technologies through the enforcement of prohibitions and the regulation of other technologies through the development of standards, licensing, information registries, health surveillance, and enforcement and compliance. If passed, the legislation will establish a national regulatory body (Assisted Human Reproduction Agency of Canada) to set standards, issue licences, and maintain information registries, and monitor regulated procedures.

Bill C-6 prohibits assisted reproduction procedures that are considered to be ethically unacceptable, including human cloning, purchase of embryos or reproductive material, payment for a surrogate mother, arranging a surrogacy for a female under 21, using reproductive material without consent, and obtaining sperm or ovum from a donor under 18 years of age. "Controlled activities" prohibited unless carried out in accordance with a licence and the regulations, which address health and safety concerns. The creation and use of embryos for research purposes is also addressed. A privacy regime governs the collection, use and disclosure of health reporting information.

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