Marie-France Bureau raises concerns about access to, and the funding and regulation of, assisted reproductive treatments.

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Quebec Health Minister Gaétan Barrette is expected to introduce new legislation on in vitro fertilization. The costs of the existing program, established in 2010, have skyrocketed to about $70 million annually. Although allocating public funds to reproductive treatments is hard to justify given the burden of health spending in the overall government budget, rumours indicate that Quebec will keep funding some treatments. The bill is expected to limit coverage to medical infertility through a tax credit mechanism.

Provinces are not obligated to implement any fertility program, but once a province has decided to offer a service, it has to offer it in a way that does not discriminate illegally between groups of people. It is unsure whether limiting coverage to “medical infertility” would pass the constitutional test, given the controversial meaning of infertility in our democratic and egalitarian society. Would gay, lesbian and single persons automatically be excluded? Would two fertile persons unable to sexually conceive a child together be excluded, be they in a heterosexual couple? Such questions show that it will be hard to draw lines between medical, social or biological definitions of infertility.

Setting up limits to access in order to contain costs is a legitimate objective, but it should not serve as an excuse to exclude people on the basis of stereotypes and prejudice. If Quebec chooses to cover infertility, it should implement limits that are rationally linked to the objectives of the program (helping Quebecers make babies) and that cut across all population groups. Such exclusions would then be legally and ethically justified within a democratic state. Those limits could be based on success rates (maximum age limit, general health state of the patient); on income (user-fees to cover the costs of the treatments for wealthier citizens or on a sliding scale); on the type of treatments covered (number of cycles covered, exclusion of people who had voluntary sterilization) or on the capacity to undergo those invasive medical procedures.

The other solution would be to stop funding assisted reproduction. Perhaps government should not be investing so much money on technology and the use of invasive medical procedures. Instead, some have argued that it is time to start implementing measures regarding the prevention of infertility and investing public efforts to improve local adoption and other foster care programs rather than promoting assistance to procreate biologically related children.

In any case, whatever decision is made on whether to maintain coverage, the state can and should regulate the procreation industry, for the sake of public health.

New reproductive technologies often involve invasive and dangerous procedures, which mainly affect women. The use of certain technologies could have as yet unknown long-term effects on women as well as on the children they conceive. Just because a procedure is technologically possible does not mean it should be made routine or is necessarily indicated in all situations. And that raises the question as to the obligations and responsibilities of the state to improve information, counselling given to stakeholders in assisted procreation and to allow for more informed consent. These issues, along with the clear need for better data collection regarding assisted reproduction activities, have all been stressed in the lengthy report of the Commissaire à la santé et au bien-être released in June 2014 reviewing Quebec’s assisted human reproduction program.

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Marie-France Bureau is an associate professor of law at Université de Sherbrooke.

Published simultaneously with the Montreal Gazette.