Regulating Assisted Reproduction in Canada, Switzerland, and the USA: Comparing the Judicialization of Policy-Making

Abstract

This article analyses the extent to which courts shape policies for assisted reproduction. While the USA is considered to be the most litigious country, Canada has observed a growing involvement of the courts from the 1980s onward, and Switzerland is characterized by a modest degree of judicialization. Based on national patterns, we would expect litigation and court impact to vary across these three countries. As the empirical analysis reveals, policy-process-specific variables such as the novelty of regulation, self-regulation by key stakeholders, and the policies in place better explain the variation in the judicialization of policy-making.

Keywords:

• assisted reproduction
• courts and public policy
• court impact
• Canada
• Switzerland
• USA
• comparative public policy

Acknowledgements

We would like to thank Dagmar Soennecken and Lisa Vanhala for their useful comments on earlier versions of this article. This research was supported by the Social Sciences and Humanities Research Council of Canada.

Supplemental material

Supplemental data for this article can be accessed at https://doi.org/10.1080/13876988.2016.1183281

Notes

1. A parliamentary initiative has been accepted by the National Council and the Council of States in 2014 asking for the prohibition on egg donation to be lifted. A parliamentary commission is currently (December 2015) preparing a legislative proposal that would allow for egg donation according to specific guidelines.

2. Indiana, Kentucky, Louisiana, Michigan, New York, Nebraska, and Washington.

3. Embryonic stem cell policies are excluded from our analysis. We only look at research issues directly related to the practice of assisted reproduction.

4. It should be noted that we have excluded cases of medical malpractice and wrongful birth from the comparison.

5. Sections 10, 11, 13, 14–18, 40(2), (3), (3.1), (4), and (5), and sections 44(2) and (3) were struck down. Sections 8, 9, 12, 19, and 60 were upheld. Sections 40(1), (6), and (7), 41–43, 44(1) and (4), 45–53, 61, and 68 were upheld to the extent they related to constitutionally valid provisions.

6. BGE 115 Ia 234.

7. BGE 119 Ia 460.

8. Margaret S. v. Edwards 794 F.2d 994 U.S. App. LEXIS 27,365 Nos. 81–3750, 84–3520 (1986).

9. Lifchez v. Hartigan 556 F. Supp. 157 U.S. Dist. LEXIS 19,483 (1983).

10. Changes for § 40:1299.35.14 and § 1299.35.13 all predate by large the decision of 1986 (1980 and 1981). For Illinois Abortion Law: Ill.Rev.Stat., Ch. 38 para. 81–26, § 6(7) (1989), the change in 2005 is not related to the case.

11. Arkansas, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Montana, New Jersey, New York, Ohio, Rhode Island, Texas, and West Virginia.

12. IVF needs to be recognized as an essential health benefit to be expanded to full coverage and to be considered mandatory. Changes in state coverage are expected in 2016, but it is impossible to say if IVF will be specifically included by any other state regulation. In sum, legislative changes in the USA did not have a profound effect on access to IVF.

13. Cameron v. Nova Scotia (1999), 177 D.L.R. (4th) 611 (N.S.C.A.).

14. D.R. and L.R., B.C. and L.A.C., B.L. and R.F., L.E. and M.E., J.H. and K.H. v. Ontario 1998; Ontario Health Services Appeal Board; Terry Buffet v. Canadian Armed Forces, 2005 TCDP 16; City of Toronto v. Toronto Professional Fire Fighter’s Association 2009; Ilha v. Ontario 2011 HRTO 814.

15. Zieber v. La Reine 2008 CCI 328; JD v. Quebec (Regie de l’Assurance Maladie) 2014 QCTAQ 06502.

Additional information

Notes on contributors

Christine Rothmayr Allison

Christine Rothmayr Allison is Professor in the Department of Political Science at the University of Montreal. Her two main fields of interest are comparative public policy and courts and politics.

Audrey L’Espérance

Audrey L’Espérance is currently research coordinator at the Canada Research Chair in Patient and Public Partnership at CRCHUM. She received her PhD from the University of Ottawa in 2013 and completed a postdoctoral fellowship at the University of Toronto in 2015.