An (In)conceivable Question: Do Provincial Governments Discriminate Against the Infertile by Not Paying for IVF and ICSI Services?

Services such as in vitro fertilization (IVF) and intracytoplasmic spenn injection (ICSI) are not covered under most provincial health insurance plans. The case of Cameron and Smith v. Nova Scotia (A.G.), the Minister of Health, the Department of Health and the Administrator, Insured Professional Services is the latest attempt at finding a legal solution to at least some of the economic barriers infertile people face in seeking treatment. As neither IVF nor ICSI is covered by provincial health insurance, the plaintiff couple sued the Nova Scotia Minister of Health, the Department of Health, and the Administrator of insured Professional Services to recover out-of-pocket costs for their fertility treatment. Through this case, they sought a declaration that the refusal of the Nova Scotia Health Care Insurance Program to cover the costs of IVF and ICSI is unlawful. In his February 1999 decision, the Honourable Chief Justice Joseph Kennedy found in favour of the defendants. Kennedy identified two types of legal argument submitted by the plaintiffs: an administrative law argument and a Canadian Charter of Rights and Freedoms argument. It is the Charter analysis of the Cameron case that will be the focus of this comment. Although it took Kennedy C.J. only a few pages to dispense with the plaintiffs\u27 Charter argument, I think the issues identified by Mr. Cameron and Ms. Smith warrant detailed examination. The case raises important legal and ethical questions: Do governments discriminate against the infertile by not insuring IVF and ICSI services? Should people who cannot conceive or impregnate be considered disabled? After a thorough examination of both the section 15(1) and section 1 Charter arguments, I will conclude that Kennedy C.J. decided correctly that the Nova Scotia government does not breach the Charter by not paying for IVF and ICSI services. I will begin my analysis by providing background information on infertility, IVF, and ICSI