Sex Selection & Abortion: Canada

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Executive Summary

Federal legislation that made the obtaining of an unapproved abortion a crime was held to be unconstitutional in 1988 and has not been replaced. Canada has no legal restrictions on the obtaining of abortions. Abortion for sex selection is legal and there are reports that it has been practiced. Sex selection in reproductive technology is prohibited, subject to an exception that allows sex selection to prevent disorders or disease.

Abortion

Until 1988, Canada’s Criminal Code required women who wished to have an abortion to satisfy a therapeutic abortion committee, established by a hospital, that the continuation of her pregnancy would be likely to endanger her life or health.[1]  However, in the case of R. v. Morgentaler, Smoling and Scott, the Supreme Court held that this provision violated section 7 of the Canadian Charter of Rights and Freedoms.[2]  Section 7 of the Charter provides that “everyone has 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.”[3] 

Since 1988, Canada has not had a law prohibiting any type of abortions, including abortions for the purpose of sex selection, although there have been several attempts at legislative reform that have failed.  It has been reported that there is evidence indicating that abortions have been procured for the purpose of sex selection in certain immigrant communities in Canada and that a physician in the United States has placed advertisements in British Columbia offering sex determination tests to members of the Indian community.[4]  

The absence of an abortion law in Canada does not mean that a woman can easily obtain an abortion at any time during her pregnancy.  Physicians in Canada normally do not perform abortions after the twenty-fourth week of a pregnancy, unless the health of the woman is in serious jeopardy even though they cannot be prosecuted for doing so.  Although information on the subject is not readily available, it may also be the case that many physicians refuse to perform abortions for the purpose of sex selection. 

Reproductive Technology

Canada’s Assisted Human Reproduction Act states that no person shall:

[f]or the purpose of creating a human being, perform any procedure or provide, prescribe or administer any thing that would ensure or increase the probability that an embryo will be of a particular sex, or that would identify the sex of an in vitro embryo, except to prevent, diagnose or treat a sex-linked disorder or disease.[5] 

Thus, Canada does generally prohibit sex selection in embryonic procedures, except to prevent, diagnose, or treat a sex-related disorder or disease.

Concluding Remarks

Canada does not have a law prohibiting the obtaining or procuring of an abortion for the purpose of sex selection. Canada does prohibit sex selection in reproductive technology, subject to an exception relating to disorders and disease.

For more information on Canada see:

Prepared by Stephen Clarke, Senior Foreign Law Specialist

June 2009

  1. Criminal Code, R.S.C. c. C-46, s. 287, as amended. [Back to Text]
  2. [1988] 1 S.C.R. 30. [Back to Text]
  3. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Act , 1982, ch. 11 (U.K.), available at http://laws.justice.gc.ca/en/charter/Charter_index.html (external link). [Back to Text]
  4. Sam Soloman, Sex-Selective Abortion Comes to Canada, National Review of Medicine, Sept. 2007, available at http://www.nationalreviewofmedicine.com/issue/2007/09_15/4_policy_politics02_15.html (external link). [Back to Text]
  5. Assisted Human Reproduction Act, 2004 S.C. ch. 2, s. 5(e), available at http://laws.justice.gc.ca/en/showdoc/cs/A-13.4/bo-ga:s_5/20090616/en#anchorbo-ga:s_5 (external link). [Back to Text]

Last Updated: 08/08/2012