A gay man is suing the federal government, challenging the constitutionality of a policy restricting sexually active gay and bisexual men from donating to Canadian sperm banks, CTV News has learned. rice field.
“[It’s] You are undesirable because you are gay as a donor. His full name.
Currently, Health Canada directives prohibit gay and bisexual men from donating sperm to sperm banks unless they have been abstinent for three months or are donating to someone they know.
under “Safety of Sperm/Egg Regulation” Sperm banks operating in Canada must consider these prospective donors ‘unsuitable’.
It’s the overarching policy that makes the Toronto man who filed the lawsuit feel like a “second-class citizen.”
“It was that discrimination that made me decide to take this to court,” Aziz said.
Aziz and his attorney challenged a directive filed in the Ontario Superior Court in January, saying it violated the right to equality in the Charter of Rights and Freedoms.
The lawsuit seeks to override provisions of the policy that apply specifically to men who have sex with men, according to the filing to start the lawsuit.
The incident attracted attention and Canadian Court Objections Program, An independent organization that assists individuals in filing litigation relating to constitutional rights of national importance.
The filing claims that current policies “perpetuate stereotypical attitudes and prejudices against gay and bisexual men.”
Although the Directive does not mention transgender or nonbinary donors, the policy also applies to individuals who may not identify as male but are classified as male under the Directive.
In an interview with CTV News, Gregory Coe, a joint board member of the case, said the policy is at the heart of many of the barriers that exist for LGBTQ2S+ Canadians who want children.
“It is not uncommon for many gay and lesbian couples to rely on sperm donors within the community. ,” said Coe. .
man fighting policy donated before
Aziz M., who is taking the federal government to court. Due to concerns about his privacy, CTV News has agreed not to use his full name.
There are two streams of sperm donation in Canada. One is donating sperm to sperm banks for general use, which is considered the “normal process”.
The other, known as the “direct donation process”, is a method of sperm donation between a donor and recipient who are familiar with each other. In such cases, sexually active gay and bisexual men may donate as long as the recipient signs a waiver.
In this case we are focusing on the first stream.
Aziz is uniquely positioned to pose this constitutional challenge, as he donated to a sperm bank in Toronto several times between 2014 and 2015 without issue before coming out as gay.
After the Canadian donor underwent rigorous screening and testing targeted under the Assisted Reproduction Act, including pre- and post-donation testing for infectious diseases, his sperm was released to the public.
As a result, the lesbian couple is able to have a daughter, whose life involves Aziz.
“we go out [to] Museums and parks, and we play. There’s so much joy and meaning in it,” he said. “We’re navigating this… family-like relationship.
He felt that this past donation was a meaningful experience, so he encouraged his friends to donate, but found their donations were not accepted.
“It made them feel bad and it made me feel ashamed,” he said.
Aziz said his motivation for filing the lawsuit was that he wanted to be able to donate again, a desire exacerbated by his perception of this. Lack of national donors.
“If this moves things forward and makes people realize that all people are equal…regardless of gender identity or sexual orientation, then I would be really happy and honored.
Ministers have the power to change: Lawyers
Gregory Ko, joint council on the case and partner at Kastner Lam LLP. (CTV News)
The lawsuit alleges that the federal health minister has the power to issue directives to change policies to apply to men who have sex with men, much like the Liberal government did years ago. There is
The government brought forward the current policy in 2019, requiring a three-month grace period before gay and bisexual men can donate, which took effect in February 2020.
The change was a significant update to a lifetime ban that had been in place for decades over concerns about HIV transmission.
“In our view, the Minister of Health has the discretion to amend this directive. It is a directive from the Minister’s office and the Ministry of Health itself. Our view is that it’s a policy, and it can be fixed quickly,” Koh said.
Partner of law firm Kastner Lam LLP, formerly be involved in a challenging event The now repealed federal blood donation ban says the sperm donation policy reflects language used by Health Canada, which had long prohibited men who have sex with men from donating blood.
After years of lowering the deferral period, Approved by Health Canada in April 2022 Canada Blood Services Submission to Eliminate the 3-Month Donation Delay.
This allowed blood donation organizations nationwide to begin using a behavior-based screening system for all blood donors, regardless of gender or sexuality. The new policy will come into effect in most parts of the country in September 2022, Hema Quebec followed suit December 2022.
“There is no excuse based on the state of science.”
Coe said the difference in sperm donation is that it doesn’t involve third parties like Canada’s blood services, and the federal government has limited powers to revoke or intervene in that policy. This was the approach taken by liberals when donating blood.
“We sincerely believe that the court will agree that this is a clear violation of equal rights and is indefensible based on the state of science,” Ko said.
Dr. Sony Sierra, president of the Canadian Fertility and Andrology Society, says the risk of infection is “very small” given screening and universal precautions are in place, but the risk still exists. .
“It can be seen as stigmatization. But we also need to understand that our concern also includes the intended recipients. You should be advised of the risks, follow these guidelines,” Sierra said. “I hope these guidelines will become more comprehensive as our science improves regarding infection and actual risks, as opposed to theoretical risks.”
Prime Minister Justin Trudeau and his government faced considerable pressure From the LGBTQ2S+ community after years of pledging to end the blood donation ban. When it was lifted, he cheered for the end of what he called a “discriminatory and wrong” policy.
The New Democratic Party says the federal government has failed to follow up on the lifting of the ban on blood transfusions and has not made similar changes to regulations on sperm donation.
“There was no scientific basis behind the ban on sperm donation by gay men. Nothing… people tell me they are working on it, but they have been working on this for over five years.” ,” said NDP MP Randall Garrison, a party critic of justice and LGBTQ2S+ rights.
“It’s the case in the queer community that we’ve always had to fight for our rights. We were never handed anything on a platter,” Garrison said. “I am just disappointed in these times when governments do not recognize the need for action.”
Health Minister Jean-Yves Duclos declined to comment when asked to answer the court’s challenge. The Office of Justice Minister David Lameti sent CTV News to the Department of Justice, and the Department of Justice sent questions to Health Canada.
In a statement to CTV News, the federal health agency said it was committed to a non-discrimination policy, pointing to a direct donation process it said was “specially created” with the LGTBQ2S+ community in mind.
Health Canada Senior Media Relations Advisor Tammy Jarbaugh told CTV News that the restrictions were aimed at “reducing risks to human health and safety” and that current sperm donor screening standards are: It said it was informed by available scientific and epidemiological information. Not just data, but national standards.
Health Canada said it was committed to ensuring its regulations continue to reflect the latest advances in science and technology, and given recent changes in screening criteria for blood donors, it said it would “consider whether a similar update is appropriate” for sperm. ‘ said. donation.
“Health Canada is aware that the application has been filed with the Ontario Superior Court and is currently reviewing the application,” Jarbeau said. “Health Canada is currently reviewing the application and will provide a response during the course of the lawsuit. We are unable to comment further at this time.”
Using files from CTV National News producer Rachel Haynes