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By Rachel Aiello
OTTAWA (CTV Network) -- A gay man is taking the federal government to court, challenging the constitutionality of a policy restricting gay and bisexual men from donating to sperm banks in Canada, CTV News has learned.
"[It's] like you're undesirable because of your gayness as a donor … It feels like such an arbitrary rule," said Aziz M, the man who is pushing to change the rules. Out of concern for his privacy, CTV News has agreed not to use his full name.
Currently, a Health Canada directive prohibits gay and bisexual men from donating sperm to a sperm bank unless they've been abstinent for three months or are donating to someone they know.
Under the "Safety of Sperm and Ova Regulation," sperm banks operating in Canada must deem these prospective donors "unsuitable," despite all donations being subject to screening, testing and a six-month quarantine before they can be used.
It's a blanket policy that the Toronto man bringing the lawsuit says makes him feel like a "second-class citizen," because it stops any gay or bisexual man who is sexually active from donating, even if they are in a long-term monogamous relationship.
"Why I decided to take this to court is because of that feeling of discrimination,” said Aziz.
Aziz and his lawyers are challenging the directive—filed with the Superior Court of Ontario in January—on the basis that it violates the right to equality in the Charter of Rights and Freedoms.
This case is seeking to strike out the provision in the policy that specifically applies to men who have sex with men, according to the application commencing litigation.
The case has caught the attention and has the financial backing of Canada's Court Challenges Program, an independent organization that supports individuals bringing cases related to constitutional rights that are of national significance.
The filing alleges that the current policy "perpetuates stereotypical attitudes and prejudices against gay and bisexual men, including false assumptions about their health, their sexual practices, and their worthiness to participate in child conception."
While the directive does not mention transgender or non-binary donors, the policy also applies to individuals who may not identify as male but would be categorized as men under the directive.
In an interview with CTV News, Gregory Ko, co-council on the case, said the policy goes to the heart of the many barriers that exists for LGBTQ2S+ Canadians looking to have children.
"It is not uncommon for a lot of gay and lesbian couples to rely on sperm donors within the community, and this directive explicitly puts a barrier, in addition to all the other barriers that exist for queer families, in having children," Ko said.
Man fighting policy has donated before
In Canada, there are two streams for sperm donation. One involves sperm donations made to a sperm bank for general use, which is considered the "regular process."
The other is known as the "direct donation process" and involves sperm donations between a donor to a recipient who are known to one another. In these cases, sexually active gay and bisexual men can donate so long as the recipient signs a waiver.
This case focuses on the first stream.
Aziz is uniquely positioned in bringing this constitutional challenge, as prior to coming out as a gay man, he donated to a sperm bank in Toronto several times between 2014 and 2015 without issue.
After undergoing the rigorous screening and testing that donors in Canada are subject to under the Assisted Human Reproduction Act, which includes pre- and post-donation infectious disease testing, his sperm was made available to the public.
As a result, a lesbian couple was able to have a daughter, whose life Aziz now plays a role in.
"We go out [to] museums and parks, and we play. There's a lot of joy, a lot of meaning in it," he said. "We're kind of navigating this … family-like relationship, and what do we call each other?"
Because he found this past donation a meaningful experience, he encouraged his friends to donate, only to realize that their donations wouldn't be accepted.
"It made them feel bad, and it made me feel embarrassed as well," he said.
Aziz said his motivation in bringing this case is that he wants to be able to donate again, a desire compounded by his awareness of this country's donor shortage.
"I would be really happy and honored if this makes things move along and … makes people recognize the equality between … everybody, regardless of their gender identity or sexual orientation," he said.
Minister has power to change: Lawyer
The lawsuit argues that the federal health minister has the power to issue a directive to change the policy as it applies to men who have sex with men, just as the Liberal government did a few years ago.
The government brought forward the current policy in 2019—requiring gay and bisexual men to observe a three-month deferral period before being able to donate—and it came into effect in February 2020.
This change was a marked update from what had been a lifetime ban dating back decades stemming from concerns over HIV transmission.
"Our view is that the minister of health has discretion to amend this directive. It is a directive that comes from the minister's office and from the ministry of health itself. And so, barring some internal processes, our view is that this is a policy that can be amended swiftly," Ko said.
Ko, who is a partner at law firm Kastner Lam LLP and previously was involved in a case challenging the now-eliminated federal blood ban, says the sperm donation policy echoes the language used by Health Canada that long prohibited men who have sex with men from donating blood.
After years of successive updates, in April 2022 Health Canada approved the Canadian Blood Services submission to eradicate what was then a three-month deferral period. This allowed the national blood donation organization to begin using a behaviour-based screening system for all donors, where risk factors are screened on an individual basis, regardless of gender or sexuality.
This new policy came into effect across most of the country in September 2022, and Hema-Quebec followed suit in December 2022.
"Indefensible based on the state of the science"
What is different about sperm donation, Ko says, is that there is no third party, such as Canadian Blood Services, involved that the federal government could point to and say that it has limited authority to rescind the policy or intervene. That was an approach the Liberals took during the blood donation saga.
"We sincerely believe that the courts will agree that this is a clear breach of the right to equality and is an indefensible based on the state of the science," Ko said.
President of the Canadian Fertility and Andrology Society Dr. Sony Sierra says that while the risk of transmission is "very small" given the screening and universal precautions in place, a risk still exists.
"It can be taken as stigmatizing. It is, but we have to also understand that our concern also involves the intended recipient, and therefore that intended recipient needs to be cared for and counseled regarding all risk. And that's our intention in practicing in accordance with these guidelines," Sierra said. "As our science improves with respect to transmission and actual risk as opposed to theoretical risk, I would hope that those guidelines become even more inclusive."
Prime Minister Justin Trudeau and his government faced considerable pressure from the LGBTQ2S+ community after pledging for years to end the blood ban. When it was lifted, he cheered the end of what he said was a "discriminatory and wrong" policy.
The New Democrats say the federal government has failed to follow up on the lifting of the blood ban with similar changes to the regulations for sperm donation.
"There's never been any science behind the ban on gay men donating sperm, none whatsoever … People tell me they're working on it, but they've been telling me they've been working on this for over five years," said NDP MP Randall Garrison, the party's critic for justice and LGBTQ2S+ rights.
"It's this case in the queer community that we've always had to fight for our rights. We've never had anything handed to us on a platter," Garrison said. "It's just disappointing at this day and age that the government doesn't recognize their need to act."
Asked to respond to the court challenge, Health Minister Jean-Yves Duclos declined to comment. Justice Minister David Lametti's office directed CTV News to the justice department, which directed questions to Health Canada.
In a statement to CTV News, the federal health agency said that it is committed to non-discriminatory policies, pointing to the direct donation process it said was " specifically created" with the LGTBQ2S+ community in mind.
Tammy Jarbeau, senior media relations adviser for Health Canada, told CTV News that the purpose of the restrictions are to "reduce the risks to human health and safety," and that that the current sperm donor screening criteria was informed by the available scientific and epidemiological data, as well as national standards.
Health Canada said it will look to ensure the regulations continue to reflect the latest advances in science and technology, and given the recent changes to the screening criteria for blood donors, it "will explore whether similar updates may be appropriate" in the context of sperm donation.
"Health Canada is aware that an application has been filed… and is currently reviewing the application," said Jarbeau, adding that the agency’s response will “be provided in the course of the litigation. We cannot comment further at this time."
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