A gay man is suing the Canadian government over a policy that restricts sexually active gay and bisexual men from donating to sperm banks.
Currently, Health Canada, the government department responsible for national health policy, 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.
In Canada, there are two ways to donate sperm. The first involves donating to a sperm bank for general use, known as the “regular process.”
The second is called the “direct donation process,” in which a person donates to a specific recipient with whom they are already familiar.
Gay and bisexual men must abstain for three months to participate in the regular process but may donate via the direct donation process if the recipient signs a waiver releasing the government from liability, reports CTV News.
The three-month deferral, for those going through the regular process, took effect in February 2020, replacing an earlier policy that banned gay and bisexual men from donating for life, a relic of the early years of the AIDS epidemic.
Opponents of the three-month deferral argue it’s discriminatory and overly cautious since all sperm donations are already subject to screening, testing, and a six-month quarantine before they can be used — well over the two-week “window period” in which HIV or STI antibodies would develop if diseases were present in the sample.
One gay donor from Toronto, known as “Aziz M.,” has sued the government, arguing, in a complaint filed with the Superior Court of Ontario last month, that the categorical deferral period for gay and bisexual men, even those in long-term monogamous relationships, is discriminatory.
He also argues the policy violates the right to equality guaranteed by Canada’s Charter of Rights and Freedoms.
Aziz, who previously donated sperm in 2014 and 2015, prior to coming out as gay — resulting in his sperm being screened for diseases, stored for six months, and ultimately used to father a daughter for a lesbian couple — says the restriction makes him feel like a “second-class citizen.”
“[It’s] like you’re undesirable because of your gayness as a donor … It feels like such an arbitrary rule,” he told CTV News. “Why I decided to take this to court is because of that feeling of discrimination.”
Aziz hopes to donate sperm again one day, hoping that his lawsuit will strike down the categorical prohibition on men who have sex with men, which he says “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.”
The lawsuit also argues that the federal health minister has the power to issue a directive changing the policy, not requiring Canada’s parliament to approve the change.
“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,” Aziz said.
Interestingly, while Canada continues to keep a categorical deferral — opponents allege it’s effectively a “ban” — for gay and bisexual sperm donors, it previously eliminated such a deferral period for donors of blood and blood products last year, moving instead to an individualized, behavior-based risk assessment and screening process.
Political opponents of the Liberal government, led by Prime Minister Justin Trudeau, have criticized it for failing to take action on sperm donation even as it touts its work to eliminate the categorical deferral period for blood donors.
“There’s never been any science behind the ban on gay men donating sperm, none whatsoever,” New Democratic Party Member of Parliament Randall Garrison, the party’s critic for justice and LGBTQ rights, told CTV News. “People tell me they’re working on it, but they’ve been telling me they’ve been working on this for over five years. … It’s just disappointing at this day and age that the government doesn’t recognize their need to act.”
A spokesperson for Health Canada defended the current policy, arguing that the direct donation process was “specifically created” with the LGBTQ community in mind, allowing gay and bisexual men to donate to recipients to whom they are already connected.
The spokesperson argued that the restrictions for the regular process are to “reduce the risks to human health and safety,” and that the current screening criteria is based on scientific and epidemiological data — while allowing that further advances in science may necessitate a change at a future time.
“Health Canada is aware that an application has been filed … and is currently reviewing the application,” the spokesperson said in response to the lawsuit, adding that the agency’s response will “be provided in the course of the litigation.”
The agency declined to comment further on the case.
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