A gay man is suing Canada’s federal government, alleging that its restrictions on gay and bisexual male sperm donation are unconstitutional.
The man, identified only in the press as Aziz M., is suing Health Canada, the country’s national health department. He says the current policy is unconstitutional and renders him and other MSM as “second-class citizen[s].”
Health Canada’s current policies prohibit men who have sex with men (MSM) from donating to a sperm bank unless they’ve abstained from sex for three months or are donating sperm to someone they personally know, CTV News reported. The policy refers to sperm from MSM donors who don’t meet these criteria as “unsuitable,” even though all donors are screened before and after donation to ensure that they don’t have sexually transmitted infections (STIs).
“Why I decided to take this to court is because of that feeling of discrimination,” he said. “[It’s] like you’re undesirable because of your gayness as a donor… It feels like such an arbitrary rule.” His case is financially supported by Canada’s Court Challenges Program, an independent group that supports cases of national importance involving individual constitutional rights.
The aforementioned publication notes that the policy stops any sexually active MSM from donating, “even if they are in a long-term monogamous relationship.”
Aziz M’s lawsuit says the 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.”
Aziz M. said he donated sperm in the city of Toronto in 2014 and 2015 without any problems (resulting in the birth of a child whose life he’s now involved with). His claim is surprising considering that, before February 2020, Health Canada’s policies required a lifetime ban on MSM over concerns about possible HIV transmission.
Aziz M. said he felt embarrassed after telling other MSM to donate sperm, only to later learn that they were rejected for their sexual behavior.
The man’s lawyer, Gregory Ko, said, “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 that, since sperm donations are handled through a government department — unlike blood donations, which are handled through a third-party non-governmental agency — that the federal health minister can easily change Health Canada’s donation policies.
Canadian Member of Parliament, Randall Garrison of the New Democratic Party, told CTV, “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.”
“It’s just disappointing at this day and age that the government doesn’t recognize their need to act,” he added.
However, Dr. Sony Sierra, President of the Canadian Fertility and Andrology Society, said that the policy remains in place to help prevent the “very small” risk of STI transmission that could occur with sperm donations from MSM.
“[The policy] can be taken as stigmatizing,” Sierra said. “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.
Sierra said that he hopes future guidelines will “become even more inclusive” as improved science helps determine actual and not theoretical risks.
“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.