Gay man taking Canadian government to court, says sperm donation restrictions make him feel like a 'second-class citizen'
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, 麻豆影视 has learned.
"[It's] like you're undesirable because of your gayness as a donor 鈥 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, 麻豆影视 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.
For example, it stops any gay man who is sexually active from donating, even if they are in a long-term monogamous relationship.
Under the 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."
"Why I decided to take this to court is because of that feeling of discrimination,鈥 said Aziz.
Aziz and his lawyers are challenging the directive鈥攆iled with the Superior Court of Ontario in January鈥攐n 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 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 麻豆影视, Gregory Ko, co-counsel 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
Aziz M., the man who is taking the federal government to court. Out of concern for his privacy, 麻豆影视 has agreed not to use his full name.
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 鈥 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 honoured if this makes things move along and 鈥 makes people recognize the equality between 鈥 everybody, regardless of their gender identity or sexual orientation," he said.
MINISTER HAS POWER TO CHANGE: LAWYER
Gregory Ko, co-counsel on the case and partner with Kastner Lam LLP. (麻豆影视)
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鈥攔equiring gay and bisexual men to observe a three-month deferral period before being able to donate鈥攁nd 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 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 counselled 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 鈥 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 麻豆影视 to the justice department, which directed questions to Health Canada.
In a statement to 麻豆影视, 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 麻豆影视 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鈥 and is currently reviewing the application," said Jarbeau, adding that the agency鈥檚 response will 鈥渂e provided in the course of the litigation. We cannot comment further at this time."
With files from CTV National News producer Rachel Hanes
IN DEPTH
Jagmeet Singh pulls NDP out of deal with Trudeau Liberals, takes aim at Poilievre Conservatives
NDP Leader Jagmeet Singh has pulled his party out of the supply-and-confidence agreement that had been helping keep Prime Minister Justin Trudeau's minority Liberals in power.
'Not the result we wanted': Trudeau responds after surprise Conservative byelection win in Liberal stronghold
Conservative candidate Don Stewart winning the closely-watched Toronto-St. Paul's federal byelection, and delivering a stunning upset to Justin Trudeau's candidate Leslie Church in the long-time Liberal riding, has sent political shockwaves through both parties.
'We will go with the majority': Liberals slammed by opposition over proposal to delay next election
The federal Liberal government learned Friday it might have to retreat on a proposal within its electoral reform legislation to delay the next vote by one week, after all opposition parties came out to say they can't support it.
Budget 2024 prioritizes housing while taxing highest earners, deficit projected at $39.8B
In an effort to level the playing field for young people, in the 2024 federal budget, the government is targeting Canada's highest earners with new taxes in order to help offset billions in new spending to enhance the country's housing supply and social supports.
'One of the greatest': Former prime minister Brian Mulroney commemorated at state funeral
Prominent Canadians, political leaders, and family members remembered former prime minister and Progressive Conservative titan Brian Mulroney as an ambitious and compassionate nation-builder at his state funeral on Saturday.
Opinion
opinion Don Martin: Gusher of Liberal spending won't put out the fire in this dumpster
A Hail Mary rehash of the greatest hits from the Trudeau government鈥檚 three-week travelling pony-show, the 2024 federal budget takes aim at reversing the party鈥檚 popularity plunge in the under-40 set, writes political columnist Don Martin. But will it work before the next election?
opinion Don Martin: The doctor Trudeau dumped has a prescription for better health care
Political columnist Don Martin sat down with former federal health minister Jane Philpott, who's on a crusade to help fix Canada's broken health care system, and who declined to take any shots at the prime minister who dumped her from caucus.
opinion Don Martin: Trudeau's seeking shelter from the housing storm he helped create
While Justin Trudeau's recent housing announcements are generally drawing praise from experts, political columnist Don Martin argues there shouldn鈥檛 be any standing ovations for a prime minister who helped caused the problem in the first place.
opinion Don Martin: Poilievre has the field to himself as he races across the country to big crowds
It came to pass on Thursday evening that the confidentially predictable failure of the Official Opposition non-confidence motion went down with 204 Liberal, BQ and NDP nays to 116 Conservative yeas. But forcing Canada into a federal election campaign was never the point.
opinion Don Martin: How a beer break may have doomed the carbon tax hike
When the Liberal government chopped a planned beer excise tax hike to two per cent from 4.5 per cent and froze future increases until after the next election, says political columnist Don Martin, it almost guaranteed a similar carbon tax move in the offing.
CTVNews.ca Top Stories
Conservatives call on Elon Musk to step in after Liberals provide loan to Ottawa-based satellite operator
A $2.14-billion federal loan for an Ottawa-based satellite operator has Canadian politicians arguing about whether American billionaire Elon Musk poses a national security risk.
Myths busted and lessons learned: John Vennavally-Rao on his surgery to reverse his ostomy
Twenty-seven year 麻豆影视 reporter and anchor John Vennavally-Rao shares his story of what it was like to have an ostomy bag as part of his health-care battle. 'I鈥檓 grateful for what it did to extend my life,' he writes in a personal column for CTVNews.ca.
Trump appeals to women in return to North Carolina without Mark Robinson, a top in-state supporter
Donald Trump returned to North Carolina on Saturday, stumping in the southern battleground state with direct appeals to women, claiming he would be a better champion for them than U.S. Vice President Kamala Harris, who is vying to become the first female president.
Housing support for adult children with severe autism is 'absolutely absurd,' say parents
Looking after an adult with severe autism can be a full-time job. Ask any parent who has a child severely affected by autism spectrum disorder 鈥 it鈥檚 a job that can get more difficult as the child becomes an adult.
Heavy metal exposure could increase cardiovascular disease risk, study finds
A new study is adding to emerging research showing that exposure to metals such as cadmium, uranium and copper may also be associated with the leading cause of death worldwide, cardiovascular disease.
Unusual flippered feet are making their way into the Saint Lawrence River this weekend. Led by underwater explorer and filmmaker Nathalie Lasselin, volunteer divers are combing the riverbed near Beauharnois in Mont茅r茅gie to remove hundreds of tires that have been polluting the aquatic environment for decades.
A body has been found in the vicinity where a woman went missing on the Ottawa River near Pembroke, Ont. while kayaking Tuesday night, according to the Ontario Provincial Police (OPP).
Kids are inhaling 'Galaxy Gas' to get high. Here鈥檚 what parents should know
For some young people, a popular method for getting a quick high is by misusing laughing gas 鈥 and lately, that鈥檚 in the form of nitrous oxide from products sold by the company Galaxy Gas.
A man is facing numerous drug trafficking charges after Dufferin OPP seized a large assortment of drugs and weapons in Orangeville earlier this week.
Local Spotlight
Cole Haas is more than just an avid fan of the F.W. Johnson Wildcats football team. He's a fixture on the sidelines, a source of encouragement, and a beloved member of the team.
Getting a photograph of a rainbow? Common. Getting a photo of a lightning strike? Rare. Getting a photo of both at the same time? Extremely rare, but it happened to a Manitoba photographer this week.
An anonymous business owner paid off the mortgage for a New Brunswick not-for-profit.
They say a dog is a man鈥檚 best friend. In the case of Darren Cropper, from Bonfield, Ont., his three-year-old Siberian husky and golden retriever mix named Bear literally saved his life.
A growing group of brides and wedding photographers from across the province say they have been taken for tens of thousands of dollars by a Barrie, Ont. wedding photographer.
Paleontologists from the Royal B.C. Museum have uncovered "a trove of extraordinary fossils" high in the mountains of northern B.C., the museum announced Thursday.
The search for a missing ancient 28-year-old chocolate donkey ended with a tragic discovery Wednesday.
The Royal Canadian Mounted Police is celebrating an important milestone in the organization's history: 50 years since the first women joined the force.
It's been a whirlwind of joyful events for a northern Ontario couple who just welcomed a baby into their family and won the $70 million Lotto Max jackpot last month.