Restrictions on gay men acting as sperm donors in Canada legally challenged

A gay man in Canada has begun a legal challenge against a policy restricting men who are sexually active with male partners from donating to sperm banks.

Under a current Health Canada directive, a man who has had sex with another man in the preceding three months is deemed 'unsuitable' and excluded from donating to sperm banks. They may still act as a known donor provided the recipient signs a waiver.

The lawsuit, brought against the federal government, challenges the constitutionality of the policy, arguing that the prohibition violates the right to equality enshrined in the Canadian Charter of Rights and Freedoms. The man, who had donated sperm prior to coming out as gay, explained he was motivated by 'that feeling of discrimination', saying the policy made him feel like a 'second-class citizen'.

The lawsuit alleges that the directive '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'. '[It's] like you're undesirable because of your gayness as a donor … It feels like such an arbitrary rule' said the man.

The rationale behind the policy appears to surround concerns of an increased risk of HIV transmission and other infectious diseases in gay and bisexual men. Tammy Jarbeau from Health Canada told CTV News that the restrictions aim to 'reduce the risks to human health and safety'.

However, the man's lawyer, Gregory Ko, said the directive is 'indefensible based on the state of the science'. All sperm and egg donors in Canada must undergo rigorous screening including pre-and post-donation testing for transmissible diseases, in accordance with the Assisted Human Reproduction Act.

This lawsuit follows the overturning of a separate federal ban on sexually active gay and bisexual men from donating blood. In 2022, the Canadian Blood Services moved away from a blanket ban on gay and bisexual men donating, towards a behaviour-based screening system based on higher-risk sexual behaviours, regardless of the donor's gender or sexual orientation.

'With the recent change in screening criteria for donating blood, we understand that Health Canada is exploring if similar updates can be made in the context of donor sperm and ova,' said equality minister Marci Ien's office.

Justice minister David Lametti added the policy was 'certainly something that we will look at'.