OTTAWA – In what’s being considered a major victory for the LGTBQ2S+ community, Health Canada is eliminating the last remaining barriers that prevented gay and bisexual men from donating to sperm banks in this country. This precedent-setting policy rewrite comes after a prolonged legal battle between one gay man and the federal government that CTV News first reported on in 2023. “I’m very happy things turned out this way,” Aziz M. – whose full name is protected by a publication ban – said in an interview. Aziz was uniquely positioned as a plaintiff in this case, 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 all donors in Canada are subject to under the Assisted Human Reproduction Act – his sperm was made available to the public, and as a result, a lesbian couple was able to have a daughter, whose life Aziz now plays a role in. Upon learning fed policy now deemed him an “unsuitable” donor because of his sexual orientation, he decided to fight back, to try and allow gay and bisexual donors to have the ability to help address the shortage of Canadian donors available to families in need. “For queer people it’s harder to have kids, and so I think more gay men would be inclined to contribute to society in this way,” Aziz said. “Why I started doing this is really the discrimination.” Three and a half years of litigation For decades, Canada banned all gay and bisexual men from ever being donors through the sperm bank system. The rules only eased slightly in 2020, allowing donations from men who had sex with men, so long as they’d been abstinent for three months. Aziz launched his constitutional challenge in early 2023, and by the spring of 2024, Health Canada replaced the outright ban with a behaviour-based screening system. This change allowed men who have sex with men to legally donate sperm to a bank for the first time in more than 30 years. However, Aziz and his legal team argued that this pivot just replaced outright restrictions, with questions that implicitly would screen-out gay and bisexual men. They fought on, and just as they were feeling confident in the case they’d be presenting at a pending court hearing, Health Canada informed them the agency would be revising the donor testing requirements yet again. “This change represents an important and precedent-setting step in ending decades-long discrimination against gay and bisexual men,” said Gregory Ko, co-counsel on the case. “It represents the first time that Health Canada has eliminated sexual activity questions preventing gay and bisexual men from making life-changing medical donations to others.” Fellow co-counsel, Frank Nasca, added that while science can be slow and cautious, “it really took a massive push from Aziz and from others to get the government to really look closely.” How is Health Canada’s criteria changing? Confirming the change to CTV News in a statement, Health Canada spokesperson Karine LeBlanc said “the proposed changes included an update to the donor testing requirements to include mandatory use of advanced test kits for the detection of infectious diseases such as HIV, Hepatitis B, and Hepatitis C.” And coinciding with the implementation of these “new requirements” are “several corresponding changes to the donor screening criteria for both sperm and ova donors are also anticipated.” Specifically, the federal health agency is eliminating the remaining sexual behaviour-based activity screening questions that targeted gay and bisexual men. The questions Health Canada plans to drop are those referring to a person who has had anal sex with a new sexual partner in the preceding three months; and a person who has had more than one sexual partner in that same time frame, who has had anal sex with one of those partners. Legally, the next step will be fighting over costs, and whether Aziz could be entitled to compensation for as his lawyer put it, “the time incurred to bring us to this constitutionally compliant spot.” “I think what we have learned is we don’t have systems designed to ensure inclusivity, rather there’s more of a reactionary institutional inertia that effectively relies on outdated principles until someone can demonstrate otherwise,” Ko said. “With very little initiative on the part of Health Canada to re-examine at this point, decades-old prejudices and stereotypes.” Fertility experts say testing is sufficient Affidavits filed by experts in the case – including from an organization involved in the initial decades-old preventative screening criteria – confirmed the current donor procedures already in place are absolutely sufficient to protect against risks, such as the transmission of HIV. Those procedures include pre- and post-donation infectious disease testing, and a six-month quarantine period before donations can be used. “This policy change makes me very happy because we want to see policy align with science,” said the Canadian Fertility and Andrology Society’s (CFAS) Dr. Heather Shapiro. “I’m very comfortable that the science and the technology that we have in place overrides the personal question history that the government was suggesting.” Emily McIntosh, the executive director of CFAS, said this is exactly how government should work. “We don’t need to have everything go to litigation and a constitutional challenge to do what makes sense based off of the science,” she said. “As the professional organization that represents all of the professionals working in assisted reproductive technology, this is a really welcome change.” ‘It comes down to the humanity’ LGBTQ2S+ advocates say they’re relieved by the change, but also a little frustrated that it took this long for the federal government to right a wrong that was based on outdated data and beliefs. “I’m also really filled with so much gratitude towards Aziz for tirelessly fighting this issue and not being willing to give up,” said Bennett Jensen, director of legal at Egale Canada. “It’s incredibly burdensome to be handling litigation, especially with respect to something that’s so personal. And I think that he’s done just an incredible public service for Canadians.” Egale Canada was also preparing to intervene in the case, to expand on how discriminatory the existing prohibition was, and how it disproportionality targeted a minority community without a scientific basis. “I think it comes down to the humanity, recognizing the humanity of queer people,” Jensen said. “The queer community has dealt with these kinds of stereotypes, discrimination, bigotry over the history that we have existed. And I think that it’s an important message to Canadians that you know were all deserving of participating in the creation of families.” CTV News requested an interview with Health Minister Marjorie Michel, but she was not available. In a statement, her office said the government supports “changes that make sperm donation safer and more inclusive, while supporting continued public confidence in the donation process.”
