Health Canada to change sperm donor screening rules for men who have sex with men

Power Play: Sperm donation rules changing Health Canada is changing its policy on sperm donation as it faces accusations of discrimination. Rachel Aiello has the details.

Health Canada will change its longstanding policy restricting gay and bisexual men from donating to sperm banks in Canada, CTV News has learned.

The federal health agency has adopted a revised directive removing the ban on gay, bisexual and other men who have sex with men, effective May 8.

The policy change would remove the current donor screening criteria, allowing men who have sex with men to legally donate sperm for the first time in more than 30 years, as part of the anonymous donation process.

This update comes after CTV News first reported last year that a gay man was taking the federal government to court, challenging the constitutionality of the policy on the basis that it violates the right to equality in the Charter of Rights and Freedoms.

According to an email Health Canada sent stakeholders informing them of the upcoming amendments to the federal directive, "sperm donors will instead be asked gender-neutral, sexual behaviour-based donor screening questions," more in-line with the 2022 change made by Canadian Blood Services to its donation policy.

However, instead of entirely eradicating restrictions for gay and bisexual men, lawyer Gregory Ko – whose client, Aziz M., brought the case – cautioned that Health Canada will continue to bar donations from those who have had new or multiple partners in the last three months, based on screening questions regarding anal sex. CTV News has agreed to protect the full identity of Aziz M. out of concerns for his privacy.

Ko said while the update is an important milestone making the sperm donation system more inclusive, his client intends to maintain his challenge against the Health Canada directive, "and the continued discrimination contained in this latest revision."

"Based on our understanding of the science, there is no scientific justification for screening criteria that continues to discriminate on the basis of sexual activity and sexual orientation, since the testing and quarantine protocols already in place allow sperm banks to detect relevant infections and exclude such donations," Ko said.

"We've moved from direct discrimination to indirect discrimination – both of which are prohibited by the Charter."

Currently, Health Canada – through what's called the "Technical Requirements for Conducting the Suitability Assessment of Sperm and Ova Donors" – prohibits gay and bisexual men from donating sperm to a sperm bank for general use, 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. This stems back decades, related to concerns over HIV transmission.

Under the "Safety of Sperm and Ova Regulation," sperm banks operating in Canada must deem these prospective donors "unsuitable," despite all donations being subject to high standards of screening, testing and a six-month quarantine before they can be used.

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.

It's a blanket policy that the Toronto man bringing the lawsuit said made him feel like a "second-class citizen," as he was previously able to donate and help a lesbian couple conceive before coming out as gay. It's his position that this goes to the heart of the many barriers that exist for LGBTQ2S+ Canadians looking to have children.

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 from 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.

The case connected to this policy change focuses on the first stream.

When CTV News first reported on the lawsuit, Health Canada and various federal ministers said they would be "exploring" a policy change, citing the progress made on blood donation rules.

The update, which also amends the screening criteria for ova donors, comes following "the consultations held in August 2023 and January 2024" with donor screening experts, LGBTQ2S+ groups, patient associations and industry, according to Health Canada.

In a statement to CTV News, agency spokesperson Mark Johnson said the federal government is "committed to make sure that sperm and ova donation policies are safe, non-discriminatory, and science-based."

"After a review of the latest scientific evidence and feedback received from recent consultations, Health Canada is updating the donor screening criteria… This change will not compromise the safety of donated sperm and ova in Canada."

Prime Minister Justin Trudeau and his government faced considerable pressure from the LGBTQ2S+ community after pledging for years to end the blood ban, and when it was lifted, he cheered the end of what he said was a "discriminatory and wrong" policy.

Arguments have been made that the federal health minister has the power to issue a directive and change these policies.

In a statement to CTV News, Health Minister Mark Holland's office cited the same review and consultations as the department, and did not directly comment on what involvement he had in the coming change or whether he thought the outgoing policy was discriminatory.