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Alison Motluk is a Toronto-based freelance journalist who publishes HeyReprotech, a newsletter about the ripples caused by assisted reproduction.

On Jan. 18, a Toronto man launched a constitutional challenge over Canada’s sperm donation rules, saying they discriminate against him on the basis of sexual orientation.

The man, identified only as Aziz M., is gay. According to the Health Canada regulations, a “man who has had sex with a man in the preceding three months” can’t donate sperm to a sperm bank.

Mr. M. says in his affidavit that he grew up in a socially conservative family and was told it was shameful to be gay. Before openly identifying as a gay man or becoming sexually active with other men, Mr. M. donated sperm at Toronto’s ReproMed sperm bank multiple times between 2014 and 2015. He’d read about Canada’s sperm shortages and about how LGBTQ+ people needed donor sperm to create families.

In 2021, a recipient family contacted him. They’d had a daughter from his sperm donation and they wanted to meet him. He currently sees the child, now aged five, about once a month, and says in the affidavit that the relationship “enriches my life and fills me with a deep sense of purpose.”

But after coming out as gay, and becoming sexually active as a gay man, Mr. M. discovered that he could no longer donate sperm in what’s officially known as the “regular process” – through a sperm bank and to recipients he doesn’t personally know. The only way he can donate now is to abstain from sex, and since sperm banks typically require a commitment from donors to donate regularly for several months or a year, it would mean a lengthy abstention.

Mr. M. could still donate to people he knows, either through a sperm bank in what’s known as the “directed donation process,” or privately, through Facebook groups. But he wants to donate through the regular process and argues it’s a violation of his Charter rights that he cannot.

It is “deeply hurtful, stigmatizing and discriminatory,” he says in his affidavit. Because he is a sexually active gay man, he is automatically deemed an “unsuitable” donor.

Just four years ago, gay men in Canada were not permitted to donate sperm through banks at all. In the 1980s, as part of an attempt to prevent the spread of HIV, Canada placed a lifetime ban on donations of blood – and subsequently sperm – from any man who’d had sex with a man, even once, since 1977.

Canada’s policy on blood donation evolved over the years. In 2013, men who had sex with men were allowed to donate blood as long as five years had elapsed since their last sexual encounter. In 2016, that deferral period was shortened to one year. In 2019, it was shortened again, to three months. Last year, the singling out of gay and bisexual men was dropped altogether from blood-donation screening. Instead, Canada Blood Services started screening all donors for high-risk sexual behaviour.

New regulations for sperm donation came out in 2020 that allow for gay men to donate, but they require the three-month abstention that Mr. M. is objecting to.

He is asking the Superior Court of Justice to declare this particular regulation unconstitutional.

Back in 2002, Canada’s policy on blood donation was challenged as discriminatory as well, and in 2010 an Ontario Superior Court judge ruled that a waiting period for men who have sex with men was not discriminatory if it was based on health and safety considerations. Moreover, the judge said donation was a gift, not a right, and that there was no requirement to accept a gift of blood. But she also said that the need for a lifetime deferral period had not been demonstrated.

The need for a three-month deferral for sperm donation, I believe, will be hard to demonstrate, too. That’s because in the “regular process” all sperm is frozen and quarantined for six months. All donors go through extensive infectious-disease screening and testing in advance of donating, and then are tested again after the sperm has been quarantined. Only if tests on both ends are clear will the sperm be released.

That means that even if a donor has an infectious disease when he donates, but it goes undetected by predonation testing, that infection can be picked up during the post-quarantine testing. Mr. M.’s lawyers, and others (including me), have pointed this out.

This court challenge should not be necessary. Our new regulations should have been better. Let’s fix that now.