Can men who have sex with men be organ donors in Canada? That’s a tricky question. You’d be forgiven for thinking they can’t, since they’re banned from donating blood if they’re sexually active. In fact, the relevant regulations suggest that gay men’s organs aren’t acceptable in Canada either.
Still, some public health agencies say they are, such as Ontario’s Trillium Gift of Life Network which advertises that “everyone is a potential donor regardless of . . . sexual orientation . . . All potential donors are evaluated on an individual, medical, case-by-case basis.”
So who’s right?
Wait, so the regulations say ‘no gay organs’?
Well, sort of.
Under Health Canada regulations first enacted by the Harper government in 2007, men who have had sex with men (MSM) in the previous five years are excluded from donating organs and tissues, except under a protocol called “exceptional distribution.”
This process involves the donor being flagged as “high risk,” and the physician and recipient making a decision on whether to use his organs. In these cases, organs can be used only if all of the following criteria are met:
- no other organ is available
- the transplant physician signs off
- the recipient gives informed consent (with full knowledge of the possible risks and benefits)
The annex document for the regulations clearly indicates that a man who has had sex with a man in the past five years is in a “higher risk” group, and his organs are considered not safe for transplantation, unless they qualify for exceptional distribution.
An assessment of whether the donor’s organs qualify is only made at the time of the donation — for most donors, after death — and based on an assessment of the individual donor’s medical, sexual, and social history.
Ok, but why?
The regulations were put in place to mitigate the supposed risk that organs from men who have sex with men may carry HIV and other blood-borne illnesses. The five-year deferral period is meant to ensure that the donor is not carrying a virus that is not yet detectable by tests.
However, all organs donated in Canada are tested for viruses with world-leading tests with much shorter windows for accuracy. Sources at Health Canada say that current tests for HIV can detect the virus within nine days of infection, and Hepatitis B within 30 days. By comparison, the current blood donor deferral period is only one year.
But isn’t that effectively a gay ban? I mean, how many gay men do you know who haven’t had any kind of sex with another man in the last five years?
Spokespeople for both the Trillium Gift of Life Network and Health Canada insist that the restrictions do not constitute a ban on gay organs.
“All donors, regardless of sexual orientation, are screened using questions about their sexual history, intravenous drug use, tattooing, and so on,” Jennifer Long, media relations coordinator at Trillium Gift of Life Network, tells Xtra. “A donor’s lifestyle is only considered as it relates to the potential for transmissions of infectious diseases.”
Despite the regulations, organs donated by healthy gay men are not rejected in practice, according to Health Canada. Organs are in such short supply that available organs are used whenever possible, after assessing the donor’s individual medical, social, and sexual history.
So then how is the donor’s history assessed?
A male donor’s history of having sex with men is considered a risk factor that may exclude his organs from transplantation and must be discussed with the recipient.
A living donor may be around to discuss his sexual history with a doctor, but in the case of a deceased donor – most organs come from the deceased – the transplant physician may consult the donor’s medical history or next of kin to determine his sexual history and other exclusion factors.
But, because in most cases the information is second-hand, detailed behavioural surveys of the donor’s sexual history would not be appropriate or reliable.
Ok, I follow, but then, how does the doctor assess a deceased man’s riskiness?
Are you sure you want to know?
Yes. How can a doctor determine if a deceased donor has had sex with another man in the last five years?
Transplant physicians are also instructed in the guidance document for the regulations to conduct a physical examination of all deceased donors to check, among other things, “for a male donor, physical evidence of anal intercourse including perianal condyloma” (anal warts).
Hold up. Aren’t anal examinations on live men — which are also performed by police in some countries that criminalize homosexuality — to determine if they’ve participated in anal sex largely discredited and considered a form of “cruel, degrading, and inhuman treatment” by Human Rights Watch?
Oh. I don’t really know what to say to that.
But didn’t the Trudeau Liberals promise to end these bans on gay blood and organs?
In the lead up to the 2015 election, Prime Minister Justin Trudeau’s Liberal Party ran a high-profile “End the Ban” campaign, promising to repeal regulations that barred gay men from donating blood in Canada; they never said anything about organs and other tissues.
But in office, they’ve only managed to reduce the “deferral period” — the length of time a male blood donor has to have not engaged in sex with a man before donating — from five years to one year. In government, the Liberals have been silent on the organ donation ban, leaving differing deferral periods for blood and organs.
A spokesperson for Health Minister Jane Philpott told Xtra that the government is continuing to study the deferral policies around blood and organ donation in Canada.
“Our government is committed to scientific and evidence-based decision making, and it is our expectation that alongside other donation policies, organ donation reflects this commitment,” says Andrew MacKendrick, press secretary to the health minister.
Should I really be bothered by this?
Christopher Karas, an activist who has filed a complaint over the MSM blood ban with the Canadian Human Rights Commission, says the bans on gay blood and organs promote stigma and dangerous stereotypes around gay men and their sexual behaviour. He says he is considering filing another complaint over the organ regulations.
“I think the organ ban is just as stigmatizing,” Karas says. “The policy remains discriminatory. Maybe the government doesn’t feel as much push from the LGBT community on organs as it did on the blood ban.”
Bottom line: Can I be an organ donor? Should I?
Bottom line? Yes, if a relative needed a kidney or liver, you could donate under the exceptional distribution scheme, as long as you’re prepared to have conversations about your sexual history and risk factors with your relative and their doctor.
You can also register to be an organ donor with your provincial organ donation agency. And the need is great: there are approximately 4,600 on the waitlist for a lifesaving organ transplant.
But you should be aware that your sexual history will be investigated after your death and discussed with any potential donor as a possible “risk.”