Federal regulations excluding gay men from donating sperm, and denying lesbians the right to choose gay sperm donors without special permission, are logical and violate neither parties’ rights, the Ontario Court of Appeal ruled, Jan 12.
The regulations in question, published in a federal Health Canada directive, exclude all potential sperm donors over age 40 and any donors with, as the court describes, “indications of high risk for diseases such as HIV, and Hepatitis B and C viruses, including men who have had sex with another man, even once, since 1977.”
Excluded men can still donate sperm if the woman’s physician applies for and receives a “special access authorization” from the minister of health, and if the semen tests negative for infectious diseases, is quarantined for six months, then gets tested again.
Heterosexual women seeking medical assistance getting pregnant with their spouse’s sperm, in contrast, don’t need special permission and are exempt from the lengthy screening process.
The Court of Appeal ruled the regulations are rational.
“This scheme, after all, is not primarily concerned with personal autonomy or self-actualization, but rather with health,” Justice Michael Dambrot, of Ontario’s Superior Court, ruled last year.
The purpose of these regulations, Dambrot stated, is to “protect the health of women undergoing assisted contraception, to reduce the risk to women and their partners of acquiring transmissible infectious diseases and to reduce the risk to their unborn children of acquiring transmissible infectious diseases and suffering birth defects.”
There’s no point subjecting heterosexual women seeking help with their spouses’ sperm to the same screening requirements, he added, since they have “already been exposed to any risk that exists.”
The Court of Appeal judges not only agreed with Dambrot’s reasoning; they called it “impeccable.”
“The regulations are neither overbroad nor arbitrary,” they ruled. “The donor screening regime is carefully tailored to the valid and important purpose of the regulations, namely, ‘a compelling interest in minimizing the risk of disease transmission via donated semen to women and to their future children.'”
“We were very disappointed with the court’s view that it was okay to ask gay parents to take these extra steps to use the medical system,” says Hilary Cook, chair of the legal issues committee of Egale, which had intervener status in the case.
“We shouldn’t have extra costs. It’s humiliating to have to ask for special permission,” she says.
This ruling “makes it harder for lesbians to choose gay men as donors and co-parents, and harder for gay men to become fathers at all,” she adds.
The ruling stems from a case brought forward by a woman known to the Ontario courts as Susan Doe, a 40-year-old lesbian. Doe wanted to get pregnant using the sperm of a 43-year-old gay friend. After unsuccessfully trying to self-inseminate at home, she was told by a doctor at Toronto’s Mount Sinai hospital that she couldn’t use her donor’s sperm in their clinic without first paying a fee, then asking the minister of health for special permission, then testing the semen for infectious diseases, freezing it for six months, and testing it again.
Doe asked the courts to find that excluding gay men is discriminatory, and subjecting lesbians to more stringent screening measures than straight women is unfair.
Lesbians aren’t treated differently because of their sexual orientation, the superior court judge responded. And it’s not discriminatory to exclude gay men, added the appeal court judges, because the exclusion is based on “health considerations. The medical evidence in the record establishes that there is a higher prevalence of HIV and Hepatitis among men in the MSM [men who have sex with men] category.”
Doe also argued that being forced to screen her chosen donor’s semen and get special permission to use it violates her right to liberty, a right guaranteed by Section 7 of the Charter of Rights and Freedoms.
“There can be no doubt that the right to liberty includes the right to conceive a child with the person of a woman’s choice,” the appeal court judges conceded. But they agreed with Dambrot’s judgment that Doe’s request goes beyond Section 7 protection.
“The true interest she wants to find constitutional protection for is an asserted right to attempt to conceive using a sperm donor’s semen through assisted contraception without the semen being screened or tested for infectious diseases,” ruled Dambrot, dismissing Doe’s argument.
The fact that straight women are allowed to use their spouse’s semen without testing must reflect some “recognition that women are entitled to knowingly and voluntarily accept the risks to themselves and to their unborn children,” Doe countered, to no avail.
The process of choosing a known donor always includes an assessment of risk, agrees Andrew Pinto, the lawyer for Doe’s gay sperm donor and for Egale. “People in a known donor situation exercise care and they presumably wouldn’t be choosing somebody who was going to be a risk factor,” he says.
“I don’t think the courts really appreciate how common this process is in our community or how these arrangements work,” says Cook. “Egale is considering appealing this decision to the Supreme Court of Canada, but it’s difficult because Sue Doe and the donor aren’t planning to appeal. It’s unclear whether we can continue without them or someone else who’s affected by this ruling who might step forward.”
As long as the Court of Appeal’s decision stands, lesbians and gay sperm donors in Ontario who need the medical system’s help getting pregnant will have to choose between applying for special permission and going through the six-month screening process, and staying in the closet and presenting themselves to a fertility clinic as a heterosexual couple.