The Ontario Court Of Appeal has ruled that it’s okay to continue to require men who have sex with men to take special steps to be known sperm donors.
“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 the queer lobby group Egale Canada; Egale had intervener status in the case.
“Because gay families get pregnant by intent we’re waiting for that perfect moment and we don’t want delays,” says Cook. “We shouldn’t have extra costs. It’s humiliating to have to ask for special permission.”
The ruling, handed down in January, resulted from an appeal of the case of a Toronto woman known to the courts as Susan Doe. Doe wanted to get pregnant using the sperm of a 43-year-old gay friend who had previously fathered a child with her lesbian partner of 17 years. After unsuccessfully trying self-insemination at home, she was told by a doctor at Mount Sinai hospital that she couldn’t use her donor’s sperm in their clinic without first paying a fee, filing for special permission to the minister of health for the ban to be lifted, testing the semen for infectious diseases such as HIV and hepatitis, and then freezing it for six months while the donor was retested.
Doe’s lawyer argued that the restrictions are discriminatory under the Charter Of Rights And Freedoms because she wouldn’t face any such legal barrier or time delay if she was inseminating with the semen of a spouse or sexual partner. But the ruling upheld the regulations as “rational and health-based” even though it only applies to known donors who aren’t in a sexual relationship with the prospective mother. It also applies to all men older than 40.
“It makes it harder for lesbians to choose gay men as donors and coparents, and harder for gay men to become fathers at all,” says Cook. “It’s especially frustrating because it comes hard on the heels of the three-parent ruling [a recent ruling that recognized two lesbian mothers and their sperm donor as equal parents under the law] and we hoped the courts were beginning to understand that we’re not like heterosexual nuclear families. But in this case they didn’t consider the practical barriers to how we achieve those three-parent families.”
The ruling didn’t recognize known donors as reproductive partners if they aren’t also sexual partners, and upheld the regulation’s presumption that sexual partners are in a unique position of trust. But Andrew Pinto, the lawyer for the gay sperm donor and for Egale, says that the process of choosing a donor includes an assessment of risk.
“People in a known donor situation exercise care and they presumably wouldn’t be choosing somebody who was going to be a risk factor,” says Pinto.
The ruling means that queer parents in Ontario who use the medical system to achieve pregnancy have to choose between applying for special permission to inseminate after a six-month waiting period, or staying in the closet and presenting themselves at a fertility clinic as a heterosexual couple.
Simply being gay or having sex with men won’t exclude a sperm donor from the donation process providing he is also the sexual partner of the female recipient. The criteria for exclusion aren’t the health risks to the woman per se, but that the woman must assume those risks by having a preexisting sexual relationship with the donor. Home insemination may be the biological equivalent of having unprotected intercourse, but according to the court it doesn’t count as a sexual relationship and therefore doesn’t imply a similar position of trust.
“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.
“We also run the risk of appealing and losing on a national level, so there are more factors to consider. There may need to be some stepping stones leading to a rethinking of the court’s approach, perhaps through other donation issues that they can better understand.”