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Canada to Ease Restrictions on Gay Men Donating Blood - Are Changes to Restrictions on Gay Men Donating Sperm to Follow?

5/23/2013

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Canada is finally lifting the almost 30-year lifetime ban on blood donation by gay men.  However, only men who have not had sex with another man within the past five years will be allowed to donate blood.  Canadian Blood Services hopes to have this new policy in place by mid-summer.  Although this is a marked improvement over the current ban which prohibits men who have had sex with another man even once since 1977 to ever donate blood, the change does not go far enough.  I hope that this is only a first step and that the ban will be further reduced to better balance the protection of those receiving the donated blood with respect for and inclusiveness of all people.  Canada can look to other jurisdictions that balance these
competing interests in a less extreme manner, and through the use of empirical evidence.  For example, Australia has a policy where blood donations are deferred for only twelve months.  A study shows that Australia did not see an increase in contaminated blood donations when it moved to this model.  However, as highlighted below, ideally the health of the donor should be determined based on a donor's behaviour and not on his sexual orientation.

This change may also reverberate to affect those who can be a sperm donor in Canada. Currently, the Semen Regulations under Canada's Food and Drug Act only allow specific men to donate sperm.  Restricted men include any man who has had sex with another man since 1977 (following from the ban on blood donation by gay males).  If a man who has had sex with another man even once since 1977 wants to donate sperm, special permission needs to be obtained unless the sperm is being used by the donor's sexual partner. The regulation points to an increased likelihood of such a donor being infected with HIV.

This policy is unnecessarily discriminatory.  It affects who can be a parent or a donor, and puts gay men at a disadvantage, regardless of the man's HIV status, whether he is in a monogamous relationship, and whether he even lives as a gay male or only engaged in sex with a man once back in 1980.  If the government's concern is the health of recipients of donor sperm, it should be looking for indications of the donor's health and behaviour, as opposed to his sexual orientation or gender.  For example, the current Semen Regulations (which I expect will fall by the wayside as soon as the federal government proclaims the new section 10 of the Assisted Human Reproduction Act and the regulations thereto to be in force), require that any donor sperm provided for the use of someone who is not the sexual partner of the donor be quarantined for six months in order to protect against HIV and other transmittable diseases.  If all donor sperm needs to be quarantined and tested anyways, why is that insufficient for gay males but sufficient for heterosexual males? Regardless, I'm hopeful that the change made to the restrictions on gay males donating blood will signify at least a similar change to the restrictions on gay males donating sperm (and that both policies will continue moving in the appropriate direction). 

NB: I admit that I do not have scientific training so if I am missing something here, feel free to school me.   As the policy stands, it seems to me like discrimination without the science or logic to back it up.







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The biggest news in fertility law in Canada: Assisted Human Reproduction Canada scrapped - what does this mean for fertility law in Canada?

3/29/2012

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The federal government of Canada announced its budget today.  Noticeably absent is any funding for Assisted Human Reproduction Canada (AHRC), the federal corporate body enacted to implement the Assisted Human Reproduction Act and its regulations.  By scrapping the AHRC, Canada will save nearly $10 million per year (see Health care a target in Tories’ deficit reduction plan).

In December 2010, the Supreme Court of Canada found that many aspects of the assisted reproductive technologies (ARTs) were within provincial jurisdiction as they are health, and not criminal, matters.  Accordingly, much of the Assisted Human Reproduction Act was found to be unconstitutional (see the Supreme Court of Canada decision here).  However, sections 5 through 9 (among others) remain.  Notably, sections 6 (which prohibits the payment of a surrogate mother) and 7 (which prohibits the payment for eggs or sperm from a donor or a person acting on behalf of a donor) remain in force.

Eliminating the AHRC does not legalize any of the prohibitions in sections 5 through 9.  However, it will undoubtedly affect the enforcement of the AHRA, and further demonstrates just how unrealistic and unworkable the current state of fertility law in Canada really is.  Let's hope that the federal government scraps the AHRA completely instead of holding on to a poorly constructed piece of legislation and flogging a dead horse.  

As stated by Justices LeBel and Deschamps at para 251 of the SCC Reference re Assisted Human Reproduction Act,
"...Parliament, in adopting the Baird Report’s recommendation on controlled activities, intended to establish
national standards for assisted human reproduction.  The purpose was not, therefore, to protect those who might resort to assisted human reproduction on the basis that it was inherently harmful.  Assisted human reproduction was not then, nor is it now, an evil needing to be suppressed.  In fact, it is a burgeoning field of medical practice and research that, as Parliament mentions in s. 2 of the AHR Act, brings benefits to many Canadians."



 
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    Sara R. Cohen practices fertility law at Fertility Law Canada™ in Toronto, Canada with clients across the country and beyond.  She loves what she does, and it shows!

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