The Significance of the New Court Challenge to the Directive Around Sperm Donation in Canada

Presently, there is a shortage of donor sperm in Canada. This is partly attributed to the altruistic model in Canada, which removes a financial incentive for people to donate sperm or eggs (ova).

In the article “Feasibility of an altruistic sperm donation program in Canada: results from a population-based model“, the authors Daria O’Reilly et al remark that since the year 2000 there has been a marked decline in the supply of donor sperm from Canadian men. “This decline coincides with the introduction of new, more stringent regulations for donor screening and sample testing in 2000, and the proclamation of a criminal law prohibiting payment for donor gametes in 2004.” In response, many sperm banks have closed in Canada.

In their paper, O’Reilly et al  show that with a population of just over 4 million men aged between 21 and 40 in Canada, the altruistic sperm donation program is not feasible. The authors estimate that the the donor pool of eligible and willing Canadian men is about 63 men, which is a shortfall of the 252 Canadian donor needed to meet the demand.

Their analysis of previous research shows that renumeration is a major motivator for sperm donation. “Evidence suggests that payment does change male willingness to donate, especially among younger donors. A study that evaluated the impact of payment for sperm donation found that 32% of donors donated purely for financial reasons… When considering donating based on purely altruistic reasons, this number was lower and ranged between 5 and 8% in the above studies…” Due to the low supply of donor sperm (and also ova) in Canada, many people are directed to the United States or Europe to purchase donor gametes.

It is in this context of a shortage of donor sperm that the newly issued Application of Aziz M v Attorney General of Canada is being litigated. In the lawsuit, the Applicant challenges Health Canada’s directive called the Technical Requirements for Conducting the Suitability Assessment of Sperm and Ova Donors (the “Health Directive”). The Directive establishes criteria for “donor exclusion” and “unsuitable” donors.

The Applicant was originally motivated to donate sperm in part because of an article about the shortage of sperm donors in Canada. As written in his affidavit at para 10 “The article explained that there was a critical shortage of sperm in the country because sperm donations cannot be paid for. The article also explained that because of the shortage of sperm, many Canadians are required to pay to import sperm from other countries or resort to unregulated black markets online.”

After reading the article, the Applicant donated sperm. However, when he became sexually active as a gay man, he discovered that he could no longer donate sperm in Canada. The Health Directive deems all gay and bisexual men as “unsuitable” donors, unless they abstain from same-sex sexual activity for three months. This categorical prohibition applies to all gay and bisexual men despite the robust screening, testing, and quarantine procedures to ensure human health and safety. The screening for all donors includes tests for:

    1. infectious disease screening of the donor;
    2. genetic disease screening of the donor;
    3. a physical examination of the donor;
    4. initial testing of the donor for infectious diseases within 7 days of a donation;
    5. quarantine of the donation for a period of at least 180 days; and
    6. retesting of the donor for infectious diseases after the quarantine period.

Due to the Health Directive’s ban, the Applicant alleges that his section 15 rights have been violated. The Health Directive prohibits gay or bisexual men, who are sexually active from donating sperm. This distinction on the basis of sexual orientation, imposes differential treatment on an arbitrary basis and has the effect of excluding many gay and bisexual men from participating in sperm donation for assisted reproduction.

If the altruistic model is to continue in Canada, then any directive that arbitrarily reduces the donor pool should be challenged. The altruistic model has shown to be insufficient for providing adequate availability of donor gametes to the 2SLGBTQ+ community, single-parents, and individuals with medical conditions that require gamete donation.

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