The federal government is defending a policy that requires women to get special permission before becoming impregnated by gay men.
“It’s just an extraordinary situation that the government of Canada would have anything to say about this, about the choice a woman would make about who the father of her child is,” says lawyer David Corbett. “Talk about an Orwellian world.”
Corbett is representing Egale Canada and the Foundation For Equal Families; both organizations have recently been granted intervenor status in the upcoming case Jane Doe Vs The Attorney General Of Canada.
Jane Doe is a woman in a long-term relationship with another woman. Her partner already has a child by a gay man, identified in the case only as B. Both parties have chosen to remain anonymous in order to protect their first child from media attention.
“When Jane Doe decided she wanted to have a child, she sought to be impregnated by B so that her child would be the biological half-sibling of her partner’s child,” says Corbett.
After failing to conceive privately, Doe went to a fertility clinic for help. But when the doctor discovered that B was not her sexual partner, she was told that he would have to meet the same regulations set out for anonymous donors – regulations that exclude men who have sex with men, as well as men over the age of 40.
“In our mind clearly she was being discriminated against as a lesbian woman,” says Adam Dodek, one of Doe’s lawyers. “It’s not a messy legalistic sort of case. It’s about really basic important rights that I think everyone can relate to.”
When the case was launched there was a degree of urgency – Doe was in her late 30s and anxious to become pregnant as soon as possible. But while the case has been pending, she conceived without the help of the fertility clinic.
“Health Canada says the whole thing is moot, you’re pregnant anyway,” says Corbett, adding that Health Canada decided, after Doe was already pregnant, to extend her special permission to receive artificial insemination in spite of B’s ineligibility.
But Doe decided to press on with the case anyway, and approached Egale and the Foundation For Equal Families for support.
“I think it’s a case which touches on fundamental issues of the rights of women to have children with a sperm donor of their choice and the rights of gay men to be accepted as donors,” says Egale’s director of advocacy John Fisher.
Dr Fracisca Agbanyo, the acting manager of the Blood, Tissues And Organs Division at Health Canada, says that the regulations aren’t discriminatory in their intent.
“Under the current regulations we exclude individuals in seven high risk categories because they have a higher risk of transmitting HIV, hepatitis and other infectious diseases,” says Agbanyo.
It’s geared towards protecting the women and the offspring. It doesn’t take into consideration any other factors.”
Agbanyo says that the regulations create a “win-win situation” by attempting to maintain a safe semen supply while allowing for exceptions, considered on a case by case basis, in situations like Doe’s.
“A woman can choose any donor they want. The only time it becomes a problem is when the donor falls under one of the seven high-risk categories,” says Agbanyo. “And then they just have to take one more step and apply for special access regulation.”
But Corbett says that isn’t acceptable. “This idea that gay couples or gay men would have to seek permission from the ministry of health is odious.”
And Fisher notes that the regulations may be harming women rather than helping them.
“Although the federal government claims that the ban on gay men donors is to protect [the prospective mother’s] health, we believe it has the reverse effect,” says Fisher. “It means they can’t access the services of fertility clinic and are more likely to use home insemination with the donor of their choice where there are fewer guards against health risks.”
* The case is set to begin Jul 30.
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