Interesting story brought to light this week by Christin Milloy, a well-known trans blogger from the Toronto area. It was exposed via real-life case, that a little-known policy exists, with regards to sperm donation, that is similar to that of blood donation.
As many of you already know, "men who have had sex with men" (aka MSM) even once, since 1977, are not allowed to donate blood in Canada. Well, apparently the same rule goes for sperm donation. even if the sperm recipient has been clearly identified, and is willing to sign off on a waiver to accept the sperm.
Interestingly enough, organ recipients may sign off on a similar waiver. Additionally, blood donation in Canada must go to a pool of blood. It is not legal for person A to specifically donate blood to person B.
while i can appreciate the concept of reducing risks to the blood supply to recipients who have no clue as to who's blood they are getting, i can also appreciate the value in giving an organ recipient the right to override and sign a waiver. Heck, if you need a kidney or liver and will die without one, i'm sure a gay kidney is better than no kidney, right?
So what about a sperm that is perhaps more likely to come from an HIV-infected donor? is it in the best interest of the surrogate that this sperm never find its way into their uterus? or should they be allowed to override the risk?
and hmmm, what about the unborn child? Is it in its best interest to never be born, rather than be born a product of a sperm donor who was flagged as higher risk for HIV????
Heck, does this unborn child even have a say? Do they have rights? Are they really humans? How can it be that a sperm on its own, has more rights than an embryo already implanted in a uterus?!?!
Well, when asked to look at abortion laws, the Supreme Court of Canada ruled in 1988 that denying a woman the right to have choice with regards to abortion, was a violation of her rights.
With this in mind, if an embryo has no rights, then why should the best interests of a yet-to-be-created embryo, even be considered to exist as rights at all?
There's definitely a major discrepancy here!
One thing we know for sure, Government of Canada feels MSM pose health risks to others, and they won a judgement in Ontario Superior Court on this matter vs Kyle Freeman, re blood donation.
It also appears that while an embryo has no rights, a sperm does!
We also know that in Ontario, the rights to classify gender of an individual, no longer have to directly relate to the sex of the individual (as per Ontario Human Rights Case in which requiring sex reassignment surgery in order to change sex, was deemed a violation of rights).
So ultimately, does the Government of Canada have a right to classify transwomen as men, for the purpose of MSM policies? or is this too, a violation of rights.
Bottom line, we have a couple who is unable to receive a sperm that they want from a transwoman, because said transwoman has been classified as MSM by the Federal Government.
I really hope this issue makes it out into the mass media, and that it goes to court, so that all matters, including blood, organ, sperm, abortion, and definition of human, can all become congruent.
Christin's Original Post
Government of Canada Directive
My post in the comments of Christin's site:
Hi Christin. as a member of the now dormant Canada Blood Services LGBT Working Group, this story caught my eye. one thing that was never made clear was their definition of "men having sex with men" .. looks like this sperm donation policy comes from the same language. i did some digging and stumbled upon a "Directive" which is a sub appendix of a Regulation, which of course, is a sub appendix of an Act. http://www.hc-sc.gc.ca/dhp-mps/brgtherap/applic-demande/guides/semen-sperme-acces/semen-sperme_directive-eng.php#a2 here it is! so this is clearly a Federal policy. Two issues that clearly come into play are the same issues faced in the blood situation - whether transwomen should be legally classified as men, and whether or not it is discriminatory to label all sexually active men with men, as being imperative for exclusion. i'm thinking a federal human rights complaint would be in order. although Kyle Freeman lost his case in Trial Court re risks associated with sexually active MSM blood donation, i think the transwomen vs man definition issue, should definitely be looked at. especially in light of the fact that Ontario now recognizes legal gender changes without the need to have SRS.
another thought would be to seek moving this sperm donation Directive towards the framework of the organ donation laws. while blood donations must go into a general pool, rather than to a specific person; the organ situation deals with person recipient being acquainted with person donor. in the case where the donor has an MSM history, the recipient may sign a waiver and accept the so-called risks. In this case, would it be logical to suggest that a sperm recipient (i.e. surrogate female) could likewise, sign a waiver on the same so-called risks? i think the key difference here (that is probably part of the conservative government's thinking) is to also consider the best-interests of the unborn (i.e. is it in the best interest of the yet-to-be-born baby to be born via MSM sperm, or to not be born at all). this takes things a step further into the pro-life vs pro-choice concept, and the issue determining whether or not a fetus, embryo, egg, sperm, or even yet-to-be-created sperm, should be recognized as a human! very very interesting case!