Feb. 15, 2005.
Regulations seen causing unsafe self-procedures
Regulations seen causing unsafe self-procedures
Approvals needed for gay, older men called unfair
TRACEY TYLER
TRACEY TYLER
LEGAL AFFAIRS REPORTER
Lesbians wanting to get pregnant are being forced out of Canada's health-care system and resorting to potentially dangerous home methods of "self-insemination" because of discriminatory federal rules governing sperm donors, the Ontario Court of Appeal was told yesterday.
Canada's semen regulations are unfair because they treat heterosexual women and lesbians differently, said lawyer Christopher Bredt, whose client, a 39-year-old Toronto woman known only as "Jane Doe," is challenging the rules under the Charter of Rights and Freedoms.
After several unsuccessful attempts at impregnating herself with donated semen, Doe sought medical assistance in 2001 and says she was "shocked" when a doctor informed her he could not artificially inseminate her with sperm from the man she had chosen to father her child, a long-time friend known as "B."
As a gay man and a man over 40, "B" was disqualified under federal rules governing "assisted conception." They include measures to ensure the safety of donated semen by preventing the transmission of HIV/AIDS and genetic diseases. A heterosexual woman wanting to be artificially inseminated in a doctor's office with sperm from her husband or sexual partner can bypass those health and safety regulations, but no similar allowances exist for lesbians wanting to use semen from a known donor, Bredt told the court yesterday.
While women such as his client can now apply for special permission from the federal government to use semen from men who would normally be excluded as donors, the approval process is time consuming and costs between $600 and $700 — a burden heterosexual women don't have to bear, he said.
"Women routinely have children with men who are over 40. Women routinely have children with men who have a history of genetic defects. Yet, we're saying only to lesbian women, `You've got to get caught up in this machinery.' It's not necessary. And it's not fair to lesbian women," Bredt argued.
"It's driving them out of the health-care system. We want them to have this procedure in doctors' offices," he told Justices Kathryn Feldman, Eleanore Cronk and Harry LaForme.
Andrew Pinto, a lawyer acting for three intervenors, said the rules also discriminate against gay men and men over 40 by sending the message they are less worthy of being parents and must be scrutinized carefully before they are allowed to reproduce by way of donated sperm.
"We call it a `permit to procreate' scheme," said Pinto, who represents "B" and two gay advocacy groups, EGALE Canada Inc. and the Foundation for Equal Families.
The regulations also require that semen used in clinical settings be frozen and quarantined for at least six months while a donor undergoes testing.
The rules make no sense for women such as his client, who know the donor and are willing to assume any risks, Bredt said.
Two years ago, Doe filed a lawsuit against the federal government, alleging the regulations violated her security of the person and equality rights under the Charter. Part way through the proceeding, she became pregnant, after undergoing several medical procedures and inseminating herself at home using B's sperm. She gave birth to a son in February 2003.
From the trial judge's perspective, that brought the case to an end. Justice Lloyd Brennan of the Superior Court of Justice concluded it was moot and declined to rule on whether the regulations were unconstitutional. But he did make some observations, suggesting Doe should not be comparing herself to heterosexual women with husbands or sexual partners but rather to women without fertile sexual partners.
Bredt and Pinto spent much of yesterday trying to convince an at-times skeptical appeal panel the issues are not moot and it should either consider the case on its merits or send it back to the lower court for a new trial. The court reserved its decision.
Canada's semen regulations are unfair because they treat heterosexual women and lesbians differently, said lawyer Christopher Bredt, whose client, a 39-year-old Toronto woman known only as "Jane Doe," is challenging the rules under the Charter of Rights and Freedoms.
After several unsuccessful attempts at impregnating herself with donated semen, Doe sought medical assistance in 2001 and says she was "shocked" when a doctor informed her he could not artificially inseminate her with sperm from the man she had chosen to father her child, a long-time friend known as "B."
As a gay man and a man over 40, "B" was disqualified under federal rules governing "assisted conception." They include measures to ensure the safety of donated semen by preventing the transmission of HIV/AIDS and genetic diseases. A heterosexual woman wanting to be artificially inseminated in a doctor's office with sperm from her husband or sexual partner can bypass those health and safety regulations, but no similar allowances exist for lesbians wanting to use semen from a known donor, Bredt told the court yesterday.
While women such as his client can now apply for special permission from the federal government to use semen from men who would normally be excluded as donors, the approval process is time consuming and costs between $600 and $700 — a burden heterosexual women don't have to bear, he said.
"Women routinely have children with men who are over 40. Women routinely have children with men who have a history of genetic defects. Yet, we're saying only to lesbian women, `You've got to get caught up in this machinery.' It's not necessary. And it's not fair to lesbian women," Bredt argued.
"It's driving them out of the health-care system. We want them to have this procedure in doctors' offices," he told Justices Kathryn Feldman, Eleanore Cronk and Harry LaForme.
Andrew Pinto, a lawyer acting for three intervenors, said the rules also discriminate against gay men and men over 40 by sending the message they are less worthy of being parents and must be scrutinized carefully before they are allowed to reproduce by way of donated sperm.
"We call it a `permit to procreate' scheme," said Pinto, who represents "B" and two gay advocacy groups, EGALE Canada Inc. and the Foundation for Equal Families.
The regulations also require that semen used in clinical settings be frozen and quarantined for at least six months while a donor undergoes testing.
The rules make no sense for women such as his client, who know the donor and are willing to assume any risks, Bredt said.
Two years ago, Doe filed a lawsuit against the federal government, alleging the regulations violated her security of the person and equality rights under the Charter. Part way through the proceeding, she became pregnant, after undergoing several medical procedures and inseminating herself at home using B's sperm. She gave birth to a son in February 2003.
From the trial judge's perspective, that brought the case to an end. Justice Lloyd Brennan of the Superior Court of Justice concluded it was moot and declined to rule on whether the regulations were unconstitutional. But he did make some observations, suggesting Doe should not be comparing herself to heterosexual women with husbands or sexual partners but rather to women without fertile sexual partners.
Bredt and Pinto spent much of yesterday trying to convince an at-times skeptical appeal panel the issues are not moot and it should either consider the case on its merits or send it back to the lower court for a new trial. The court reserved its decision.
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