The government of Canada is facing a new court challenge over the constitutionality of Health Canada’s screening criteria that prohibits potentially lifesaving organ donations from gay and bisexual men.
Michael Fazal, a 31-year-old gay man living in Toronto, is the face of the Charter challenge against the federal government, pushing for an end to what he calls a “deeply hurtful, stigmatizing, and discriminatory” policy.
After recent updates to Canada’s longstanding restrictions on blood and sperm donations from men who have sex with men, those involved in this case say they’re hopeful this effort will help make one of the last known areas where members of the LGBTQ2S+ community face limits on making biomedical donations, more equitable.
• Health Canada to change sperm donor screening rules for men who have sex with men
Heath Canada’s regulations currently prohibit organ and tissue donations from men who have had sex with another man in the last 12 months, irrespective of an individual donors’ risk factors, or infectious disease testing results. It’s a policy that stems from concerns over HIV transmission that date back to the 1980s and 1990s.
Under the federal policy, gay and bisexual men are deemed “unsuitable” donors, except for in “exceptional” circumstances, where recipients can consent to accepting a “higher risk” transplant if no other organ “determined safe for transplantation” is available.
These restrictions are based on the sex assigned at birth, so they also apply to transgender people.
While those are the rules on the books, Canadian Blood Services advertises online that: “Anyone can be a potential donor regardless of age, medical condition or sexual orientation,” stating “all potential donors are evaluated on an individual, medical, case-by-case basis.”
The case was filed with the Ontario Superior Court on March 27, and the legal team advancing the litigation is hoping to have a hearing on this constitutional challenge later this year.
‘It just doesn’t make sense,’ plaintiff says
Fazal, a digital creative director at a design studio and York University instructor, has been a registered organ donor since he received his driver’s licence 15 years ago.
It was only recently, amid headlines about changes to Canadian Blood Services’ donation polices for men who have sex with men, that he was made aware that his sexual orientation excludes him from donating in most circumstances.
“It’s difficult to want to participate in something like this, and then be told you can’t,” he said, adding several friends have expressed similar frustrations to him.
“It just doesn’t make sense … it makes me feel targeted in a way,” Fazal said in an interview with CTV News, adding among what’s motivated him to front this fight, is seeing what it’s like for those families with a loved one on a waiting list.
As a second-generation Caribbean Canadian born and raised in Brampton, Ont., Fazal said he also is mindful of the need to improve the racial and ethnic diversity of a donor pool that Health Canada has publicly stated isn’t big enough to keep up with the need.
The federal government’s website states that on average, 250 people on the transplant wait list die waiting for an organ every year and that one organ donor can save up to eight lives.
“We’re not really in a place where we should be turning away perfectly good organs that could be saving lives,” Fazal said.
‘Stakes … immensely high’: lawyer
Arguing that the regulations violate their client’s right to equality under the Charter of Rights and Freedoms, Fazal’s lawyers, Gregory Ko and Frank Nasca, note that heterosexual donors don’t face comparable limitations. All donors are tested, and donations are quarantined until deemed safe.
And, while there are a few instances where living donations can occur – such as in donating a kidney, or part of a liver or lung – most organ donations occur after the donor has died, which Fazal’s legal team says adds another layer to this case.
“What Michael is doing is really, in my view, giving a voice to those that no longer have a voice. And the stakes are … immensely high in organ donation. It really is life or death,” said Nasca.
Adding to this, Ko noted that it’s “exceedingly difficult to bring a Charter challenge on behalf of someone who has passed away, because we don’t actually know, can’t ascertain their desires or wishes,” Ko said.
Evolutions to blood, sperm rules
Ko is also involved in an ongoing legal challenge initiated in 2023 regarding anonymous sperm donation restrictions.
After CTV News first reported on the case, and the persisting policy that prohibited donations from prospective gay and bisexual donors in certain circumstances, Health Canada changed course.
It replaced the outright ban with a behaviour-based screening model, similar to the approach that’s been used for blood donors since 2022. Though, many advocates view these new approaches as still restrictive.
“As the cases have come forward, we’re discovering year after year that Health Canada has not proactively been dealing with these restrictions, and in fact, appears to be responding only when applicants like Michael have brought forward a challenge,” Ko said.
Health Canada says review underway
In a statement to CTV News, Health Canada – which is responsible for regulating the safety of cell, tissue and organ donation in Canada – said that a review of the policy is underway.
The agency said it “engaged” the Canadian Standards Association (CSA) in 2023 “to review their donor screening criteria in response to concerns raised.”
Health Canada said that it’s the CSA that “independently administers and maintains the standards,” and a committee focused on cell, tissue and organ donation is “currently conducting a public review” until May 10.
That reassessment is focused on a proposal to shift from the current time-based screening criteria for men who have sex with men, to a “gender-neutral, behaviour-based criteria.”
“If the proposed changes are adopted, the new standard would automatically become the regulatory requirement,” Health Canada spokesperson Andre Gagnon said in an email, before noting the federal health agency “cannot comment on the specific facts raised in this case, as the matter is before the court.”
