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Canada sperm donation restrictions for gay men challenged

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A gay man is taking the federal government to court, challenging the constitutionality of a policy restricting gay and bisexual men from donating to sperm banks in Canada, CTV News has learned.

“[It’s] like you’re undesirable because of your gayness as a donor … It feels like such an arbitrary rule,” said Aziz M, the man who is pushing to change the rules. Out of concern for his privacy, CTV News has agreed not to use his full name.

Currently, a Health Canada directive prohibits gay and bisexual men from donating sperm to a sperm bank unless they’ve been abstinent for three months or are donating to someone they know.

For example, it stops any gay man who is sexually active from donating, even if they are in a long-term monogamous relationship.

Under the “Safety of Sperm and Ova Regulation,” sperm banks operating in Canada must deem these prospective donors “unsuitable,” despite all donations being subject to screening, testing and a six-month quarantine before they can be used.

“Why I decided to take this to court is because of that feeling of discrimination,” said Aziz.

Aziz and his lawyers are challenging the directive—filed with the Superior Court of Ontario in January—on the basis that it violates the right to equality in the Charter of Rights and Freedoms.

This case is seeking to strike out the provision in the policy that specifically applies to men who have sex with men, according to the application commencing litigation.

The case has caught the attention and has the financial backing of Canada’s Court Challenges Program, an independent organization that supports individuals bringing cases related to constitutional rights that are of national significance.

The filing alleges that the current policy “perpetuates stereotypical attitudes and prejudices against gay and bisexual men, including false assumptions about their health, their sexual practices, and their worthiness to participate in child conception.”

While the directive does not mention transgender or non-binary donors, the policy also applies to individuals who may not identify as male but would be categorized as men under the directive.

In an interview with CTV News, Gregory Ko, co-council on the case, said the policy goes to the heart of the many barriers that exists for LGBTQ2S+ Canadians looking to have children.

“It is not uncommon for a lot of gay and lesbian couples to rely on sperm donors within the community, and this directive explicitly puts a barrier, in addition to all the other barriers that exist for queer families, in having children,” Ko said.

MAN FIGHTING POLICY HAS DONATED BEFORE

Aziz M., the man who is taking the federal government to court. Out of concern for his privacy, CTV News has agreed not to use his full name.

In Canada, there are two streams for sperm donation. One involves sperm donations made to a sperm bank for general use, which is considered the “regular process.”

The other is known as the “direct donation process” and involves sperm donations between a donor to a recipient who are known to one another. In these cases, sexually active gay and bisexual men can donate so long as the recipient signs a waiver.

This case focuses on the first stream.

Aziz is uniquely positioned in bringing this constitutional challenge, as prior to coming out as a gay man, he donated to a sperm bank in Toronto several times between 2014 and 2015 without issue.

After undergoing the rigorous screening and testing that donors in Canada are subject to under the Assisted Human Reproduction Act, which includes pre- and post-donation infectious disease testing, his sperm was made available to the public.

As a result, a lesbian couple was able to have a daughter, whose life Aziz now plays a role in.

“We go out [to] museums and parks, and we play. There’s a lot of joy, a lot of meaning in it,” he said. “We’re kind of navigating this … family-like relationship, and what do we call each other?”

Because he found this past donation a meaningful experience, he encouraged his friends to donate, only to realize that their donations wouldn’t be accepted.

“It made them feel bad, and it made me feel embarrassed as well,” he said.

Aziz said his motivation in bringing this case is that he wants to be able to donate again, a desire compounded by his awareness of this country’s donor shortage.

“I would be really happy and honoured if this makes things move along and … makes people recognize the equality between … everybody, regardless of their gender identity or sexual orientation,” he said.

MINISTER HAS POWER TO CHANGE: LAWYER

Gregory Ko, co-council on the case and partner with Kastner Lam LLP. (CTV News)

The lawsuit argues that the federal health minister has the power to issue a directive to change the policy as it applies to men who have sex with men, just as the Liberal government did a few years ago.

The government brought forward the current policy in 2019—requiring gay and bisexual men to observe a three-month deferral period before being able to donate—and it came into effect in February 2020.

This change was a marked update from what had been a lifetime ban dating back decades stemming from concerns over HIV transmission.

“Our view is that the minister of health has discretion to amend this directive. It is a directive that comes from the minister’s office and from the ministry of health itself. And so, barring some internal processes, our view is that this is a policy that can be amended swiftly,” Ko said.

Ko, who is a partner at law firm Kastner Lam LLP and previously was involved in a case challenging the now-eliminated federal blood ban, says the sperm donation policy echoes the language used by Health Canada that long prohibited men who have sex with men from donating blood.

After years of successive updates, in April 2022 Health Canada approved the Canadian Blood Services submission to eradicate what was then a three-month deferral period. This allowed the national blood donation organization to begin using a behaviour-based screening system for all donors, where risk factors are screened on an individual basis, regardless of gender or sexuality.

This new policy came into effect across most of the country in September 2022, and Hema-Quebec followed suit in December 2022.

‘INDEFENSIBLE BASED ON THE STATE OF THE SCIENCE’

What is different about sperm donation, Ko says, is that there is no third party, such as Canadian Blood Services, involved that the federal government could point to and say that it has limited authority to rescind the policy or intervene. That was an approach the Liberals took during the blood donation saga.

“We sincerely believe that the courts will agree that this is a clear breach of the right to equality and is an indefensible based on the state of the science,” Ko said.

President of the Canadian Fertility and Andrology Society Dr. Sony Sierra says that while the risk of transmission is “very small” given the screening and universal precautions in place, a risk still exists.

“It can be taken as stigmatizing. It is, but we have to also understand that our concern also involves the intended recipient, and therefore that intended recipient needs to be cared for and counselled regarding all risk. And that’s our intention in practicing in accordance with these guidelines,” Sierra said. “As our science improves with respect to transmission and actual risk as opposed to theoretical risk, I would hope that those guidelines become even more inclusive.”

Prime Minister Justin Trudeau and his government faced considerable pressure from the LGBTQ2S+ community after pledging for years to end the blood ban. When it was lifted, he cheered the end of what he said was a “discriminatory and wrong” policy.

The New Democrats say the federal government has failed to follow up on the lifting of the blood ban with similar changes to the regulations for sperm donation.

“There’s never been any science behind the ban on gay men donating sperm, none whatsoever … People tell me they’re working on it, but they’ve been telling me they’ve been working on this for over five years,” said NDP MP Randall Garrison, the party’s critic for justice and LGBTQ2S+ rights.

“It’s this case in the queer community that we’ve always had to fight for our rights. We’ve never had anything handed to us on a platter,” Garrison said. “It’s just disappointing at this day and age that the government doesn’t recognize their need to act.”

Asked to respond to the court challenge, Health Minister Jean-Yves Duclos declined to comment. Justice Minister David Lametti’s office directed CTV News to the justice department, which directed questions to Health Canada.

In a statement to CTV News, the federal health agency said that it is committed to non-discriminatory policies, pointing to the direct donation process it said was ” specifically created” with the LGTBQ2S+ community in mind.

Tammy Jarbeau, senior media relations adviser for Health Canada, told CTV News that the purpose of the restrictions are to “reduce the risks to human health and safety,” and that that the current sperm donor screening criteria was informed by the available scientific and epidemiological data, as well as national standards.

Health Canada said it will look to ensure the regulations continue to reflect the latest advances in science and technology, and given the recent changes to the screening criteria for blood donors, it “will explore whether similar updates may be appropriate” in the context of sperm donation.

“Health Canada is aware that an application has been filed… and is currently reviewing the application,” said Jarbeau, adding that the agency’s response will “be provided in the course of the litigation. We cannot comment further at this time.”

With files from CTV National News producer Rachel Hanes 

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From transmission to symptoms, what to know about avian flu after B.C. case

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A B.C. teen has a suspected case of H5N1 avian flu — the first known human to acquire the virusin Canada.

The provincial government said on the weekend that B.C.’s chief veterinarian and public health teamsare still investigating the source of exposure, but that it’s “very likely” an animal or bird.

Human-to-human transmission is very rare, but as cases among animals rise, many experts are worried the virus could develop that ability.

The teen was being treated at BC Children’s Hospital on Saturday. The provincial health officer said there were no updates on the patient Monday.

“I’m very concerned, obviously, for the young person who was infected,” said Dr. Matthew Miller, director of the Michael G. DeGroote Institute for Infectious Disease Research at McMaster University in Hamilton, Ont.

Miller, who is also the co-director of the Canadian Pandemic Preparedness Hub, said there have been several people infected with H5N1 in the U.S.,and almost all were livestock workers.

In an email to The Canadian Press on Monday afternoon, the Public Health Agency of Canada said “based on current evidence in Canada, the risk to the general public remains low at this time.”

WHAT IS H5N1?

H5N1 is a subtype of influenza A virus that has mainly affected birds, so it’s also called “bird flu” or “avian flu.” The H5N1 flu that has been circulating widely among birds and cattle this year is one of the avian flu strains known as Highly Pathogenic Avian Influenza (HPAI) because it causes severe illness in birds, including poultry.

According to the World Health Organization, H5N1 has been circulating widely among wild birds and poultry for more than two decades. The WHO became increasingly concerned and called for more disease surveillance in Feb. 2023 after worldwide reports of the virus spilling over into mammals.

HOW COMMON IS INFECTION IN HUMANS?

H5N1 infections in humans are rare and “primarily acquired through direct contact with infected poultry or contaminated environments,” the WHO’s website says.

Prior to the teen in B.C., Canada had one human case of H5N1 in 2014 and it was “travel-related,” according to the Public Health Agency of Canada.

As of Nov. 8, there have been 46 confirmed human cases of H5N1 in the U.S. this year, the Centers for Disease Control and Prevention says. There is an ongoing outbreak among dairy cattle, “sporadic” outbreaks in poultry farms and “widespread” cases in wild birds, the CDC website says.

There has been no sign of human-to-human transmission in any of the U.S. cases.

But infectious disease and public health experts are worried that the more H5N1 spreads between different types of animals, the bigger the chance it can mutateand spread more easily between humans.

WHAT ARE THE SYMPTOMS OF H5N1?

Although H5N1 causes symptoms similar to seasonal flu, such as cough, fever, shortness of breath, headache, muscle pain, sore throat, runny nose and fatigue, the strain also has key features that can cause other symptoms.

Unlike seasonal flu, most of the people infected in the U.S. have had conjunctivitis, or “pink-eye,” said Miller.

One reason for that is likely that many have been dairy cattle workers.

“At these milking operations, it’s easy to get contamination on your hands and rub your eyes. We touch our face like all the time without even knowing it,” he said.

“Also, those operations can produce droplets or aerosols, both during milking and during cleaning that can get into the eye relatively easily.”

But the other reason for the conjunctivitis seen in H5N1 cases is that the strain binds to receptors in the eye, Miller said.

While seasonal flu binds to receptors in the upper respiratory tract, H5N1 also binds to receptors in the lower respiratory tract, he said.

“That’s a concern … because if the virus makes its way down there, those lower respiratory infections tend to be a lot more severe. They tend to lead to more severe outcomes, like pneumonias for example, that can cause respiratory distress,” Miller said.

WILL THE FLU VACCINE PROTECT AGAINST H5N1?

We don’t know “with any degree of certainty,” whether the seasonal flu vaccine could help prevent infection with H5N1, said Miller.

Although there’s no data yet, it’s quite possible that it could help prevent more severe disease once a person is infected, he said.

That’s because the seasonal flu vaccine contains a component of H1N1 virus, which “is relatively closely related to H5N1.”

“So the immunity that might help protect people against H5N1 is almost certainly conferred by either prior infection with or prior vaccination against H1N1 viruses that circulate in people,” Miller said.

HOW ELSE CAN I PROTECT MYSELF?

The Public Health Agency of Canada said as a general precaution, people shouldn’t handle live or dead wild birds or other wild animals, and keep pets away from sick or dead animals.

Those who work with animals or in animal-contaminated places should take personal protective measures, the agency said.

This report by The Canadian Press was first published Nov. 11, 2024.

Canadian Press health coverage receives support through a partnership with the Canadian Medical Association. CP is solely responsible for this content.



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Wisconsin Supreme Court grapples with whether state’s 175-year-old abortion ban is valid

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MADISON, Wis. (AP) — A conservative prosecutor’s attorney struggled Monday to persuade the Wisconsin Supreme Court to reactivate the state’s 175-year-old abortion ban, drawing a tongue-lashing from two of the court’s liberal justices during oral arguments.

Sheboygan County’s Republican district attorney, Joel Urmanski, has asked the high court to overturn a Dane County judge’s ruling last year that invalidated the ban. A ruling isn’t expected for weeks but abortion advocates almost certainly will win the case given that liberal justices control the court. One of them, Janet Protasiewicz, remarked on the campaign trail that she supports abortion rights.

Monday’s two-hour session amounted to little more than political theater. Liberal Justice Rebecca Dallet told Urmanski’s attorney, Matthew Thome, that the ban was passed in 1849 by white men who held all the power and that he was ignoring everything that has happened since. Jill Karofsky, another liberal justice, pointed out that the ban provides no exceptions for rape or incest and that reactivation could result in doctors withholding medical care. She told Thome that he was essentially asking the court to sign a “death warrant” for women and children in Wisconsin.

“This is the world gone mad,” Karofsky said.

The ban stood until 1973, when the U.S. Supreme Court’s landmark Roe v. Wade decision legalizing abortion nationwide nullified it. Legislators never repealed the ban, however, and conservatives have argued the Supreme Court’s decision to overturn Roe two years ago reactivated it.

Democratic Attorney General Josh Kaul filed a lawsuit challenging the law in 2022. He argued that a 1985 Wisconsin law that prohibits abortion after a fetus reaches the point where it can survive outside the womb supersedes the ban. Some babies can survive with medical help after 21 weeks of gestation.

Urmanski contends that the ban was never repealed and that it can co-exist with the 1985 law because that law didn’t legalize abortion at any point. Other modern-day abortion restrictions also don’t legalize the practice, he argues.

Dane County Circuit Judge Diane Schlipper ruled last year that the ban outlaws feticide — which she defined as the killing of a fetus without the mother’s consent — but not consensual abortions. The ruling emboldened Planned Parenthood to resume offering abortions in Wisconsin after halting procedures after Roe was overturned.

Urmanski asked the state Supreme Court in February to overturn Schlipper’s ruling without waiting for a lower appellate decision.

Thome told the justices on Monday that he wasn’t arguing about the implications of reactivating the ban. He maintained that the legal theory that new laws implicitly repeal old ones is shaky. He also contended that the ban and the newer abortion restrictions can overlap just like laws establishing different penalties for the same crime. A ruling that the 1985 law effectively repealed the ban would be “anti-democratic,” Thome added.

“It’s a statute this Legislature has not repealed and you’re saying, no, you actually repealed it,” he said.

Dallet shot back that disregarding laws passed over the last 40 years to go back to 1849 would be undemocratic.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on whether a constitutional right to abortion exists in the state. The justices have agreed to take the case but haven’t scheduled oral arguments yet.

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This story has been updated to correct the Sheboygan County district attorney’s first name to Joel.

The Canadian Press. All rights reserved.



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When to catch the last supermoon of the year

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CAPE CANAVERAL, Fla. (AP) — Better catch this week’s supermoon. It will be a while until the next one.

This will be the year’s fourth and final supermoon, looking bigger and brighter than usual as it comes within about 225,000 miles (361,867 kilometers) of Earth on Thursday. It won’t reach its full lunar phase until Friday.

The supermoon rises after the peak of the Taurid meteor shower and before the Leonids are most active.

Last month’s supermoon was 2,800 miles (4,500 kilometers) closer, making it the year’s closest. The series started in August.

In 2025, expect three supermoons beginning in October.

What makes a moon so super?

More a popular term than a scientific one, a supermoon occurs when a full lunar phase syncs up with an especially close swing around Earth. This usually happens only three or four times a year and consecutively, given the moon’s constantly shifting, oval-shaped orbit.

A supermoon obviously isn’t bigger, but it can appear that way, although scientists say the difference can be barely perceptible.

How do supermoons compare?

This year features a quartet of supermoons.

The one in August was 224,917 miles (361,970 kilometers) away. September’s was 222,131 miles (357,486 kilometers) away. A partial lunar eclipse also unfolded that night, visible in much of the Americas, Africa and Europe as Earth’s shadow fell on the moon, resembling a small bite.

October’s supermoon was the year’s closest at 222,055 miles (357,364 kilometers) from Earth. This month’s supermoon will make its closest approach on Thursday with the full lunar phase the next day.

What’s in it for me?

Scientists point out that only the keenest observers can discern the subtle differences. It’s easier to detect the change in brightness — a supermoon can be 30% brighter than average.

With the U.S. and other countries ramping up lunar exploration with landers and eventually astronauts, the moon beckons brighter than ever.

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The Associated Press Health and Science Department receives support from the Howard Hughes Medical Institute’s Science and Educational Media Group. The AP is solely responsible for all content.

The Canadian Press. All rights reserved.



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