Prospective Mother Required to Have Unwanted Sex with Queer Sperm Donor by Government Regulations
by Christin Scarlett Milloy
Published: Saturday, 2012.10.20
I recently became aware, through a reader, of a rather disturbing story developing in the Province of Ontario. [EDIT - It is unclear whether the regulations in question are in fact Provincial, as they were described, or Federal, originating with Health Canada. I am currently performing additional research.]
The details are 100% true, however the parties involved have requested that their identities not be revealed, so I’m assigning make-believe names. All quotes are presented as they were relayed to me by the parties.
Two women (we’ll call them “Nerys” and “Jadzia”) are friendly acquaintances who met through a mutual friend. Nerys is a single woman in her early twenties who has chosen to conceive a pregnancy, carry to term, and raise the child alone.
Jadzia is a non-op or pre-op transgender woman who, despite a history of hormone therapy, is apparently still capable of producing viable sperm. Nerys and Jadzia have agreed that Jadzia will act as the sperm donor for Nerys.
For personal and health reasons, Nerys has decided to use a private reproductive clinic to perform the insemination procedure (rather than any “do-it-yourself at home” method).
At their first consultation with the private clinic, they met with the doctor (we’ll call him “Dr. Bashir”). Dr. Bashir asked a series of medical questions of the two women, as expected.
Dr. Bashir also asked many questions about Jadzia’s relationship with her boyfriend, whom we will call “Worf.” Worf knows about, and supports, Jadzia’s agreement with Nerys, but obviously he was not present at the meeting since he has nothing to do with their reproductive arrangement.
For some reason, Dr. Bashir asked if Worf was aware of, and had consented to, Jadzia’s agreement to donate sperm. Jadzia explained that he was, even though she felt that it was none of the doctor’s business to ask.
Dr. Bashir proceeded to ask many bizarrely specific questions about Jadzia and Worf’s sex life. One of the first questions he asked was “how do you engage in intercourse, since you do not have a constructed vagina?” Jadzia did not want to cause any problems with Dr. Bashir, since he was acting as the gatekeeper to Nerys’s conception, so Jadzia answered all of the doctor’s questions truthfully. She explained that she and Worf engaged in anal intercourse.
The doctor proceeded to ask for even more specific information about the sex between Jadzia and Worf. At the doctor’s request, Jadzia explained that she had been both the penetrative, and receptive, partner in anal sex on various occasions, and that she and Worf did not use condoms since they had both received “clean” test results for sexually transmitted diseases, and since they do not engage in unprotected sex outside of their relationship.
Anti-LGBT Government Sperm Regulation Restricts Personal Reproductive and Private Business Rights
After collecting the information, the doctor informed Nerys and Jadzia that there are “special restrictions” on insemination with donor sperm which apply in their case. The doctor says that due to government regulations in the province of Ontario, any sperm from a donor who is a homosexual man who has sex with other men must be frozen and quarantined for six months, and have extra testing performed on it, at significant financial cost to patients, because of the “increased risk of HIV and AIDS.”
The doctor went on to explain that for the purpose of this regulation, Jadzia is considered to be a homosexual man who has sex with men.
This regulation applies regardless of Jadzia’s gender identity, regardless of Jadzia’s safer sex behaviour, regardless of any history of “clean” test results, and regardless of Nerys’s willingness to proceed anyway. There is no “waiver” form that would allow Nerys to take responsibility for self-determination in her own reproductive choices back from the provincial government in this case.
Of course, there is little the government can do to regulate “home insemination,” the so-called (forgive me) “turkey baster” method. But this is not how Nerys wishes to proceed. Such methods can be difficult, and often unsuccessful. For her conception and pregnancy, Nerys wishes to avail herself of the technology and supervision at the private medical clinic.
Due to this intrusive government regulation, the private clinic is powerless to assist them; the clinic could have their licenses revoked if they do not conform to the anti-gay, anti-trans government requirements restricting the use of the “gay” sperm.
The extra freezing, six months storage, and testing of the sperm is cost-prohibitive for Nerys, and furthermore, waiting a further six months to conceive the child does not fit with Nerys’s desired timeline for starting her family. According to the doctor, there is nothing can be done to bypass this transphobic and homophobic government regulation; nothing can be done to restore to Nerys and Jadzia their rights to make reproductive decisions about their own bodies as they see fit, and still allow Nerys to benefit from the medical technology, support, and supervision at the private clinic in performing the insemination.
Well… almost nothing. “If you have sex together,” Dr. Bashir explained to Nerys and Jadzia, “the regulation does not apply.”
That’s right. Doctor Bashir explained that there is an exception in the regulation if the sperm donor and the recipient engage in penetrative unprotected vaginal sex.
They can’t just say they’ve had sex; they know, because they asked. “That would be falsification, which is illegal,” Dr. Bashir told them. But if they actually do have sex, inemination at the clinic can proceed without delay.
“The reasoning is,” explained the doctor, “that if you have intercourse, you (Nerys) have already been exposed to any sexually transmitted diseases which you (Jadzia) are carrying.”
So Nerys can’t sign a form to waive the risk, can’t declare her willingness to proceed regardless, and her trust of Jadzia’s safer-sex lifestyle is irrelevant… but if they actually fuck, the government gives them a “pass.”
After the consultation, Bashir performed physical examinations of both Nerys and Jadzia (in separate rooms). Both women were required to be completely nude, their bodies felt for “lumps,” and both women’s genitals were examined and samples taken to test for infection.
After this exam, Jadzia further questioned the doctor about this strange exception to the regulation (Nerys was no longer present). “You will need to think about it, but if you do have sex, we can proceed. You can discuss it with Nerys.”
Now, the two women are privately deciding how best to proceed. But at last report, they remain (as I am) flabbergasted at this completely ridiculous government intrusion on their personal reproductive rights, not to mention the rights of the private medical clinic to conduct business as they see fit.
And of course, how such a blatantly homophobic, transphobic regulation can be imposed by our provincial government in clear violation of the Charter and Human Rights legislation, supported only by flimsy out-dated medical science and the highly discriminatory prejudice about HIV and queer people.
UPDATE: The regulations in question, and their six month quarantine requirement, may in fact apply to all “known donor” situations, and not only to situations involving a gay man or trans woman as it was apparently articulated by the doctor. It may also be that these are Federal, and not Provincial, regulations.
I am currently performing additional legal research on this topic. However, all concerns stand relating to the restrictions this regulation places upon the rights of Nerys and Jadzia, and the bizarre requirement that they have sex as the only acceptable method of avoiding the six month quarantine.
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