Susan Doe v. Attorney General of Canada; [Indexed as: Doe v. Canada (Attorney General)]
84 O.R. (3d) 81
Court of Appeal for Ontario,
Rosenberg, MacPherson and Rouleau JJ.A.
January 12, 2007
Charter of Rights and Freedoms -- Equality rights -- Assisted conception -- Women seeking to use semen of spouse or sexual partner for artificial insemination are excluded from stringent restrictions contained in Processing and Distribution of Semen for Assisted Conception Regulations -- Definition of "assisted conception" which excluded women seeking to use semen of spouse or sexual partner does not violate rights of lesbians under s. 15 of Charter -- Differential treatment under Regulations is not based on sexual orientation -- Exclusion of donors who had sex with other men is based on health considerations and not the view that gay men are less worthy of being parents -- Regulations do not discriminate against gay men -- Exclusion of men over 40 as semen donors is health-related and not discrimination against older men -- Canadian Charter of Rights and Freedoms, s. 15 -- Processing and Distribution of Semen for Assisted Conception Regulations, SOR/96-254.
Charter of Rights and Freedoms -- Fundamental justice -- Assisted conception -- Women seeking to use semen of spouse or sexual partner for artificial insemination are excluded from stringent restrictions contained in Processing and Distribution of Semen for Assisted Conception Regulations -- Imposition of restrictions on women seeking to use semen from persons other than their spouse or sexual partner does not violate s. 7 of Charter -- Canadian Charter of Rights and Freedoms, s. 15 -- Processing and Distribution of Semen for Assisted Conception Regulations, SOR/96-254.
The applicant was a lesbian who wanted to have a child with her partner. The intervenor, D, was a gay man who was willing to assist the applicant and her partner by donating his semen. The applicant brought an application for a declaration that the definition of "assisted conception" in s. 1 of the Processing and Distribution of Semen for Assisted Conception Regulations, infringes ss. 7 and 15 of the Canadian Charter of Rights and Freedoms. "Assisted conception" is defined in s. 1 of the Regulations as "a reproductive technique performed on a woman for the purpose of conception, using semen from a donor who is not her spouse or sexual partner". The Regulations impose rigorous donor screening and testing requirements in respect of semen used in assisted conception in a clinic setting. Men over 40 years old and men who have had sex with another man, even once, since 1977 are excluded as donors, although an excluded man can apply to the Minister of Health for a "special access authorization" permitting the distribution of semen that has not been processed in accordance with the Regulations. The applicant submitted that the definition of "assisted conception" infringed ss. 7 and 15 of the Charter because it had an adverse effect on lesbians, who by definition cannot be inseminated by a spouse or sexual partner, and who were thus subjected to rigorous screening and testing requirements which were not imposed on women who use semen from a spouse or sexual partner. D was permitted to intervene to support the applicant's arguments. D also contended that the Regulations violated his rights under ss. 7 and 15 of the Charter. The application judge found that the Regulations did not violate the applicant's rights under s. 7 or s. 15 of the Charter. [page82 ]He did not address the merits of the arguments that the Regulations violated D's ss. 7 and 15 Charter rights, holding that those arguments fell outside the scope of the order giving D intervenor status. The applicant appealed.
Held, the appeal should be dismissed.
The application judge properly found the purpose of the Regulations to be "to protect the health of women undergoing assisted conception, to reduce the risk to women and their partner of acquiring transmissible infectious diseases and to reduce the risk to their unborn children of acquiring transmissible infectious diseases and suffering birth defects". He found the appropriate comparator group for the s. 15 Charter analysis to be "women seeking insemination with the semen of their spouse or sexual partner". He determined that because lesbians do not ordinarily have spouses or sexual partners who can donate semen, the effect of the Regulations is to deny them exemption from the scheme, thus imposing differential treatment between them and those in the comparator group on the basis of a personal characteristic. He correctly found that sexual orientation was not the basis for the differential treatment, as the unavailability of the exclusion to most lesbians rested not on sexual orientation but entirely on the simple rationale that there is little point in imposing the Regulations on a woman seeking assisted conception with the semen of her spouse or sexual partner, because she has already been exposed to any risk that exists. Finally, he correctly found that the scheme did not convey the message that lesbians are less worthy of recognition or value as human beings or members of Canadian society than other women, that they are less worthy of being mothers than other women, or that they should be denied the right to have children.
While the freedom to conceive a child with the person of one's choice falls within the category of fundamental life choices that are protected by the liberty branch of s. 7 of the Charter, the applicant was asserting a right to attempt to conceive using a donor's semen through assisted conception without that semen being screened or tested for infectious diseases. This asserted right does not come within the scope of the liberty interest protected by s. 7. The Regulations also did not engage the applicant's security of the person.
The exclusion of men who have had sex with other men since 1977 as donors did not discriminate against D on the basis of sexual orientation. The medical evidence established that there is a higher prevalence of HIV and Hepatitis among men in that category. The exclusion is based on health considerations and does not promote the view that gay men are less worthy of being parents. The exclusion of men over 40 did not discriminate against D on the basis of age. Men in that age group are subject to an increased risk of spontaneous genetic mutations. The over 40 exclusion protects unborn children from that risk. For the same reasons that the applicant's s. 7 Charter rights were not infringed, the Regulations did not violate D's rights under s. 7 of the Charter.
APPEAL from the order of Dambrot J. (2006), 2006 1185 (ON SC), 79 O.R. (3d) 586, [2006] O.J. No. 191 (S.C.J.), dismissing an application for declaration that the definition of "assisted conception" in the Processing and Distribution of Semen for Assisted Conception Regulations is unconstitutional.
Cases referred to Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, 60 C.R.R. (2d) 1, 43 C.C.E.L. (2d) 49, apld Other cases referred to Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43, 81 B.C.L.R. (3d) 1, 190 D.L.R. (4th) 513, 260 N.R. 1, [2000] 10 W.W.R. 567, 77 C.R.R. (2d) 189, 2000 C.L.L.C. Â230-040, 2000 SCC 44, 3 C.C.E.L. (3d) 165; Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, [1995] S.C.J. No. 43, 96 F.T.R. 80n, 124 D.L.R. (4th) 609, 182 N.R. 161, 29 C.R.R. (2d) 79, 95 C.L.L.C. Â210-025, 12 R.F.L. (4th) 201; [page83 ]Jane Doe v. Canada (Attorney General) (2005), 2005 18839 (ON CA), 75 O.R. (3d) 725, [2005] O.J. No. 2216, 198 O.A.C. 225 (C.A.), affg (2003), 2003 55190 (ON SC), 68 O.R. (3d) 9, [2003] O.J. No. 5430, 114 C.R.R. (2d) 368 (S.C.J.); M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, [1999] S.C.J. No. 23, 43 O.R. (3d) 254n, 171 D.L.R. (4th) 577, 238 N.R. 179, 62 C.R.R. (2d) 1, 46 R.F.L. (4th) 32; R. v. Malmo- Levine, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79, 233 D.L.R. (4th) 415, [2004] 4 W.W.R. 407, 114 C.R.R. (2d) 189, 179 C.C.C. (3d) 417, 2003 SCC 74, 23 B.C.L.R. (4th) 1, 16 C.R. (6th) 1; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1, 63 O.R. (2d) 281, 26 O.A.C. 1, 44 D.L.R. (4th) 385, 82 N.R. 1, 31 C.R.R. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1; Susan Doe v. Canada (Attorney General), [2007] O.J. No. 70, 219 O.A.C. 101 (C.A.), affg (2006), 2006 1185 (ON SC), 79 O.R. (3d) 586, [2006] O.J. No. 191, 137 C.R.R. (2d) 272, 25 R.F.L. (6th) 384 (S.C.J.) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 1, 7, 15 Rules and regulations referred to Processing and Distribution of Semen for Assisted Conception Regulations, SOR/96-254, s. 1 Authorities referred to Health Canada, Technical Requirements for Therapeutic Donor Insemination (2000) Royal Commission on New Reproductive Technologies, Proceed with Care (1993)
Christopher D. Bredt, Laura Pottie and Cara Zwibel, for appellant. Suzanne M. Duncan, Sean Gaudet and Matthew Sullivan, for respondent. Andrew M. Pinto, for intervenors.
The judgment of the court was delivered by
MACPHERSON J.A.: --
A. Introduction
[1] The appellant, Susan Doe, appeals from the order of Dambrot J. dated January 19, 2006 [Susan Doe v. Canada (Attorney General) (2006), 2006 1185 (ON SC), 79 O.R. (3d) 586, [2006] O.J. No. 191 (S.C.J.)] dismissing her application for a declaration that the definition of "assisted conception" in s. 1 of the Processing and Distribution of Semen for Assisted Conception Regulations, SOR/96-254 (the "Regulations") infringes ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). [page84]
[2] The definition of "assisted conception" in the Regulations is:
"assisted conception" means a reproductive technique performed on a woman for the purpose of conception, using semen from a donor who is not her spouse or sexual partner.
[3] The Regulations impose rigorous donor screening and testing requirements in respect of semen used in assisted conception in a clinic setting. However, by virtue of the definition of "assisted conception", the regime does not apply to women who use semen from a spouse or sexual partner.
[4] The appellant submits that the definition of "assisted conception" has an adverse effect on lesbian women who by definition cannot be inseminated by a spouse or sexual partner. She contends that the regulatory regime was designed with anonymous donors in mind and was not intended to apply to a situation like hers where she has selected a known donor who is not her spouse or sexual partner. Accordingly, her Charter s. 15 equality right is violated. The appellant further submits that the Regulations restrict her right to determine who will be the father of her child and give rise to psychological suffering, thus violating her Charter s. 7 rights to liberty and security of the person.
[5] The intervenor D is a gay man who is willing to donate his semen to assist the appellant's conception. He, and the intervenor Egale Canada Inc., support the appellant's legal arguments. The intervenors also contend that the Regulations violate D's ss. 7 and 15 rights.
[6] The application judge rejected the appellant's and intervenors' arguments. He held that the Regulations did not violate the appellant's ss. 7 and 15 rights. He further held that the intervenors' arguments fell outside the scope of Dyson J.'s order relating to intervenor status. Accordingly, he did not address the merits of the intervenors' constitutional arguments.
B. Facts
(1) The parties and the events
[7] The appellant is a 40-year-old lesbian woman who is in a long-term relationship with her partner, J. The appellant and J previously had a child, with J bearing the child and the intervenor D acting as the semen donor. The appellant and J want their second child to be biologically related to their first. D was somewhat reluctant to provide his semen to the appellant; his preference was to provide his semen to J. D did, however, agree to provide up to six samples to the appellant. Because the appellant [page85 ]has not been able to conceive through self-insemination, and because D was prepared to provide only a small number of semen samples, the appellant decided to attempt to conceive through the assisted conception regime.
[8] The Regulations incorporate by reference the Technical Requirements for Therapeutic Donor Insemination published by Health Canada (the "Directive"). The Directive contains detailed requirements respecting donor exclusion, including "age greater than 40 years" (the "over 40 exclusion") and indications of high risk for diseases such as HIV, and Hepatitis B and C viruses, including "men who have had sex with another man, even once, since 1977" (the "MSM exclusion").
[9] Despite these exclusions, it is possible for an excluded man to be a donor. Since 2000, the Donor Semen Special Access Program (the "DSSAP") has permitted a physician to apply to the Minister of Health for a "special access authorization" permitting the distribution of semen that has not been processed in accordance with the Regulations. The special access program is explained in a guidance document prepared by Health Canada. Health Canada amended the guidance document in 2002 to make it clear that special access authorization is available to women who seek to be inseminated by the semen of a donor who would otherwise be excluded based on the exclusion criteria. However, before a special access authorization can be issued, the semen must first receive a negative result from testing for infectious agents such as HIV and Hepatitis, be quarantined for six months, and be retested after the quarantine. If all tests are negative, a woman may ask her physician to apply for a special access authorization from Health Canada. [^1]
[10] D is a gay man and is over 40, and so to donate his semen he would have to go through the special access program. The appellant did not apply for a special access authorization, however, because D is not willing to have his semen stored by a [page86 ]semen bank, as would be required. Apparently, he is concerned that someone other than the appellant might gain access to his semen.
(2) The litigation
(a) Procedural history
[11] The application was originally brought by a different woman, Jane Doe, who, when she commenced her application, was in substantially the same situation as the appellant. Justice Brennan dismissed Jane Doe's application on the basis that it was moot, since by the time the application was heard Jane Doe had become pregnant through home insemination: see Jane Doe v. Canada (Attorney General) (2003), 2003 55190 (ON SC), 68 O.R. (3d) 9, [2003] O.J. No. 5430 (S.C.J.).
[12] On appeal, this court concluded that Brennan J. did not err in refusing to determine the issue raised by Jane Doe. However, while the appeal was under reserve, the appellant and D brought a motion to intervene as parties to the appeal. The court granted the motion and remitted the application to a different judge of the Superior Court of Justice for a hearing on the same record that had been before Brennan J. The court ordered that the appellant be added as a party and D as an intervenor: see Jane Doe v. Canada (Attorney General) (2005), 2005 18839 (ON CA), 75 O.R. (3d) 725, [2005] O.J. No. 2216 (C.A.).
[13] In the original application brought by Jane Doe, three entities, The Foundation for Equal Families, [^2] Egale Canada Inc. and B, the proposed donor of semen to Jane Doe, had been granted intervenor status by Dyson J. When this court granted intervenor status to D, it did so on the basis that the terms of his intervention would be the same as those relating to B in Dyson J.'s order. One of the terms of that order was that the intervenors could not raise issues relating to the rights of anonymous sperm donors and would not seek relief beyond the relief sought in the Notice of Application.
(b) Justice Dambrot's decision
[14] In particularly comprehensive reasons, the application judge dismissed the appellant's claims. He held that the definition of "assisted conception" in the Regulations did not violate the appellant's Charter s. 7 and s. 15 rights. In light of these conclusions, [page87 ]the application judge decided that it was unnecessary to consider s. 1 of the Charter or the question of remedy.
[15] The application judge declined to consider the separate (i.e., related to D's position), not the appellant's, arguments advanced by the intervenors, especially those relating to the over 40 and MSM donor exclusions. In his view, these arguments were outside the scope of the intervention order which limited their participation to making submissions in support of the appellant's position and to seeking the same relief as the appellant.
C. Issues
[16] The issues on this appeal are:
(1) Does the definition of "assisted conception" in the Regulations violate s. 15 of the Charter?
(2) Does the definition of "assisted conception" in the Regulations violate s. 7 of the Charter?
(3) Do the exclusion criteria for men over 40 years of age and men who have had sex with another man, even once, since 1977 violate s. 15 of the Charter?
(4) If the answer to any of questions (1) to (3) is "Yes", is the provision saved by s. 1 of the Charter?
(5) If either the "assisted conception" definition or the exclusion criteria violates the Charter, what is the appropriate remedy?
D. Analysis
(1) The definition of "assisted conception" -- [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [s. 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[17] Section 15 of the Charter guarantees to every individual the right to equal treatment by the state without discrimination. Sexual orientation is a prohibited ground of discrimination: see Egan v. Canada, 1995 98 (SCC), [1995] 2 S.C.R. 513, [1995] S.C.J. No. 43 and M. v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, [1999] S.C.J. No. 23.
[18] The leading case respecting the interpretation of s. 15 is Law v. Canada (Minister of Employment and Immigration), 1999 675 (SCC), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12 ("Law"). In that case, Iacobucci J. articulated a three-step inquiry, at para. 39:
First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment [page88 ]between the claimant and others on the basis of one or more personal characteristics? If so, there is a differential treatment for the purposes of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?
[19] The application judge faithfully applied the Law analysis. However, before turning to it, he quite properly addressed three preliminary issues: the purpose of the Regulations, the reason for the exclusion of women proposing to use semen from donors who are their spouses and sexual partners from the definition of "assisted conception", and the identification of the relevant comparator group for purposes of the s. 15 analysis.
[20] The application judge described the purpose of the Regulations [at para. 77] as "to protect the health of women undergoing assisted conception, to reduce the risk to women and their partners of acquiring transmissible infectious diseases and to reduce the risk to their unborn children of acquiring transmissible infectious diseases and suffering birth defects".
[21] The application judge identified "the simple rationale" for the exclusion relating to donors who are the spouses and sexual partners of women seeking assisted conception as the fact that "there is no point in imposing the Semen Regulations on a woman seeking assisted conception with the semen of her spouse or sexual partner, because she has already been exposed to any risk that exists".
[22] On the final preliminary issue, the application judge determined that "the appropriate comparator group is women seeking insemination with the semen of their spouse or sexual partner" because the women in this group are specifically excluded from the need to comply with the strict requirements, especially testing, of the regulatory scheme.
[23] The application judge then turned to the Law analysis.
[24] With respect to the first step in the analysis, the application judge determined [at para. 110] that "because lesbians do not ordinarily have spouses or sexual partners who can donate semen, the effect of the Regulations is to deny them exemption from the scheme, and therefore, in its effect, to impose differential treatment between them and those in the comparator group on the basis of a personal characteristic".
[25] Turning to the second step in the Law analysis, the application judge concluded [at para. 116] that it was here that the appellant's claim foundered: [page89 ]
In my view, the applicant's claim fails on this issue. While it is true that the exclusion created by the definition of assisted conception is available more often to heterosexual women than to lesbians, sexual orientation is not the basis for the differential treatment. The unavailability of the exclusion to most lesbians does not rest on sexual orientation. As I have discussed above, it rests entirely on the simple rationale that there is little point in imposing the Semen Regulations on a woman seeking assisted conception with the semen of her spouse or sexual partner, because she has already been exposed to any risk that exists.
[26] The application judge also found against the appellant on the third step in the Law analysis. He reasoned [at paras. 122-23]:
It cannot be doubted that lesbians have experienced disadvantage, stereotyping, prejudice and vulnerability in our society. There are those who view them as less worthy of recognition or value as human beings or members of Canadian society. Undoubtedly there are still those who believe them to be less worthy of being mothers than are heterosexual women, and who would deny them the right to have children. The legislation, however, does not deny lesbians the right to have children, or to be clinically inseminated. It is simply the case that because they do not ordinarily have spouses or sexual partners capable of being donors, a health based exclusion from the regulatory scheme governing assisted conception is unavailable to them. Does this simple fact, having regard to the contextual considerations I have listed, discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?
In my view it does not. The legislation does not exclude all heterosexual women with known donors from the regulatory scheme, only those with donors who are their spouse or sexual partner. Lesbians and other heterosexual women with known donors are treated identically. The narrow exclusion is rational and health-based. The scheme simply does not convey the message that lesbians are less worthy of recognition or value as human beings or members of Canadian society than other women, that they are less worthy of being mothers than are other women, and that they should be denied the right to have children.
[27] The pivot for the appellant's challenge of the application judge's s. 15 analysis is his finding that the purpose of the Regulations is health-related, namely, the protection of women and unborn children. In oral argument, the appellant's counsel described the purpose issue as "the $64,000 question" and candidly acknowledged that "if I am wrong with respect to the purpose of the Regulations, I have a much tougher case".
[28] The appellant expressly accepts the application judge's description of the overall purpose of the Regulations as being the protection of women undergoing assisted conception and unborn children. However, the appellant asserts that the context within which the Regulations are intended to operate is only with respect to anonymous donors of semen. The exemption for [page90 ]women whose donors are their spouse or sexual partner, as the appellant puts it in her factum, "can only reflect one thing: a recognition that women are entitled to knowingly and voluntarily accept the risks to themselves and to their unborn children associated with conceiving a child with the donor of their choice". This "voluntariness" anchor for the Regulations should apply to both heterosexual and lesbian women using known donors. Since the definition of "assisted conception" explicitly excludes women using a certain category of known donors (spouses and sexual partners) from the regulatory regime, it should do the same for lesbian women proposing to use known donors.
[29] The application judge dealt comprehensively with this argument in his reasons. He carefully considered the background leading to the Regulations, including the report of the Royal Commission on New Reproductive Technologies, Proceed with Care (1993), the evidence of Dr. Clifford Librach, a physician who provided an affidavit on behalf of the appellant, and the wording of the Regulations. He reasoned [at paras. 81-82]:
With respect to the nature of the scheme, simple logic tells me that the justification for the exemption of spouses and sexual partners cannot be a recognition that women are entitled to knowingly and voluntarily accept the risks to themselves and to their unborn children associated with conceiving a child with the donor of their choice. It would be impossible to reconcile that purpose with the fact that a heterosexual woman who wants to be inseminated by a known donor is not exempt from the scheme. Her donor's semen must be collected, stored and tested. In other words, a heterosexual woman who wants to be inseminated by a known donor is denied the right to knowingly and voluntarily accept the risks to themselves and to their unborn children associated with conceiving a child with the donor of their choice. While such women may represent a smaller group than do lesbian women who want to be inseminated by a known donor (although there is no evidence to that effect), it remains the case that they were consciously not excluded from the scheme, and so the applicant must have misidentified the rationale for the exclusion of spouses and sexual partners.
It is not surprising that the rationale for the exclusion is not the one advanced by the applicant. This scheme, after all, is not primarily concerned with personal autonomy or self-actualization, but rather with health. One should search first, logically enough, for a health-based rationale for a provision in the scheme. Here there is one -- the one advanced by the respondent -- and it is a logical one. It makes perfect sense to exclude from the scheme women seeking assisted conception with the semen of their spouses or sexual partners, because there is no point in imposing the Semen Regulations on such women having regard to the fact that they have already been exposed to any risk that exists, and will likely continue to be exposed. It also makes perfect sense not to exclude any other donors, but rather to insist on the same safeguards for all of them, whether they are known to the woman or not.
I agree with this reasoning. In my view, it is, in a word, impeccable.
[30] Once the application judge's description of the purpose of the Regulations, both overall and in terms of the spousal and [page91 ]sexual partner exclusion, is affirmed, the appellant's other s. 15 arguments fall away. The application judge's analysis and conclusions on the second step (differential treatment, but not on the basis of sexual orientation) and the third step (differential treatment, but not involving prejudice, stereotyping and historical disadvantage) of Law are correct.
(2) The definition of "assisted conception" -- [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[31] Section 7 of the Charter guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[32] The liberty interest in s. 7 is engaged when state compulsions or prohibitions affect fundamental life choices: see R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, [1988] S.C.J. No. 1; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43; and R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R. 571, [2003] S.C.J. No. 79. There can be no doubt that the right to liberty includes the right to conceive a child with the person of a woman's choice.
[33] The appellant asserts that the definition of "assisted conception" in the Regulations violates this right. The application judge rejected this argument. He stated [at para. 142]:
I agree with the respondent. I have no doubt that the freedom to conceive a child with the person of one's choice falls within the category of fundamental life choices that are protected by the liberty branch of s.7 of the Charter. But the protection claimed by the applicant is much broader. The true interest she wants to find constitutional protection for is an asserted right to attempt to conceive using a semen donor's semen through assisted conception without that semen being screened or tested for infectious diseases. This asserted right is not of the nature of the liberty interest accepted by the Supreme Court as falling within the protection of s.7.
I agree with this analysis.
[34] The appellant also contends that the Regulations interfere with her psychological integrity in a manner that engages her right to security of the person. She claims that the Regulations prohibit her from using the donor of her choice. In the alternative, she contends that if the DSSAP applies to her, she is precluded from using the donor of her choice unless she obtains a permit from the Minister of Health, which causes psychological harm. Finally, the appellant submits that the DSSAP interferes with her physical security by imposing delays in treatments (the six-month quarantine for donor semen) which increase the risks of failure of the treatment or complications during pregnancy. [page92 ]
[35] I disagree with these submissions. The first submission traverses the same ground as the liberty submission and must be rejected for the same reason. The second submission is far removed from any reasonable notion of psychological harm. The entire purpose of the Regulations is the protection of the health of women and unborn children. The Regulations should promote psychological comfort, not injury, in women who are subject to the regime. The third submission also must fail. Although there is a six-month delay for women who apply for assisted conception, this is the time required for proper testing of semen. Accordingly, this component of the Regulations promotes physical health for both women and unborn children and, therefore, should also promote psychological well-being, not harm.
[36] Since I conclude that the Regulations do not violate the appellant's liberty or security of the person, it is not necessary to consider the principles of [the] fundamental justice branch of the s. 7 analysis. For the sake of completeness, I would indicate that I agree with the application judge's analysis on this issue. The Regulations are neither overbroad nor arbitrary; the donor screening regime is carefully tailored to the valid and important purpose of the Regulations, namely, "a compelling interest in minimizing the risk of disease transmission via donated semen to women and to their future children".
(3) The "over 40" and "MSM" exclusions -- [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [s. 15](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[37] Before the application judge, both the appellant and the intervenors argued that the over 40 and MSM exclusions violated s. 15 of the Charter. The application judge rejected their arguments for three reasons: (1) the appellant had no standing to argue equality issues relating to the age or sexual orientation of the donor; (2) the intervenors could not advance their substantive arguments because those arguments were outside the scope of Dyson J.'s order granting them intervenor status; and (3) in any event, the DSSAP effectively solved the problem by allowing women to apply for exemptions for known donors in the two exclusion categories.
[38] On appeal, the intervenors submit that the application judge erred in his interpretation of Dyson J.'s order and, therefore, they should be permitted to make their substantive equality arguments.
[39] I am inclined to agree with the intervenors on this point. However, in the end, it makes no difference because, for two reasons, I reject the intervenors' substantive arguments as well as the supporting arguments advanced by the appellant.
[40] First, the over 40 and MSM exclusions are no longer absolute exclusions. Women with known donors in these exclusion [page93 ]categories -- in other words, the appellant and D -- are now eligible to participate in the assisted conception program. As explained by the application judge [at paras. 171-72]:
To reiterate, the Regulations are intended to protect the health of the woman seeking to conceive through assisted conception, as well as their partners and their future children. Consistent with this purpose, the Regulations prohibit the processing and distribution of semen from donors who come within an excluded group set out in the Directive. Among the persons excluded are persons of an age greater than 40 and persons with indications of high risk for HIV, Hepatitis B virus, Hepatitis C virus or human T-call Lymphotropic Virus, including men who have had sex with another man, even once.
Despite the exclusion, it is possible for an excluded man to be a donor. The Regulations permit a physician to apply to the Minister of Health for a "special access authorization" permitting the distribution of semen that has not been processed in accordance with the Regulations. Health Canada's Guidance Document on the DSSAP has been amended to make clear that special access authorization is available to women who seek to be inseminated by the semen from a donor who would otherwise be excluded based on the exclusion criteria contained in the Directive. Before a special access authorization can be issued, however, the semen must first receive a negative result to testing for the infectious agents of HIV 1 and HIV 2, Hepatitis B and Hepatitis C.
[41] Second, I do not agree with the intervenors' substantive equality arguments.
[42] The over 40 exclusion relates to age, not sexual orientation. Moreover, the age distinction (which applies to all men, heterosexual and gay) is not substantively discriminatory. There is a clear correspondence between the ground of age and the nature of the differential treatment. As noted by Dr. Francesca Agbanyo, a senior scientist at Health Canada, men in this age group are subject to an increased risk of spontaneous genetic mutations. The over 40 exclusion protects unborn children from this risk.
[43] The MSM exclusion does create a distinction between gay and heterosexual donors. However, the differential treatment is not discriminatory and does not promote the view that gay men are less worthy of being parents. The MSM exclusion, like the many other exclusions in the Regulations, is based on health considerations. The medical evidence in the record establishes that there is a higher prevalence of HIV and Hepatitis among men in the MSM category. The actual increased risk of acquiring and transmitting these diseases in this population provides a factually based reason for the MSM exclusion.
[44] Finally, I observe that the intervenors advance a brief (one paragraph) argument that the over 40 and MSM exclusions violate D's rights to liberty and security of the person. This argument covers the same ground as the appellant's argument and, therefore, must be rejected for the same reasons. [page94 ]
(4) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [s. 1](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[45] This issue need not be addressed.
(5) Remedy
[46] This issue need not be addressed.
E. Disposition
[47] I would dismiss the appeal.
[48] I am inclined to regard this as an appeal in which it would be appropriate to make no costs order. If any party seeks costs, it should do so by way of brief letter and supporting documents within two weeks of the release of these reasons. A brief responding letter could be sent within a further seven days.
Appeal dismissed.
[^1]: There is some doubt about wheter the DSSAP and the subsequent guidence document are entirely consistent. However, since the appellant did not want to challenge the guidence document (because her focus was on the definition of "assisted conception" in the Regulations and because the guidence document potentially expands access to the DSSAP), the application judge treated the guidence document as valid and effective, while urging the government "to regularize it at an early opportunity by appropriately amending the Regulations". There is no suggestion that Health Canada does not administer the Regulations in accordance with the 2002 guidence document. In any event, I am satisfied that, properly interpreted, there is no conflict between the guidence document and the Regulations. Accordingly, I will proceed on the same basis as the application judge.
[^2]: By the time this appeal was heard, The Foundation for Equal Families was not in operation and did not participate in the appeal.