Rejection
of
MAR:
discrimination
of
an
HIV-‐positive
gay
man?
In
medically
assisted
reproduction
(MAR)
sperm
washing
is
used
when
the
man
is
HIV-‐positive,
i.e.
to
prevent
infection
when
the
donor
is
known
to
be
infected.
Rules
for
heterologous
donation,
on
the
other
hand,
are
to
prevent
infection
by
donors
with
unidentified
infections.
In
a
current
case
a
woman
and
a
gay
man
wishes
to
found
a
family.
They
do
not
have
an
intimate
physical
relationship.
The
Danish
authorities
reject
treatment
referring
to
the
Tissues
and
Cells
Directive,
which
stipulates
that:
“‘Partner
donation’
means
the
donation
of
reproductive
cells
between
a
man
and
a
woman
who
declare
that
they
have
an
intimate
physical
relationship”
(Article
1,
litra
b).
In
short
•
•
•
A
heterologous
sperm
donor
must
test
HIV-‐negative.
(Directive)
A
man
and
a
woman
have
access
to
MAR
with
their
own
gametes
if
they
declare
to
be
in
an
intimate
physical
relationship.
(Directive)
Danish
authorities
have
issued
rules
specifically
stating,
that
a
gay
man
can
be
known
sperm-‐donor.
According
to
these
rules
he
must
test
HIV-‐negative,
as
he
is
considered
heterologous
sperm
donor.
(Administrative
guidance)
A
heterosexual
couple
where
the
man
is
HIV-‐positive
has
access
to
sperm
washing.
Thus
this
is
not
considered
conflicting
with
the
Directive,
notably
the
intimacy
requirement.
An
HIV-‐negative
gay
man
and
a
woman
have
access
to
MAR
with
their
own
gametes:
he
is
considered
heterologous
donor
even
though
both
are
to
be
legal
and
social
parents
to
the
child.
An
HIV-‐positive
gay
man
and
a
woman
do
not
have
access
to
MAR
with
their
own
gametes.
(Authorities
interpretation
in
this
case)
The
Danish
Children’s
Act
specifically
recognises
a
family
consisting
of
man
and
a
woman
who
are
not
partners.
•
•
•
•
Thus,
according
to
the
Danish
authorities
in
general
a
gay
man
as
well
as
an
HIV-‐positive
man
has
access
to
MAR.
But
the
combination,
i.e.
an
HIV-‐positive
gay
man
is
excluded
from
MAR.
As
a
result
an
HIV-‐positive
man
can
become
a
biological
father
only
if
he
is
not
homosexual.
It
is
the
opinion
of
LGBT
Denmark,
that
this
practice
constitutes
discrimination.
It
is
likely
that
at
the
time
the
Tissues
and
Cells
Directive
was
written
nobody
had
the
situation
in
the
current
case
in
mind.
However,
there
is
no
medical
reason
to
reject
treatment.
Restrictions
in
access
to
donor
procedures
in
the
healthcare
system
must
fulfil
the
principle
of
proportionality
cf.
Court
of
Justice
of
the
European
Union,
Case
C-‐528/13.
Furthermore,
upholding
the
rejection
by
the
Danish
authorities
seems
to
run
counter
to
the
EU
Charter
of
Fundamental
Rights
ensuring
non-‐
discrimination
and
the
rights
to
found
a
family.
LGBT
Denmark
has
asked
the
Danish
authorities
a
series
of
questions.
However,
they
consistently
reject
to
answer
them
simply
referring
to
the
directive.
The
translated
correspondence
with
Danish
authorities,
the
ombudsman
and
DG
SANCO
can
be
found
here:
https://panbloggen.wordpress.com/2015/06/29/access-‐to-‐sperm-‐washing-‐for-‐hiv-‐positive-‐gay-‐men/
For
more
info:
Søren
Laursen,
[email protected]
LGBT
Danmark
–
Landsforeningen
for
bøsser,
lesbiske,
biseksuelle
og
transpersoner
NGO
in
special
consultative
status
with
the
economic
and
social
council
of
the
United
Nations
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