Amanda Thompson remembers meeting the other participant in her months-long game of tap-tap. She would tap on her partner’s belly, and someone would tap back from inside. After an eventful day, the result of careful deliberations and a planned C-section, Thompson met her daughter, feeling instantly familiar. As soon as she was born, “it was this lovely recognition of, ‘Oh, you’re this person we already know,’” she says.
Her birth followed purposeful conversations about identity. Thompson’s family is registered to the Flying Post First Nation. No one lives there, what was once a traditional hunting and trapping community. It’s a swamp in the north, she says. Members of her Ojibwe band live dotted around northern districts in Ontario, between Timmins, Nipigon, and Chapleau, her extended family in southwestern Ontario. Thompson grew up urban. “We don’t have the same sense of community in the same way that people who are registered to other First Nations would have a strong sense of place do,” she says. When she moved to Toronto at 21, those ties were built. “I made my community here,” Thompson says. “That means the community that I came from was already a mishmash of people from different nations and different cultures and different understandings of their culture, and they’ve all sort of migrated here in different ways.”
She’s one of three generations of women in her family denied status—starting with her grandmother, who lost recognition to her band under the Indian Act when she married a British man. Over the decades, Thompson and her mother regained their status under bills C-31 and C-3, contested attempts at restraining the paternalism of the Indian Act. When Thompson and her partner decided to start a family, questions of identity quickly entered their considerations.
But they were one of many. Before they had their daughter, meditation on Indigeneity, place, and identity needed to be weighed against morasses of potential legal twists. When couples visit fertility clinics in Toronto—30 percent of which are estimated to be from queer communities—about 20 of the 200 anonymous donors available to them are Canadian. None of those 20 is Indigenous.
Thompson knew she and her partner wanted to choose an Indigenous donor, and that he would be anonymous. The laws governing guardianship made it so they couldn’t be certain a known donor wouldn’t have the ability to retain custody down the line. And when they consulted legal experts, no one could tell them that he couldn’t definitively, not enough that they felt comfortable with the risks. Never mind how or if their child could gain status in such an arrangement.
The circuitous culture of service provision and legislation can descend on prospective families—especially those with members from queer Indigenous communities—in many ways, each on their own bringing a range of potential obstacles. The law in Ontario has only recently changed to better accommodate family planning routes for queer couples who may not always conceive children or come to be families the same way that many with two biological parents do. These choices amount to a process that can help honour and define familial identity for many couples. In ways large and small these systems aren’t set up to give many couples equal access to the choices and clinical experiences white, heterosexual, and cisgender couples can have.
Twice a week for about two years in the early 1990s, Harlan Pruden donated sperm to a fertility clinic, so conveniently situated on the University of Alberta campus where he was studying philosophy and political science that his visits could be scheduled in between classes. He earned $50 each time: half every week, and the balance at the end of a six-month cycle when, if he received a clean bill of sexual health, “the lot” would be closed out. The multi-page questionnaire he filled out the first day at the clinic asked about family history, disease, his IQ.
He doesn’t remember much about the donor agreement he signed at the time, in his early 20s. “It’s kind of like the Apple agreement,” he says. But he does recall clinic staff telling him that he was the only Native (they called him at the time) donor on their books. That was incentive enough for him. Pruden, registered to the Whitefish Lake First Nation in Alberta, calculated that while the cash was a nice perk, it was important for his semen to find its way to prospective families who wanted children, in the heart of Cree territory, as they were. Pruden figures he’s an anomaly: a gay-identified Two-Spirit sperm donor. He may be right. If not then, he would be now.
The history of assisted human reproduction (AHR) such as in vitro fertilization (IVF) is that of heteronormative familial and clinical constructions that haven’t prepared the system to consistently and readily welcome families with specifications past blood type and eye colour. The earliest couples to start their families this way did so under a veil of secrecy— conception through a third party clashed with religious mores that neither patients nor doctors would defy. Frequently, sperm donors were medical students, plucked on the basis of little more than loose physical resemblance and proximity. At the time, fertility services largely dealt with offering solutions for male infertility in traditional monied families.
By the 1990s there were more than 100 fertility clinics in Canada operating in the sperm business. The rules governing donorship and tissue sales didn’t constrict until 2000, after a woman was inseminated with sperm carrying a strain of chlamydia. The updated Semen Regulations, active today, outline the criteria with which donors must comply and how clinics operate. These regulations are followed by the few remaining sperm banks in Canada—the largest of which is in Etobicoke, Ont.—to accept local donations.
With IVF costing anywhere from $5,000 to $15,000, the added cost of travel to an urban hub can make an already prohibitive means of starting a family insurmountable
In some ways a bid to create bulwarks against commercializing the trade of genetic material, Parliament passed the Assisted Human Reproduction Act (AHRA) in 2004. This bill featured several provisions to regulate the proliferation of reproductive technologies. One of the provisions that survived the 2010 Supreme Court challenge was the regulation that prohibits compensation for material donation. Subsequently, the number of donors located in Canada plummeted. With little incentive for Canadian men to donate altruistically, the vast majority of sperm donors available to prospective families in Canadian sperm banks are from the U.S., with some from Europe.
Some stakeholders are not convinced by the ban on compensation. It’s one of the areas of the AHRA being taken up by the AHRA/LGBT Working Group, a team of academic, legal, and medical experts consulting with the Ministry of Health to bring a queer lens to policy issues. “The fertility world is so heterocentric,” says Andy Inkster, the health promoter at the LGBTQ Parenting Network leading the charge on the project. “And it’s not just the industry, it’s not just the practitioners. It’s deeply embedded into the structure of what they’re doing. Fertility is where eggs and sperm come together, and it’s embedded with heterosexist and heterocentric assumptions, but the reality is that a huge number of the people using assisted human reproduction are LGBTQ people.”
Where health care is concerned, let alone reproductive technology, the intended focus and professional training tend to be centred on the needs of straight patients. Through policy and practice, health outcomes for queer communities are disproportionately worse than the general population. Fertility services are also riddled with active and coded messaging—the model, centred on heteronormative paradigms as it is, assumes infertility when a couple first arrives. Queer patients don’t inherently need a battery of tests to determine their ability to have children, like a straight couple having tried and failed to conceive for a time, but often the clinic is their first step. Understanding the overall landscape of queer health, the Working Group petitioned the Ministry to amend the law to both correct some of its previously stated incongruities and make room for the queer families that represent a high percentage of fertility clinic patients.
For parents like Thompson, there is still little information on laws affecting Indigenous and queer families seeking AHR. Some researchers have attempted to unpack these filigreed legal implications and their unique effects on queer families in Canada. Lori Ross, associate professor at the Dalla Lana School of Public Health in Toronto, spearheaded the Creating our Families study, which surveyed 66 LGBTQ couples in Ontario and their experiences accessing AHR services. According to Ross’s research, non-biological parents could face a variety of pressures, including cost barriers, discrimination, and the stress of pending but uncertain guardianship.
One of the simplest ways to circumvent a lack of donor sperm from one’s community is known donorship, an arrangement between a prospective parent and a friend, family member, or acquaintance. In the expert witness affidavit she wrote for the AHRA, Ross notes the catch-22 inherent to the decision-making for some prospective parents. An Indigenous participant in the study, for example, demonstrates the complexity of navigating known versus unknown donorship for families who want to maintain Indigenous lineage, but don’t want to bring a third parent into the arrangement: “If we had found a sperm donor whom we knew, who was status [according to the Indian Act], we’re then opening ourselves right back up to… the legal implications that would be involved. Because we’d have to list that person as their father, essentially.” Few people are equipped to neutralize the concern. While there are experts in fertility law and how it may pertain to queer families, the question of Indigenous parentage is not understood as ubiquitously. They’re “two different specialties that haven’t come together, really,” says Ross.
A spate of Canadian laws that purportedly exist to protect children have had ways of creeping into the family planning options for queer couples in Canada. In November 2016, Ontario’s All Families Are Equal Act passed, finally contravening one of them. Until then, the Children’s Law Reform Act, which designated how adoptive parents were named and recognized, conferred parenthood to mothers and fathers, and to sperm donors before partners in the province. To assure guardianship of their child, couples would need to apply for a second parent adoption, a process in which the donor would need to actively resign their rights and a member of the family would need to appeal the courts for guardianship. This law arose from Cy and Ruby’s Act, a bill named for a family that, after a harrowing childbirth, feared they would lose guardianship of their child because the laws didn’t automatically recognize a same-sex co-parent. Ontario is the fifth Canadian province to implement parental recognition legislation, following Alberta, Manitoba, Quebec, and B.C.
This legal victory for queer families in Canada came when Thompson’s daughter was already more than than a year old. When she was still navigating the waters of known versus anonymous donorship, there was hardly a dilemma. She and her partner were lucky: Situated in a major urban area in Toronto, as they were, they had access to queer parenting resources and a cluster of fertility clinics and counsel. But none of the lawyers she asked could tell her declaratively how a known donorship would affect her family. At that point, a known donor had de facto guardianship. How could they avoid peril to her partner’s parentship application to the courts? And what of the duty to consult? If her band chose to intervene, what recourse did they have? “It was really important to us from the outset that we were able to reflect our family’s cultural identity. So for us, we had to weigh out the desire to have Indigenous sperm from our area or someone who identified as Ojibwe as our sperm donor with the risks with a known donor,” Thompson says. “In the end we decided to not go with a known donor because the system didn’t seem equipped to support our family.”
Handling issues like donor diversity hasn’t proven feasible under existing regulations. Without the offer of compensation, recruiting volunteers to submit to regular health screenings, waves of ejaculatory abstinence, and the time to commute to the receiving clinic in Etobicoke hasn’t panned out. Furthermore, willing donors are turned away. As with blood donation, men who have sex with men are barred from donating sperm anonymously. And the requirement of a three-generation medical history may hinder Indigenous men, who are overrepresented in child welfare systems and might not know their history that far back, from becoming donors.
Organizations from queer community centre The 519 to the Canadian Bar Association (CBA) have decried the AHRA’s disproportionate impact on queer families. The CBA’s Family and Health Law Section and the Sexual Orientation and Gender Identity Community Forum also acknowledge that the exponential rise of reproductive technology would almost surely outpace the bill’s reason. Stiff penalties apply; paying a sperm donor or surrogate can earn one $500,000 in fines and a 10-year prison sentence.
The lack of proportionality in these measures is being pursued by some in the legal community who are addressing its deficits, from the confounding to the discriminatory. “If you are looking for a white healthy person, that’s an option. But if you are looking for anything beyond that, it becomes incredibly difficult in Canada to access gametes from any other racial or other background,” says Sara Cohen, a Toronto-based fertility lawyer involved with the AHRA/LGBTQ Working Group. “If you or your partner are non-caucasian and would like a specific racial background or heritage reflected in the genetic makeup of your child, you are down to a couple of donors at best—the same couple of donors as are available to everyone else in your community,” she wrote on the Fertility Law Canada blog. “Across the board for any racialized family who is active in LGBTQ communities, they kind of go through their mental Rolodex of who they know and guess that they’ve probably used the same donor,” adds Inkster.
But even if the working group’s consultations yield results for prospective queer parents—training their clinicians and counsellors in culturally competent care for those patients— that’s still only a piece of the question. Of all the clinics they deal with, “There are none that are aligned with Indigenous health principles—with clinicians who are aligned with that modality and trained in culturally safe care for Indigenous folks,” Inkster says. “I’ve never heard a clinician say to me, ‘We’re considering culturally safe care for Indigenous communities.’” He figures it’s likely a matter of place—fertility clinics in Canada are concentrated by density. Kingston, Ont. has none. There is one per Manitoba and Saskatchewan.
It’s a rather uncharted area of reproductive justice. Birth control, abortion, and other areas of health care are scantily accessible in Canada’s more remote regions. With IVF costing anywhere from $5,000 to $15,000, the added cost of travel to an urban hub can make an already prohibitive means of starting a family insurmountable.
“The way that Indigenous people look at families is very different than sort of this Western format of what family looks like,” says Denise Booth McLeod, an Indigenous full-spectrum doula, noting how common adoption and extended kinship ties are in her community. “I have other friends who are talking about when they’re planning on having babies who are already in talks with people within our community: ‘Okay, you’re Indigenous; we’re Indigenous. How do we sort of source your product? How do we do this in a way where it feels right for us as a family?’”
For Thompson and families like hers, how can an area like this be problematized? Reproductive justice and health inequity aside, now there’s a child. A living and loved manifestation of laborious decision-making, unexpected relics of the Indian Act, the spillover of second parent adoption laws. Recognition of the complexities of second parent adoptions and its obsolescence after the passage of the All Families Are Equal Act could change course for future families. “That new development I think could be a bit of a game changer,” she says.
She did pick Indigenous sperm, a donor with Cherokee lineage from a U.S. bank. Once she and her partner decided that was important to them, it narrowed the selection down to a small pool.
At the time of publication, ReproMed, Canada’s largest sperm bank, had zero Indigenous-identified donors. Not much has changed since Pruden first donated his sperm in the 1990s. He has wondered intermittently over the years about what became of his sperm. A culture of immense racism, internalized, may have meant that some Indigenous families wouldn’t have had the pride in their identities and culture to motivate them to so deliberately expand their lineages in this way, passing down all that came with it, he says.
But today, identity remains a terrain to navigate. “One of the things that happens in the community is there’s a huge focus on who you are and where you’ve come from. And so I think about that for her,” Thompson says. Her Anishnabe family is her daughter’s family. “We’ll talk about that and that’s who she’ll grow up with.”
“We’re happy with the little person we got.”
Steph Wechsler is a freelance journalist and researcher who writes about health, civil rights, and culture. A former intern at This, she is a master’s candidate and the managing editor of print for the Ryerson Review of Journalism’s 2017 issue.