Gay legal group Lambda Legal has filed a complaint with the Orlando Human Rights Board this week on behalf of a gay man denied fertility services because of his sexual orientation.

“Dr. Barros was denied services not because of any real medical risk, but solely because of his sexual orientation,” said, Gregory Nevins, a lawyer in Lambda Legal’s southern regional office in Atlanta.

“The FDA’s (Food and Drug Administration) recommendations against sperm donation by men who have sex with men are scientifically unfounded, furthermore, they are clearly not applicable in this case.”

Dr Dennis Barros, a veterinarian in Orlando, Florida, and his partner decided to have a child with a surrogate mother who agreed to carry an implanted egg.

To do so, they sought fertility services with Dr Frank Riggall, a practicing fertility doctor.

After previously agreeing to provide services for the couple, Dr Riggall’s offices sent Barros a letter saying they were denying him fertility services because performing the procedure would breach FDA guidelines.

The FDA currently has two categories of sperm donors – those who are “directed donors,” or who are donating to a consenting woman, and “anonymous donors,” who donate to a sperm bank.

In the case of directed donors, there are minimal restrictions, mostly relying on the consent of the recipient, such as in the Barros matter. In the case of anonymous donation, the FDA does not have a mandate that excludes men who have sex with men from being donors, however, it does suggest that men who have had sex with men in the past five years be excluded.

In all anonymous donations, sperm banks are directed by the FDA to screen for multiple infections including HIV, hepatitis B and C, and various others, freeze the sperm and test the donor again in six months in order to insure that no woman receives sperm from an infected donor, making the recommended ban on men who have sex with men unnecessary.