A Legal Challenge to Permanent Deferrals for Men who Have Sex with Men (MSM) Donating Blood

Kevin Flood

Senior Sophister LL.B. Student of Trinity College, Dublin

There are a number of reasons people choose to donate blood. Some see it as a “civic duty”, while others view it as an act of altruism or a way of giving back to their community. It is a valuable and indispensable service heavily reliant on the good will and commitment of donors and one that largely goes unnoticed until there is a crisis.

As is the case with any area of public health, precautions are required to be taken when taking blood. When entering a blood donor clinic, donors must complete an application form each time they donate. They are informed of a long list of scenarios that will result in a temporary ban. These include seemingly mundane aspects of everyday life, such as travelling to a foreign country or getting a body piercing. There is one exclusion, however, that particularly stands out, that is, the ban on sexually active gay men donating blood. This long standing ban has become the subject of a legal challenge, with a hearing to come before the High Court in April of 2016.

 

History of the ban and the Irish Blood Transfusion Service

The ban on the donation of blood by gay men was introduced in response to the AIDS epidemic during the 1980s. In the early years of the crisis, there was no reliable test to detect AIDS when screening blood. As a precaution, high risk groups were identified and permanently banned from donating.

The Irish Blood Transfusion Service (IBTS), the body responsible for blood donations in the State, insists that the ban remains necessary. The IBTS website states that,

In order to assure the continued safety of the blood supply, we currently ask those people who may have a particularly high risk of carrying blood-borne viruses not to give blood.  This includes men who have ever had sex with another man / men. The reason for this exclusion rests on specific sexual behaviour (such as anal and oral sex). There is no exclusion of gay men who have never had sex with a man nor of women who have sex with women.  The decision is not based on sexuality or orientation, only specific actions.[1]

The justification offered by the IBTS for this stance is that ‘the primary requirement is to protect recipients’.[2] They acknowledge that donors need a certain level of attention paid to them but still find that a permanent ban is needed.

 

The Ban

The question asked is; ‘IF YOU ARE MALE, have you EVER had oral or anal sex with another male – with or without a condom or other form of protection?’[3] If the answer to this question is yes, the effects are lifelong; answering yes to this question prevents a man from donating blood. This is in line with the procedures in place in Northern Ireland (although there are murmurings of a possible change),[4] but few countries have an outright ban. The United States and the United Kingdom (excluding NI) have a one year deferral policy in place whereas the majority of European Union members have no deferral in place.

 

The Challenge

On the 27th of July 2015, Mr Tomás Heneghan launched Judicial Review proceedings against the Irish Blood Transfusion Service, the Minister for Health, the Attorney General and Ireland.

The basis for this challenge arose when Mr Heneghan attended the D’Olier Street clinic in Dublin to give blood and answered in the affirmative for the sexual contact with men question.[5] The Health Service Executive categorised the sexual activity engaged in as low risk and Mr Heneghan produced test results showing he had tested negative for all sexually transmitted infections. Despite these considerations, Mr Heneghan was refused the opportunity to donate blood.

A challenge has been brought by Mr Heneghan on the basis that the rigid IBTS policy is in breach of European Union law in its failure to proportionally analyse the individual’s risk. It is claimed the policy is discriminatory in application due to the fact account is not taken of contextual factors such as the nature of sexual activity, the time elapsed since the sexual activity or the risk of transmission of a disease.

 

This case will have potential implications for the administrative practices of blood donation services and the individuals wishing to engage with them. If found in favour of Mr Heneghan it will widen the pool of potential blood donors in Ireland, possibly saving help saving lives in the process. What is certain is that the case will challenge a measure that discriminates on the basis of sexuality. Whether or not this is justified will be examined over the coming months.

 

References

[1] Irish Blood Transfusion Services, “Exclusion of Men who have Sex with Men from Blood Donation” <https://www.giveblood.ie/Become_a_Donor/Keeping_Blood_Safe/Safety/MSM.html> (accessed 22/02/2016).

[2] ibid.

[3] Donor Health and Lifestyle Questionnaire for Regular Donors (a different form is required for first time donors however but the relevant wording is identical). <https://www.giveblood.ie/Become_a_Donor/Give_Blood/Can_I_Give_Blood/Health_and_lifestyle_regular_donors_blood.pdf&gt; (accessed 22/02/2016).

[4] NI Gay Blood Ban Likely to be Lifted if Advisory Group Recommends, <http://www.bbc.com/news/uk-northern-ireland-35070047&gt; (accessed 22/02/2016).

[5]Colin Lenihan, “KOD Lyons Challenge to Blood Transfusion Services Ban on Donations from Homosexual Males” <http://www.kodlyons.ie/index.php/news/single/kod_lyons_challenge_to_blood_transfusion_services_ban_on_donations_from_hom&gt; (accessed 22/02/2016).

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