Is it homophobic to turn away gay blood donors?
3 June 2015
Léger (Judgment)  EUECJ C-528/13 (29 April 2015) – read judgment
Blood donation centres all over Europe are grateful for volunteers, but sometimes people don’t make it through the assessment process. Restrictions on male homosexual blood donors are particularly tricky, because they fly in the face of equality, whilst reflecting our current, no doubt inadequate, understanding of how infectious diseases are transmitted, and how long pathogens remain viable in human blood.
This case started when a French citizen, M. Léger, presented himself at his local blood donation centre. He was turned down after interview. The relevant law in France implements two EU Directives on blood donation which lay down specific conditions regarding eligibility.
This was a request to the European Court (CJEU) for a preliminary ruling on Directive 2002/98/EC which imposes safety standing on the collection of blood for therapeutic use (the “Blood Directive”). It requires that blood should only be taken from individuals “whose health status is such that no detrimental effects will ensue as a result of the donation and that any risk of transmission of infectious diseases is minimised”. It also states that potential donors should be assessed by way of interview for their suitability.
A related directive stipulates what information should be provided by volunteers. Most critically, the 2004 Directive excludes from eligibility those donors
whose sexual behaviour puts them at high risk of acquiring severe infectious diseases that can be transmitted by blood.
The part of that directive relating to the transmission of a viral infection provides that, as far as concerns the risk of exposure of the prospective donor to a sexually transmissible infectious agent, there is a permanent contraindication to blood donations where a “man has had sexual relations with another man”.
M. Léger had been refused as a blood donor because he came into this category. When he challenged the refusal the French administrative court referred the matter to the CJEU, asking for guidance on what was meant by the combination of the Blood Directive and 2004 Directive.
There was some argument on the differing language versions of the relevant provisions, but what really mattered was their general scheme and purpose; that it was necessary to avoid “high risk” of passing on infectious diseases. France has had a very high incidence of HIV due to sexual relations between men, according to a five year data from 2003 – 2008.
The Court’s response
The CJEU considered the question in the light of the European Charter of Fundamental Rights and Freedoms, under which any discrimination based on sexual orientation is prohibited in matters involving EU law (Article 20). M. Leger’s argument was that the law on blood donation effectively excluded him from blood donation on the basis of his homosexuality, and therefore he had been treated less favourably than other male donors who were heterosexual.
Member states (and the EU) are allowed to limit the scope this and other Charter rights if the public interest so requires, but any such restriction must be proportionate to its objective. In a case such as this, said the CJEU, such rights-restricting measure could only be considered proportionate
where a high level of health protection for the recipients cannot be ensured by effective techniques for detecting HIV which are less onerous than the permanent deferral from blood donation for the entire group of men who have had sexual relations with other men.
On the other hand, both the Blood Donor Directive and the 2004 Directive which defines its terms are based on Article 152(4)(a) of the EU treaty, which is intended to protect public health.
According to the present state of scientific knowledge it is not possible to exclude from the possibility of viral pathogens in donated blood at the time of testing. The biological markers may still produce negative results despite the donor being infected. That being the case, recent infections may not be detected, presenting a risk of transmission to the recipient.
Given the current state of scientific and epidemiological data, the Court accepted that there were no other techniques for avoiding the risk of passing on infectious diseases that would have had a less discriminatory impact.
This did not alleviate member states of the obligation to devise questionnaires for potential donors that aspired to a high level of specificity about their status, that would avoid discriminating against homosexual volunteers.
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