Is it homophobic to turn away gay blood donors?
3 June 2015
mike 0010
Léger (Judgment) [2015] 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.
Legal background
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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I would be interested in learning how many people in the UK have been infected with nvCJD via blood donation. You see, in France nobody who lived more than 6 months in the UK prior to 1980 is allowed to give blood. Period.
Does this count as xenophobia?
Ultimately, if a man that has sex with men wants to donate blood then there is nothing stopping him from lying about it and donating. The policy relies on the honesty and responsibility of the person donating.
Parliament in the UK has debated this issue and due to thousands of recipients contracting Hep C and/or HIV from infected blood the government has made £25 million of funds available to support those affected.
You could argue that this means the policy doesn’t work because people are becoming infected anyway, or perhaps if the policy wasn’t in place it would be even worse?
I think regardless of the public health implications it is difficult not to have such a policy without making gay males feel like they are somehow all tarred with the same brush due to the actions of a few.
How feasible would it be to make the questionnaire more about responsibility? Instead of asking “Have you had sex with men?” why not ask “When was your last HIV test?” or “When did you last have unprotected sex with a man?” These questions are more personal but if the person donating is taking responsibility for their health they should be happy to answer them.
If the donor has not had unprotected sex for six weeks before donating, then the HIV test is 99% accurate. Would that be an option? Yes you can donate provided you haven’t had sex with a man in six weeks and you consent to an HIV test.
Lots of different approaches and policies are possible, it depends what balance governments want to strike between civil liberties and protecting public health.
The word “homophobic” used in the headline does not occur in the judgment of the court. What does that word actually mean? Is homophobia is a protected characteristic under the Equality Act? For example, is it a disability, as agoraphobia? Or a philosophical belief?
What is “particularly tricky” about “restrictions on male homosexual blood donors”? Couldn’t any less favourable treatment be avoided, by unsuitable would-be blood donors lie down for a bit, either not taking their blood, or taking it and discarding it, and then giving them an equal cup of tea and an equal biscuit? A sort of placebo blood letting treat?