Bard of Blood: Stigmatised Blood Drives

Clause 12 of general criteria under Blood Donor Selection Criteria of the Guidelines for Blood Donor Selection and Blood Donor Referral, 2017 categorically bars donors' ‘at risk’ from donating blood permanently. ‘At risk’ donors include Transgender, Men who have sex with men, Female sex workers, Injecting drug users, persons with multiple sexual partners, or any other high risk as determined by the medical officer deciding fitness to donate blood. 

Development of Gay-Blood Bans

Such bans were first implemented somewhere in the 1980s when much was not known about HIV/AIDS, AIDS cases were on the rise, and medical sciences were ill-equipped to handle the HIV challenge. In 1985, the Food and Drug Administration(FDA) imposed a lifetime ban on blood donations from gay men which remained in effect till 2015. The lifetime ban was challenged in McLaughlin v. Panetta with the Massachusetts court, siding with the FDA, noted that the ban was based on legitimate public health concerns and construed as no violation of the plaintiff’s constitutional right. Soon after the McLaughlin judgment the FDA revised its policy in 2015 and shortened the lifetime ban to one year, counted from the last sexual encounter. The Doe v. FDA case in 2017 further nudged the FDA towards reducing the deferral period, the FDA finally reduced the deferral period to 3 months in 2020 owing to the strain on blood supply chains during the pandemic.

Challenges

It can be reasonably argued that a heterosexual man is no more at risk than a homosexual man. The ban lacks concrete scientific evidence suggesting that homosexual penetrative sex increases the risk of AIDS/HIV. A problematic proposition arising from such a ban is that it treats a homosexual man in a monogamous relationship practising protected sex as an ‘At risk’ donor relative to a heterosexual with multiple partners who might frequently engage in unprotected sex.

The efficacy of such a screening methodology is also questionable. It requires donors to be truthful about their sexual preferences in a country where sex itself is taboo. There is no incentive for truth or negative reinforcement for lying on the donation form. Temples, colleges, and high schools frequently host blood drives for groups to give back to the community. A homosexual man could thus feel uneasy answering this question honestly if he worries that his classmates, coworkers, or fellow devotees would hear him. The lack of authority of blood banks and the stigma around homosexuality will never elicit a truthful response.

The ban instead of being based on the HIV transmission mechanism focuses on the identity of donors.

Moreover, the blood pints are subjected to a test of high sensitivity for HIV reactivity and Nucleic Acid Testing(NAT). The test chafes out the HIV-positive cases. This tactic, centred on assuring recipient safety, is also applied when screening donations of organs, tissues, sperm, and other items. While such mechanisms are in place, the need for screening criteria based on the sexual identity of a donor is redundant.

It would lead to creating hysteria and further promote homophobic sentiments amongst citizens of a country that has nascent adopted ideas like decriminalization of homosexual acts.

The lack of nationwide easy-to-source research studies in this domain also hurts the cause of the homosexual community.

The discriminatory nature of the blood ban based on sexual orientation and profession opens it up to legal challenges based on Article 21 and Article 15 of the constitution under violation of the Right to Life and Dignity, and prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth respectively.

As stated by the Supreme Court in the Navtej Johar and NALSA judgments, it is further alleged that the Guidelines violate the established legal principle that discrimination cannot be made on the basis of gender identity and sexual orientation.

Other Jurisdictions

USA

The Food and Drug Administration ("FDA") in the US has updated its suggestions for blood donors. males who have intercourse with males or sex workers are subject to a lifetime deferral, under FDA recommendations from 1992. Based on newly available data, the new FDA recommendations allow transgender people to donate blood without restriction, with a 3-month deferral for commercial sex workers and a 3-month deferral for men who have had sex with men since their last MSM contact.

Israel

According to the revised regulations in Israel, the donation questionnaire will no longer ask about same-sex physical contact; instead, it would simply advise all blood donors to wait three months "after high-risk sex with a new partner or multiple partners."

The openly gay Nitzan Horowitz, who served as Israel's health minister in 2021, claimed in a Facebook post that the health ministry had "removed the denigrating and irrelevant questions" from blood donor questionnaires and that all individuals would be treated equally regardless of sexual orientation.

He asserted that there is no distinction between one blood and the other. The practice of discriminating against homosexual blood donors has ended.

France

In 2022, France lifted its prohibition on homosexual men donating blood. It announced that they would be permitted to do so under the same guidelines as heterosexuals, with no consideration of their sexual orientation or any requirement for a period of sexual abstinence.

The decision has been in the works for a while. Due to the AIDS crisis, homosexual males were prohibited from donating blood in France in 1983. In 2016, this restriction was abolished, but only if they hadn't had any intercourse in the previous 12 months. This was cut down to four months in 2019 to eventually no deferral period in 2022.

Solution

A blanket ban on sexual orientations raises questions of efficacy. In response to a Right to Information request made by activist Chetan Kothari in 2017, NACO discovered that over 2,000 people in India get this terrifying illness through blood transfusions each year. Since 2007, the study estimates that 20,592 individuals have contracted the illness through blood transfusion. A focus on medical innovations and scientific techniques for conscientious screening would prove to be more beneficial than such blanket bans.

Given contemporary blood-screening technology, the Brazilian Supreme Court recently ruled in May 2020 that a 12-month deferral period for gay and bisexual men to donate blood is unconstitutional and discriminatory. As a result, Brazil's government must treat gay and bisexual men the same as heterosexual men when giving blood.

A gradual phasing out of the ban with reduced deferral periods could be a way to start reforms as has been the case in countries such as France, USA, UK, and Israel.

State-of-the-art medical tests such as Nucleic Acid Testing(NAT) have low penetration in blood banks. NBTC’s focus should be on the availability and affordability of the NAT test instead of a gender-based exclusionary criterion.

Government-sanctioned studies or Parliamentary committees regarding scientific evidence about AIDS transmission relating to sexual orientation studies should be formulated to get empirical data on such bans. Research studies like these would help in getting a clearer picture of the dilemma with statistics to substantiate claims.

The rise in the amount of blood that is accessible will be one of the Blood Ban removal’s most tangible effects. According to the University of California, Los Angeles' Williams Institute on Sexual Orientation and Gender Identity Law study, if the restriction were abolished, more than 600,000 extra pints of blood would be donated, helping more than one million people.

Conclusion

Whether being a samaritan of society and participating in ‘optional’ societal events would form part of Article 21 of the constitution, as the Right to Life and Dignity, remains a pending question in the Supreme Court. The recent Court jurisprudence has, since the decriminalization of consensual homosexual sex and acceptance of the homosexual marriage rights plea, progressed towards extending equal protection and fundamental rights in more nuanced trans rulings. The centre’s response has not yet been filed in court and is much awaited.

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