NEWS
4 Obiter Dicta
Banning “Bad” Blood
Reconsidering Blood Donation Policies
ê Picture source: http://iaj2015.openum.ca/
jerico espinas › staff writer
O
n 4 November, France changed its blood
donation policies by lifting the lifetime
ban that prevented men who have sex
with men (MSM) from donating blood. In
2016, MSM will be able to donate blood if they have
not had a sexual experience with another man for
twelve months and plasma if they have not for four
months. The decision has sparked a discussion over
national blood donation policies, which can vary
significantly between countries. France is following
the twelve-month deferral policy found in nations
like Australia, the Netherlands, and Japan. However,
some countries, such as Spain and Italy, have shorter
deferral periods of several months, while countries
like Germany, Belgium, and the United States have
lifetime bans. Canada lifted its lifetime ban in 2013
and replaced it with a five-year deferral period.
The lifetime ban against blood donations by MSM
was widely instituted in the 1980s. Many countries
were still reacting to the HIV/AIDS epidemic, and
many cautious health policies were implemented to
better ensure public safety. The ban in particular was
put in place when research showed that HIV could be
contracted through blood transfusions, posing a significant risk on many already at-risk individuals.
The widespread discovery of individuals who contracted HIV and hepatitis C through contaminated
blood in the late 1980s and early 1990s further complicated the decision-making process. Blood screening tests were still being developed and were often
being inadequately implemented, allowing samples
of contaminated blood to enter the system.
These discoveries created a climate of fear and distrust, not only towards blood donation services but
also towards the MSM community. Under those conditions, many decision makers thought it was reasonable to ban high-risk groups like MSM in order to
minimize contamination and restore public trust.
In the official announcement about the change,
France’s health minister Marisol Touraine acknowledged the history behind the lifetime ban. “Today it’s
not a question of passing judgement on this choice,
which was made in an era marked by the dramatic
development of AIDS and contaminated blood, and
in which only the safety of the blood was taken into
account.”
However, Touraine also framed the decision to lift
the ban as a balance between public safety and discrimination. “Giving blood is an act of generosity, of
citizenship, which cannot be conditioned to sexual
orientation. While respecting the absolute security of
patients, it is a taboo, a discrimination that is being
lifted today.”
Many MSM and LGBT activist groups welcomed
France’s recognition that lifetime bans are discriminatory. Often, these accusations are framed from a
human rights framework. Article two of the Universal
Declaration of Human Rights entitles individuals to
their human rights “without distinction of any kind.”
Additionally, many constitutions include a provision
that protects citizens from discrimination.
These groups claim that the policy is informed by a
prejudicial belief that MSM, either by their nature or
by their assumed sexual practices, are more susceptible to contracting HIV/AIDS. Notably, they point out
that many individuals within the MSM community
practice safe sex, such as using a condom and only
having one sexual partner. For them, the ban unfairly
prevents MSM who are HIV negative and who practice
safe sex from donating blood.
Despite the protests from these groups, policymakers are usually hesitant to weaken the bans.
Currently, all donated blood is subject to a screen test.
However, these tests are imperfect. Modern blood
screening tests look for HIV antibodies, which are
created by the body’s immune system in response to
the HIV infection. The time it takes for the immune
system to create a detectable amount of antibodies can vary between individuals, ranging from a
few weeks to several months. Given this lag between
infection and detection, most countries feel that it
is necessary to have at least some deferral period to
allow for immune system response.
One potential solution to this problem, which
has already been implemented by countries such as
Chile, Mexico, Spain, and Italy is to defer donors on
a case-by-case basis. Rather than focusing on sexual
orientation, which often raises accusations of discrimination, these countries instead consider individual sexual practices. Unsafe practices that carry
a high risk for HIV infection, such as sex without a
condom and with multiple sexual partners, results in
a deferral.
However, this individualized approach to blood
donation may require a significant change to donor
selection processes, such as having more detailed
questions about sexual activity. Additionally, this
approach may inadequately address the issue of
public trust in blood donation services, especially for
countries that experienced a significant episode of
blood contamination.
Despite resistance by cautionary decision makers,
many countries are revisiting blood donation policies. These on-going discussions present an interesting consideration of multiple factors. Data from
reformed countries is currently being collected and
researched, allowing an evidence-based decisionmaking process. Research is still being conducted
to improve the screening process. And lastly, highinterest groups like MSM and LGBT communities are
consulted to discern their opinions on any potential
changes. Only time will tell, however, if these factors
will create informed policy changes.
This article was published as part of the Osgoode
chapter of Canadian Lawyers for International Human
Rights (CLAIHR) media series, which aims to promote
an awareness of international human rights issues. ◆