BY JERICO ESPINAS
On November 4, 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 and plasma if they have not engaged in sexual activity with another man for 12 months and 4 months respectively. The decision sparked a discussion over national blood donation policies, which can vary significantly between countries. France adheres to the 12-month deferral policy followed in countries 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 imposed lifetime bans. Canada lifted its lifetime ban in 2013 and replaced it with a 5-year deferral period.
During the 1980s, countries reacted negatively towards MSM during the outbreak of the HIV/AIDS epidemic. Many were fired from their jobs, evicted from their homes, and publicly ridiculed in an attempt to ostracize a supposedly dangerous and infectious community. Additionally, many myths surrounded HIV/AIDS in popular culture, further heightening public fears about the epidemic. It was in this kind of environment that many cautious health policies, including the lifetime ban against blood donations by MSM, were widely instituted to ensure public safety. The ban was put in place when research showed that HIV could be contracted through blood transfusions, posing a significant risk for many already at-risk individuals.
The widespread discovery of individuals who contracted HIV and hepatitis C through contaminated blood transfusions in the late 1980s and early 1990s further complicated the decision-making process. Blood screening tests were still in developmental stages at the time and were often 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 agreed that it was reasonable to ban high-risk groups like MSM in order to minimize contamination and restore public trust in the blood transfusion service.
In the official announcement about the blood donation changes, France’s health minister Marisol Touraine acknowledged the history behind the lifetime ban stating, “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 perspective . Article 2 of the Universal Declaration of Human Rights entitles individuals to their human rights “without distinction of any kind…” while many constitutions also 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. 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 screening test. However, these tests are imperfect. Modern blood screening tests look for HIV antibodies, which are produced by the body’s immune system in response to the HIV infection. The time it takes for the immune system to produce 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 determine that it is necessary to have at least some deferral period to allow for the immune system to respond.
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 the use of condoms 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, including more detailed questions about sexual activity. Although this change in donor selection processes can be highly beneficial, it may on the other hand compromise public trust in blood donation services, especially for countries that have 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. Currently, data from reformed countries are being collected and researched, allowing for an evidence-based decision-making process. Research is still being conducted to improve screening processes. And lastly, high-interest 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.
Jerico Espinas is a IL student at Osgoode Hall Law School. He is a member of Canadian Lawyers for International Human Rights (Osgoode Chapter) and is interested in health as a human right. He can be contacted at firstname.lastname@example.org.
Image: Blood donation by ec-jpr. CC 2.0