The Court of Justice of the European Union (CJEU) has ruled this morning that a lifetime ban on men who have sex with men from giving blood ‘may be justified’, depending on the situation in each individual member state of the European Union.
In other words CJEU has ruled that if national authorities establish that gay men at high risk of acquiring diseases such as HIV then a lifelong ban their blood donation is justified
The ruling does not impose a standard of a lifelong ban across the European Union, but, CJEU, the highest court in Europe based in Luxembourg, said that states should establish if there were not more accurate detection techniques or “less onerous” ways of ensuring that recipients of donated blood were protected, rather than banning gay men for life from giving blood.
The ruling of CJEU followed a case from 2009 of a gay man who was refused the right to donate blood in France because he had sex with a man.
France along with Northern Ireland has a lifelong ban on gay men for donating blood, while in England, Wales and Scotland, gay and bisexual men can donate blood if they have abstained from sex for at least twelve months.
Currently EU member states have the discretion on whether to impose a ban on gay men, England, Wales and Scotland have lifted the lifetime ban in 2011, while Sweden and Australia have also lifted it.
In Scotland, donation is organised by the Scottish National Blood Transfusion Service, and the Scottish National Party has previously called lifting the 12-month period ban on gay and bisexual men from donating blood in Scotland, provided they practice safer-sex.
The CJEU ruling stated that “any limitations on the exercise of the rights and freedoms recognised by the Charter of Fundamental Rights of the EU may be imposed only if they are necessary and genuinely meet objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.”
Talking with KaleidoScot, Alyn Smith, Scottish National Party MEP and member of the EU Intergroup on LGBTI rights, said: “The Court preliminary ruling confirms the growing body of law that says discrimination in blood donation on the basis of sexual orientation is unacceptable and that any restrictions must be objectively based on the risk factors of the individual’s lifestyle.
“This strikes me as a sensible and pragmatic approach, and the ruling also makes clear that it is up to individual competent authorities to design the best system for their own needs.”
Ian Duncan MEP, Scottish Conservative MEP and Vice-President of the Intergroup on LGBTI rights, reacted: “This ruling represents a missed opportunity by the Court of Justice.”
“In the UK we have already abolished lifetime bans for men who sleep with men, recognising that it is sexual behaviour not orientation that is important when determining whether someone can give blood. I hope member states will follow the example that the UK has set.”
George Valiotis, director of HIV Scotland responded to the ruling, telling KaleidoScot: “Today’s ruling by the Court of Justice of the European Union certainly illustrates that since we have techniques for early detection of HIV in Scotland less onerous bans should be considered.
“The latest HIV tests have reduced the window period for detecting HIV down to six weeks, any bans on people donating blood based on HIV risk that exceeds this does not reflect clinical evidence.
“This ruling is an opportunity for Scotland to review its screening processes for blood donation, to improve HIV knowledge of health professionals who screen donors, and reduce the 12 month ban on men who have had sex with men from donating blood so that it reflects the latest clinical evidence and maintains the high level of safety in the Scottish blood banks.”
CJEU’s ruling came under sharp criticism: “Stigmatisation does not equate to proper management of blood donations” said ILGA-Europe Senior Policy and Programmes Officer Sophie Aujean. “Candidates for blood donations are more likely to act responsibly and will not give blood if national health authorities explain publicly that they will only focus on the candidates’ practices and not on sexual orientation and if they explain clearly what the risks are.”
According to ILGA if a Scottish gay or bisexual man would now file a court case to CJEU challenging the 12-month period ban, the present ruling would make a it much more difficult to obtain a favourable additional ruling.
ILGA further stressed that the question of blood donation is masking the core issue which is that HIV-AIDS prevention needs to be a priority across Europe. National governments need to adopt effective public policies and strategies to respond effectively to the HIV epidemic.
Isabella Adinolfi MEP, Vice-President of the EU Intergroup on LGBTI rights, also criticised CJEU’s ruling, stating: “Being gay or bisexual cannot automatically pose a threat to public health; but risky sexual behaviour in men or women, whether gay, bisexual or straight, is a real risk.”
“This ruling by the Court is disappointing. EU law states clearly that it is sexual behaviour, not sexual orientation, that should be the guide line in determining a person’s deferral from blood donation.”
Peter Tatchell has previously campaigned to change the 12 month ban as to only gay and bisexual donors who should be excluded are those who have engaged in risky, unprotected sexual behaviour and who’s HIV, hepatitis and other STI status cannot be accurately determined because of the delay between the date of infection and the date when the bacteria or virus and antibodies manifest and become detectable in their blood.
He said that “for men who have not participated in unsafe sex, a three month deferral after sex would be sufficient, providing they have been vaccinated against hepatitis B at least six months before giving blood and they test negative at the time of blood donation.”