In a case that could impact blood donation policies across Europe, a senior advisor to the EU’s highest court has said that gay and bisexual men should not automatically be banned from giving blood. The comments, made in relation to a challenge brought against France’s blood donation rules, call into question the legitimacy of discriminating based on sexual orientation rather than on the riskiness of sexual behaviour.
Advocate General Paolo Mengozzi, speaking in the Luxembourg court last Thursday, accepted that discrimination in the French system is intended to protect public health but argued that it is too broad. Specifically, he identified a problem with the fact that straight men who have engaged in risky sexual behaviour are not barred from donating for life but gay and bisexual men face bans even if they have taken no significant risks.
In Scotland, donation is organised by the Scottish National Blood Transfusion Service, which inherited its policy on gay and bisexual donors from that introduced across the UK during the AIDS crisis in the 1980s. Originally the ban was intended to stem panic among members of the public who were afraid that donor blood might be contaminated, but critics argue that public attitudes have now changed and it is unlikely that people in need would refuse transfusions if the policy were revised. It is also argued that improved testing means contaminated blood is far less likely to end up being used than was the case in the past. A small number of cases of contamination have been identified over the past five years but to date only one of these has been confirmed as originating from a gay donor. Meanwhile, low rates of donation continue to be a problem for health services, sometimes meaning that patients need to stay in hospital for longer than would otherwise be the case.
Advocate Mengozzi’s advice is not binding on the court but is likely to lead to an increased push to do away with bans of this sort in European countries where they remain.