Ban on gay blood donation is not justified

*I’m a bit behind the times on this issue.  My apologies for not posting earlier.

This month, Justice Catherine Aitken of the Superior Court of Ontario Justice decided to uphold the ban on gay blood donation, justifying her decision by defining blood donation as “a gift, not a right.”  I am not contesting this statement – individuals do not have a right to donate blood. Ensuring safety of the blood supply is paramount and therefore donations from individuals with blood-borne infections must not be accepted.

This issue was brought to the courts when Canadian Blood Services (CBS) filed a lawsuit against a gay man who donated blood for years. He made himself known to CBS via email and let them know he was a sexually active gay blood donor. CBS traced the source of the email and sued the man after latent syphilis was found in his blood.

CBS, and others who argue in favour of the ban, cite concerns about accuracy of testing. While the most commonly available HIV test requires a three month waiting period, CBS uses a RNA NAAT test that detects HIV within 10 to 12 days post-exposure. Blood from a group of donors is pooled together and if it tests positive, the individual sample is isolated and tested to confirm. If someone has had HIV in their system longer than that, it will also be diagnosed by this test.

Any “man who has had sex with another man even once since 1977 is not allowed to donate blood in Canada,” states CBS policy. This policy discriminates by singling out one risk group – gay men – despite the fact that Aboriginal peoples, visible minorities and young women are also at increased risk for HIV. Gay men are not the only group of people that have high-risk sex – but they are the only ones excluded by CBS rules.

Approximately one third of HIV+ Canadians do not know their HIV status (if this is you, get tested!). What if one of these people tries to donate? If it’s the safety of the blood supply we are really concerned about, we should be screening out high-risk behaviours, not populations who are more likely to be HIV+. Spain and Italy screen their donors based on the safety of their sexual behaviours already.

High-risk behaviours include having sex without a condom with a partner whose HIV/STI status is unknown and anyone who has not been tested since the last time they had sex without a condom. Condoms are not infallible, but condom use and regular testing are the best interventions available to prevent transmission of STIs. It is not perfect criteria, but paired with the CBS tests, these criteria would maintain the safety of the blood supply.

The safety of the blood supply must be the first priority of CBS. However, ensuring the safety of the blood supply means excluding anyone who is having high-risk sex, not just men who have had sex even once with another man since 1977. HIV can be detected within 12 days of exposure in the case where individuals do not realize they have been exposed or decide to lie about their exposure.

Ultimately, this is not a decision for the courts. The legal question focused on whether CBS was required to uphold legislation aimed at preventing discrimination against sexual minorities; the decision was made that CBS is not a government agency and therefore is not obligated to follow this legislation. Regardless of the legislative requirements CBS must meet, their current policy begs for revision, not only to remove the discriminatory clauses, but also to meet their stated goal of ensuring blood safety.