The European Court of Justice (ECJ) has found that a lifetime ban on gay men donating blood may be justified provided there is no access to “less onerous” means of ensuring blood supplies are free from sexual infection.
The case was brought against the French government, on the basis that the lifelong prohibition on giving blood is discriminatory on the grounds of sexual orientation. Similar to Ireland, in France, any man who admits to having sexual relations with another man is automatically and permanently barred from giving blood. This ban came into being in 1983 on the basis that sexually active gay men were more likely than other groups to have infections such as HIV and hepatitis.
The ECJ found that a blanket ban was “liable to discriminate against male homosexuals on the basis of sexual orientation” which is against EU policy, and was not a proportionate response if alternative methods of ensuring a high level of health protection were available. It suggested “less onerous methods” through more thorough examination of the sexual behaviour of blood donors might be considered, such as questionnaires or individual interviews with a doctor to assess high-risk behaviour more accurately.
The Court noted that the risk of non-detection of viruses is highest in the early stages after transmission when test results can come back negative, which was the basis for the UK reducing its lifetime ban to a one-year deferral period in 2011. Bulletin readers might recall that the lifetime ban in Northern Ireland was overturned in 2013 on foot of the changes to UK policy, given that blood subject to the one-year rule was already being imported from the UK.
This ruling comes at a time when Minister for Health, Leo Varadkar, is considering ending the lifetime ban on gay and bisexual men donating blood in Ireland. The Minister is currently awaiting medical opinion on whether to follow suit on the one-year deferral period.
Click here to read the judgement in full.