Plea In Supreme Court Challenges Ban On Blood Donations By Gay Individuals

The Supreme Court today ( August 2) issued notice to the Union Government on a petition challenging the constitutional validity of the Guidelines on Blood Donor Selection and Blood Donor Referral of 2017 to the extent it prevents gay men from donating blood. These guidelines issued by National Blood Transfusion Council (NBTC) and National Aids Control Organisation (NACO) currently prevent gay men and transgender individuals from donating blood.

As per the petition filed by a gay author Sharif D. Rangnekar, the 2017 guidelines infringe on the fundamental rights to equality, dignity, and life of members of the LGBTQ+ community as well as female sex workers.

The Bench led by CJI DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra agreed to examine the issue. Advocate Rohin Bhatt appeared for the petitioner.

The Court while issuing notice in the petition, tagged it with a pending matter raising the same question of question in the case Thangjam Santa Singh @ Santa Khurai v. Union of India. It may be noted that in said pending case, the centre on affidavit stated that there is substantial evidence to demonstrate that 'transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections'. It avers that, in essence, the petitioners have not challenged the exclusion of individuals who are at risk for HIV, Hepatitis B or C infections, but the inclusion of transgender persons, gay men and female sex workers in the 'at risk' category.

It may be noted that Serial no. 12 of 2017 guidelines dated October 11, 2017, permanently ban transgender people, sex workers, and men who have sex with men from giving blood as they would be at 'risk' for HIV. It is argued that the arbitrary exclusion of transgender individuals, gay men and female sex workers makes them an 'affected class'.

The plea further argues that many other countries, including the United States, United Kingdom, and Canada, have changed their rules to allow gay men to donate blood. The ban is based on outdated and biased views from the 1980s. It states that medical technology has greatly improved, especially in blood screening. The petitioner believes that a total ban on certain groups is not reasonable given these advances.

The petition also makes a mention of the historical context in which such a ban was imposed by different countries, starting from the 1983 HIV epidemic in the USA :

"In 1983, soon after the HIV epidemic began in the US, researchers recognized that blood transfusions could spread the infection from blood donor to recipient. US guidelines banned men who had sex with men from giving blood. A lifetime prohibition was intended to limit the spread of HIV. At that time, HIV and AIDS were more common in certain groups, not only among MSM (male having sex with male) but also among people from Haiti and sub-Saharan Africa, and people with hemophilia. This led to blood donation bans for some of these people, as well."

Reference was also made to a recent press release by the Ministry of Health and Family Welfare noting the increased demand for blood transfusion every year and how there was a need to bust myths around blood donation, encouraging more participation to donate.

"It is highly pertinent to noted that as per a press release issued by the Ministry of Health and Family Welfare, Government of India, the Union Minister of State, is quoted as having stated that "[i]n India, the demand for blood transfusion arises for every 2 seconds. On an average, 14.6 million blood is needed every year and there is always a shortage of 1 million." Notably, the very same press release also advocates the official stand of the Government of India ie., the need to focus on demystifying myths related to blood donation and encourage people to donate blood."

The petitioner has sought a declaration from the Top Court for holding parts of the 2017 guidelines as unconstitutional. It also requests new guidelines that would allow men who have sex with men to donate blood, with some reasonable restrictions.

Additionally, the petition calls for awareness programs to educate people about the new policies. It suggests public campaigns to inform society about risky behaviours and the updated guidelines. The petitioner also wants changes in the syllabus of medical students in order to sensitize that men who have sex with men can donate blood.

a. Declare that clauses 12 and 51 of General Criteria under Blood Donor Selection Criteria of the Guidelines for Blood Donor Selection and Blood Donor Referral, 2017 dated 11.10.2017 is discriminatory and unconstitutional to the extent it excludes men having sex with men from permanently donating blood;

b. Issue a writ order, or direction directing the Respondent No. I (Union) to frame guidelines that allow men having sex with men to donate blood, with reasonable restrictions based on 'screen and defer' or 'assess and test policies;

c. Issue a writ order, or direction directing Respondents No. 1, 2, and 3 (Union, NACO, NBTC) to carry out sensitization programmes while dealing with men having sex with men who donate blood without subjecting thera to invasive questions, and State AIDS Control Organisations about new policies, once they are enacted;

d. Issue a writ order, or direction directing Respondents No. 1, 2, and 3 to carry out public campaigns that sensitise the society about risky behaviour, and the new guidelines;

e. Issue a writ order, or direction directing Respondent No. 4 to make appropriate changes to their curricula that sensitise medical students that men having sex with men are allowed to donate blood;

f. Pass any order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present appeal

Case Details: SHARIF D. RANGNEKAR Versus UNION OF INDIA AND ORS. W.P.(C) No. 000465 / 2024

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