The European Court of Justice has ruled that blood donation bans on men who have sex with men may be justifiable and are a matter for member states to reconcile with anti-discrimination laws.
Practice varies widely across the 28 countries with some having no restrictions on blood donation based on sexual orientation and behaviour, some having lifetime bans, and others – like the UK since 2011 – having time limits. In Wales, Scotland and England, gay and bi men and their partners are barred from donating unless they have not had sex for 12 months, while in Northern Ireland there is a life ban.
The ruling came following an appeal from a man whose blood donation offer was refused in France and reflects a balance between epidemiological evidence and latest best testing techniques.
Their published ruling declares that
“(T)he Court rules that, although the permanent deferral provided for in French law helps to minimise the risk of transmitting an infectious disease to recipients and, therefore, to the general objective of ensuring a high level of human health protection, the principle of proportionality might not be respected. It is possible that HIV may be detected by effective techniques able to ensure a high level of health protection for recipients.
“The national court will have to verify whether such techniques exist, it being understood that the tests must be carried out in accordance with the most recent scientific and technical procedures.
“If there are no such techniques, the Tribunal administrative de Strasbourg will have to ascertain whether there are less onerous methods of ensuring a high level of health protection for recipients other than permanent deferral from blood donation and, in particular, whether the questionnaire and the individual interview with a medical professional are able to identify high risk sexual behaviour more accurately.”
However with recent HIV detection techniques effective just weeks after infection it will be surprising if the French courts are able to defend the life ban.