Categorical ban on LGBTQ+ blood donors: can a government legitimately exclude entire communities?

Abstract

Fundamental rights are absolute in section for citizen In this article, we examine the recent decision of supreme court of India from regarding imposing a permanent ban on transgender person, sex workers and men who have sex with men(MSM) from donating blood. Analyzing the NACO (National Aids Control Organization) and NBTC (National Blood Transfusion Council) guideline, Article 14(the right to equality and non- discrimination), Article 15(prohibiting discrimination on ground of sex, race, caste, place of birth and religion). Article 17 (abolition of untouchability) and Article 21(protection of life and personal liberty) of Indian constitution. The study evaluates whether such exclusion is justified on public health grounds or whether it constitutes discrimination based on identity and sexual orientation.by comparing international law, countries law and scientific advancement in blood screening. The article argues that identity-based restrictions are unscientific and out-dated. It highlight the need for a swift toward individual risk based (ISB) or time based restrictions and modern testing method to ensure safety and equality, thereby questioning the legitimacy of excluding entire communities from participating in vital civic activity.

Introduction

Thangjam Santa Singh also known as Santa kaurai activist from Manipur  filled Public Interest Litigation, challenge the exemption of transgender, sex worker and men who have sex with men(MSM) from donating blood, national  blood  transfusion council(NBTC)and national aids  control organization(NACO) issue guideline on  October 2017. In guideline donor selection criteria  and procedures of blood selection was mention, the criteria of donor selection clause 12 (Risk behavior)  completely exempt transgender, sex worker, men who have sex with men, clause 51 (At risk for HIV infection) permanently ban transgender, sex workers, men who have sex with men(MSM). Santa kaurai argues the exclusion of an entire community on gender identity and sexual orientation is unconstitutional, unscientific, and discriminatory. Article14 equality and non-discrimination, Article15 prohibiting discrimination on ground of sex, race, caste, place of birth and religion, Article 17 abolition of untouchability declaring certain group as inpure and unfit Article 21 protections the right to life and dignity was challenged by the guideline denies transgender, sex worker, bisexual, gay equal opportunity, equal participation and  access of health. The union of government informed the supreme court on 12 march that it decided that guideline excludes transgender, sex workers, men who have sex with men (MSM) from blood donation. The higher risk of infection in population groups, the center reasoning given to the Supreme Court public health perspective must  trump individual rights and government’s stance was based on expert advice and kept the larger public Interest in mind, said by Additional solicitor general (ASG) Aishwary bhati.

PROCEDURE AND SELECTION OF DONOR

 Guideline for blood donor selection and blood donor referral issued by the National aids control organization. The donor engagement, counseling and selection of donor and criteria of blood section of donor mention. the donor engagement  accepted by  only voluntary and low risk of health and life for community welfare. The selection and counseling contain five stages; each and every stage is eliminating the risk and clear process to collection of blood.

HIV detection in blood donation involves multiple layers of testing, blood banks use nucleic acid testing or NAT that can detect HIV as early as possible. the standard period is nine to ten days after infection, they also use antibody test which detect the body’s immune response to HIV. those typically take three to six week to show up to catch infection as early as possible there are additional screenings through donor questioning.

 DISCRIMINATION AND BREACH OF RIGHTS

Blood donation is an exercise to participation and civic contribution for society, when government excludes an entire LGBTQ plus from donating blood, it send a message that they are not equal members for society. Denied the ability to contribute to be part of something that helps other. It create social divide in between people and reinforces the idea that separation and dangerous making one group as unfit to help others.

Article 14 equality and non- discrimination of the Indian Constitution guarantees equality before law a blanket ban on LGBTQ peoples donating blood violates that because it treat them differently bases on their identity and not as take individual risk of donation system.

Article 15 prohibits discrimination on ground of race, caste, sex, birth and religion of Indian Constitution the ban violate because it discriminate against them based on their sexual orientation or gender identity. That discrimination it treats LGBTQ people differently in a way that denies that access to something any other citizen can do.

Article 17 abolition of untouchability of Indian constitution the ban treats different and create a category that be excluded from normal social participation. Donating blood on identity rather than individual risk it marking them a separate, unsafe and unfit.

Article 21 protections the right to life and dignity of Indian Constitution excluding bases sexual orientation and transgender from donating blood directly violate the right.

PERSPECTIVE OF GOVERNMENT

The union government perspective highly  based on epidemiological data showing  higher HIV risk of infection in transgender, sex worker and men who have sex with men which is 9 to 13 time higher then general population. The government maintains the right of a recipient to receive safe and infection free blood outweighs and also that even one percent chance of infection is higher and unacceptable risk for patients. The union government healthcare system is not yet prepared for behavior based screening, which can reduce window period for infection detection.

INTERNATIONAL LAW REGARDING LGBTQ+

The World Health Organization prefers screening should be based on individual risk behaviors not on sexual orientation, many countries like United States, Canada, France, Britain all removed or significantly relaxed the ban they all consider identity based exclusion rather than blanket ban. In individual risk behavior donor gender or orientation does not matter at all, donor are required to answer same type of set of behavior specific questions. Some countries use time based restriction in which to wait certain period after sexual activity before donating countries like Australia 3 month deferral period, Belgium and demark 4 month of deferral period. There are alternative to restrain the risk to use individual risk behaviors( ISB) and time based restriction rather than a complete ban.

ANALYSIS

The union government perspective is to ban entire community, damage society itself, it create real social harm. Instead treating differently LGBTQ, Sex worker and men who have sex with men (MSM) to ban. The individual risk which is more practical and scientific or temporary deferral based on behavior rather than permanent ban based on identity. Exclusion sends a message that you are different and don’t belong with us. It creates categories of safe and unsafe based on who they are, it reinforces stigma in society and weaken the sense of togetherness. Blood donation is supposed to be an act of solidarity helping the strangers and family for survival. When government say one group can and one can’t participate in that’s profoundly damaging to social cohesion. Current method like nucleic acid test are quite sensitive and catch HIV early around 9to10 days after infection and anti-body test take longer, around three to six week it can easily identity the donor’s infection, general population who are infected with HIV and LGTBQ member, sex worker and men who have sex with men (MSM) similar time to show result of infection, it just create a difference in base of identity and work. Government can more invest in fourth generation antigen-antibody test are more sensitive than older tests, fourth generation antigen-antibody consider highly accurate and balance also a cost effective. That would actually protect more and better chances to screening of HIV positives rather than blanket ban entire communities.

CONCLUSION

 The categorical exclusion of LGBTQ+, sexworker, and men who have sex with men (MSM) from blood donation reflect a conflict between public health concern and constitutional equality and dignity. While the government justifies the ban on basis on higher statistical risk of HIV and the need to ensure safe blood supply such an approach relies on generalized assumptions rather than individualized assessment. This blanket ban not only undermines ARTICLE 14 AND 15 by promoting discrimination but also perpetuates social stigma and exclusion, contrary to the spirit of Article 21 protection the right to life and liberty. Scientific advancement in blood testing nucleic acid testing(NAT) and fourth generation antigon-antibody test, have significantly reduce the risk of infections, moreover internationally increasingly favor behavior-based screening and temporary deferral period over identity-based exclusion. These approaches are more balanced in public safety and individual rights. Therefore, a shift from categorical bans to evidence based, individual risk assessment is both constitutionally and scientifically sound. Such reform would not only strengthen the safety of donor system but also promote inclusivity, equality and social cohesion in a society.

REFERENCES

1. Thangjam Santa Singh @Santa Khurai v. Union of India, https://clpr.org.in/wp-content/uploads/2021/06/Santa-Khurai-Blood-transfusion-PIL-1.2.2021.pdf
2. The constitution of India, fundamental rights
3. National aids control organization, guideline for blood donor selection and donor referral, https://www.naco.gov.in/national-blood-transfusion-council-nbtc
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5. World health organization, Blood donor selection: guidelines on assessing donor suitability for blood donation
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8. National library of medicine, Epidemiology of human immunodeficiency virus infection in blood donations in Europe and Italy