Bar on transgender, gay persons from blood donation due to higher HIV, Hepatitis prevalence among them: Central government to Supreme Court

The exclusion of transgender persons and gay men from donating blood is based on substantial scientific evidence since the prevalence of HIV and Hepatitis B or C is higher among such people as per studies, the Union Health Ministry has told the Supreme Court [Thangjam Santa Singh vs Union of India and ors]..Subject experts have recommended the exclusion of the two categories from blood donation and in many European countries, most sexually active gay men are similarly excluded, the government submitted. "The category of persons excluded under the guidelines are those considered at risk for Hepatitis B or C infections ...There is substantial evidence to show that transgender persons, men having sex with men, and female sex workers are at risk for HIV, Hepatitis B or C infections," the affidavit filed by the government said. Such issues fall in the executive domain, and need to be viewed from a public health perspective and not merely an individual rights view, the affidavit added..The affidavit was filed in response to a public interest litigation (PIL) petition challenging the legal and constitutional validity of the Union Health Ministry's blood donor guidelines that prohibit transgender persons and gay men from donating blood.The petitioner moved the Court contending that such exclusion on the basis of gender identity and sexual orientation is "completely arbitrary, unreasonable, and discriminatory and also unscientific."The plea said that during the COVID-19 pandemic, many transgender persons who needed blood, were unable to get it from their trans relatives or loved ones, due to the guidelines in place. Such guidelines are in violation of the settled position of law that discrimination cannot be made on the basis of gender identity and sexual orientation, as was held by the Supreme Court in the Navtej Johar and NALSA judgments, the petitioner argued.The Supreme Court had issued notice in the matter in March 2021..In its affidavit, the Central government underscored that providing clinically effective and quality blood is a major public health responsibility. On the individual right to donate blood weighed against the right to receive safe blood, the government said that the latter outweighs the former. "The right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood ... constitutional courts should defer to the judgment of domain experts in this regard."Further, both the donor and the recipient need to have complete faith in the safety of the system, for the country's blood transfusion system to be functional.It is necessary to be mindful of practical realities while judging the guidelines, the ministry argued."The issues raised by the Petitioners fall within the domain of the executive, aided by medical, scientific and other technical experts, guided by evidence as well as their own professional experience. As such, the issues raised ought to be judged from the lens of a public health perspective and not merely from an individual rights perspective, being mindful of the practical realities of unequal access to healthcare in a vast and diverse nation."It was pointed out that the petitioner has not challenged the existence of the overall exclusion mechanism for those at-risk of infection to HIV and Hepatitis, but only the inclusion of transgender persons and gay men in the same. Further, testing donors of the two categories for the two diseases can never be a foolproof method to prevent infections to the recipient given the limitations in technology.Hence, the government said that the plea must be dismissed. .Supreme Court agrees to examine Centre's Blood Donor guidelines that prohibit donations from gay men and transgender persons.Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.