Background information on the gay blood ban
This extract is from a brief to the Tasmanian Anti-discrimination Commission on discrimination against sexually active gay and bisexual men. It was developed by the Hobart Community Legal Service on behalf of Michael Cain who lodged a case against the ban on August 2nd, 2005.
Introduction
On the 19th of June 2005 the Hobart Community Legal Service were instructed by Michael Cain to institute legal proceedings against the Australian Red Cross Blood Service (ARCBS).
Our client instructs us that late last year he attempted to donate blood at the Launceston branch of the ARCBS but was informed that because he was gay he would not be allowed to do so.
Following the receiving of instructions by our client we have researched the issue and concluded that actions can be brought against the ARCBS under the Anti-Discrimination Act 1998 (Tas).
Is the Red Cross acting in a discriminatory manner in not allowing a man who has had sex with another man to donate blood?
The Red Cross is acting in a discriminatory manner in expressly providing that a man who has had sex with another man cannot donate blood. This is clearly contrary to the provisions of the Anti-Discrimination Act 1998 (Tas) and in particular section 16(c), (d) and (s) which provides that:
A person must not discriminate against another person on the ground of any of the following attributes:
…
(c) sexual orientation;
(d) lawful sexual activity;
…
(s) association with a person who has, or is believed to have, any of these attributes.
There are no exemptions based on a person’s sexuality currently provided under Tasmania’s Anti-Discrimination Act 1998. It should be noted however that there are allowances made for discrimination based on a disability where that disability is an infectious disease and the discrimination is necessary for the protection of public health.
A disability is defined under section 3 of the Anti-Discrimination Act 1998 (Tas):
‘disability’ means any of the following that presently exists, previously existed but no longer exists, may exist in the future, whether or not arising from an illness, disease or injury or from a condition subsisting at birth:
…
(c) the presence in the body of organisms causing or capable of causing disease or illness;
….
The Tasmanian Anti-Discrimination Commission which was created under the provisions of the Anti-Discrimination Act 1998 (Tas) has yet to review this particular provision however it is likely that it would be interpreted in such a way to allow for a person with a sexually transmitted disease to be discriminated against in particular professions (such as nurses or paramedicine). It is unlikely that the provision would be read so widely as to encompass all men who have had sex with another man, particularly as the provision is only concerned with exemptions based on a person’s disability, not their sexual orientation.
Alternatively, the ARCBS may seek to rely on section 26 of the Anti-Discrimination Act 1998 (Tas) which provides:
A person may discriminate against another person in any program, plan or arrangement designed to promote equal opportunity for a group of people who are disadvantaged or have a special need because of a prescribed attribute.
It is unlikely that the Anti-Discrimination Commission would hold that this exception applies to the Red Cross program of supplying blood and blood products. While it is true that people requiring blood have a ‘special need’ namely the need for a safe transfusion of blood and blood products there is no need to discriminate against an entire class of persons in order to achieve this outcome. All blood is tested and therefore so long as the results demonstrate that the blood is disease free and the ‘window period’ is taken into account there is consequently no need for the ARCBS to discriminate based on the person’s ‘special need’.
It may be argued that the ARCBS is not acting in a discriminatory manner because they are discriminating against a person’s sexual proclivities rather than their sexual orientation. However, this argument is fallacious because the questionnaire provided to prospective donors does not distinguish between the sexual practices of individuals, it merely negatives any man who has had sex with another man in the preceding twelve months.
It may also be argued that the ARCBS are not acting in a discriminatory manner because they discriminate equally against inmates and staff of correctional institutions as well as people that have lived in the United Kingdom between 1980-1996. However there is an important distinction that must be pointed out: while people choose to work in a correctional facility or live overseas gay men cannot and do not choose to be gay.
The ARCBS questionnaire is also discriminatory because it generalises about men who have had sexual intercourse with other men. Despite the fact that most men who have had sex with other men are not HIV positive, a crass generalisation is made based on a person’s ‘category’. There is a wide diversity of sexual behaviours and lifestyles for all of the sexual groupings (including heterosexual, bisexual, homosexual and transgender) and to label some of these groupings as ‘diseased’ is both discriminatory and factually incorrect.
A more appropriate question that could be asked on the Red Cross questionnaire would be ‘Have you had sexual intercourse with someone other than your regular partner in the last month? An appropriate follow-up question would be ‘If the answer to this question is ‘yes’ than was the sexual intercourse safe from the risk of transmission of sexual or blood-borne diseases? In asking these questions, the opportunity to donate is open to any individual who can establish that they are engaging in safe sex. The question is also suitable because it allows donation from those individuals who fall outside the window-period of one month.
The question is ‘safer’ than that currently asked as it recognises that anyone who engages in sexual intercourse is at risk of contracting HIV and AIDS and therefore not eligible for the safe donation of blood unless certain requirements are met. It is also sends out a strong message to the community that HIV is caused by risky behavior rather than the sexual orientation of an individual.
Is the Red Cross allowed to act in a discriminatory manner?
The ARCBS is allowed to discriminate against a man who has had sex with another man if the discrimination is lawful. Section 24 of Tasmania’s Anti-Discrimination Act 1998 provides:
A person may discriminate against another person if it is reasonably necessary to comply with –
(a) any law of this State or the Commonwealth; or
(b) any order of a commission, court or tribunal.
Currently, in Australia there is no developed body of case law on the question of whether a man who has had sex with another man should or should not be allowed to donate blood. Legislatively, a number of Acts in Tasmania and at a Commonwealth level are pertinent. In Tasmania the applicable legislation is the Human Tissue Act 1985 (Tas); the HIV/AIDS Preventive Measures Act 1993 (Tas); the Blood Transfusion (Limitation of Liability) Act 1986 (Tas); and the Public Health Act 1997 (Tas). While federally the Therapeutic Goods Act 1989 (Cth) is relevant.
- Tasmanian Legislation
State and Territory legislation provides that consent must be obtained before blood is donated. In determining whether a person can consent to donating blood, section 18 of the Human Tissue Act 1985 (Tas) provides:
A person, other than a child, who is of sound mind may consent to the removal of blood from his body –
(a) for transfusion to another person; or
(b) for the purpose of the use of the blood or of any of its constituents for other therapeutic purposes or for medical or scientific purposes.
In general, children are unable to donate blood, although section 19 of the Human Tissue Act 1985 (Tas) provides:
A parent of a child may consent to the removal of blood from the body of the child for a purpose referred to in section 18 if –
(a) a medical practitioner advises that the removal is not likely to be prejudicial to the health of the child; and
(b) the child agrees to the removal.
Section 20 of the Human Tissue Act 1985 (Tas) provides:
A consent duly given under section 18 or 19 is sufficient authority for the removal of blood from the body of the person who has given the consent, or from the body of the child in relation to whom the person has given the consent, as the case requires –
(a) at a hospital; or
(b) at premises, or in a vehicle, used by the Australian Red Cross Society, or by another body approved by the Minister for the purpose of this Division, for the removal of blood from the bodies of persons.
Once consent is provided, the blood may be removed. However before the blood transfusion is allowed to take place, the blood must first be tested. In Tasmania, the relevant legislative instrument is the HIV/AIDS Preventive Measures Act 1993 (Tas). As the long title articulates:
An Act to provide measures for the prevention and containment of HIV/AIDS and for the protection and promotion of public health and for appropriate treatment, counselling and care of persons infected with HIV/AIDS or at risk of HIV/AIDS infection
With particular reference to gay men being allowed to donate blood, section 9 of the Act provides:
An HIV test must be undertaken on any blood donated by a person in accordance with the testing procedures under the Blood Transfusion (Limitation of Liability) Act 1986.
This is an all-encompassing provision. It is unlikely that the term ‘person’ within this section would be construed so narrowly as to not include within its meaning a man who has had sex with another man. Therefore, as provided for in this Act, all persons who wish to donate blood must undertake a HIV test.
Following on from section 9 of the HIV/AIDS Preventive Measures Act 1993 (Tas) the Blood Transfusion (Limitation of Liability) Act 1986 (Tas) seeks to limit liability in respect of the transmission of Acquired Immune Deficiency Syndrome (AIDS). Section 4(1) of the Blood Transfusion (Limitation of Liability) Act 1986 (Tas) provides that where an authorised supplier takes or proposes to take blood from a person for the purpose of being used for transfusion, certain requirements must be met including that a declaration in an approved form has been signed and an approved testing procedure be carried out. Where the results of that test indicate the presence of AIDS the blood must be disposed of and where the blood does not indicate the presence of AIDS the blood must be certified clean of AIDS. So long as these requirements are satisfied no civil or criminal proceedings will be instituted if another person were to consequently become infected with AIDS, or any other disease that is attributable to AIDS.
The other relevant legislative instrument is the Public Health Act 1997 (Tas). Section 51 of the Public Health Act 1997 (Tas) provides that any person who is aware of having a notifiable disease (including HIV and AIDS):
(a) must take all reasonable measures and precautions to prevent the transmission of the disease; and
(b) must not knowingly or recklessly place another person at risk of contracting the disease.
Convictions carry harsh penalties.
Section 53 of the Public Health Act 1997 (Tas) also grants the Director the power to require any person or class of person, Agency or public Authority to take any specified action to stop, limit or prevent the spread of any notifiable disease (including HIV and AIDS) to humans.
Consequently it can be stated that at a State level there is no legislative ban from donating blood on a man who has had sex with another man.
- Commonwealth Legislation
At a Commonwealth level the Therapeutic Goods Act 1989 (Cth) provides national regulatory controls covering the activities of the ARCBS. To meet the requirements of the Act all blood and tissue banks must satisfy the Therapeutic Goods Order No 72. The Order stipulates that all blood and blood components must meet the requirements of the Council of Europe document titled ‘Guide to the preparation, use and quality assurance of blood components’. Further, the Order goes on to state that this document represents the minimum standard that must be met by blood and blood components.
- The Council of Europe
The Council of Europe (CoE) Guide to the Preparation, use and quality assurance of blood components forms the basis of many national guidelines within Europe. The intention of the CoE Guide is to ensure a safe blood supply and this outcome is achieved through the careful selection of prospective donors:
In selecting individuals for blood donation the main purpose is to determine whether the person is in good health in order to protect the donor against damage to his/her own health, and to protect the recipient against transmission of diseases or drugs which could be detrimental to the patient.
The Guide then goes on to provide that only persons in normal health with a good medical history should be accepted as donors of blood for therapeutic use, however it is acknowledged that:
A complete medical and physical examination of blood donors is generally not possible in practice. One has to rely upon the donor’s answers to some simple questions concerning his/her medical history and general health, combined with a simple inspection of the donor’s appearance and simple laboratory examinations.
It is submitted that so long as all three of these requirements are satisfied, and the ‘window period’ of one month has lapsed there is no reason why the ARCBS must discriminate against men who have had sex with other men. It is also argued that the wording of the paragraph provides for all of the requirements to be carried out. Thus, for the ARCBS to discriminate simply because a box has been ticked does not appear to follow the intent of the CoE Guide.
The CoE Guide provides a list of ‘general questions’ that attempts to ‘obtain relevant information about the donor’s medical history and general health’. One of the question asked of men is ‘Have you ever had sex with another man’? While for women the question asked is ‘to the best of your knowledge has any man with whom you have had sex during the past 12 months had sex with another man?’
The Guide then concludes, ‘the donor’s medical history shall be evaluated, and the donor accepted, by a suitably qualified person trained to use accepted guidelines for selection of blood donors’.
It is our submission that the CoE Guide is not being followed. The ARCBS is not following the Guide and its three-step process. However if it is accepted that the ARCBS is following the CoE Guide then we submit that the guide is just that -a guide- and that so long as the intention is followed, there is no reason why the Red Cross should continue to discriminate against all men who have had sex with other men.
As the Guide stipulates, a three-step process is the best way of ensuring a safe supply of blood. First, an understanding of the prospective donors medical history and general health; second, a simple inspection of the donor’s appearance and finally; a simple laboratory examination. So long as all three requirements are satisfied, and the three-month ‘window period’ has lapsed, there is no reason why anyone –let alone an entire class of people- should be banned from donating blood.
A final point that must be addressed in relation to the validity of discrimination on behalf of the ARCBS concerns the use of the term ‘reasonably necessary’ within section 24 of the Anti-Discrimination Act 1998 (Tas). Even if it can be established that a man who has had sex with another man cannot donate blood due to the CoE Guide, it is arguable that the term ‘reasonably necessary’ provides some scope for the ARCBS to allow such people to donate blood.
HIV & AIDS Statistics
At the end of 2003 it was estimated that there were 13,630 people living with HIV infection in Australia.
In 2003, AIDS incidence in Australia (1.5 per 100,000 population) was similar to that in the United Kingdom and Canada. Substantially higher AIDS rates were reported in a number of other Western countries including France (2.2), Spain (3.3) and the United States (15.0 in 2002). Interestingly, while Spain has much higher statistical rate of AIDS, parts of Spain allow men that have had sexual intercourse with another man to donate blood.
An analysis of AIDS cases demonstrates that annual HIV incidence in Australia peaked around 1985. There followed thirteen years of decline, after which the rate of diagnoses remained relatively stable at around 680 per year between 1998 and 2001. Recent estimates show a rise above this level to 831 in 2002 and a drop to 782 in 2003.
Transmission in Australia continues to occur primarily through sexual contact between men. A history of male homosexual contact was reported in more than 85% of newly acquired HIV infection diagnosed in the period 1999 to 2003. HIV prevalence remains below 1% among people attending needle and syringe programs, prison entrants, and among men and women seen at sexual health clinics reporting a history of heterosexual contact and women with a history of sex work.
However, while it is statistically accurate that men who have sex with other men are more likely to contract HIV and AIDS it is also true that most men who have sex with other men will never contract either disease!
The Donation of other Bodily Materials
There is also an inconsistency in the ARCBS policy with respect to homologous donations and the policy they adopt in relation to autologous donations, as well as between the ARCBS and other organisations that accept bodily materials, including the donation of sperm and the donations of organs.
Autologous Blood Donations
Donating blood for yourself prior to elective surgery is called autologous donation. It can be done up to 6 weeks before elective surgery and requires the patient’s doctor to evaluate the person’s medical condition and determine how much blood will be needed. Up to four units may be collected at about one-week intervals just prior to the planned surgery. The criteria of eligibility to donate are similar to those used for regular donors and acceptance of autologous donors is at the discretion of the ARCBS medical officers. Autologous donations are collected and screened by the ARCBS. Importantly, autologous donation provides an opportunity for a man who has had sex with another man to donate blood – so long as it is for themselves. The question that must be asked is if a man who has had sex with another man has provided an autologous donation which is subsequently found to be disease free, why then should he not be able to participate in homologous donations?
Sperm Banks
Different sperm banks have different criteria, but generally any healthy male between 18 and 50 years of age may be considered as a possible donor by a sperm bank. There are very few eligibility guidelines that restrict men from donating.
A doctor screens each potential donor in order to minimise the risk of transmitting infectious disease, such as HIV/AIDS or an inherited disorder. Donors must complete a lifestyle declaration and a consent form before each donation.
The sperm is frozen in liquid nitrogen for a quarantine period of six months, after which time the donor is retested for signs of the HIV virus.
It is important to note that men who have had sexual intercourse with other men are not automatically banned from donating sperm. Indeed, many men who have had sexual intercourse with other men have donated sperm, most famously in the Family Court of Australia case Re Patrick.
A similar question to that raised with autologous donations must be asked: If a man who has had sex with another man is able to donate sperm, why then can he not –subject to mandatory testing- also donate blood?
Organ Donation
Organ and tissue donation is a medical process whereby specific organs and tissues are removed from the body of a deceased donor and transplanted into someone else, in order to save or improve the recipient’s life. In Australia, the organs that can be donated are the heart, liver, lungs, kidneys and pancreas, while the tissues that can be donated are the corneas, skin, bone and heart valves. Importantly, men who have had sex with other men are able to donate their organs.
According to correspondence entered into with Australians Donate Inc, the only restriction on individuals donating in Australia is a positive test to the HIV/AIDS virus; the hepatitis A, B and C viruses; disease of the organ intended for donation (such as cancer) or a history of melanoma. Therefore, subject to a negative test result for these viruses and illnesses any man who has had sexual intercourse with another man is able to donate their organs and tissues.
Nucleic Acid Testing
The testing of blood is only a relatively recent phenomenon with testing introduced nationally for hepatitis B in 1970, for HIV in 1985, for hepatitis C in 1990 and for human T-lymphotropic virus 1 (HTLV-1) in 1993. Most recently, in 2000 a new screening test called Nucleic Acid Testing (NAT) was introduced to the ARCBS which decreases the ‘window period’ for transmission of HIV from 22 to 11 days and for HCV from approximately 70 days to 10 days.
NAT is different from traditional testing because it looks for the actual presence of viruses. Most other tests detect the presence of antibodies, which are the body’s response to an infection and which take time to develop. NAT testing is used for both HIV and for the hepatitis C virus (HCV). According to the ARCBS website:
NAT provides an opportunity to further improve the safety of the blood supply by reducing the ‘window period’, which is the time between exposure to a virus to the time current tests are able to detect antibodies to the virus.
In the 1980s when the fear of AIDS was at its most fervent, the Red Cross made the correct decision in banning those men who had had sexual intercourse with other men from donating blood. But, times have changed. A growing number of women now have AIDS and mandatory testing has been introduced. Most importantly, the time in which HIV can be detected has decreased to the point where a negative HIV test can be established in just 11 days.
Submissions
While it is true that a man who has had sex with another man is statistically more likely to have HIV and AIDS, to treat all such people as a homogonous group seems unnecessarily restrictive, particularly as there is a wide variety of sexual practices within all sexual groupings. Everyone has an individualised sexual history and mandatory testing is legislatively required of all prospective donors. Therefore so long as sexual intercourse with someone other than your regular partner has not taken place in the ‘window period’ of one month there is no legitimate reason why a man who has had sex with another man should not also be able to donate blood.
It is our submission that there is no legislative ban on men who have had sex with other men from donating blood. The CoE Guide does not stipulate that such persons cannot donate blood, it merely provides for a three-step process to be carried out.
Summary
The Red Cross is directly discriminating against any man who has had sex with another man in the preceding 12 months. Based on the brief provided, we submit that the Anti-Discrimination Commission does have legislative scope to review this matter and more importantly has the power to act to remove such discrimination.
In terms of outcomes, the Red Cross should be required to amend its Questionnaire. A more appropriate question than that currently asked of men who have had sexual intercourse with other men, would be:
Have you had sexual intercourse with someone other than your regular partner in the last month?
and an appropriate follow-up question would be
If the answer to this question is ‘yes’ than was the sexual intercourse safe from the risk of transmission of sexual or blood-borne diseases?
As well as updating the Questionnaire, the Red Cross could initiate a public awareness campaign of the amendments made to its Guidelines. This initiative will in turn increase the numbers of donors, an outcome that is both beneficial to those that require the blood and to the objectives of the Red Cross.
A Short History of Blood
The History of Blood Transfusion
Blood transfusion emerged as an essential part of medical care for treating blood loss and deficiencies during the 20th century. Organised blood transfusion services first emerged in the 1920s and 1930s with the establishment of donor panels. Initially, only whole blood was used for transfusion. Along with a number of other significant scientific and medical advances, the development of blood separation and fractionation technologies allowed the treatment of specific conditions with the required blood component or blood fraction.
Today, whole blood is rarely transfused. Modern practice is to administer the specific blood components that are needed. A fundamental aspect of blood banking and blood product manufacture is the separation of blood into its components which are then supplied to hospitals and clinicians for use. Specific components may also be collected in a single procedure through the process of apheresis.
A Short History of Blood Transfusion in Australia
In 1929 the Australian Red Cross established Australia’s first organised blood transfusion service in Victoria. This was followed by the establishment of similar services in all States and Territories and was based on voluntary donation. After World War II the blood transfusion service were not the only providers of homologous blood for transfusion. Blood banks were also run by some hospitals that maintained their own donor panels and collections. Many of these were subsumed gradually by the Red Cross blood transfusion services. The 1990s saw a move towards a national focus for blood transfusion services in Australia. In 1995, the Commonwealth commissioned a review of the Australian blood and blood product system. The review’s report (McKay & Wells 1995) provided the impetus for a number of reforms and related initiatives, one of these being the formation of a national blood service run by the Australian Red Cross. The aim of this was to rationalise and streamline functions and allow free transfer of products across State and Territory boundaries. In 1996, the blood transfusion services of the States and Territories untied to form a national blood service, the Australian Red Cross Blood Service (ARCBS).