Citing higher prevalence of OTTIs; government defends guidelines barring transgender persons, gay men and sex workers from donating blood

The government was responding to a petition filed in the Supreme Court in 2021 contending that the exclusion of transgender persons, female sex workers and gay men from donating blood solely on the basis of their gender identity and sexual orientation was completely arbitrary, unreasonable and discriminatory as well as unscientific.

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THE Union government has defended its guidelines permanently barring transgender persons, female sex workers and gay men from donating blood, stating that scientific evidence clearly shows that they are globally recognised as population groups with a higher prevalence of HIV (human immunodeficiency virus) and other transfusion-transmitted infections (TTIs).

"The entire objective of a safe blood transfusion system (BTS) is to ensure the health and safety of the recipient of the donated blood. Every effort has to be made to ensure that the recipient is shielded from an unfortunate result, especially since the consequences can be irreversible. Thus, even on the balance of the individual rights of the blood donor versus the right of the recipient, the right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood. The integrity of the BTS is paramount from a public health perspective and constitutional courts should defer to judgment of domain experts," the government states.

An affidavit to this effect has been filed by the Union Ministry of Health and Family Welfare in response to a notice issued by the Supreme Court in March 2021 on a petition filed by Santa Khurai, a member of the transgender community, contending that the exclusion of transgender persons, gay men and female sex workers from being blood donors and permanently prohibiting them from donating blood solely on the basis of their gender identity and sexual orientation was completely arbitrary, unreasonable and discriminatory as well as unscientific.

The petition, filed through Advocate-on-Record Anindita Pujari, alleged that such a categorisation was based on negative stereotypes which amounted to discrimination under Articles 14 and 15 of the Constitution.

Defending the exclusion, the government has argued that the issues raised by the petitioner 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, and as such, the issues raised ought to be judged from the lens of public health perspective and not merely from an individual rights perspective, taking into account the practical realities of unequal access to quality of healthcare in a vast and diverse nation.

The affidavit states that the category of persons excluded under the guidelines are those considered "at risk" for HIV and Hepatitis B or C infection. In this category of individuals, certain population groups have been specifically included.

"The determination of population groups that should be excluded from being blood donors is done by subject experts based on scientific evidence. 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 inflections," the affidavit states.

To buttress its submission, the government has cited what it claims are peer-reviewed studies published in reputed research journals. It also refers to the annual report of the Department of Health and Family Welfare of 2020-2021, which states that the HIV prevalence among Hijras/Transgenders, gay men and female sex workers is six to fourteen times higher than the mean adult HIV prevalence.

It claims that similar restrictions for blood donors in respect of population groups with a higher prevalence of HIV and other TTIs exist all over the world. For instance, in most European countries, sexually active homosexual men are permanently deferred from donating blood.

On the submission of the petitioner that donated blood is tested for HIV, TTIs and other relevant diseases, and thus risk can be adequately minimised even if transgender persons, homosexual men and female sex workers are allowed to donate blood, the government has contended that the window period refers to the time between exposure to an infection agent and when a test can detect the infection in the human body. This period depends on the TTI and the type of test used. There is always a residual window period even with the best of tests, like the Nucleic-acid testing (NAT) test, which are conducted to screen blood donors.

It adds that each TTI has one or more window periods, ranging from a few days to several months, depending on the infection, the screening marker used, and the screening technology employed. During this window period, the infection is not yet detectable in a recently infected individual, and the individual may still be infectious. Besides, it cites limitations of testing technologies, since most blood banks in India deploy non-NAT testing technologies. Even with NAT testing, which is only available in a small proportion of blood banks in India, a window period between 10-33 days still remains, it avers.

The government has also taken a plea that the petitioner has not challenged the criteria for excluding individuals who are "at risk" for HIV, Hepatitis B or C infections, but the inclusion of transgender persons, homosexual men, and female sex workers within that criteria.