Constitutional Morality Vs Public Health: Blood Safety, Scientific Evidence And Exclusion Of Queer Donors

Indian constitutionalism today is characterized by a sharp divide between the forward-looking and right interpretation of the Constitution by the Supreme Court on the one hand, and the on-going sluggishness of the executive on the other. The Supreme Court of India continues to be the venue of an intense debate over the Guidelines for Blood Donor Selection and Blood Donor Referral, 2017. While the judiciary has spent the last decade in progressive interpretation of legislation and coming out in favour of granting fundamental rights to the LGBTQIA+ community, including dignity and privacy, the National Blood Transfusion Council (NBTC) is still enforcing a lifetime ban on transgender persons and men who have intimacy with men (MSM). The Central Government, in fact, is still so firm in its stand and has even been arguing before a bench headed by the Chief Justice of India, that the “public health perspective” might have to override individual rights for raising a safe blood supply. This position, however, results in a constitutional puzzle as the state, on the one hand, is recognizing the individual's identity for the purpose of equal treatment and, on the other hand, is punishing that very same identity in the sphere of civic ​‍​‌‍​‍‌participation.

At the heart of the legal dispute over the guidelines is their compatibility with Article 14 of the Constitution. Apart from forbidding arbitrary state action, Article 14 also mandates that any classification made by the State must be supported by two tests, namely, intelligible differentia and rational nexus. The present policy cannot stand to this critical examination because it simply equates gender identity and sexual orientation with medical risk, which is both overbroad and under-inclusive. The state's action of permanently deferring a gay man in a lifelong monogamous relationship and at the same time allowing a heterosexual person with multiple unprotected sexual partners to donate is tantamount to creating an irrational classification. The 'differentia' in this case is not the risky behavior but the identity of the person performing the act. The Brazilian Supreme Federal Court's jurisprudence has already acknowledged this fallacy. They have ruled that such prohibition leads to a 'false risk group' and that the right to equal treatment is violated. To continue with the example of India, after the decriminalization of consensual same-sex acts in Navtej Singh Johar v. Union of India, the fact that these guidelines are still in effect hints at the state still thinking in terms of the 'social morality' as opposed to the 'constitutional morality' dictated by the apex court.

The guidelines also contradict Article 15(1) of the Constitution which forbids discrimination on the basis of 'sex.' The Supreme Court in NALSA v. UOI and Navtej Johar cases has read the term 'sex' to mean gender identity and sexual orientation as well. Clauses 12 and 51 of the 2017 Guidelines do more than just cause a disparate impact. They make gender groups the face of the diseases, at the same time specifically naming them as inherently 'at risk' for HIV and Hepatitis. This categorical exclusion reduces queer people to mere examples of a disease rather than recognizing them as individuals of equal dignity. In fact, by making it a standard to treat a transgender or a gay person as an infected person, the state itself is supporting that kind of stigma that the HIV/AIDS Act and the Transgender Persons (Protection of Rights) Act are intending to get rid of.

The defence of the State is prima facie based on the 'window period' argument: that is the biological delay between infection and detection. But this argument doesn't meet the proportionality test as per Justice K.S. Puttaswamy v. Union of India. Proportionality means that the state should resort to the “least restrictive means” in order to attain its goal. Thanks to modern diagnostic tools, in particular, individual donor nucleic acid testing (NAT), the detection window for HIV has been shortened to approximately 2.93 days. Keeping a lifetime ban when we have molecular screening is a severe and disproportionately harsh limitation of one's right to life and dignity guaranteed by Article 21. Donating blood is considered a noble and selfless gesture. So, depriving a healthy individual of this chance simply because of the person they love is ignoring their social worth.

The sociological condition of India further exposes how futile and irrational an identity-based ban would be. One of the main conditions of the present screening is voluntary self-disclosure, however, most of the Indian LGBTQIA+ community prefers to stay closeted because of the continual social hostility. Official government data from 2012 put the number of queer people at 2.5 million, but more comprehensive multinational surveys and activists' estimates suggest it is closer to 135 million. In a 2022 Ipsos survey, 17% of Indians said they were not heterosexual. Studies show that about 80% of them do not disclose their sexual orientation to their families or their workplaces. Imposing a permanent prohibition based on identity within a state when that identity has to be concealed for survival for a most part in the society will make the policy counterproductive. In fact, it only eliminates the 'visible' minority, that is, the ones who are 'out' and honest, whereas it does not provide any means to deal with the closeted majority, who will most likely mark 'no' on the donor form so as not to face the embarrassment of a deferral in person. Consequently, the current guidelines do not secure the blood supply; they merely penalize transparency.

This identity-based approach has been abandoned by many countries that are in line with global standards. The UK, Canada, and the US have all shifted to 'Individualized Risk Assessment' (IRA) models recently. In these systems, donor's gender or orientation does not matter at all; all donors are required to answer the same set of behavior-specific questions, for example, whether they have a new sexual partner and the kind of intercourse within the last three months. Implementing a gender-neutral approach with regard to blood donors has been demonstrated to keep the blood supply safe and at the same time to greatly increase the number of donors. In a country like India, where it is estimated that the annual shortage of blood is around four million units, turning away a healthy and willing group of people is not only a failure of the law, but is also a danger to public health. Considering that 'blood deserts' exist in some Indian states, meaning that access to blood transfusion is virtually non-existent, the total exclusion of millions of potential donors really is a disregard for one's collective right to health.

In order to make the NBTC consistent with the transformative jurisprudence of the Indian Constitution, it must eliminate Clauses 12 and 51 and introduce behavior-based deferral criteria instead of identity-based ones. The legislation must distinguish donors based on their deeds and not on their identities. Transitioning from a lifetime prohibition to a temporary, scientific deferral period (e.g., 90 days after the last risky sexual exposure) could very well increase the donor's willingness to comply and to self-disclose honestly. The Indian blood transfusion system will continue to be an enclave of institutionalized prejudice, where the state favors outdated stereotypes over its own citizens' life-saving potential, until the guidelines are struck down. The Supreme Court is now in a position to decide upon ensuring that the nobility of blood donation is no longer a privilege of a few but the right of every Indian, wherever they may lie on the spectrum of gender and sexuality.

Manan Mishra & Shambhawi Tiwari are Law students at National University of Study and Research in law, Ranchi.