Blood Donation Ban On Gays, Transgender Persons & Sex Workers Retained After Review : Centre Tells Supreme Court

The Union Government informed the Supreme Court on Thursday that it has decided to retain the ban on blood donations by transgender persons, gay men, sex workers, after the experts revisited the earlier decision following a prodding by the Court.Additional Solicitor General of India Aishwarya Bhati informed the Court that the experts have reiterated that the ban was essential in the larger public interest.A bench comprising Chief Justice of India Surya Kant, Justice Joymalya Bagchi and Justice Vipula Pancholi was hearing a bunch of writ petitions which challenge the "Guidelines on Blood Donor Selection and Blood Donor Referral, 2017"issued by the National Blood Transfusion Council and the National Aids Control Organisation under the aegis of the Central Health Ministry. Clauses 12 and 51 of the said guidelines consider transgender persons, gay men and female sex workers as belonging to high-risk HIV/AIDS category and prohibit them from donating blood.Last year, the Court had asked the Centre to reconsider the ban. ASG Bhati stated today, "The experts have reconsidered, and there is a reconsidered opinion that, if this ban is diluted, it will be injurious to the recipients."Senior Advocate Jayna Kothari, for the petitioners, argued that the reasoning of the committee has not been placed on record. She submitted that the decision was targeting a person merely on the grounds of sexuality and gender identity.CJI however expressed disinclination to interfere with the Centre's decision. "Tell us one good reason that we should issue a direction. After all, there are millions and millions of poor people, who take free blood facilities. They cannot afford private hospitals. It is the poor strata of the people who are sustaining on this blood. Why this poor people should be...even if there is a one percent chance of any infection, why they should be affected?"Kothari replied that the one per cent chance of infection should not be for anybody. "The core issue is, once blood is donated by anybody, the blood donated has to be tested and then only used. In fact, after every blood donation is done, HIV testing is done. NAT testing is done," Kothari said.Pointing out that donation and receiving of blood is voluntary, CJI said, "Whosoever wants your blood, and you are willing to donate, they will accept it."Kothari replied, "Today, if a heterosexual married person wants to donate blood, that person is not asked a question when was your last unprotected sex. The risky behaviour is the unprotected sexual act. Not my identity. There can be a heterosexual person who may have had a risky act. Would that person's blood not be risky?"Another counsel submitted that if NAT test is made mandatory, the risks can be addressed.CJI, terming it a "luxury litigation", ultimately agreed to list the matter for hearing.There are 3 petitions pending before the Court, all filed by members of the LGBTQ+ community viz. Sharif D Rangnekar (author and former journalist), Thangjam Santa Singh (activist) and Harish Iyer (activist).In one of the cases (Thangjam Santa Singh), the Centre filed an affidavit in 2023 stating that there is substantial evidence to demonstrate that 'transgender persons, men having sex with men and female sex workers are at risk for HIV, Hepatitis B or C infections'. It further claims that the determination of the population group that is to be precluded from being blood donors is prescribed by the NBTC (a body comprising medical and scientific experts) and is based on scientific evidence. The affidavit also avers that the issues raised fall within the ambit of the executive and are required to be considered from a public health perspective rather than an individual rights perspective.On the other hand, as per the petitioners, the 2017 guidelines infringe on the fundamental rights to equality, dignity, and life of members of the LGBTQ+ community as well as female sex workers. It is asserted that exclusion of the above class of persons, solely on the basis of their gender identities/ sexual orientation, is not only unreasonable but also unscientific.The petitioners aver that many countries, including the United States, United Kingdom and Canada have changed their rules to allow gay men to donate blood. The ban is based on outdated and biased views from the 1980s, following which medical technology has greatly improved, especially in blood screening, the petitioners state.In one of the petitions (Sharif D Rangnekar), a prayer has also been made for new guidelines that would allow gay men to donate blood, with some reasonable restrictions. It suggests public campaigns to inform society about risky behaviors and the updated guidelines. The petitioner also seeks changes in the syllabus of medical students in order to sensitize that gay men can donate blood.Case Title: THANGJAM SANTA SINGH @ SANTA KHURAI Versus UNION OF INDIA AND ORS., W.P.(C) No. 275/2021 (and connected matters)Click Here To Read/Download Order

Blood Donation Ban On Gays, Transgender Persons & Sex Workers Retained After Review : Centre Tells Supreme Court

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The Court expressed reluctance to interfere with the Centre's decision, saying "even 1% chance of infection shouldn't be there."

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