ECJ rules men who have had sexual relations with other men may be prevented from donating blood
The European Court of Justice (ECJ) has ruled that men who have had sexual relations with other men may justifiably be prevented from donating blood where it is established such men are at a high risk of contracting severe infectious diseases and, to ensure compatibility with the principle of non-discrimination in relation to sexual orientation, there are no effective detection techniques or less onerous methods for ensuring a high level of health protection for recipients.
The Tribunal adminstratif de Strasbourg (Administrative Court, Strasbourg, France) (the “Tribunal”) asked the ECJ whether such permanent deferral is compatible with an EU directive after a doctor at the Établissement français du sang (French Blood Agency) in Metz (France) refused the blood donation offered by a Mr Léger in April 2009 on the ground that he had had sexual relations with another man, and that French law permanently excludes blood donations from men having had such sexual relations.
According to that directive, persons whose sexual behaviour puts them at a high risk of contracting severe infectious diseases that can be transmitted by blood are subject to a permanent deferral from blood donation.
In the Court’s judgment, it declared, first of all, that the Tribunal would have to determine whether, in France, in the case of a man who has had sexual relations with another man, there is a high risk of acquiring severe infectious diseases that can be transmitted by blood.
For the purposes of that examination, the Tribunal would have to take account of the epidemiological situation in France which, according to the French government and the Commission, has a specific character.
In that connection, the Court emphasised that, according to the data submitted to it, in the period 2003 to 2008, almost all HIV infections were due to sexual relations, and that half of those newly infected were men who have had sexual relations with other men.
During the same period, such men were the population most affected by HIV, with a rate of infection 200 times greater than that for the heterosexual population in France.
Finally, in France, the prevalence of HIV in the group constituted by men who have had sexual relations with other men is the highest among all the states in Europe and Central Asia.
The Tribunal would therefore have to ascertain whether, in the light of current medical, scientific and epidemiological knowledge, that data is reliable and still relevant.
Even if the Tribunal considered that, in France, men who have had sexual relations with other men are at a high risk of acquiring diseases such as HIV, the question arises as to whether the permanent contraindication to blood donation is consistent with the fundamental rights of the EU and, in particular, with the principle of non-discrimination on the basis of sexual orientation.
Having regard to the fact that French law is liable to discriminate against male homosexuals on the basis of sexual orientation, the Court recalled that any limitations on the exercise of the rights and freedoms recognised by the Charter of Fundamental Rights of the EU may be imposed only if they are necessary and genuinely meet objectives of general interest recognised by the EU or the need to protect the rights and freedoms of others.
In that connection, the Court ruled that, although the permanent deferral provided for in French law helps to minimise the risk of transmitting an infectious disease to recipients and, therefore, to the general objective of ensuring a high level of human health protection, the principle of proportionality might not be respected.
It is possible that HIV may be detected by effective techniques able to ensure a high level of health protection for recipients.
The national court would have to verify whether such techniques exist, it being understood that the tests must be carried out in accordance with the most recent scientific and technical procedures.
If there are no such techniques, the Tribunal would have to ascertain whether there are less onerous methods of ensuring a high level of health protection for recipients other than permanent deferral from blood donation and, in particular, whether the questionnaire and the individual interview with a medical professional are be able to identify high risk sexual behaviour more accurately.