Recently, a petition has been filed before the Supreme Court challenging the constitutional validity of clauses 12 and 51 of the general criteria under the Guidelines on Blood Donor Selection and Blood Donor Referral of 2017. Under these guidelines, two categories of people are restricted from donating blood, men who have sex with men and female sex workers on the ground that these people fall under the high-risk category for HIV/AIDS infection.
The petitioner, in this petition, contended that such exclusion based on gender identity or sexual orientation is discriminatory, arbitrary, and unreasonable and is in violation of fundamental rights such as Article 14 and 21 of the Indian constitution, that are provided to every individual to lead a better life. The issue raised in this petition can be dealt with from three perspectives: societal, medical, and legal.
In simple words, the gay community and female sex workers are excluded from the category of blood donators because they indulge in sexual intercourse with multiple partners which, according to National Blood Transfusion Council (NBTC) and National Aids Control Organisation (NACO), make them more vulnerable to sexually transmitted disease, like AIDS.
In the 21st century, where sexual mores are evolving and where the younger population isn’t always monogamous, it’s hard to determine whether one is free from any sexually transmitted diseases. Therefore, the reason behind excluding gay men and female sex workers from the blood donor category seems more unreasonable in the postmodern world.
According to World Health Organisation (WHO), HIV can be transmitted via the exchange of a variety of body fluids from infected people, such as blood, breast milk, semen, and vaginal secretions. An individual cannot become infected through ordinary day-to-day contact such as kissing, hugging, shaking hands, or sharing personal objects, food, and water.
In India, every donated blood unit must be tested for hepatitis B, hepatitis C, HIV/AIDS, syphilis, and malaria. If donors test positive for any of the five infections, their blood is discarded and no information is provided to them about their results, which is another critical issue that should be dealt with.
The task of categorizing gay men and female sex workers in the ‘high-risk category’ does not really comply with the existing necessity of testing every blood unit. It’s much easier and reasonable to test the donated blood of the specified category rather than taking away their opportunity to help people in general. The testing of donated blood can turn into a good thing, if practiced efficiently, by saving the life of the donor and receiver of blood.
As mentioned in the petition, the categorization of blood donors violates fundamental rights provided by the Indian Constitution. In the current legal world, where the concept of ‘exclusion is discrimination under article 14’ is evolving rapidly, these guidelines fall under the same category.
When the Supreme Court declared section 377 of IPC, unconstitutional, it opened a way for the LGBTQ community that was excluded from society because of their sexual orientation and prevented from availing many social facilities, to enter into a domain where they can be treated equally as others.
In a society where a relationship between people belonging to the LGBTQ community is legally accepted and they are supposed to be treated equally, it’s discriminatory to exclude and restrict gay men and female sex workers from donating blood.
Article 21 also protects the interests of gay men and female sex workers and gives them the right to live with dignity. In Francis Coralie v. Union Territory of India, the Supreme Court elaborated the view given in the Maneka Gandhi case regarding article 21 and included functions and activities that constitute the bare minimum expression of the human self.
As the awareness for voluntary blood donation is increasing, it is becoming an important part of human life. Everyone wants to contribute towards the welfare of society and blood donation is an important part of it. We are living in a situation where one of the basic requirements to save a person’s life fighting with Covid-19 is blood plasma. If we restrict gay men and female sex workers from donating blood and blood plasma, it would become hard to save the lives of people who belong to their family or are close to them, or belong to their community.
We live in a society where it is hard for a member of the LGBTQ community and a female sex worker to enjoy their rights and live a dignified life. The restriction upon them from donating blood is an addition to their suffering and difficulty in getting recognition in the society. There are no strong societal, medical or legal grounds to prohibit the LGBTQ community and female sex workers from donating blood. Therefore, it is necessary to determine the constitutional validity of the same.
Archita Agrawal is a second-year student in Dharmashastra National Law University, Jabalpur, pursing her Bachelor of Arts and LLB. She has been actively participating in legal literature and moot programs.