OTTAWA — Canadian Blood Services is legally allowed to ban men who have sex with men from donating blood, an Ontario court ruled Thursday in a decision that critics branded “disturbing.”
In dismissing a constitutional challenge, an Ontario Superior Court judge ruled that Canadian Blood Services is not a government entity, so the Charter of Rights does not apply to its policies.
In Canada a man who has had sex with another man, even once, since 1977 is not eligible to donate blood. It is now generally understood that HIV entered the North American population in that year, the judge said in her decision.
Helen Kennedy of Egale Canada, a gay rights group, said the decision itself discriminates against gay and bisexual men.
“The negative consequences this ruling has on charter rights are enormous,” she said in a statement.
Justice Catherine Aitken noted that she appreciates the sense of injustice gay and bisexual men feel about the policy and harkened back to the tainted blood crisis of the 1970s and 1980s.
“Gays and bisexuals were themselves mowed down by AIDS, and their only connection with the blood-supply system was through the selfless and humanitarian act of giving blood, or through being blood recipients themselves,” Aitken wrote.
“The gay and bisexual communities experience the total ban on their being blood donors as a denial of one avenue to feel fully integrated in Canadian society through being good citizens and neighbours.”
But Aitken added that the impact is not “in the same league” as a blood recipient being asked to accept lower safety standards.
Blood recipients have compromised health and rely on the donated blood to keep them alive or stave off pain or disabling conditions, and yet they have no control over the safety of the blood they receive, she said.
“They are asked to and must take a leap of faith that the blood or blood products they receive are safe,” Aitken wrote. “It is no wonder that blood recipients share an anxiety, at times elevated to fear, of the pathogens to which they may become exposed through the blood or blood products they receive.”
Monique Doolittle-Romas, the executive director of the Canadian AIDS Society, called the ruling disappointing.
“It was also disturbing that the court saw this as a contest between safety and gay rights.”
For blood recipients, faith in the blood system was shattered by the tainted blood crisis and it has taken a long time to rebuild, said David Page, executive director of the Canadian Hemophilia Society.
“A decision here in favour of a rights issue over safety would have been very, very badly received by recipient groups,” Page said. “It is the recipient of blood and blood products who bears 100 per cent of the risk and the donor actually bears none.”
Canadian Blood Services said it is pleased the ruling recognized the validity of its screening processes.
“It is important to understand, and as the judge affirmed, our donor selection policies have always been about protecting the safety of blood recipients,” said CEO Dr. Graham Sher.
“This and all our policies are based on sound scientific evidence, sound facts about risks and are intended to reduce or pre-empt the introduction of risks to recipients of blood products.”
Blood donation is a gift, a privilege and not a right, Sher said, and the judge found no Canadian has the right to insist on donating blood.
Canadian Blood Services had sued blood donor Kyle Freeman, who lied about having had sex with other men, and the court has now found him liable for $10,000 for negligent misrepresentation.
He launched a counterclaim under the charter, but Aitken dismissed it because she found the charter did not apply. Even if the charter did apply, Aitken wrote, the policy is not discriminatory because it is a fact that there is a “high relative prevalence” of HIV and other blood-borne sexually transmitted pathogens among men who have sex with men. The policy is not based on prejudice or stereotypes of gay and bisexual men, Aitken wrote.
Other reasons people are permanently banned from donating blood include:
l Being the sexual partner of someone who has tested positive for HIV or who has contracted AIDS since 1977.
l Accepting money or drugs for sex since 1977.
l Sharing needles or taking street drugs by needle, even once.
l Being born in or living in the following countries since 1977: Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Niger and Nigeria.
l Having had sexual contact with anyone who was born in or lived in the aforementioned countries since 1977.