Omosessualità ed esclusione sociale nella donazione di sangue: divieti permanenti e divieti temporanei come fattore di discriminazione

Abstract

Around the world, as a consequence of the contamination of the blood supply by HIV and Hepatitis C and B in the early 1980s, public and private blood banks have required blood donors to complete a donor health assessment questionnaire to identify various risk factors for sexually transmitted diseases including, for men, the act of having sex with a male partner. In this latter case the policy provides for a permanent or temporary ban on donation. This deferral policy, which aimed to protect recipients of blood and blood products, in recent years has been subject to criticism in so far as this exclusion seems to be an unfair discrimination against gay men on the basis of sexual orientation. At present, despite new technologies and recent testing procedures that allow the identification of contaminated blood, donor selection is still based on group characteristics (such as the MSM group: “men who have sex with men”). After having analysed the two core judgments in the western legal tradition regarding the MSM deferral policy—namely: the decision of the Ontario Superior Court of Justice in the case Canadian Blood Services v. Kyle Freeman and the decision of the European Court of Justice in the case Geoffrey Léger v. Ministre des Affaires sociales, de la Santé et des Droits des femmes —, the essay enquires into what can be viewed as a reasonable response to the issue of discrimination. In particular, the Author looks at two main subjects: 1) the adoption in at least two European countries (Italy and Spain) of a different approach based on an individualised donor assessment; 2) the proportionality of group refusal taking into account the negative stereotypes about gay men and, in particular, the association of homosexuality with AIDS.