A gay man in Ireland has filed a formal complaint with the European Commission against the Department of Health and the Irish Blood Transfusion Service over the ban on gay and bisexual men donating blood.
The man, who has chosen to have his complaint examined by the Commission anonymously, filed the complaint in early July this year, alleging the ban violates a number of European Union laws.
A number of weeks later, the man also submitted a similar complaint against an identical policy in operation in Northern Ireland, however he has yet to receive confirmation from the Commission that it will also consider this complaint.
Gay and bisexual men in the Republic and Northern Ireland are currently banned from donating blood for a year after they have had anal or oral sex with another man, even when it is safer sex or sex in a stable relationship or marriage. Men who use PrEP are also banned from donating blood in the Republic of Ireland for five years after they last take the medication.
The man’s formal complainant is arguing that the one-year ban breaches two European Union Directives covering the standards of quality and safety for the collection of blood by EU member states, as well as provisions contained in both the EU Charter of Fundamental Rights and the European Convention on Human Rights.
The Commission has informed the man that his complaint will now be considered in light of EU law and it may seek further information from him to support his complaint.
The Commission has a number of options open to it if it considers that an infringement of EU law has occurred, beginning with the opening of an infringement procedure against the state. However, the Commission cannot annul the decision of the national body concerned or force the body to award damages to an individual affected by the body’s policies.
The man has also been informed by the Commission that he should expect to receive a decision from the institution within one year of filing his complaint on whether it will take action or close his case.
Separately, in May this year, Tomás Heneghan, a gay man and blood donor, began legal proceedings in the High Court against the Minister for Health and the Irish Blood Transfusion Service over the service’s policy on gay and bisexual men donating blood in Ireland. His case has now been adjourned to October.
In 2015, Mr Heneghan began a similar legal challenge to the previous lifetime ban on sexually active gay and bisexual men donating blood, which had been in operation since the 1980s. A year later it was announced that the ban would be reduced to a year-long restriction and Mr Heneghan decided at that point to withdraw his case. He later became the first man who has had sex with another man to openly donate blood in Ireland in January 2017, on the day the new policy came into effect.
In June, it was reported that French campaign groups had similarly filed a formal complaint with the European Commission over the one-year ban on blood donations from men who have sex with men in operation in France. However, last month it was announced by French authorities that the ban would be further reduced to a four-month restriction and that work would begin on further reforms on a step-by-step approach up to 2022.
In 2017, a three-month ban replaced the previous one-year ban in England, Scotland and Wales, with the previous policy being in place since 2011. Northern Ireland was excluded from both reforms and only overhauled its lifetime ban in 2016, following Sinn Féin MLA Louise O’Neill taking up the Health Minister’s position in the Northern Ireland Assembly that year. Reform of the lifetime ban had been resisted up to that point by the DUP’s Health Minister in the Executive.
A European Court of Justice ruling in 2015 set out that a ban on men who have sex with men may be justified on the condition that there would be no effective method to detect transfusion-transmissible infections in donations from those individuals and that there would be no less onerous method of protecting the blood supply from infections.
Campaigners across Europe, including in Ireland and Britain, now argue that the significant advancements in testing and the accuracy of test results for HIV and other infections over the past number of decades and years means a less onerous method of protecting the blood supply from infections does exist and can be implemented.
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