KOD Lyons challenge to Blood Transfusion Service’s Ban on Donations from Homosexual Males

    A client of KOD Lyons has recently been granted leave before the High Court to challenge the decision of the Irish Blood Transfusion Service (IBTS) to permanently defer men who have sex with men (‘MSM’) from donating blood in Ireland. In the first of its kind challenge in Ireland, our client argues that the permanent deferral issued against him is in breach of European Union law and that the current policy of the IBTS is disproportionate and discriminates against homosexual males contrary to the Constitution and the European Convention of Human Rights.

    The IBTS require all prospective blood donors to fill out a detailed questionnaire and undergo an interview process to enquire about any risk of disease transmission and ensure eligibility to donate blood. As part of the questionnaire prospective male donors are asked to confirm whether or not they have ever engaged in sexual activity with another male. If answered in the affirmative that prospective donor is permanently banned from donating blood in Ireland regardless of when they engaged in that sexual activity, the nature of that sexual activity, its related risk of disease transmission and the so called ‘window period’ of infection detection elapsing.

    Our client sought to donate blood at the IBTS clinic in D’Olier Street in May of this year, and in completing the questionnaire, he answered the aforementioned question on sexual activity in the affirmative. During his interview, he informed the clinic staff that the sexual activity he had engaged in was categorized by the Health Service Executive (HSE) as posing ‘no risk´ of acquiring HIV. He also provided the clinic with test results confirming that he had tested negative for all sexually transmitted infections including hepatitis and HIV and that he obtained the test results well after the ‘window period’ of detection expired. Our client was nevertheless informed that he was not entitled to donate blood on that occasion and that he was to be permanently deferred from donating blood in Ireland.

    Having instructed our office and Michael Lynn SC, our client sought to challenge the permanent deferral on the basis that the IBTS rigid and fixed policy breaches European Union Law in its lack of a proportionate individualised risk assessment and its failure to consider and assess the risk of disease transmission having regard to all relevant matters which maintain a disproportionate policy which discriminates unlawfully against homosexual males.

    The case is next before the High Court in November and further information can be found here.

    Colin Lenihan
    works in our Judicial Review department.

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