Policy on gay men donating blood challenged in High Court

IBTS told Tomas Heneghan (27) he could not donate unless he abstains from sex for a year

A gay man has brought a High Court challenge against an Irish Blood Transfusion Service (IBTS) policy which prevents him donating blood unless he abstains from having sex for 12 months.

A gay man has brought a High Court challenge against an Irish Blood Transfusion Service (IBTS) policy which prevents him donating blood unless he abstains from having sex for 12 months.

 

A gay man has brought a High Court challenge against an Irish Blood Transfusion Service (IBTS) policy which prevents him donating blood unless he abstains from having sex for 12 months.

The action has been taken by Tomas Heneghan (27), of East Wall, Dublin 3, who claims the IBTS’s policy of not accepting blood donations from men who have anal or oral sex with other men within the previous 12 months is unlawful.

He attempted to make a blood donation to the IBTS last April. However, after filling out a questionnaire, he was told he could not donate because he had had sex in the previous 12 months. He was told that under the IBTS policy, he could not make a donation until January of next year.

Some weeks before he attempted to make the donation, Mr Heneghan said he underwent a series of routine blood tests. He said these showed conclusively that he was healthy and not a risk to the national blood supply should he decide to make a blood donation.

He says he cannot understand the reasoning behind the IBTS policy. He also argues the questionnaire does not enable the IBTS to make a full evaluation of the level of risk presented by an individual donor due to their sexual behaviour.

Mr Henegan said, according to the IBTS’s own website, there is a window period following infection during which HIV and hepatitis may not be detected in the blood. This window is seven days for HIV and 16 days for hepatitis.

Onerous

He claims a far less onerous restriction could be imposed rather than the 12-month deferral, which would protect blood recipients.

Mr Heneghan also claims the decision to place an “automatic deferral” on him is unlawful and in breach of EU law and European communities regulations on the quality and safety of human blood products.

He also claims the policy is disproportionate, discriminates against homosexual and bisexual men, and breaches his constitutional rights and rights under the European Convention on Human Rights.

As a result of the IBTS decision, which he says was communicated to him verbally on April 16th last, he has taken judicial review proceedings against the IBTS, the State and the Minister for Health. He claims the blanket deferral automatically imposed on him is irrational, unreasonable and discriminatory.

He wants a order quashing the IBTS decision that prohibits him making a donation until the 12 month period has elapsed.

He also seeks a declaration that the process followed by the IBTS in his case, and the policy the service uses to assess the risk of disease transmission posed by him, was unlawful. He is also seeking damages.

The application came before Mr Justice Seamus Noonan, who granted Mr Heneghan permission, on an ex-parte basis, to bring the challenge.

The judge adjourned the matter to July.

Mr Heneghan previously brought a High Court challenge aimed at ending what had been the permanent ban on accepting blood donations by gay men. That action was withdrawn in 2016, after the government, based on a report from the IBTS, decided to remove the permanent ban.

The ban was introduced here in the 1980s when Aids was seen as a major sexual health risk.