Gay Blood Ban Revisited -- Changes May Result

Certification for the repeal of "Don't Ask, Don't Tell" has been issued, and the Obama Administration has said that it favors the repeal of another anti-gay federal law, the Defense of Marriage Act. But there's another longstanding ban on gays that might also be headed for history: The FDA's refusal to allow men who have had sex with other men even once since the 1970s to donate blood, for fear that their blood might carry the virus that causes AIDS.

The ban on gay, bisexual, and MSM blood donors went into effect in 1985, when testing methods were much less sensitive than they are today. Two members of Congress, Sen. John Kerry (Democrat of Massachusetts) and Rep. Mike Quigley (Democrat of Illinois), have kept up the pressure on the FDA in recent years, noting that the agency's guidelines are blatantly discriminatory toward gays: Heterosexual men may donate even after paying prostitutes for sex, after a one-year waiting period, whereas gay men are banned for life under the current policy.

Given the crunch on donated blood supplies, which are frequently inadequate to meet demand, critics of the policy say that it is indefensible. Kerry, Quigley, and more than 40 members of Congress signed a letter sent last summer to the chair of the Health and Human Services Advisory Committee on Blood Safety and Availability to that effect.

The June 9, 2010, letter read, in part, "We join with medical experts at the American Red Cross, America's Blood Centers, AABB, and the American Medical Association, among others, in calling for a change in policy that better reflects the science of high risk behavior for HIV. The time has clearly come to review and modify this policy to strengthen the safety of the blood supply and remove any needless discriminatory rules from the process.

"In the wake of the major blood donor organizations stating that the lifetime ban on MSM blood donors is 'medically and scientifically unwarranted,' we urge you to utilize the most up to date and comprehensive medical and scientific data regarding high risk behaviors in your considerations," the letter added. "In order to improve the integrity of the blood supply, we believe it is imperative that all high risk behaviors be appropriately targeted in the screening process and that similar deferral periods are established for similar risks.

"As the policy currently stands, a number of potential oversights and medically unjustifiable double standards seem apparent," continued the letter. "For instance, there is no prescribed consideration of safer sex practices, individuals who routinely practice unsafe heterosexual sex face no deferral period at all while monogamous and married homosexual partners who practice safe sex are banned for life. In fact, a woman who has sexual relations with an HIV positive male is deferred for one year, while a man who has had sexual relations with another man, even a monogamous partner, is deferred for life.

"Even individuals who have paid prostitutes for heterosexual sex face a deferral period of one year while gay men face a lifetime ban," the letter noted. "These do not strike us as scientifically sound conclusions."

The U.S. Department of Health and Human Services (HHS) has looked into the matter and determined that there are several key areas into which further research is warranted, with an eye to retiring the ban in whole or in part, reported 365Gay on July 27.

"We've been working on this a long time in a serious way and I'm glad [HHS] Secretary Sebelius responded with concrete steps to finally remove this policy from the books," Kerry told the media. "HHS is doing their due-diligence and we plan to stay focused on the end game -- a safe blood supply and an end to this discriminatory ban."

But for some, those two things do not sit well in the same sentence. Last year, after a HHS committee acknowledged that the FDA's blood donation policies were far harsher toward gays than to heterosexuals who had engaged in risky sexual conduct, Mark Skinner of the American Plasma Users Coalition told MSNBC that anti-gay discrimination was a price worth paying to keep donated blood free of pathogens.

"Ultimately the end-user bears 100 percent of the risk," noted Skinner, going on to say of the FDA's stance, "The fact that it's discriminatory does not mean it's wrong if it's in the interest of public health."

But balancing the extremely remote possibility that a recipient would be infected with contaminated blood that had managed to get past modern screening technology with the sheer volume of blood that could be made available provides a compelling argument for revising the ban.

"A one-year deferral period on blood donations by men who have had sex with another man would yield an estimated 89,000 additional pints annually, according to a study by the Williams Institute at the UCLA School of Law," noted MSNBC in the same Aug. 11, 2010, article.

Even with the ban in place, there is some margin of doubt. Contaminated blood could, in theory, be donated by an individual who either lies about his or her eligibility, or who has become HIV positive through some means other than gay sex and does not know his or her status. Though donated blood is carefully screened, there is a non-zero probability that blood carrying a very small amount of the virus could escape detection, and the virus could then be introduced to a recipient.

An outcome similar to this theoretical chain of events led to a kidney recipient's becoming HIV positive, the Associated Press reported in a March 18 article. The donor had engaged in unprotected sex in the 11 weeks between the time he was cleared and the surgeries that removed one of his kidneys and transplanted it to a recipient. The AP noted that this was the first known case of HIV being transmitted from a donor to a recipient since screening procedures had been implemented in the 1980s. As a result, some medical professionals called for repeated donor testing, to make doubly sure of their HIV negative status.

Under the current Food and Drug Administration policy, the American Red Cross and other blood collection services are not allowed to accept blood from gay men or men who have had sex with another man since 1977. The lifetime ban also applies to current or former intravenous drug users, people who have had certain types of cancer or other diseases, and people who have lived in certain countries during specified periods of time during which they may have contracted communicable diseases.

In the case of HIV-tainted blood, critics argue that modern testing virtually eliminates any risk. Proponents of retaining the blood ban point out that there is a window of around two weeks after infection during which testing won't detect the virus in donated blood. But critics also point out that the current ban relies on donors telling the truth about their sexual history -- a fact that means that all donated blood is screened regardless.

The HHS determined that new assessments have to be made in several areas related to blood donation in order to determine whether, and to what degree, to lift the gay blood donor ban. Among them: