Infusing new blood into policies for LGBTQ+community

There is a need for an inclusive as well as a more nuanced and evidence-based approach to blood donor selection in India, writes Kanav Narayan Sahgal

As stated by the World Health Organisation, blood transfusion is a process that involves both science and altruism. While collecting, processing, and using blood involves technical aspects, the availability of blood largely depends on the generosity of blood donors. Therefore, it is crucial to mobilise society to promote voluntary blood donation by healthy individuals at low risk of infection. India's National Blood Policy (2007) recognises that a well-organised blood transfusion service (BTS) is a vital component of any healthcare delivery system.

Blood shortage & challenges

According to the Department of Health and Family Welfare Services in the Government of Puducherry, India needs 8 million units of blood per year, but only 4 million units are collected. Of these, only 2 million units come from voluntary donors, and the remaining are from relative and exchange donors, resulting in a 50% shortage. India's BTS is plagued by multiple issues, as highlighted in a significant 1996 Supreme Court judgement on voluntary blood donations (Common Cause vs Union Of India And Others, Writ Petition (Civil) 91 of 1992). The Supreme Court lamented the shabby state of affairs with the practice of professional blood donations, highlighted infrastructural issues with existing blood banks, and noted that blood samples weren’t even tested for transfusion-transmissible infections like AIDS and hepatitis in some cases. The Supreme Court directed the establishment of a national council on blood transfusion as a nodal agency to oversee BTS and the establishment of State councils to ensure its smooth implementation at the state level. This is how the National Blood Transfusion Council (NBTC) was born. The National AIDS Control Programme was also implemented by the Government of India as a 100% centrally sponsored scheme through State AIDS Control Societies in the states for the prevention and control of HIV/AIDS.

Progress made over the years

Since then, significant progress has been made, as shown in the 2015-16 Annual Report published by the Department of Health & Family Welfare. The report highlighted that the adult HIV prevalence at the national level has continued its steady decline from an estimated peak of 0.38% in 2001-03 to 0.26% in 2015. The government also boasted of successful targeted outreach programmes for people belonging to high-risk groups, such as female sex workers, Men who have Sex with Men (MSM), Transgender/Hijras, and Injecting Drug Users (IDUs) to name a few. Around 260 lakh condoms were distributed to MSM during 2015-16, and a testing rate of around 65% on average was recorded for these groups, with extremely low positivity rates (less than 1% in most instances). In this context, the pending Supreme Court case of Thangjam Santa Singh @Santa Khurai vs Union of India & Ors WP (C) 275/2021 is significant. This case arose when Santa Khurai, a prominent transgender rights activist from Manipur, filed a Public Interest Litigation in the Supreme Court of India, challenging the constitutional validity of Clauses 12 and 51 of the Guidelines on Blood Donor Selection and Blood Donor Referral, 2017, issued by the National Transfusion Council and the National Aids Control Organisation (NACO) under the Ministry of Health and Welfare.

Clause 12 of the guidelines outlines blood donor selection criteria, which includes a provision to exclude people considered and "at risk" for HIV, Hepatitis B, or C infections. This clause lists transgender people, MSM, female sex workers, IDUs, and persons with multiple sexual partners as some of the people in this category. Clause 51 builds on this by permanently banning these individuals from donating blood due to their perceived high risk of HIV infection.

The petition argued that the ban is arbitrary, unconstitutional, and violates Articles 14, 15, and 21 of the Constitution of India, as it is based on perceived risks rather than actual risks. The petition called for an individualised system of blood donation that does not stigmatise already marginalised groups. Other countries, including the United Kingdom, the United States, Australia, and Canada, have replaced lifetime bans with three-month deferrals to reflect advancements in HIV testing. The petition also noted that advances in testing technology can detect HIV infection within three months of risky sexual activity, making a permanent ban unnecessary.

Such a ban also poses an additional risk to donor privacy, as divulging one's sexual orientation to medical professionals can be a breach of privacy as per the Supreme Court's landmark 2017 judgement in Justice K S Puttaswamy (Retd) vs Union Of India which stated that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” Instead of asking about sexual orientation, the donor should only be asked about the date of their last risky sexual activity and allowed to donate blood three months after that date. Moreover, every unit of blood donated is tested for infectious diseases, including HIV, Hepatitis B, Hepatitis C, and Malarial Parasites. Therefore, banning all transgender and gay people from donating blood is arbitrary, discriminatory, unnecessary, and contrary to scientific and logical reasoning.

The Union Government’s response

In response to the plea, the Union Government responded by justifying the ban on the greater HIV prevalence among these high-risk groups without addressing the stigma and healthcare access issues faced by them. The government also referred to the EMIS-2017 European Men-Who-Have-Sex-With-Men Internet Survey, which highlighted various health issues experienced by MSMs, including the higher prevalence of HIV. However, the survey also highlighted the causes of this risk, such as a lack of awareness about HIV and STI transmission, lack of proper condom access, increased homonegativity, lack of access and awareness of post-exposure prophylaxis (PEP) medication, and a lack of social support. Rather than addressing these underlying issues, the government's approach of banning these groups from donating blood is a negligent step, especially when an entire ministry is committed to addressing the unmet health needs of vulnerable populations.

The government has argued that "the right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood." However, this argument ignores how both safe blood transfusions and the individual right to donate blood can be achieved through a reasonable, evidence-based, and individualised blood donation system that does not rely on archaic and stigmatising notions about who may or may not be HIV-positive.

Implications of the Thangjam Santa Singh Case

The Thangjam Santa Singh case has far-reaching implications for the rights of transgender individuals and other marginalised groups, as well as the safety and accessibility of blood donations in India. If the court strikes down the current guidelines, it could open the door for a more individualised and science-based approach to blood donor selection. This approach would not only benefit those who are currently excluded from donating but could also increase the overall pool of available blood and reduce the risk of transfusion-transmissible infections.

Moreover, the case highlights the ongoing struggle for equal rights and non-discrimination faced by transgender people, MSMs, and female sex workers in India. Despite progress in recent years, including the recognition of a third gender category and the decriminalisation of homosexuality, discrimination, and marginalisation remain significant issues for LGBTQ+ people in India. The Thangjam Santa Singh case calls for a more nuanced and evidence-based approach to blood donor selection in India. The current guidelines that permanently ban certain marginalised groups from donating blood are discriminatory, outdated, and unnecessary given advances in HIV testing. Striking down these guidelines would be a significant step towards greater inclusivity and non-discrimination in India's healthcare system.

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])