Blood bans based on sexual orientation: do they violate Convention rights?

Many countries around the world continue to operate a total or partial prohibition on blood donation from men who have engaged in homosexual sexual acts. A significant amount of Council of Europe states impose a complete restriction on any man who has had sex with another man, while a small amount of states operate time limited restrictions (such as the United Kingdom which has a one year rule).

The question of blood donation and homosexuality remains peripheral to debates about human rights and sexual orientation. Whilst some continue to argue that singling out male homosexual sex as a basis for blanket exclusion of donors has no credible scientific basis and is purely discriminatory, others argue that it is a necessary and proportionate measure to maximise the safe collection of blood.

The European Court of Human Rights has never considered this issue. The closest it has got is the complaint in Tosto v Italy, which concerned the then blanket ban in Italy on homosexual donors. The Court struck the complaint from its list because, shortly after the application was submitted, Italy adopted a new policy on screening blood donors. Like some other Council of Europe states (for example, Spain and Poland) screening of potential donors in Italy is done by assessing sexual health risks without reference to sexual orientation.

The question of whether differentiating between potential donors on the grounds of sexual orientation constitutes discrimination contrary to Article 14 of the Convention has, therefore, never been determined by the Court.

In an interesting essay published in the Student Journal of Law, Jon Bardsley argues that bans based on sexual orientation do constitute discrimination under the Convention.

This was certainly the conclusion reached by the applicant in Tosto v Italy, who argued that excluding him from donating blood because he was a homosexual interfered with his Article 8 rights because it affected his personal dignity and prevented him from developing his personality as a donor and being socially useful ('Le requérant fait enfin observer que l’exclusion du don du sang l’a atteint dans sa dignité personnelle, l’a empêché de développer sa personnalité en tant que donateur et de se rendre socialement utile').

It would be interesting to know if there are any developments in Council of Europe states regarding possible complaints to the Court in respect of this issue. If readers have any observations or information please contact me directly or make a comment on this post.