Canadian blood agency sues openly gay donor

[Homebrew]

http://www.advocate.com/new_news.asp...49&sd=06/27/02

Canadian Blood Services is suing a man, identified only as John Doe, for negligent misrepresentation because he lied on the questionnaire that all potential donors must sign, reports The Vancouver [B.C.] Sun. The form asks male donors if they have had sex with another man since 1977. If they answer yes, they are barred from donating. Canada, like the United States, has barred all sexually active gay men from donating blood since the mid 1980s.

Isn't dontated blood screend for HIV/AIDS? If so, why the ban on gay men, if not prejudice?

[Raygun99]

Of course, donating blood is not a right and they're correct to screen for high risk groups after what happened in the 80s and early 90s with the blood scandals. They not only screen for gay men, but also for heterosexuals who are promiscuous, people who've spent too much time in certain countries (lots of African ones, I don't recall which ones exactly from the last time I donated) as well as the UK (for BSE). If you answered no to the question of "have you had sex with anyone in the past 5 years whose sexual history you are unaware of" (paraphrased) and they found out you lied, there'd be the same action, I would wager (although it would be harder to proove).

[Raygun99]

Of course, donating blood is not a right and they're correct to screen for high risk groups after what happened in the 80s and early 90s with the blood scandals. They not only screen for gay men, but also for heterosexuals who are promiscuous, people who've spent too much time in certain countries (lots of African ones, I don't recall which ones exactly from the last time I donated) as well as the UK (for BSE). If you answered no to the question of "have you had sex with anyone in the past 5 years whose sexual history you are unaware of" (paraphrased) and they found out you lied, there'd be the same action, I would wager (although it would be harder to proove).

[Jerevan Somerville]

Two months ago, I raised the same issues with the Donor Advocate at my local blood bank over the questions relating to sexual behavior. These questions seem to be designed to determine whether a potential donor is a gay man, not whether the potential donor (gay, straight, male or female) has actually engaged in "risky behavior". They do not, for instance, ask women "Have you had sex with another man, even one time, since 1977?" I understand why the 'bank needs to assess possible risks, but in the present day these questions do smack of discrimination against gay men in particular.\

The Donor Advocate understood my position and acknowledged that these questions no longer reflect the reality of HIV/AIDS demographics or the ability to screen for the virus. However, in the US, it is the FDA (IIRC) which requires that these questions be asked; the blood bank cannot arbitrarily alter them. The DA told me that the FDA is currently considering changing these questions. If that happens, I might actually be allowed to donate again. (I told the truth about my sexuality because I got tired of lying about it in order to donate; unlike the man in the article, I decided that I'd rather be honest, then question/challenge the policy, than continue to deceive the 'bank.)

I'm sure donated blood is tested for HIV/AIDS, but no test is 100% accurate, and I think there is still a "window" of time after exposure/infection during which the virus is as-yet undetectable.

Still, it seems rather harsh to sue John Doe for this deception when the policy and questions aren't realistic (honest) to begin with, and the blood bank didn't track him down because there was a problem with his blood. I am very interested to see how this case progresses, especially since John Doe says he is HIV-, no recorded cases of HIV infection have been traced to him, and Canada has anti-discrimination laws to protect gays, at least at the federal level.

[Raygun99]

Of course, donating blood is not a right and they're correct to screen for high risk groups after what happened in the 80s and early 90s with the blood scandals. They not only screen for gay men, but also for heterosexuals who are promiscuous, people who've spent too much time in certain countries (lots of African ones, I don't recall which ones exactly from the last time I donated) as well as the UK (for BSE). If you answered no to the question of "have you had sex with anyone in the past 5 years whose sexual history you are unaware of" (paraphrased) and they found out you lied, there'd be the same action, I would wager (although it would be harder to proove).

[A Monkey With a Gun]

Some of my points have already been touched on above, but the board is incredibly slow right now and would not take this post till now.

I don't see it as discrimination at all. Whether anybody likes it or not, homosexuals are a high risk group. They aren't the only ones barred from donating blood either. The following is from the San Diego Blood Bank

Individuals at risk for AIDS must not donate blood
Do not donate blood if you have ever tested positive for HIV or if:

• You have ever injected yourself with drugs not prescribed by a physician
  You are a man and have had sex with another man since 1977, even once
  You have hemophilia or another blood clotting disorder and received clotting factor concentrate
  You have engaged in sex for drugs or money since 1977
  Since 1977, born in, lived in or received blood products while in Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, Niger or Nigeria
  You are a past or present sexual partner of someone in the above list

If this is discrimination against homosexuals, it is also discrimination against Nigerians, people who have stayed in Nigeria, or anybody who has had sex with almost any African in the last fifteen years. They test for the disease, but the tests aren't 100%, so it is prudent to minimize all possibility of HIV slipping through. This means tests and statistical measures.

On a more libertarian note, why shouldn't they be allowed to pick and choose the donors anyway? No one has a right to give blood. The Red Cross doesn't infringe on anyone's personal freedoms when they don't allow them donate, whether the reason is weight, cancer, drug use, sexual orientation, anemia, flu infection.

As far as the civil case is concerned, the man purposely mis-represented himself. If someone purposesly lied about having lived in a malaria infested region, I don't think anyone would criticize the Red Cross (or Candien Blood Services) for taking civil action. The hypothetical man may not have malaria, but he lied. Maybe he took extra special cautions against mosquitoes, maybe he never even went outside. It doesn't matter. He is in a certain demographic that has a statistically higher risk. This case is no different.

[WV_Woman]

Jerevian, women ARE asked "have you had sex with a male prostitute since 1977." At least around here they are.

[Jerevan Somerville]

WV_Woman, thanks for the info. Here, it seems to me, women and men are presented with the same card listing all these questions, so in my view the questions were not asked differently of women. However, I could be wrong about that assumption, so I have tried to keep that possibility in mind in what I say below.

Alright. I'm not arguing (a) that blood donation is my right; or (b) that the blood bank doesn't have a right -- a responsibility -- to assess the risk an individual donor presents and decide accordingly. But I would like to donate blood -- rather than pay the "replacement" fee -- because I know how desperately blood banks need blood (all the time) and that my blood is "clean".

My argument is this. "Have you had sex with a man/male prostitute, even one time, since 1977?" is not specific enough to allow any kind of reasonably risk assessment. How is "sex" defined here? Anal intercourse? Oral sex? Vaginal intercourse (when asked of a woman)? Each of these sexual behaviors carries very different risk factors for anyone involved in them. In the case of gay men and the first two options, the risk factors are also different depending on whether one is the "giver" or "receiver". To be blunt (and please forgive me for having to do so, in order to make my point): I have never engaged in anal intercourse, nor have I ever allowed another man to ejaculate into my mouth. Furthermore, I am not promiscuous; I can count on one hand the number of partners I have had in the last five years. This does not mean, of course, that my risk has been absolutely nil, but I would think my risk in this case is not much different than the average heterosexual person, and perhaps lower than a straight man who is more promiscuous and/or less careful.

And, in fact, the Donor Advocate of whom I spoke agreed with me. She said, "Quite frankly, I'd rather have the blood of gay men like you than that of some straight people." That is, she explained, based on her experience it is no longer reasonable to assume that gay people present a higher risk. I'm not passing a moral judgement on anyone's sexual behavior here; I'm just pointing out that if one is going to assess risks, one does have to be realistic about it. Otherwise the assessment is meaningless.

Secondly, the "1977" part is ridiculous. Women are asked whether they have had sex with a male prostitute since that time; but gay men are asked whether they've had sex with a man -- any man. For heaven's sake, I'm gay: how many gay men haven't had sex with at least one man in the last twenty-five years? What if the man with whom I have had sex has been my monogamous partner for the last fifteen years? The question asked of women seems to carry the unspoken assumption that her husband, boyfriend(s) or even the occasional "hook-up" present no risk to her, while any man constitutes a risk factor for a gay man.

So, as I said, my purpose in "coming out" to my blood bank was not to force them to recognize some kind of "right" I have to donate, but rather to open up a frank discussion on how the risk-assessment might be predicated on current reality. The questions are slanted to excluding gay men from donation en masse: I am excluded from donation not because I have engaged in behavior which poses a demonstrably higher risk, but simply because I have self-identified as gay which, contrary to popular belief, is not synonymous with "high-risk". Canadian law forbids discrimination of the basis of sexual orientation; while blood donation is not a "right", I think a reasonable case for a counter-suit of discrimination can still be made: the blood bank is treating one group differently than another, for reasons which no longer have much basis in reality. So I hardly think it is sensible to allow the 'bank to sue John Doe when the charge of "negligent misrepresentation" is based on the same, unrealistic reasoning.

[Eva Luna]

Just curious: what are they asking for in the lawsuit? In the U.S., (maybe different in Canada), don't you have to prove that you've suffered some discernible harm in order to win a lawsuit? What harm has the blood bank suffered, other than getting its metaphorical panties in a bunch?

[QueenAl]

Fair enough, he shouldn't have lied - but it seems a profligate waste of funds to sue the guy over this.

[Jerevan Somerville]

Exactly. No discernible harm has been done to the blood bank, blood supply or anyone else. Unless the questionnaire has the "force of law" -- like swearing an oath in court, then perjuring oneself -- I don't see the basis for the suit.

Bar him from donating, either because he lied or because the rules don't allow gay men to donate at present. Anything more seems like a can of worms not worth opening.

[QueenAl]

Canadian Blood Services traced the IP address--a number embedded in every every E-mail message--back to Internet service provider Rogers Cable. But the exact identity of the man could be determined only if Rogers used its own records to match up the customer with the IP address he was using at the time. Last week a judge ordered the company to release the man's name and address.

Doesn't that count as gross invasion of privacy? The emails, at least from the ones quoted in this article, weren't abusive. The man stated that he is in a committed long-term relationship, is HIV- and intends to stay that way - and on the basis of this, the blood company is suing the man and contacting anyone who might have been given his blood, and offering them AIDS tests. Bloody hell! (NPI). They are going to waste - probably hundreds of thousands of dollars over what is nothing more than an accounting issue, and cause unnecessary distress to those they tell to get tests. The words 'mountain' and 'molehill' spring to mind.

[A Monkey With a Gun]

Harm has been done to the blood bank. From the linked article:

The blood agency is now working with hospitals to trace donations made by the man and his partner, so that anyone who might have received the blood can be notified and offered HIV tests.

By misrepresenting himself, the man has forced the agency to take extra steps to stay in line with national policy. It is going to take time, money, and work to trace those donations. Also, the blood agency is going to have to pay for the additional HIV testing. These extra steps cost money, hence the civil suit. The man has wasted the agency's time and resources through an intentionally dishonest act. He should pay.

[Jerevan Somerville]

Perhaps. But the agency is forced to take these steps by an out-of-date and arguably discriminatory policy, not because John Doe poses a realistic, demonstrable risk. Why not save money and test John Doe for HIV? If he's negative now, he was negative when he donated.

[A Monkey With a Gun]

Are you sure this is still an out of date policy? From Health Canada:

The proportion of positive HIV test reports among adults attributed to the exposure category men who have sex with men (MSM) decreased from 72.0% in the period between 1985 and 1995 to 37.0% in 1999, then rose to 41.8% in 2000, and dropped to 36.6% in 2001 (Table 4A and Figure 3). The proportion of positive HIV test reports among adults attributed to injecting drug users (IDU) decreased from a peak of 33.7% in 1996 to 24.6% in 2001.

It's good that the percentage for MSM has dropped so much in the past seven years, but it appears to have leveled off around 35-40%. MSM still constitute over one third of all positive HIV tests in Canada. Obviously this is a signifigant demographic. By disallowing homosexual men and intravenous drug users from donating blood, Canadian Blood Services has removed 61.2% of the possible HIV threat to the blood supply without using a single blood test, which as we all know are not 100% accurate.

AIDS is fatal. It is only prudent for Canadian Health Services to use tests and statistical measures to protect the blood supply from HIV.