Court finds 10-year blood donation restriction for gay community unconstitutional
By Levan Abramishvili
Wednesday, December 18
On December 17, the Constitutional Court of Georgia found it unconstitutional to prohibit MSM (males who have sex with males) and gay community within 10 years after the last sexual act from donating blood and its elements, according to the Equality Movement, a local NGO working on LGBTQ+ issues.
The order that was appealed to the court was issued by the Minister of Internally Displaced Persons from the Occupied Territories, Labour, Health and Social Affairs of Georgia and stated that the MSM act as a ground for banning a person from donating blood for 10 years.
The increased risk of acquiring blood-borne diseases may be the result of the sexual behavior of both MSM and heterosexual people, according to the plaintiffs. Despite this, the norm restricted the right to donate blood for 10 years only for MSM and for others the time-frame was only 12 months from the risky sexual act.
The plaintiffs also argued that the right to donate for MSM was restricted to a much longer period than was objectively necessary for the safety of the donation process. Therefore, they argued, the rights to equality (Article 14 of the Georgian Constitution) and the right to free development of personality (Art. 16) were disproportionately restricted.
The plaintiffs also argued that the norm had the identical content of a norm that was previously declared unconstitutional by the Court in February of 2014, which banned blood donation for MSM indefinitely.
According to the defense side, MSM has a higher risk of acquiring a blood-borne infection than people not engaged in such sexual activities. Consequently, it was justified to limit the right to donate for these persons for a longer period. In addition, according to the defendant's argument, the norm differed substantially from the norm that was ruled unconstitutional in 2014.
The Constitutional Court of Georgia has indicated that, according to the standard set forth in the 2014 decision, blood tests may not completely exclude the risk of HIV infection of recipients as the virus cannot be detected during the incubation period (the so-called ‘window period’), which refers to the time between HIV infection and the point when the test will give an accurate result. During the window period, one can have HIV and be very infectious but still test HIV negative.
In addition, given the current technological advances, it is possible to detect HIV in the blood and its components after the ‘window period.’ Therefore, blood donations for MSM to be only limited to the time needed to address the risks of a so-called ‘false negative’ response, according to the Court.
In the present case, the Constitutional Court has indicated that 10 years is a much longer period than the ‘window period’ and that the disputed norm, like the already unconstitutional norm, restricted the rights of MSM for much longer than necessary.
In consideration of the above, the Constitutional Court of Georgia found that the Minister’s order repeated the norm that was found unconstitutional in the 2014 decision and considered to have been nullified at the session.
Moreover, Georgia's Constitutional Court postponed the nullification of the contested norm in order to protect the recipients' life and health, as well as the safety of the blood donation process by March 31, 2020.
