A Win-Win Policy That Puts Blood Supply Safety First

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December 17, 2014
Scott Schoettes

In the early years of the AIDS crisis, as the medical establishment grappled with the little-understood disease, the U.S. Department of Health and Human Services decided to ban blood donations from gay and bisexual men, ostensibly to protect the nation’s blood supply. Today, however, with much-improved understanding of HIV and AIDS, and quicker and more sensitive testing protocols, the 31-year-old blanket ban makes no scientific sense, if ever it did, and serves only to perpetuate discrimination and stigma.

As the oldest national organization committed to achieving the full recognition of the civil rights of the lesbian, gay, bisexual and transgender community and people living with HIV, Lambda Legal has been advocating against the MSM (men who have sex with men) blood donation ban since its implementation, underscoring the discriminatory and arbitrary nature of the ban and its focus on the sexual orientation and gender identity of the potential donor rather than on conduct.

Read this op-ed from the San Francisco Daily Journal in PDF format.

Recently, the HHS Advisory Committee on Blood and Tissue Safety and Availability issued a recommendation that the deferral period for blood donations from gay and bisexual men be reduced to one year from the current lifetime ban. This recommendation follows growing pressure from LGBT advocates and the medical establishment, including the Red Cross, the American Association of Blood Banks, America’s Blood Centers, and most recently, the American Medical Association, calling for HHS to amend the policy. The Blood Products Advisory Committee, a separate panel of blood safety experts convened by U.S. Food and Drug Administration, is contemplating endorsing this change as well.

While this is an important first step in a more comprehensive review and revision of the blood donation policies, merely changing the parameters of this discriminatory policy does not alter its underlying essential nature, eliminate its negative and stigmatizing effects, nor transform it into a policy based on current scientific and medical knowledge.

To accomplish this, the policy must be changed to one based on the conduct of the potential donor and not on sexual orientation, gender identity or the perceived health status or risk factors of the donor's sexual partners. In its hierarchy of risk for the transmission of HIV, the Centers for Disease Control and Prevention focuses entirely on behavior, not sexual orientation or gender identity. Regardless of the varying degrees of prevalence between communities, the fact remains that a person can only become HIV-positive after engaging in activities that present a risk of transmission. To base deferrals primarily on prevalence within certain communities rather than behavior could serve to disqualify other segments of the population based on race, sex and where they reside, a very slippery slope toward what is more easily recognized as illegal discrimination.

With these things in mind, a policy should be based on: (1) the sensitivity of the current tests for blood-borne pathogens and (2) deferrals based on donor self-report of activities involving a significant risk of transmission during the relatively short window period of these more sensitive tests.

First, the current length of the deferral period is arbitrary and is untethered from the sensitivity of current testing technologies. Because the deferral policies work in conjunction with the primary method of protecting the blood supply — the testing of all blood donations — the deferral policies should be targeted at and tailored to the existence of blood-borne pathogens that those tests may not detect. As the commonly used current tests detect HIV within 9-11 days of contact and detect Hepatitis B, which has the longest window period, within 20-25 days, a reasonable deferral period would be two months at most.

Second, to eliminate the discriminatory, stigmatizing and anti-prevention aspects of current donation policies, deferrals should be based entirely on the potential donor's conduct during that dramatically shortened window period.

As detailed by the CDC, we now know the hierarchy of relative risks of HIV transmission. For instance, receptive anal sex is approximately 10 times riskier than either insertive anal sex or receptive vaginal sex. Therefore, HHS need only determine the point along the risk spectrum it deems tolerable — perhaps that point is the significant jump in risk associated with receptive anal sex — and implement a deferral based on engaging in that conduct, without regard to the donor's sex, sexual orientation or gender identity. The deferral period could be eliminated altogether by an individual’s use of the most effective prevention methods, such as condoms or pre-exposure prophylaxis — which we now know is as effective as condoms when taken at least four times a week — during the window period.

At whichever point on the spectrum HHS determines is a tolerable level of risk for pathogen acquisition within the deferral period (everyone agrees zero risk is an unachievable goal), the policy should be applied equally to everyone and based on information within the personal knowledge and control of the potential donor — because a woman does not necessarily know if she is having sex with a man who has sex with men, and no one knows if they are in a completely monogamous relationship. And if the blood collection industry is squeamish about asking potential donors the intimate details of their sexual history, we need to clarify that this is the place where compromise is unacceptable — getting accurate and complete information from potential donors is an imperative for protecting the blood supply. If potential donors don’t want to share that information, then they should be the ones excluded from donating.

If we are serious about a policy that is truly most protective of the blood supply, it will treat all donors the same and base any deferrals on the conduct of those individuals within a scientifically justified “window period” prior to donation. And, as an added benefit, this policy is nondiscriminatory — which brings a happy change to the nation’s blood donation policy. Now, the only question that remains is why the government wouldn’t fully embrace this win-win approach. We eagerly await appropriate action.

Blood Ban, HIV