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Top EU court sets hurdles to banning homosexuals' blood donations

The Court of Justice of the European Union has ruled that refusing blood donations from men who have had sexual relations with other men "may be justified." Issues have been raised over discrimination.

In Wednesday's judgment, the Court of Justice told Strasbourg's Administrative Court a homosexual man's blood donation cannot be refused unless a country has clearly determined that the person is at high risk of acquiring severe infectious diseases, such as HIV, and that there are no effective detection techniques or less onerous methods than a ban available to ensure a high level of health protection for recipients.

According to a 2004 European Commission Directive on certain technical requirements for blood and blood components, "persons whose sexual behavior puts them at a high risk of contracting severe infectious diseases that can be transmitted by blood are subject to a permanent deferral from blood donation."

Donor appeal

The Court of Justice on Wednesday addressed a case that came to light in 2009, when a doctor at the French Blood Agency in the western French town of Metz refused blood from a donor because of his sexual relations with another man. The doctor argued that French law permanently excluded blood donations from men having had such sexual relations.

The patient challenged the decision, however, causing Strasbourg's Administrative Court to request the top EU court's opinion on the legality of refusing homosexuals' blood donations.

Discrimination against sexual orientation

The legal debate brought up the question of whether permanently banning blood donation from homosexual men complies with fundamental rights of the European Union (EU) - particularly, with the principle of non-discrimination on the basis of sexual orientation.

In response, the Court of Justice said that "any limitations on the exercise of the rights and freedoms recognized by the Charter of Fundamental Rights of the EU may be imposed only if they are necessary and genuinely meet objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others."

In this respect, all available tests to check the blood of a donor and protect the health of recipients must have first been carried out before imposing a permanent ban.

ksb/sms (dpa, ECJ)

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