The gift of life goes on trial

A single question on a prospective blood donor's questionnaire is at the heart of a controversial case between one gay man and Canadian Blood Services that is before the Ontario Superior Court in Ottawa after seven years of delays.

“For males: Have you had sex with a man, even one time since 1977?”

Kyle Freeman, a 36-year-old gay man from Thornhill, Ont. answered no to that question 18 times since 1990. If he had answered truthfully, he would have been barred from giving blood indefinitely. In 2002, Freeman sent an e-mail to Canadian Blood Services admitting he lied on the questionnaire.

A nurse with Canadian Blood Services prepares a donor.

"I am a gay man and have been involved in a long-term committed relationship," the e-mail said. "Both my partner and myself [have] been tested for the HIV virus and are both negative and intend to stay that way. We are both very honest people and are both blood donors."  Freeman says his intentions were to start a discussion about the question, which he found unfair.

But rather than a discussion, Canadian Blood Services filed a civil lawsuit against Freeman for lying on the questionnaire, which is intended to screen people who pose a higher risk of HIV and other viruses. Canadian Blood Services believes that this question will protect Canadian society from a tragedy similar to the tainted blood scandal of the 1980s when 1,200 people were infected with HIV and more than 20,000 people with hepatitis C. 

The organization also stresses that in 1999, the Canadian Red Cross — the predecessor of Canadian Blood Services — found Freeman's blood to be infected with a non-contagious strain of syphilis.

Freeman argues that the current question has little to do with the risk of HIV or other sexually transmitted infections.

“This question excludes gay men from donating blood because they are gay and not because the person has engaged in behaviour that puts them at a higher risk for contracting HIV,” Freeman says. As a result, he launched a charter challenge against Canadian Blood Services. He says the question violates his equality rights protected by Section 15 of the Charter of Rights and Freedoms and therefore he had “no duty to tell the truth in answering a discriminatory and therefore illegal question.”

The myth of AIDS as a "gay disease"

Egale, Canada’s largest gay rights group, and the Canadian AIDS Society find the current question inappropriate as well. They were both allowed to intervene in the case, but that process resulted in a seven year delay before the case saw a courtroom. Both groups hope that the court will strike down the question and ask Canadian Blood Services, and Health Canada —which approved the questionnaire —  to form a narrower, non-discriminatory question. 

Douglas Elliot is the lawyer representing the Canadian AIDS Society in this case. In the past he has represented dozens of people who were infected with HIV during the tainted blood scandal and says he understands the fears of Canadian Blood Services and the Canadian Hemophilia Society, which is also intervening in the case. But Elliot believes that the current form of the question indirectly promotes the myth of AIDS as a gay disease.

“Such connection is very offensive and discriminatory,” Elliot says.

He says the question doesn’t make the system safer but actually does the opposite.

“It discourages young people from becoming blood donors — and not only gay people,” Elliot explains. “Lots of young people feel that the process is tainted with homophobia and they don’t want to be associated with it.”

For example, he says the Canadian Federation of Students opposes the restrictions.

But Canadian Blood Services and the Canadian Hemophilia Society disagree. They say the question only prevents high-risk groups of people from donating blood and argue that gay men are considered high-risk for good reasons.

“The risks from men who had sex with men in terms of HIV and hepatitis B and C are many times higher than for heterosexual behaviours,” says David Page, executive director of the Canadian Hemophilia Society. “The risks are 200 times higher.”

Men who have had sex with men represent almost 40 per cent of HIV-positive tests in Canada, according to Public Health Agency statistics from 2008. Injection drug users, who are also permanently banned from donating blood, represent about 20 per cent of HIV-positive people.

“Giving blood is not a universal right. It is a gift that people are making.” — David Page"Giving blood is not a universal right. It is a gift that people are making," Page says.  “People need to understand that for recipients there are all risks — 100 per cent of the risks in blood donations. And donors really bear no risks at all."

Despite the improved testing for HIV, Canadian Blood Services believes that the high-risk groups should be banned from donation permanently.

Lorna Tessier, director for Public Involvement of Canadian Blood Services in Ottawa says despite advancements in HIV-AIDS research there is still a slight possibility of errors which could contaminate the blood supply.

“There is a window period of time from being infected with HIV to the time the virus is detectable on the test,” Tessier says. “If someone has been infected recently and donated blood during the window period, it would not show on the test and the blood could be transfused to patients who would get infected.”

Double standards for blood and organs

Both Freeman and the Canadian AIDS Society suggest that the solution is to merely prevent men who have had sex with another man from donating blood temporarily, rather than banning them indefinitely. Freeman is arguing for a six-month deferral period while the Canadian AIDS Society suggests a one-year period for a man who has sex with another man sometime in the last five years.

The proposal of the Canadian AIDS Society is similar to the policy in place for women who had anal sex with a bisexual man or for gay men when donating organs. But Canadian Blood Services says it is still too risky to allow the same system in blood donations.

“We would require scientific evidence that would convince our regulator, Health Canada, that making [such a] change would not increase the risks for patients. And there is no such evidence now,” Tessier says. “It is different for organs and the exception is in place because of the severe shortage of organs in Canada.

"There is no shortage on the blood side of the program.” 

Any blood that is donated goes through an extensive screening process before it enters a blood bank.

When transplanting an organ it is up to the physician and patient to accept or reject the organ and the risks it might be posing. Tessier says that nothing like that is planned for blood donations now, as one out of every two Canadians are eligible to donate.

Another proposal is to make an exception for gay male donors who are in monogamous relationships, such as Freeman. The Canadian Blood Services is researching this at their facility in Vancouver, where they specifically ask gay men to donate blood.

Honesty is the best policy

It’s not just HIV risks, but also the risk of future unknown diseases, that make the Canadian Blood Services hesitant to change the current question.

Tessier says future viruses that may affect gay men could pose high risks for recipients. A herpes virus, HHV-8, that causes a type of cancer in immunosuppressed people, could be one of them, she says.

But the Canadian AIDS Society argues there is not enough scientific evidence and discounts the fear over future diseases.

“You could have a virus affecting the Russian community, or the Chinese community or First Nations or women. There are all kinds of possibilities of people who could be affected by future viruses,” Elliot says, adding that such fears are nonsense.

Elliot stresses that Canadian Blood Services should focus on finding a compromise with the gay community to make sure there won’t be more people like Freeman who would rather lie than give up blood donations.

“The question is only effective so long as the members of gay community cooperate with the question,” he says, and adds there is no way to find out the sexual orientation of the donor. “There really is no test for gay blood.”

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