Apex Court Issues Notice In Plea Challenging Ban On Blood Donation By Transgender Persons, Sex Workers And Gay Men

The Supreme Court has issued notice in a gay man's Writ Petition challenging the constitutional validity of the 2017 Guidelines on Blood Donor Selection and Blood Donor Referral issued by the National Blood Transfusion Council (NBTC) and the National AIDS Control Organization (NACO), Ministry of Health and Family Welfare, Government of India.

The Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra said, "Issue notice, returnable on 11 September 2024."

During the hearing, Advocate Rohin Bhatt appeared for the petitioner. 

The Bench also said, "The Registry shall list Writ Petition (C) No. 275 of 2021, together with the present matter, on the next date of listing." Accordingly, the matter is listed for hearing on September 11. 

The Public Interest Litigation (PIL) filed through Advocate on Record (AoR) Ibad Mushtaq stated that these guidelines impose a blanket ban on blood donations from transgender persons, female sex workers, and men who have sex with men, thereby violating their fundamental rights to equality, dignity, and life under Articles 14, 15, 17, and 21 of the Constitution.

The petition asserted that the impugned guidelines are rooted in outdated and prejudicial views dating back to the 1980s in the United States. The petitioner also contended that many countries, including the United States, the United Kingdom, Israel, and Canada, have since revised their blood donation guidelines to eliminate such blanket restrictions on gay men and gender-queer individuals.

From a scientific standpoint, the petitioner highlighted that advancements in medical technology and education, particularly in hematology, have significantly improved the safety of blood donation processes. Current screening methods are employed for every donation to ensure safety before transfusions.

The petition argued that continuing to enforce a blanket prohibition against specific groups based on outdated assumptions about sexually transmitted diseases is not only discriminatory but also unreasonable in today’s context. "The medical technology and education, especially in the field of haematology has progressed by leaps and bounds in the 2 1 Century and screening of blood donors is conducted for every donation before a possible transfusion. In such era, a blanket prohibition emanating from a highly discriminatory view of gay persons, does not stand to reason," the PIL read. 

The petitioner has prayed for the following:

1. Declare that clauses 12 and 51 of General Criteria under Blood Donor Selection Criteria of the Guidelines for Blood Donor Selection and Blood Donor Referral, 2017 dated 11.10.2017 is discriminatory and unconstitutional to the extent it excludes men having sex with men from permanently donating blood.

2. Issue a writ order, or direction directing the Respondent No. 1 to frame guidelines that allow men having sex with men to donate blood, with reasonable restrictions based on 'screen and defer' or 'assess and test' policies.

3. Issue a writ order, or direction directing Respondents No. 1, 2, and 3 to carry out sensitization programmes while dealing with men having sex with men who donate blood without subjecting them to invasive questions, and State AIDS Control Organisations about new policies, once they are enacted.

4. Issue a writ order, or direction directing Respondents No. 1, 2, and 3to carry out public campaigns that sensitise the society about risky behaviour, and the new guidelines.

5. Issue a writ order, or direction directing Respondent No. 4 to make appropriate changes to their curricula that sensitise medical students that men having sex with men are allowed to donate blood.

Cause Title: Sharif D Rangnekar v. Union of India and Ors. [W.P. (C) No. 465/2024]

Appearance:-

Petitioner: Advocates Rohin Bhatt, Ibad Mushtaq (AOR), Akanksha Rai, Gurneet Kaur

Click here to read or download the Order