Gay Blood Donors Win Tentative OK in EU Court
(CN) - Men who have sex with other men should not be automatically barred from donating blood in the EU, an adviser to Europe's highest court held Thursday.
In 2009, France's blood agency refused Geoffrey Leger as a blood donor because he is gay. Like U.S. law, French law permanently bars men who have ever had sex with another man from giving blood.
Leger challenged the decision, and an administrative court in Strasbourg asked the European Court of Justice whether EU law allows a permanent blanket exclusion of such donors. Modified in 2004, European law states that any person whose sexual behavior puts them at high risk of contracting severe infectious diseases transmittable by blood are permanently banned from giving blood.
But in an opinion for the Luxembourg-based high court, Advocate General Paolo Mengozzi held Thursday that just because a man has or had sexual relations with another man does not mean he engages in sexual behavior that warrants a permanent ban on giving blood.
Mengozzi noted that while EU law does not define "sexual behavior," he believes it refers to specific sexual practices and habits practiced by individuals rather than the broader sexual relations between two men.
In Mengozzi's opinion - which was not made available in English - the French ban is worded too broadly and presumes that gay and bisexual men are automatically too high-risk for the blood supply. But the adviser also acknowledged that France's law pursues the legitimate aim of protecting public health.
Still, the law contains a discriminatory inconsistency in that it levies only temporary bans on heterosexual donors who admit to having unprotected sex - even in cases whether the potential donor has an HIV-positive partner, Mengozzi said. And donor banks do not even question whether the male partners of female donors have had sexual encounters with other men, according to the opinion.
Blood banks should instead assess the "risk behaviors" of all potential donors rather than the sexual relations of gay and bisexual men, Mengozzi said.
Mengozzi's opinion is not binding on the Court of Justice, which has begun its own deliberations in the case.