January 5, 2010
Canada's blood service agency does not refuse donations from men who have sex with men (MSM) due to their sexual orientation but rather due to their elevated risk for HIV and other infections, the service's lawyer argued Monday in an Ottawa courtroom. Plaintiff Kyle Freeman alleges that the ban against blood donations by any man who has ever had sex with another man even once since 1977 violates his Charter Rights and those of other MSM.
"No one has been excluded because they are gay," said Sally Gomery, the attorney for Canadian Blood Services (CBS). "They have been excluded because gay and bisexual and heterosexual men who have this history have a higher risk."
Freeman filed the civil suit after CBS brought him before the court for negligent misrepresentation, alleging he lied on screening forms the agency uses to "defer" unsuitable donors. From 1990 to 2002, Freeman donated blood 18 times.
The ban is justified since MSM are 300 times more likely to acquire HIV than adults who are neither MSM nor injection drug users, Gomery said in court. Of the 58,000 Canadians with HIV, 51 percent are MSM, she said.
The Charter should not apply to CBS since it is not a government agency, Gomery argued, although it is regulated by the government and receives government funding. Even if the Charter did apply, donors are not entitled to an equality guarantee since donating is not a right, she said.
"The offer to give blood, like the offer of any other gift, can be refused," said Gomery. "Safety to recipients is the paramount value within the blood system. If there is a risk something bad will happen, we must assume it will happen and we must take steps to mitigate that risk."
Freeman's attorney is scheduled to make his closing arguments today.