NEW DELHI: The Union Government on Thursday informed the Supreme Court that after due deliberations and review, it has decided and reiterated to retain the ban on blood donations by the LGBT community.
The Centre submitted this information after experts revisited the earlier decision, as directed by the Court, to decide on the issue of blood donations by the LGBT community to people.
The top court was hearing a bunch of petitions filed by members of the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender and Queer) community, author and former journalist Sharif D Rangnekar and social activists Thangjam Santa Singh and Harish Iyer.
During the hearing on Thursday, Additional Solicitor General (ASG) Aishwarya Bhati, senior law officer appearing for the Centre, informed the top court that experts in the case have reiterated that the ban on blood donations by the LGBT community was essential in the larger public interest.
“The experts have reconsidered, and there is a reconsidered opinion that if this ban is diluted, it will be injurious to the recipients,” Bhati told the SC.
The submission of the Centre came after the court had last year asked the Union to reconsider the blood donation rules concerning the LGBTQ community.
Hearing these submissions from the Centre, the apex court’s three-judge bench, headed by the Chief Justice of India (CJI) Surya Kant and also comprising Justices Joymalya Bagchi and Vipula Pancholi, observed that even a one percent chance of infection should not be there.
The court, however, refused to interfere with the Centre’s submission but agreed to hear the pleas later.
While expressing disinclination to interfere with the Centre’s decision, the court asked the petitioners: “Tell us one good reason that we should issue a direction. After all, there are millions and millions of poor people who take free blood facilities. They cannot afford private hospitals. It is the poor strata of the people who are sustaining on this blood. Why should these poor people. Even if there is a one percent chance of any infection, why should they be affected?”
Replying to these queries, Senior Advocate Jayna Kothari, appearing for the batch of petitioners, stated that the reasoning of the committee has not been placed on record. She also submitted that the decision was targeting a person merely on the grounds of sexuality and gender identity.
The petitioners had moved the top court challenging the “Guidelines on Blood Donor Selection and Blood Donor Referral, 2017” issued by the National Blood Transfusion Council (NBTC) and the National AIDS Control Organisation (NACO) under the aegis of the Central Health Ministry.
The court also termed the petitions as “luxury litigation”.
The Supreme Court had earlier in 2024 issued notice to the Union of India (UOI), NACO and NBTC and sought their detailed responses after hearing the petition challenging the constitutional validity of the Blood Donor Rules of 2017 issued by these authorities, which permanently restrain transgender persons, female sex workers and LGBTQI persons from donating blood.
The blood donor rules were issued by the NBTC, NACO and Union of India (UOI). These permanently restrain transgender persons, female sex workers and LGBTQI persons from donating blood.
Rangnekar said the guidelines are based on a highly prejudicial and presumptive view taken with regard to gay men in the 1980s in the United States of America. It has since been revisited by a majority of countries, including the USA, the United Kingdom, Israel and Canada, among others.
These governments have come out with revised guidelines for blood donors which do not impose a blanket restriction on gay men or gender queer persons from donating blood.
“Even viewed from a scientific perspective, such a blanket restriction on blood donation is based on an assumption that a particular group of persons may be suffering from sexually transmitted diseases. Medical technology and education, especially in the field of haematology, have progressed by leaps and bounds in the 21st century and screening of blood donors is conducted for every donation before a possible transfusion.
“In such an era, a blanket prohibition emanating from a highly discriminatory view of gay persons does not stand to reason,” Rangnekar, in his PIL — a copy of which was accessed by this newspaper — said.
Requesting the SC to pass appropriate orders on the issue, Rangnekar said: “Such a blanket prohibition is a violation of the right to equality, dignity and life protected under Articles 14, 15, 17 and 21 of the Constitution.
“Such guidelines violate the right to live with dignity and do not afford full membership of living in a society to the LGBTQ+ community, thus reducing them to second-class citizenship.”
The petitioner, Rangnekar, said that Clauses 12 and 51 of the General Criteria under the Blood Donor Guidelines and Blood Donor Referral, 2017 are discriminatory and unconstitutional as they permanently exclude gay/LGBTQ+ persons from donating blood.
Rangnekar thereby sought a direction from the SC to the Centre to frame guidelines that allow gay and LGBTQ persons to donate blood, with reasonable restrictions based on ‘screen and defer’ or ‘assess and test’ policies.
He also sought a direction to the UOI, NACO and NBTC to carry out sensitisation programmes while dealing with gay/LGBTQI persons who donate blood without subjecting them to invasive questions, and to sensitise State AIDS Control Organisations about new policies once they are enacted.
“The three respondents — UOI, NACO and NBTC — should carry out public campaigns accordingly that sensitise society about risky behaviour and the new guidelines. The Supreme Court of Brazil struck down a 12-year deferral on gay men donating blood as unconstitutional on the ground that modern testing technology has evolved and that the blood donation deferral period of 12 months was discriminatory,” the plea said.