Haemophobia? An analysis of the compatibility of the restrictions on men who have had sex with men from donating blood with the European Convention on Human Rights

Jon Bardsley


Introduction

 

Blood is something we all expect to be there for us when we need it, yet only 4% of us give blood. Many people would not be alive today if it wasn't for the generosity of our donors. Do something amazing...Give Blood.’[1]

 

Not everyone is able to ‘do something amazing’ as the above quote suggests. Some donations pose risks to the recipient’s[2] or the donor’s[3] health. The most controversial restriction is the rejection of any man who has had oral or anal sex with another man in the last year.[4] Factors such as protection, frequency and the nature of the relationship between sexual partners are irrelevant; any man who has had any sex with another man (herein ‘MSM’) is deferred until twelve months after the last occasion.[5] The rationale for this is that MSM are statistically more likely, when taken as a group, to be infected with Human Immunodeficiency Virus (HIV). The concern is that such individuals may be unaware of their condition and that their blood may show a false negative result to the tests every donation undergoes. This is a new policy. Before the 7th November 2011, based on the same rationale, men who had ever had sex with another man were permanently ‘deferred’. The Advisory Committee on the Safety of Blood, Tissues and Organs (‘SaBTO’) reviewed the policy and considered a 12-month deferral to be more appropriate.[6]

 

This essay assesses the compatibility of the current policy with the European Convention on Human Rights. Such analysis is valuable in two respects. Firstly, the issue merits attention in its own right. Allegations have been made that the policy is disproportionate and discriminatory.[7] Breaches of human rights are rightly considered grave matters, so such allegations must be taken seriously. Secondly, the issue provides a springboard from which important questions about the Convention jurisprudence can be addressed. Most significantly, these are (i) what is the scope of the right to private life in Article 8; (ii) what is the ambit of Article 14 in relation to Article 8; (iii) how wide should the margin of appreciation be in such cases; and (iv) do such policies satisfy the proportionality test as it currently stands?

 

Article 8

 

Clarifying the Interest

 

We need to be clear at the outset what rights an applicant may claim. Private life does not stretch to include a human right to donate blood; we must translate loose rhetoric into precise legal argument. Firstly, the issue can be considered a ‘right to equal treatment.’ This will be an argument under Article 14, although the following assessment of the scope of Article 8 will be relevant to this. Secondly, we can argue the issue under Article 8 directly, which is not an easy task.

 

The first possibility is to frame the interest as a ‘right to participate in activities afforded to others.’ However, by referencing others this merely rephrases equality arguments not suitable under the right to respect for private life. Article 8 is an individual right. Only a failure to provide the applicant with respect for his private life will do and comparison to others is irrelevant.[8] Further, when finding an interference with Article 8, the reason for the applicant’s denied donation is irrelevant. The question to be asked is whether the actual denial of anyone’s donation fails to respect his private life.

 

The second possibility is to frame it as a limitation on freedom of action. Donating blood is socially contributory. Some donate as an act of charity, some out of a perceived obligation to a system they may later have to turn to. When denying someone the ability to act in a way they feel morally or socially bound to may be within the remit of Article 8. But it is important to not let the breadth of Article 8 mislead us into the area of economic, social and cultural rights not protected by this Convention. The state has no obligation to provide a blood donation service. If there were no donation service at all, then it would be difficult to argue interference with respect for anyone’s private life. The state does not provide a massage donation service for those with tense shoulders, and an enthusiastic masseuse who may later need such a service cannot argue their private life has not been respected. Article 8 does not provide for general freedom of action.[9]

 

But the issue might not be excluded. The distinction between positive and negative obligations is illuminating. Blood donation and regulation is provided by the state alone. The argument above suggests that as the state is not required to provide a service to anyone, it can choose to only provide it to some. However, if a private company was told by the government regulator not to accept homosexuals, the issue suddenly seems highly disrespectful of donors’ private lives. This is an intuitive disparity that is difficult to explain. The difference may be that, whereas in the private example the state actively does something to make donation impossible, in the state example it is thought of as passive: not providing rather than prohibiting. In this situation, the state regulator is contravening negative obligations rather than failing to fulfil positive obligations. They are prohibiting, rather than not providing. The National Blood Service and SaBTO are separate bodies. The Blood Service is equivalent to the private company, and the prohibitions imposed on them by the state regulator are positive action making donation impossible.

 

The negative obligation on the state to not intervene appears stronger than the positive obligation to provide. Article 8 does not stretch as far as a general freedom of action, but it does protect against interferences with private life and, within that, autonomy. Botta[10] provides a useful analogy. Here the disabled applicant unsuccessfully argued that failure to make provisions for him to access a beach did not respect his private life. The state failed to provide rather than actively prevented, and this did not constitute interference. However, it is argued that had access been easily achieved, but a sign at the entrance barred the disabled, they would have found differently. In short, when the state limits action by intervening this is potentially interference under Article 8, while when the state limits action by failing to provide, this is not.

 

This analysis suggests that the most suitable formulation of the issue to assess against Article 8 is the claim that prohibition of an individual from activities he could participate in, but for the prohibition, interferes with his private life. Below the scope of Article 8 is fleshed out both to ascertain this claim’s viability and to establish the scope for any Article 14 claim. There are a number of understandings of Article 8 that I return to shortly. Firstly, it is necessary to draw out principles general to all.

 

‘Private Life’

 

Article 8(1) guarantees that ‘Everyone has the right to respect for his private…life…’[11] The purpose is ‘to protect the individual against intrusion by agents of the state, unless for good reason, into the private sphere within which individuals expect to be left alone to conduct their personal affairs and their personal lives as they choose.’[12] Privacy involves ‘the right to live one’s life with a minimum of interference’ and the ‘non-revelation of irrelevant…facts.’[13] The Court first looks to find interference with this, before assessing the proportionality of any justification.

 

In Connors,[14] the Court asserted that the overriding concern of Article 8 is to protect ‘rights of central importance to the individual’s identity, self determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community.’[15] In Pretty[16] the Court explained:

 

‘…the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8.  Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world…the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.’[17]

 

Wadham et al summarise it as ‘a sprawling article that encompasses a growing number of diverse rights.’[18] Defining private life has been an exercise in generosity,[19] demonstrated by Hatton[20] that seems to suggest the right to sleep well is within its scope. The threshold for engaging the Article is ‘generally low’ both domestically and in Strasbourg,[21] acknowledged by Lord Bingham in Qazi.[22]

 

The right is broad in practice as well as on paper, in three ways. Firstly, complaints have been accepted where there is no proven interference, merely potential interference[23] or a risk of interference.[24] So, while the applicant must prove the interference, it is not necessary to show a specific act.[25] Secondly, in many cases the State does not contest the interference, given the low threshold. Finally, there is a desire to give Article 8(1) a broad scope, allowing Article 8(2) to rein it in. Baroness Hale stated in Countryside[26] that ‘in difficult or borderline cases, there is much to be said for taking a broad view of the scope of the right and requiring the state to justify its interference.’[27]

 

As well its breadth, the Article is linguistically unique: it does not confer a right to a private life, but a right to respect for a private life, which clearly goes further.[28] The notion of respect varies between cases[29] but some argue that ‘respect’ increases protection for individual choices.[30] Indeed, the idea of courtesy is present; causing Fawcett to complain the word ‘belongs to the world of manners rather than the law.’[31] This raises an interesting question. It may be unnecessary to conceive the complaint as a right not to be turned away from an activity, but enough to complain the right to respect for sexual orientation itself is interfered with. Sexuality is part of an individual’s private life, and the Article requires that this must be respected. This argument is supported by the clear protection of sexuality and sexual activity.[32] Dudgeon[33] held that sexual life is one of the most intimate aspects of private life, supported by Laskey, Jaggard and Brown.[34] Further, interferences such as in Smith and Grady[35] are ‘especially grave.’[36] The law requires only an interference, not necessarily an ‘especially grave’ or even ‘grave’ one. Therefore the level of interference needed is significantly less than that reached by these cases.

 

The picture painted is one of an expansive right. However it should be remembered that there is a de minimis test: not all intrusions into the private sphere fail to respect private life. Costello-Roberts[37] concerned corporal punishment in schools. There is clearly an intrusion into the child’s physical integrity but it did not have sufficient adverse consequences to fall within Article 8. The Court notes that even sending a child to school will intrude into his private life.

 

Five Understandings of Private Life

 

The protection under private life can be conceived in five broad categories: spatial, informational, relational, decisional and as a ‘gap-filler’. The first is largely irrelevant to the issue at hand; the remaining four will now be discussed in turn.

 

Private life as informational privacy

 

It is an established principle that an aspect of private life is the use and disclosure of personal information.[38] One could argue that questions that reveal sexuality[39] interfere with one’s right to keep information private. However, the Court is likely to take the position that the information is volunteered, not required, as individuals choose to go to a donation centre and disclose such information. An analogy may be that of nightclubs, where a condition of entry may be the disclosure of age, but as the person chooses to do so this will not fail to respect their private life. Indeed, gay and lesbian nightclubs may ask about sexuality, but a similar rationale applies.

 

Private life as protection of relationships

 

There is a right to establish and develop relationships both with others and with the outside world.[40] As no genuine relationship is established between donor and recipient, the issue can only be framed in terms of the latter, by engaging with society in an altruistic way. Given that many who donate do so to ‘give’ to society, donation would prima facie appear to be supported by this conception of private life. While the Court frequently mentions that private life in terms of relationships includes relationships with the outside world, they are yet to explain how this is to be applied. The issue would be more than appropriate under this heading. Relationships with the ‘outside world’ are different from those with ‘others’ in the Court’s wording, therefore it must mean engaging with society generally. If a ‘relationship with the outside world’ is not the ability to give to a social service then the phrase is no more than a façade.

 

However, the threshold for this relational understanding is comparatively high. In Razgar[41] only ‘features which are integral to a person’s identity or ability to function socially as a person’ were held to be protected.[42] In Countryside[43] Lord Hope interprets Niemietz[44] as saying the development of relationships is only protected to a certain degree.[45] The Lords seem to suggest that Article 8 is broad, except for the narrower sub-category of relationships. Strasbourg appears to agree: they state that Article 8 must be broadly construed but that does not mean it ‘protects every activity a person might seek to engage in…in order to establish and develop relationships.[46] Both judgments are carefully worded to narrow only this particular understanding. While this may leave other understandings such as autonomy wider, this appears to make the issue of donation difficult to argue as a denial of the ability to develop relationships.

 

Private life as personal and decisional autonomy

 

‘[T]he ways of life chosen by some people will be unpalatable to others. But respect is due to all persons alike, grounded in the fact that each speaks from his or her own particular point of view.’[47] Personal autonomy means allowing people to live their lives as they wish. Non-totalitarian states must recognise that some matters are personal and where state regulation is inappropriate.[48] Autonomy is at the heart of Convention jurisprudence. In André Deklerck[49] it was recognised that there is a ‘sphere within which [individuals] can pursue the development of his personality’ and ‘whenever the state enacts rules for the behaviour of the individual within this sphere, it interferes with the respect for private life.’

 

Pretty[50] established autonomy as the principle underlying private life. Privacy here is ‘the ability to conduct one’s life in a manner of one’s own choosing.’[51] Wadham argues Article 8 is ‘increasingly’ about autonomy.[52] Further, the Court has now gone ‘beyond the protection of an intimate sphere of personal autonomy’[53]. The effect of Dudgeon[54] was that privacy is no longer about disclosure but rather about living free from regulation. Feldman argues that these links with autonomy and self-fulfilment have brought ‘freedom of action and life-style’ within the Article’s scope,[55] however, this is currently without support from the Court.

 

Some may argue the issue is too far removed from the core identity of the individual to be protected. However this gives insufficient weight to the cumulative effect of policies restricting minorities. Together, they have a powerful effect on how individuals see themselves and their position in society. They may singularly be considered minor, but when taken together have the effect of oppression and alienation. One can consider the cumulative effect on homosexuals of policies on foster-care, civil union status, military service, age of consent and immigration law by way of example.[56] They must all, however, be tackled individually. European jurisprudence already ‘acknowledges the impact that social conditions have on the formation of individual identity, or human personality.’[57]

 

This appears to be the conception where the claim under Article 8 is most suitable. The scope here is wide and it purports to come close to protecting individual freedom to do as one wishes. However, it is clear there is a limit. Article 8 will not protect one’s decisional autonomy to access a beach[58] and so is unlikely to stretch as far as giving blood. It will be recalled that the right claimed was against ‘prohibition of an individual from activities.’ It is argued that, however desirable protection of freedom of action may be for such circumstances, the jurisprudence simply does not stretch that far.

 

Private life as a ‘gap-filler’

 

Article 8 may act as a gap-filler for the Court who use it when faced with an interest they deem worthy of protection but cannot fit easily elsewhere. Good examples include Hatton,[59] which concerns residents’ rights in a night time flight path, and Goodwin[60], concerning the rights of a transsexual. Yang argues privacy is merely a ‘canopy’ covering different situations that have little in common with each other.[61] It is ‘a miscellany of rights,’[62] due to ‘creative advocacy’ arising from the disagreement over what privacy is.[63] However, it is clear that support for this ground is theoretical and in terms of precedent, merely speculatory.

 

Article 8: A Summary

 

It is apparent that the notion of ‘private life’ is profoundly unclear. It has been variously described as ‘a jungle,’[64] ‘nebulous’[65] and ‘ill-defined and amorphous.’[66] This confusion is demonstrated by the number of different understandings of the right.[67]

 

Article 8 is of broad scope in theory and practice. The notion of respect shows the strong protection of sexuality. However, this broad scope and strong protection does not seem to be enough to bring the issue within the Article. The problem of the requirement to disclose sexuality is negated by the voluntariness of donating blood. While the issue might sit nicely with the relational understanding, this has been narrowed by recent jurisprudence. There could be no successful claim under the decisional understanding without the Court blowing the category wide open to include general freedom of action. The gap-filler mechanism of Article 8 argued by some has little doctrinal support. Having found this, we now turn to the other relevant Convention right.

 

Article 14

 

‘Discrimination is an insidious practice. Discriminatory law undermines the value of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is damaging alike to those unlawfully benefitted and those unlawfully prejudiced.’[68]

 

Article 14 guarantees that ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race…or other status.’[69] Unjustified discrimination within the ambit of a Convention right violates this ancillary right.[70]

 

‘Ambit’

 

Article 14 is ‘parasitic’[71] in that it only relates to ‘the rights and freedoms set forth in this Convention;’ there is no general right against discrimination.[72] Lord Nicholls outlines the difficulties in the term:

 

‘‘Ambit’ is a loose expression, which can itself be interpreted widely or narrowly. It is not a self-defining expression, it is not a legal term of art. Of itself it gives no guidance on how the ‘ambit’ of a Convention article is to be identified.’[73]

 

Voluntary services

 

It is necessary to first deal with the obvious potential complication. Given that nobody has a right to donate blood, and the state could lawfully deny the service to all, some may argue that the state can therefore deny the service to some. The Court disagrees: a matter can be within the ambit of a right ‘even if it is the provision of a service by the state that it has no Convention duty to provide.’[74] If a state voluntarily provides a service, they must do so without discrimination if it falls within the ambit.[75] Belgian Linguistics[76] establishes this. Here the complainants had no right to a particular type of school, but ‘a state which had set up such an establishment could not, through entrance requirements, take discriminatory measures.’[77]

 

The principles here are uncontroversial. However, the Court has applied this idea - states must not discriminate even when the service is voluntary - much wider, and in relation to interests outside of Convention protection. In Gaygusuz[78] the Court twisted unemployment payments into the domain of the right to peaceful enjoyment of one’s possessions,[79] despite prima facie it clearly relating to the acquisition of, rather than the protection of, property. In Stec[80] the Grand Chamber went further and explicitly accepted that there is no right to non-contributory pensions, but ruled the ambit to be so extensive that for Article 14 all that was needed is a link. The case challenged the difference in ages between genders in entitlement to state pensions. The Convention ‘does not include a right to acquire property,’[81] nor does it, one may add, include a right to donate blood. In extending the principle of non-discrimination (even for services voluntarily provided) to an interest extraneous to the Convention, the Court interprets ‘ambit’ as wide enough to protect interests under Article 14 even when unprotected by substantive Convention rights.

 

A link to the values

 

Meaning may be clarified with help from the French language versions, which talk of emprise[82] or champ,[83] indicating that it needs to be connected to the right, but not necessarily closely. Petrovic[84] explains that Article 14 is in play whenever measures are ‘linked’ to the exercise of the right or where the subject matter ‘constitutes one of the modalities’ of its existence.[85] The question is whether the prohibition on participation in the activity of blood donation, with the associated interests discussed under private life, is linked to the right to private life and within the ambit, notwithstanding it being outside the scope of the right. It is well established that the ambit of a right is wider than its scope.[86] Therefore the fact that blood donation is likely to be outside the scope of Article 8 does not defeat a claim.

 

We need to be clear as to exactly what the ‘link’ needed is. Is a link required to the Article itself? It seems the courts conceive it differently. The question to ask is how linked the issue is to the values of the right, not the right per se.[87] The core, underlying values inherent in the Article are at issue, rather than the protections the Article provides. Indeed, logic demands this. Linked to the values of the right, discrimination in relation to the right is prohibited; linked to the protections of the right, Article 14 becomes a nonsense provision serving no purpose the substantive right could not achieve alone. A right not to be discriminatorily denied the right to privacy is a dead letter, regardless of discrimination a denial of the right to privacy breaches Article 8. Therefore the ambit is necessarily linked to the values of the right instead. Article 14 is a right not to be discriminatorily treated, judged in relation to the values of respect for private life. To be clear, Articles 8 and 14 have different functions and as such Article 14 is not an ‘area’ surrounding the scope of Article 8, ‘catching’ cases that fall just short of being within its scope. The law is binary: a case may or may not be within the scope of Article 8, just as it may or may not be within the ambit of Article 14. An issue may fall just outside the scope, but not be within the ambit. As such the ambit cannot be determined by reference to the five understandings of private life; to be within that ambit, the restriction itself must be linked to the underlying values of the right.

 

It will be recalled from the discussion on Article 8 that the values include autonomy, respect, development and identity. Certainly, the prohibition here is linked to these. The low-risk homosexual who is precluded from donating is not respected as an autonomous being as the effect of the policy is to dismiss his ability to make safe and sensible choices about his relationships and sexual health, while trusting others who can be distinguished only by their sexuality. His individual identity is threatened by a policy that treats him as a member of a wide and varied statistical class, rather than an individual. The fact that this statistical class is his sexuality strongly supports this.

 

The likely counter-argument may be that if this analysis is correct, then there will rarely be instances where different treatment based on sexuality will be outside the ambit, as a person’s sexuality goes to the core of their identity. However this objection cannot be sustained either as a description of what the law is or as a proscription of what it should be. Structurally, Article 14 finds prima facie discrimination before looking to potential justification. Different treatment due to sexuality is indeed discrimination, and the finding of that does not preclude that it may be perfectly justified. An analogy may be public toilets for different genders: following Article 14 formally, this would be discrimination, notwithstanding that its justification is patently clear. Further, there is no reason this should not be the case. The different treatment of minorities requires robust legal scrutiny, and it is appropriate that differences in treatment based on sexuality be fully justified.

 

Broad interpretation

 

The jurisprudence supports this analysis. The European Court, although taking the ambit requirement seriously,[88] gives it a wide interpretation.[89] In Fretté[90] the Court accepted the argument that ‘an individual’s private life was hardly respected if he was forced to forego a possibility available to any…heterosexual.’[91] The consensus against discrimination demands this.[92] Further, the Court has extended the requirement to some areas that appear unrelated to any Convention rights initially.[93]

 

In Sidabras[94] two men were dismissed from their jobs and barred from working in public-sector (and some private-sector) posts due to their previous employment in the KGB. The Court held this to be within the ambit of Article 14, giving reasons which included an indirect link to Article 8: a ban on employment affects the ability to make money that then affects the enjoyment of one’s private life. If this is correct, and indirect links are sufficient, then our issue is likely within the ambit. By analogy, the donation ban affects the ability to participate in society without reference to one’s sexuality that then affects the enjoyment of one’s private life. If the first stage seems weak (the inability to donate blood affecting the ability to participate freely in society), it should be noted that it was equally so in Sidabras.[95] The inability to work in some posts only partially limited the ability to earn money, as not all employment was forbidden. The point must not be overstated, however, and this indirect link was one of several arguments accepted.

 

Schmidt and Dahlström[96] shows more firmly how weak the link may be. Only a very loose relationship between Article 14 and other rights was necessary. Here, measures against trade union workers’ salaries were linked to Article 11 and the Court notes their unusual reasoning, essentially adopting reverse reasoning to normal. The usual approach can be seen, for example, in Abdulaziz[97]. This concerned the difference in treatment of immigration between husbands and wives of residents. The restriction was to family life and the basis was immigration policy. Importantly, the link is between the restriction and the Convention right.[98] In Schmidt and Dahlström[99] the facts did not fit this standard analysis. Trade union members were denied benefits due to that membership. Here the restriction was to salary, and the basis was (allegedly) trade union activity. The Court had no difficulty however in finding a link between the basis and Article 11, the right to peaceful assembly, though all precedent seems to suggest the link is to be found between the restriction and the right. Following the precedent set here, a court is open (indeed, bound) to reason, that even if it cannot link the restriction on donation to the right, the basis of the restriction - sexual behaviour - can be linked to the values of Article 8. No court would doubt that sexual behaviour and the values of the right to a private life are inextricably linked.

 

For the ambit of Article 8 specifically, it has been established that the right to respect for private life has a far-reaching scope. Lord Walker has rightly equated this broad scope to a wide ambit, describing it as wider and less well defined than for other rights.[100] It may help to assess cases where the issue is outside the ambit: typically, the judgments reiterate that the Article has no independent existence and simply asserts that the issue falls outside the ambit.[101] In Botta[102] the inability of a disabled man to access a beach was one such case. The Court referred to its comments made regarding the scope of Article 8, stating that there is ‘no conceivable’ link[103] to private life. The apparent precedent therefore is that complaints that have no conceivable link to the substantive right will fail. That is not so with blood donation. The National Health Service (‘NHS’), in their defence of the policy, discuss ‘offence’ and ‘disappointment,’ revealing they consider the link to be at least conceivable.[104]

 

In summary, the restriction is within the ambit, as it is linked to the values of Article 8. This will often be the case when sexuality is involved. It does not matter that the service is provided voluntarily by the state, a principle now extended to issues not protected by the substantive rights. The link is made easier by a broad interpretation of ambit generally, including instances of the Court allowing these to be indirect or from either the restrictive policy or its basis.

 

Discrimination

 

The Grand Chamber in DH[105] defined discrimination as ‘treating differently, without an objective and reasonable justification, persons in relevantly similar situations.’[106] The inverse situation, failing to treat persons differently when they are dissimilar, is also discrimination.[107]

 

Difference in treatment

 

Discrimination is determined by comparing the applicant’s treatment to others in ‘relevantly similar’[108] or ‘analogous’[109] situations. Here, the analogous situation is a heterosexual blood donor.

 

Although ‘sexuality’ is not explicitly listed in Article 14, the Court is untroubled in finding it a prohibited ground of discrimination. Indeed, it is now considered one of the most important. Some grounds need particular protection and are harder to justify, such as race[110], gender[111] and now, sexuality.[112]

 

Petrovic[113] concerned paternity leave. The situations of fathers and mothers of new-borns were analogous, despite the very different biological, and often social, roles mothers play. With this precedent the Court should find heterosexuals and homosexuals donating to be analogous. There is quite simply a difference in treatment.[114]

 

One may object that the policy does not forbid homosexuals donating, but only men who have had sex with men in the past year. However indirect discrimination is familiar territory for Article 14. The Court has firmly held that where a policy is prima facie equal, but has a disproportionate effect on a group, Article 14 is engaged.[115]

 

The obligation to differentiate

 

Having found different treatment in analogous situations, a court would proceed to the justification assessment. However from an academic perspective, it is worth pausing to assess the ‘obligation to differentiate.’[116] In Thliemmenos[117] the failure to treat conscientious objectors differently upon release to other criminals was discriminatory. Just as like cases must be treated alike, so must unlike cases be treated differently.

 

Applied to the facts here, two arguments arise. Firstly, an applicant (a safe, low-risk homosexual) could argue that failing to treat them differently to riskier donors (a high-risk heterosexual) is discriminatory. Currently such an applicant has the same restrictions as those who have had sex with: prostitutes, intravenous drug users and people sexually active in areas rife with HIV. Secondly, and perhaps more interesting an argument, an applicant could argue that failing to differentiate from other, higher-risk, gay men is discriminatory. This essentially demands that courts treat people as individuals, not as statistics or as members of a group, an idea we will return to shortly.

 

Justification

 

Having established discrimination, the state must establish ‘objective and reasonable’ justification.[118]

 

Proportionality

 

The proportionality test is a multi-faceted concept. In UK courts it appears different to the same assessment in Strasbourg. The test is varied between Member States. Further, academics have distilled the Strasbourg test into another conceptual approach. One cannot make a proportionality assessment without considering this apparent divergence, albeit briefly, and clarifying which test one is applying.

 

As may be expected, the various tests are remarkably similar and share unifying characteristics. In Strasbourg, the jurisprudence follows a structure of requiring a legitimate aim for the interference, which must have a pressing social need, which is proportionate to the aim. Some commentators break the pressing social need aspect down further, including requirements that the (interfering) means are suitable and necessary to the ends (the legitimate aim).[119] UK courts apply a similar structure of requiring a legitimate aim, where the means have a rational connection to that, are the least intrusive option, and are proportionate to the aim.[120] A legitimate aim and proportionate balance are sought in all. The concept of least intrusive means manifests itself in Europe in the pressing social need; there cannot be a pressing need for a measure if there are less restrictive alternatives.[121] The assessment of suitability for the pressing social need is equivalent to the rational connection requirement. For our purposes, therefore, it is largely immaterial which particular procedural structure we follow, as the substance is constant. As any challenge to the policy would be first made in domestic courts, it is sensible to follow that test.

 

The classic test is expressed in de Freitas[122]:

 

‘Whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’[123]

 

In Huang[124] Lord Bingham makes it clear that a balancing act is also necessary: there is a requirement for ‘the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention.’[125] Following this structure, the current policy can be evaluated.

 

Preliminary Issues

 

To enable a full analysis of the policy, the factual situation needs to be outlined before proceeding.

 

The state of the current debate

 

It is important to first state that blood safety is rightly the priority in this discourse. If discrimination is the necessary price to pay, this must be accepted. Vamvakas[126] recognises two polar views that have hitherto dominated the discussion. The policy-maker perspective is taken by medics, who only accept improved safety as justification for any change.[127] The ethical perspective is taken largely by gay equality lobbies, focusing on rights and discrimination. Reconciliation of the two interests is rarely sought.[128] Their respective procedural approaches explain why they appear substantively irreconcilable. Taken as a whole group, the risk of transmission with MSM donations is significantly higher. However, the Convention operates to protect rights of individual citizens, and when the European Court of Human Rights hears a case, it decides whether the rights of the individual before them are violated. Meanwhile, medical policy is focused on the whole community. When medical policy-makers make decisions, they do not consider particular individuals, but make utilitarian calculations as to what is best for everyone in the community. For blood donation, the question is what is best for all, ‘the individual is considered as part of the community, not as an individual per se.’[129]

 

However, the two are not necessarily mutually exclusive. The fact that policy-makers believe the issue to be ‘first and foremost a public health issue’[130] does not preclude considerations of equality. As Hurley states, ‘the primary duty of blood services is to ensure the safety of blood for recipients, but they also have a duty not to discriminate unnecessarily against donors.’[131] This duty is recognised by SaBTO as a ‘moral obligation…not to unfairly discriminate.’[132] However, the preceding discussion shows the agencies to be bound not just by morality but also by the Convention. In correspondence the NHS discuss legal obligations under domestic[133] and European Union law,[134] but ignore Convention obligations, even when pressed specifically on them.[135]  It appears either that the Convention has either been overlooked or that the difficulties it poses are too complex to discuss clearly.

 

The medical evidence

 

‘Any exclusion of a group from participation in normal society must be based on clear and current evidence.’[136] An understanding of the main epidemiological evidence available is crucial to assessing this issue.

 

The prevalence of HIV in the general population is around 0.13%.[137] In the MSM population, it is much higher, at around 5%,[138] accounting for 42% of infections.[139] The Ontario Superior Court, on hearing the evidence, concluded that ‘the MSM population, when considered as one group, has a high relative prevalence of HIV’.[140] These figures are striking and caution should be urged on two counts. Firstly, one must not underestimate this higher prevalence and the implications it has for risk assessment. Secondly, however, one must be careful to avoid a knee-jerk reaction to exclude all MSM on this basis without full analysis.

 

Blood donation has two instruments to prevent transfusion-transmitted infections. The first is testing donated blood, and the second is donor ‘deferral’. Currently, all MSM are deferred for twelve months since their last sexual contact with men. Donation testing is highly accurate, however there is concern that it may occasionally fail. Therefore, the increased risk of HIV in MSM is seen as too risky to donate for twelve months since last sexual contact.

 

An idea of how donation testing works is needed to understand these concerns. Testing will be unable to detect infection in recently infected blood. There is a ‘window period’ between infection and the point at which this will be detected, this varies depending on the virus and testing method. Donation during the window is the ‘greatest threat’ to blood safety.[141] The traditional testing methods operate by detecting antibodies or viral proteins, and for HIV has a window period of 3-6 months.[142]

 

In recent years, however, nucleic acid testing (NAT) has become widely available and employed alongside traditional methods.[143] This test detects the viral genes themselves and consequently has a shorter window period of 12 days.[144] Described as ‘virtually foolproof’ by Roehr,[145] the potential occurrence of a false-negative is ‘remote.’[146] The failure rate per million is variously estimated at 0.19[147] 0.16[148] and 0.1.[149] As a point of reference the accepted risk of a false-negative of Hepatitis B is 0.94 per million.[150] Despite this low-risk and shorter window period, the MSM deferral period is one year.

 

NAT testing is performed on pools of 24 donations and then individually if infection is detected.[151] Interestingly, when tested individually, the window is much shorter, around 4-5 days.[152] This raises the possibility of testing higher-risk donations in smaller pools or individually to reduce the risk of infection passing undetected during the window period.

 

Of the estimated 40,000 MSM living with HIV, 26% are unaware of their condition.[153] The policy of excluding all MSM therefore is aimed at preventing 10,400 unwelcome donors.[154] Using simplistic calculations,[155] the possibility of an HIV+ MSM donating and not being detected, in 1 year, is 0.03.[156] This inexact estimate assumes, importantly, that no replacement assessment is implemented in place of the current deferral for MSM, such as deferral for those who engage in high-risk sexual activities. More professional modelling efforts indicate similarly low risks. The currently accepted risk, with a 12-month deferral is 1 in 4.38m donations, which would rise to 1 in 3.48m with no deferral.[157] Again, this assumes no alternative assessment replaces the current scheme.

 

Indeed, no models have predicted the risk should the MSM deferral be replaced, with a deferral for all based on high-risk sexual behaviour, such as without contraception, or that which is exceptionally frequent, casual or polygamous. Such difficult modelling could result at best in highly qualified estimates. However, there is some evidence to inform our judgment. Italy and Spain have both revised their policy of assessing based on sexuality to being based on behaviour. Velati et al found that in Italy the risk of transmission did not increase after the abolition of the ban.[158] There were 4 transfusion-transmitted infections of HIV in 2007-2008 compared with 22 in 1999-2000.[159] In Spain, 13 infections in 2001 were reduced to 4 in 2005.[160]

 

The margin of appreciation

 

A central doctrine at play at each stage of the proportionality assessment is the idea of deference found in the margin of appreciation. The doctrine has a holistic function in that the Court will consider it at every stage.

 

The margin of appreciation, despite the ‘mountain’ of jurisprudence, is unclear, unpredictable and uneven.[161] It is concerned with drawing lines between Convention rights and public interest limitations, the upshot of which is that the questions are political rather than strictly legal:

 

‘The concept of the ‘margin of appreciation’ has become as slippery and elusive as an eel. Again and again the [European] Court now appears to use the margin of appreciation as a substitute for coherent legal analysis of the issues at stake.’[162]

 

However, a clear rationale can be identified: subsidiarity. The court’s role is supervisory and as such has an active role when the governmental decision fails to protect rights. In Sunday Times[163] the European Court stated it was not its task ‘to take the place of the competent national courts but rather to review…the decisions.’[164] It asserts in Klass[165] that ‘it is certainly not for the Court to substitute…any other assessment of what might be the best policy in this field.’[166] The decision-maker is best placed to make the decision:

 

‘By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’.’[167]

 

However, the decision maker is not given free reign, and Lingens[168] emphasised that the margin of appreciation exists only in unison with effective supervision.[169]

 

The doctrine is determined by three broad criteria: the nature of the right, the existence of a European consensus and the character of the restriction.

 

Turning first to the nature of the right, within Article 14 the Court has developed the idea of ‘suspect classifications’ to highlight which grounds of discrimination require particular protection. Although not explicitly stated in the Article, sexuality is now confidently within this group.[170] The margin is determined in part by suspect classifications.[171] In Stec[172] the Court compares a narrow margin for sex to a wider margin for economic strategy, indicating a scale, in which sexuality is towards the narrow end of the wedge.

 

Secondly, the doctrine is determined by the existence of consensus. Less leeway is clearly given where there is a common standard,[173] as the international agreement defeats the assumption that the judge is less well placed to make the decision. An argument could be advanced that scientific standards, unlike moral or economic standards, are inherently international; that is, science is shared by all and its operation does not vary between states. A key rationale for the doctrine is to allow national authorities to decide on issues where they are better placed to make the determination. But the issue at hand is, essentially, a medical question: whether homosexuals are at such a high risk of HIV that they are all unsafe donors. The circumstances are very different to the prohibition of homosexual marriage, for example, where the state acts for socio-moral reasons. A particular state’s scientists are no better placed to make such an empirical assessment than another’s, or the collective European opinion.[174]

 

Finally, the margin of appreciation considers the character and aim of the restriction. A wider margin is given where cultural, political, moral or economic particularities indicate the national government to be better informed to make the best decision. Examples may be national security,[175] morality[176] or taxation.[177] Conversely, some issues are seen as universal which are unaffected by such differences, such as the limitation of free speech and the criminalisation of homosexuals.[178] The issue at hand involves both national medical policy, which encourages a wide margin and discrimination based on sexuality, which pulls in the opposite direction.

 

It may be that having been recently debated and reviewed by a governmental committee, a court may be hesitant to override this judgment. While this is possible, recent debate or review is not decisive, for example in Sutherland.[179] This challenged the higher age of consent for homosexual sex, and a contrary vote in Parliament a year before did not affect the Commission’s judgment. Equally, the Court may consider the lengthy history of the successful current system to preclude its rejection. This is also possibility, although the ‘living instrument’ doctrine is well established and often used in discrimination judgments.[180] In Marckx[181] it was accepted that distinguishing between illegitimate and legitimate children may have matched common opinion in the 1950s, however it was not compatible with a proper interpretation of Article 8 in the 1970s. If socio-moral development affects socio-moral policy, then medical developments will affect medical policy. When HIV was first encountered, it was a ‘terrifying mystery’.[182] There was no test and it was incorrectly ascribed solely to gay men.[183] Diagnosis was ‘akin to a short term death sentence.’[184] As such, the precautionary principle applied,[185] sensibly deferring all MSM donations.[186] However, this is not the situation today, in three ways. Firstly, we now understand HIV transmission and that it is not a ‘gay disease’. Secondly, we have technology that can test blood for infection accurately. Finally, and perhaps controversially, HIV remains a serious disease but is less serious than before. Those diagnosed can expect ‘a near-normal life expectancy,’[187] which must be factored in. From the medical evidence it can be seen that the level of risk accepted for Hepatitis B is much higher than for HIV, demonstrating that the seriousness of the disease is relevant to the risk assessment. Therefore, when the severity changes the risk must be adjusted accordingly.

 

There is significant weight supporting the view that a narrow margin of appreciation would be found. The nature of the right is such that as a ‘suspect classification’, sexual identity is vigorously protected. As the issue is scientific, the rationale underlying deference due to a lack of consensus does not apply easily. Finally, there is nothing in the character of the restriction to suggest that a narrow margin would not apply.

 

Legitimate Aim

 

The first question is ‘whether there can be any ground for infringing…[a] right;’[188] whether the legislative objective is ‘sufficiently important’ to justify the infringement.[189] The protection of the blood supply and the wellbeing of patients clearly satisfy this requirement.

 

Rational Connection

 

In the UK, this is the notion that the policy be ‘justified as a necessary and proper response to the…need.’[190] The European Court assesses this when dealing with ‘pressing social need.’ To satisfy this requirement the current policy needs to be an effective response to the aim of preventing infections by transfusion.

 

The current practice is successful at achieving safety.[191] This effectiveness goes a long way to satisfy the need that the means be connected to the aim. The aim is blood safety, and if the current system provides that, it must be rationally connected to the aim.

 

This effectiveness is of the blood donation system taken as a whole, however, and what is challenged is only part of that: the deferral of MSM. It could be argued that the policy is irrational, given the effects of the deferral being so broad. Such a one-dimensional assessment focusing on sexuality means that women and heterosexual men are not rigorously assessed to prevent risky infections from entering the blood supply. The fastest growing HIV risk group are heterosexuals.[192] A false message that sexual health for homosexuals is impossible and false sense of security for heterosexuals has consequences for blood collection and national health generally. Further, the policy excludes healthy and willing donors and limits the blood supply. New willing donors may not only be currently excluded MSM, but also others who refuse to donate in protest.[193]

 

On the other hand, as noted above, the aim of this particular policy is specifically to prevent the approximately 10,400 MSM who have HIV and are unaware of their condition. However desirable the reversal of the above problems may be, by excluding all MSM, this specific policy successfully achieves the aim of excluding HIV+ MSM, and on this basis is rationally connected.

 

Least Intrusive Means

 

Any policy must be the ‘minimum intrusion’ necessary.[194] If other, less restrictive means can equally achieve the aim they must be used. It is on this requirement where the policy is in most danger. The prevention of donations from all MSM is unnecessary, as an alternative behaviour-based assessment[195] could achieve at least the same levels of blood safety while avoiding discrimination. This is particularly true given the recent developments in donation testing and experience internationally.

 

On the basis of the medical evidence it appears that blanket deferral is unnecessary. Most MSM do not have HIV.[196] In Cain v Australian Red Cross[197] the judge conceded ‘there are some individuals who are homosexual whose blood would pose less of a risk than the blood of some heterosexuals who are permitted to donate.’[198] The policy treats all MSM as high-risk. A man who has frequent, casual and unprotected sex is rightly deferred. Also deferred, however, is the low-risk man in a long-term monogamous relationship who practices safe sex. It may be appropriate to separate behaviours such as unprotected sex more common in certain groups from membership of that group. The current policy does not, resulting in ‘crude boundaries.’[199] Cahill notes the policy is not based on true risk, but ‘excludes all gay and bisexual men regardless of whether they have engaged in high-risk or low-risk sexual behaviour.’[200]

 

The National Survey of Sexual Attitudes and Lifestyles (NATSAL)[201] is revealing. Forty percent of MSM who have had sex in the last year had only one partner. Of those who had sex in the last year, the median number of partners was two, but the mean was eight, suggesting there are a small minority of gay men who are more promiscuous and inflate the average risk for the majority. Excluding these high-risk MSM is the aim, but the means is to exclude all MSM, prompting the question of the reference class problem. This statistical dilemma occurs when an event needs a probability, but the probability changes depending on how it is classified.[202] It is possible to achieve at least the same probability of excluding risky donors using different categories. Naturally, ‘any particular event belongs to various sets’;[203] a high-risk MSM belongs to the ‘has sex with men’ set, but also to sets such as ‘has unprotected sex’ or ‘has a new partner’ and so on.[204] High-risk MSM can be identified not by reference to the fact they have sex with men but by the specific behaviours that put them at higher-risk.

 

Comparison to other groups does not support the current policy. Also deferred for the same people are prostitutes, those who inject themselves with drugs and those sexually active in very high HIV areas. Further, while sexuality is a relevant factor, race is not, despite its similar levels of risk.[205]

 

Importantly the current policy is not the least restrictive possibility. The findings in Italy and Spain indicated that there was no increased epidemiological risk following the move in those countries to a less restrictive policy. In response to these findings SaBTO state that the ‘current collection model…does not support conducting individual behavioural risk assessments prior to blood collection’ but does not explain why.[206] In any case, the need to change collection models will not be sufficient reason to outweigh discrimination in a proportionality test. They also state that behavioural assessment may deter existing donors, as it involves personal questioning. This is not self-evident. It is quite plausible that assessments would be structured to ask more detailed questions where potential risk is identified. MSM, for example, may have to answer more questions before donating. Finally, behaviour-based assessment is said to be problematic as it is ‘not certain that all people could objectively assess their own level of risk.’[207] It is unclear what type of system the NHS envisages here; however assessment through a questionnaire is already in place, and the suggested alternative differs only in the information asked and the blood service’s response to the answers. This alternative does not shift the risk-assessment role from the blood service to the donor. It can be said, therefore, that the review has failed to provide any plausible objection to a behavioural-based assessment.

 

A plausible alternative may exist that would be less restrictive on Convention rights, namely a system of deferral based on behaviour rather than sexuality. As to specific detail, there are many possibilities and as a legal rather than medical project this essay does not attempt to devise one, but it may be helpful to briefly highlight some options. We have evidence that the window period is on average twelve days, therefore deferral may be appropriate for those with new partners in the last thirty days.[208] The NATSAL data may help identify higher-risk behaviours and suitable questions. The shorter window periods for smaller pools during testing could be utilised, testing some donations in smaller groups.[209] While unnecessary given proper questioning, testing MSM donations more thoroughly would not interfere with any of the donor’s rights. Phillips suggests that once higher-risk individuals are identified, higher cost screening techniques such as genomic screening could then be used.[210] The point here is that we should look at the instruments available to us – donor selection and testing – and think of new ways of applying them, rather than allowing potentially inappropriate reference classes to dictate policy.

 

Clearly, the medical plausibility of such an alternative does not imply its practical plausibility; it is necessary to assess the financial implications of such a change. Cost is relevant. The state is not entitled to discriminate by choosing the least expensive; it must choose the least restrictive.[211] However, where the cost of a policy is so high that it renders that policy implausible, that policy in reality is not an ‘alternative’ at all. Any change will result in some cost, such as set-up costs, advertising and training, which are largely insignificant. The long-term costs are equally negligible. The actual change proposed is no more than a change to the policy of who is allowed to donate, rather than how they donate. It may be that some donor interviews take a little longer, however this small cost is not prohibitive, given the counterbalancing human rights interests.


The narrow margin of appreciation at play here and throughout the test only serves to support the conclusion that the current policy is not the least restrictive means. A behaviour-based assessment would be at least as effective in achieving the aim and so the current policy violates Article 14 of the Convention.

 

Balancing

 

The policy is not the least restrictive means, and therefore fails to satisfy the proportionality test. The policy fails at this stage. However the notion of balancing must be discussed briefly for completeness.[212] Indeed, balancing often is where the issue is eventually decided. Unlike previous stages, the balancing is largely discretionary and there is no structure. Essentially, this stage weighs up the restrictive aim and the restricted right, taking the previous stages into consideration as well.[213] It is a mixing pot for all factors to be considered together.

 

Balancing on this issue is, following the formal structure of the test, a futile and empty exercise. Essentially, there is nothing to balance. However the Court at times relies heavily on this stage of the test in form, even where the case is decided elsewhere in substance. While the policy fails at the least restrictive means stage in reality, it would not be uncommon for a court to reserve that decision in judgment until after it had been considered here.

 

The Court is misguided to take this approach. Their supervisory role exists to prevent the arbitrary interference of rights by member states, and therefore it is nonsense if they arbitrarily decide interferences. Arguably the Court is at risk of behaving too generously towards decision-makers, on the pretence of principled analysis but in reality behind the unpredictable curtain of the margin of appreciation. The clear structure provided by the proportionality assessment should be followed with more loyalty. Concepts such as the least restrictive means and rational connection tests should be determinative in more cases as hurdles in their own right, rather than being relegated to factors in the mixing pot of the balancing stage.

 

Conclusion

 

The deferral of men who have sex with men from donating blood is an unjustified interference with Article 14 of the European Convention on Human Rights, in relation to Article 8. The right to private life does not extend to a ‘right to donate’ or a general freedom of activity. Analysis of the scope of that right does, however, reveal that the issue is closely linked to the values of the respect for one’s private life. These include values of dignity, autonomy and respect. An assessment of the ambit of Article 14, the prohibition of discrimination in relation to Convention rights, shows that such issues that are closely linked to the values of a right will be protected here. A difference in treatment is clear. This constitutes unlawful discrimination if it cannot be justified as proportionate: this policy cannot. The margin of appreciation here is narrow which, coupled with the existence of a less-restrictive alternative policy, renders the current position disproportionate.

 

The policy effectively excludes all MSM from donating simply and solely by virtue of the gender of their sexual partner(s). A behaviour-based assessment would look closely at risky sexual behaviours, the very behaviours that risk can be accurately determined by and the very behaviours that the current policy makes generalisations about. There is no risk to blood safety. Experience of such systems in other jurisdictions shows that there is, in fact, increased safety when this method is adopted. MSM who are high-risk donors would continue to be excluded. The change proposed is to allow donations from MSM who are, all agree, low-risk. These men are, when looked at as statistics, simply as ‘gay men’, present a higher risk, and on this basis they are currently excluded. But when they are looked at as individuals, as people with unique characteristics, they pose little risk. All citizens have the right to be considered as individuals. The medical advancements in blood testing make behaviour-based assessment a realistic alternative. Importantly, such an approach is a plausible, less-restrictive alternative, defeating any claim the current policy has of being a proportionate interference with Article 14.

 

Not everyone is able to ‘Do something amazing…Give Blood.’[214] This essay has shown that as far as the European Convention is concerned, the restrictions on gay men are unlawful. It remains to be seen whether this disproportionate policy is revised before a successful challenge is brought before the courts. What is clear is that the position is unsustainable and this ‘haemophobia’ cannot continue.

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Legislation

 

England and Wales

 

Blood Safety and Quality Regulations 2005

Equality Act 2010

 

European Union

 

Directive 2002/98/EC

 

International agreements

 

European Convention on Human Rights

International Covenant on Civil and Political Rights

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Cases

 

England and Wales

 

de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1

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EOC v Secretary of State for Employment [1995] 1 AC 1

Ghaidan v Godin-Mendoza [2004] UKHL 30

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London Borough of Harrow v Qazi [2003] UKHL 43

M v Secretary of State for Work and Pensions [2006] UKHL 11

R (On the application of Begum) v Governors and Headteacher of Denbigh High School [2006] UKHL

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R (On the application of Carson and Reynolds) v Secretary of State for Work and Pensions [2005]

                UKHL 37

R (on the application of Countryside Alliance and others) v Attorney General and another [2007]

                UKHL 52

R (On the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26

R (On the application of Razgar) v Secretary of State for the Home Department [2004] 2 AC 368

 

European Court/Commission of Human Rights

 

Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471

ADT v United Kingdom (2001) 31 EHRR 33

Airey v Ireland (1979) 2 EHRR 305

André Deklerck v Belgium (1981) 21 Dec & Rep. 116

Botta v Italy (1998) 26 EHRR 241

Case Relating to Certain Aspects of te Laws on the Use of Languages In Education in Belgium (1979-

                80) 1 EHRR 252 (Belgian Linguistics)

Connors v United Kingdom (2005) 40 EHRR 9

Costello-Roberts v United Kingdom (1995) 19 EHRR 112

DH v Czech Republic (2008) 47 EHRR 3

Dudgeon v United Kingdom (1981) 4 EHRR 149

EB v France (2008) 47 EHRR 21

Eskelinen v Finland (2007) 45 EHRR 43

Fretté v France (2004) 38 EHRR 21

Friedl v Austria (1996) 21 EHRR 83

Gaygusuz v Austria (1996) 23 EHRR 364

Goodwin v United Kingdom (2002) 25 EHRR 18

Halford v United Kingdom (1997) 24 EHRR 323

Handyside v United Kingdom (1979-80) 1 EHRR 737

Hatton v United Kingdom (2003) 37 EHRR 28

Hentrich v France (1994) 18 EHRR 440

Klass v Germany (1978) 2 EHRR 214

L and V v Austria (2003) 36 EHRR 55

Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39

Leander v Sweden (1987) 9 EHRR 433

Lingens v Austria (1986) 8 EHRR 407

Lithgow v United Kingdom (1986) 8 EHRR 329

Marckx v Belgium (1979-80) 2 EHRR 330

National and Provincial Building Society v United Kingdom (1997) 25 EHRR 127

Niemietz v Germany (1993) 16 EHRR 97

Petrovic v Austria (2001) 33 EHRR 14

Pretty v United Kingdom (2002) 35 EHRR 1

Salgueiro Da Silva Mouta v Portugal (2001) 31 EHRR 47

Schmidt and Dahlström v Sweden (1979-80) 1 EHRR 632

Sidabras v Lithuania (2006) 42 EHRR 6

Smith and Grady v United Kingdom (2000) 29 EHRR 493

Stec v United Kingdom (2005) 41 EHRR SE18

Stec v United Kingdom (2006) 43 EHRR 47

Sunday Times v UK (1979-80) 2 EHRR 245

Sutherland v United Kingdom, European Court of Human Rights, The Times 13 April 2001

Thlimmenos v Greece (2001) 31 EHRR 15

X and Y v The Netherlands (1986) 8 EHRR 235

X v Iceland (1976) 5 DR 86

 

Australia

 

Cain v The Australian Red Cross Society [2009] TASADT, 100-0607003

 

Canada

 

Canadian Blood Services v Freeman (2010) ONSC 4885

 

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Clayton, R. and Tomlinson, H. Privacy and Freedom of Expression 2nd ed. (2010) Oxford: Oxford

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Coppel, J. The Human Rights Act 1998: Enforcing the European Convention in the Domestic Courts

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Managhan, K. Equality Law (2007) Oxford: Oxford University Press

McCrudden, C. and Chambers, G. Individual Rights and the Law in Britain (1994) Oxford: Clarendon

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Shorts, E. and de Than, C. Civil Liberties: Legal Principles of Individual Freedom (1998) London:

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Whitty, N., Murphy, T. and Livingstone, S. Civil Liberties Law: The Human Rights Act Era (2001)

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Journals

 

Eleftherios, C. V. Scientific background on the risk engenderd by reducing the lifetime blood donation

                deferral period for men who have sex with men (2009) 23(2) Transfusion Medical Review 85

Feldman, D. The Developing Scope of Article 8 of the European Convention on Human Rights (1997)

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German, M. and Sher, G. Men who have sex with men and blood donation: is it time to change our

                deferral criteria? (2002) 1 Journal of the International Associations of Physicians in AIDS

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Hajek, A. The Reference Class Problem is your problem too (2007) 156 Synthese 563

Hochberg, F. A. HIV/AIDS and blood donation policies: a comparative study of public health policies

                and individual rights norms (2002) 12 Duke Journal of Comparative and International Law

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Hurley, R. Bad blood (2009) 338 British Medical Journal 568

Lester The European Convention on Human Rights in the New Architecture of Europe (1996) Public

                Law 5

Marshall, J. A right to personal autonomy at the European Court of Human Rights (2008) EHRLR 337

Moreham, N. The right to respect for private life in the European Convention on Human Rights: a re-

                examination (2008) EHRLR 44

Neill, U. S. Editorial: Don’t ask, don’t tell…and don’t donate (2010) 120(5) The Journal of Clinical

                Investigation 1364

O’Connell, R. Cinderella comes to the ball: Art 14 and the right to non-discrimination in the ECHR

                (2009) 29(2) Legal Studies 211

Osmond, D. H. et al Changes in prevalence of HIV infection and sexual risk behaviour in men who

                have sex with men in San Francisco 1997-2002 (2007) 97(9) American Journal of Public

                Health 1677

Phillips, K.  Does blood discriminate? 371 The Lancet 1983

Roehr, B. Should men who have ever had sex with men be allowed to give blood? Yes (2009) 338

                British Medical Journal 311

Sanchez, A. M. et al The impact of male-to-male sexual experience on risk profiles of blood donors

                (2005) 45 Transfusion 404

Suligoi, B. Aggiornamento delle nuove diagnosi di infezione da HIV al 31 Dicembre 2007 e dei casi di

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                Sanita 14

Vamvakas, E. C. Editorial: Why are all men who have had sex with men even once since 1977

                indefinitely deferred from donating blood? (2009) 49 Transfusion 1037

Velati, C., Formiatti, L. and Baruffi, L. The risk of HIV transmission by transfusion in Italy does not

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 1 Vox Sanguinis 9

Wacks, R. The Poverty of Privacy (1980) 96 LQR 73

Wainberg, M. A. et al Reconsidering the lifetime deferral of blood donation by men who have sex with

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Websites and Internet resources

 

Webpages

 

NHS Blood and Transplant Deferral of men who have sex with men from blood donation (2011)

                <http://www.blood.co.uk/can-i-give-blood/exclusion/> (Accessed: 14/02/12)

NHS Blood and Transplant, Giving Blood

 <http://www.blood.co.uk/giving-blood/> (accessed 13/02/12)

NHS Blood and Transplant, Who Can’t Give Blood?

                <http://www.blood.co.uk/can-i-give-blood/who-cant-give-blood/> (accessed 13/02/12)

 

Other Internet sources

 

Cahill, S., Schaefer, N. and Guidry, J. A. (Eds.) A drive for change: reforming US blood donation

 policies: a report by Gay Men’s Health Crisis (2010) 6. Available from

<www.gmhc.org/files/editor/file/a_bb_drivechangereport.pdf> (Accessed 12/01/12)

Gordon, R. The Scope of Article 8 (Alba lecture paper) 26 July 2008 Available from

                <http://www.adminlaw.org.uk/library/publications.php> (Accessed 24 September 2011)

Roehr, B. The Gift of Life: Gay Men and US Blood Donation Policy. Understanding existing

                discrimination and how it might be changed 2. Available from

                <http://libertyeducationforum.org/docs/whitepapers/1h_whtpa_pbl00.pdf> (Accessed

                11/01/12)

Terrence Higgins Trust Blood donations by people at higher risk of HIV: Terrence Higgins Trust’s

                policy (2007) Available from

                <http://www.tht.org.uk/binarylibrary/blloddonationsbypeopleathigherriskofhiv.pdf>

                (Accessed 12/01/12)

 

Other

 

National health reports

 

Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) Donor Selection Criteria            Review (2011)

Centers for Disease Control and Prevention Disparities in diagnoses of HIV infection between

                black/African Americans and other racial/ethnic populations – 37 states, 2005-2008 (2011)

                60(4) Morbidity and Mortality Weekly Report 93

Erens, B. et al National Survey of Sexual Attitudes and Lifestyles II: Technical Report (2001)

Health Protection Agency HIV in the United Kingdom: 2010 Report (Health Protection Report Vol. 4

                No. 47) (2010)

Health Protection Agency Safe Supplies: Focusing on Epidemiology. Annual Review from the NHS

                Blood and Transplant/Health Protection Agency Colindale Epidemiology Unit, 2010 (2011) 4

Health Protection Agency Sexually transmitted infections in men who have sex with men in the UK:

                2011 report (2011)

Ministerio de Sanidad y Consumo HIV/AIDS Epidemiological Surveillance in Spain National Register

                of AIDS Cases (2007)

 

Newspaper articles

 

Tatchell, P. Gay Men Who Use a Condom Should Not Face Delays Giving Blood in The Guardian, 9

                September 2011 <http://www.guardian.co.uk/commentisfree/2011/sep/09/gay-blood-donor-

                ban-hiv> (Accessed 13/02/12)

 

Personal correspondence

 

J. Bardsley to the Department of Health dated 28/11/11

C. Hall to J. Bardsley dated 23/12/11

 



[1] NHS Blood and Transplant, Giving Blood <http://www.blood.co.uk/giving-blood/> (Accessed 13/02/12).

[2] For example, those currently ill, have been recently ill, or have done something such as certain overseas travel, prostitution or drug injection that makes it more likely they are suffering from an unknown illness.

[3] For example, those who have given blood recently, are pregnant or are underweight cannot donate.

[4] NHS Blood and Transplant, Who Can’t Give Blood? <http://www.blood.co.uk/can-i-give-blood/who-cant-give-blood/> (accessed 13/02/12).

[5] Ibid.

[6] Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO) Donor Selection Criteria Review (2011).

[7] See, for example, Tatchell, P. Gay Men Who Use a Condom Should Not Face Delays Giving Blood in The Guardian, 9 September 2011 <http://www.guardian.co.uk/commentisfree/2011/sep/09/gay-blood-donor-ban-hiv> (Accessed 13/02/12).

[8]To be clear, an Article 8 claim will often be successful if comparison to others is possible, but it should not be necessary. In Dudgeon v United Kingdom (1981) 4 EHRR 149, for example, the violation of respect for the applicant’s private life was found by reference to him alone, and so a comparison to others (heterosexuals) under Article 14 was not considered necessary.

[9] As can be found in other jurisdictions, for example in the German Basic Law Article 2(1).

[10] Botta v Italy (1998) 26 EHRR 241.

[11] Article 8(1): ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ European Convention on Human Rights, 1950. The applicant must prove the interference, for example Halford v United Kingdom (1997) 24 EHRR 323 where the applicant had to prove the state intercepted his correspondence.

[12] R (on the application of Countryside Alliance and others) v Attorney General and another [2007] UKHL 52, [10] (Lord Bingham). See also X and Y v The Netherlands (1986) 8 EHRR 235, [23]: ‘protecting the individual against arbitrary interference by public authorities’.

[13] 1970 Resolution of the Consultative Assembly of the Council of Europe (Resolution 428(1970) declaration on mass communication) 23 January 1970 [Accessed 24 September 2011] Available from: <http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta70/eres428.htm>

[14] Connors v United Kingdom (2005) 40 EHRR 9.

[15] Ibid [82].

[16] Pretty v United Kingdom (2002) 35 EHRR 1.

[17] Ibid [61].

[18] Wadham, J. et. al. Blackstone’s Guide to the Human Rights Act 1998 5 ed. (2009) Oxford: Oxford University Press, 202.

[19] Whitty, N., Murphy, T. and Livingstone, S. Civil Liberties Law: The Human Rights Act Era (2001) Bath: Butterworths, 293.

[20] Hatton v United Kingdom (2003) 37 EHRR 28.

[21] Wadham et al (fn 18) 203. See also Coppel, J. The Human Rights Act 1998: Enforcing the European Convention in the Domestic Courts (1999) Guildford: Wiley, 279: ‘As the scope of Article 8 has developed, a growing proportion of complaints are found, without difficulty, to fall within Article 8(1).’

[22] London Borough of Harrow v Qazi [2003] UKHL 43, [8] – [10].

[23] Klass v Germany (1978) 2 EHRR 214 (wire tapping: not easily proven).

[24] Dudgeon (fn 8) (homosexual conduct: simple presence of legislation sufficient).

[25] Foster, S. Human Rights & Civil Liberties 2 ed. (2008) Dorchester: Pearson, 561. See also Clayton, R. and Tomlinson, H. Privacy and Freedom of Expression 2nd ed. (2010) Oxford: Oxford University Press, 116.

[26] Countryside (fn 12).

[27] Countryside (fn 12) [121]. See also Gordon, R. The Scope of Article 8 (Alba lecture paper) 26 July 2008 [Accessed 24 September 2011] Available from <http://www.adminlaw.org.uk/library/publications.php> 7: ‘a broad approach must be taken at least in respect of the relationship between Article 8(1) and Article 8(2) so as to require more rather than less potentially invasive State action to be justified under Article 8(2)’

[28] Foster (fn 25) 560.

[29] Goodwin v United Kingdom (2002) 25 EHRR 18, [72].

[30] See for example Feldman, D. The Developing Scope of Article 8 of the European Convention on Human Rights (1997) EHRLR 265, 267.

[31] Fawcett, J. The Application of the European Convention on Human Rights 2 ed. (1987) Oxford: Clarendon Press, 211, found in Janis, M., Kay, R. and Bradley, A. European Human Rights Law: Text and Materials 3 ed. (2008) Oxford: Oxford University Press, 374.

[32] Interference is never an issue when sexual orientation is at issue. See, for example Dudgeon (fn 8), Laskey, Jaggard and Brown v United Kingdom (1997) 24 EHRR 39, Smith and Grady v United Kingdom (2000) 29 EHRR 493 or ADT v United Kingdom (2001) 31 EHRR 33.

[33] Dudgeon (fn 8).

[34] Laskey (fn 32) [36]: ‘there can be no doubt that sexual orientation and activity concern an intimate aspect of private life’. See also: Coppel (fn 21) 286 or Foster (fn 25) 561.

[35] Smith and Grady (fn 32).

[36] Wadham et al (fn 18) 207.

[37] Costello-Roberts v United Kingdom (1995) 19 EHRR 112.

[38] See for example Friedl v Austria (1996) 21 EHRR 83.

[39] The question currently posed is ‘Are you a man who has had oral or anal sex with a man in the past 12 months, with or without a condom?’

[40] Niemietz v Germany (1993) 16 EHRR 97. This is limited to human beings: in X v Iceland (1976) 5 DR 86 the applicant complained unsuccessfully that Article 8 was violated by the prohibition on keeping dogs in Reykjavik.

[41] R (On the application of Razgar) v Secretary of State for the Home Department [2004] 2 AC 368.

[42] Ibid [9] (Lord Bingham).

[43] Countryside (fn 12).

[44] Niemietz (fn 40).

[45] Niemietz (fn 40) [54].

[46] Countryside (fn 12) [41] (emphasis added).

[47] Marshall, J. A right to personal autonomy at the European Court of Human Rights (2008) EHRLR 337, 354.

[48] Davis, H. Human Rights Law Directions 2 ed. (2009) Oxford: Oxford University Press, 285.

[49] André Deklerck v Belgium (1981) 21 Dec & Rep. 116.

[50] Pretty (fn 16).

[51] Clayton and Tomlinson (fn 25) 94.

[52] Wadham et al (fn 18) 205.

[53] Whitty et al (fn 19) 293.

[54] Dudgeon (fn 8).

[55] Feldman (fn 30) 267.

[56] These are largely examples of former differences in treatment, as fortunately the difference in treatment in the instant case is one of few remaining.

[57] Marshall (fn 47) 353.

[58] Botta (fn 10).

[59] Hatton (fn 20).

[60] Goodwin (fn 29).

[61] Yang, T. Privacy: A comparative study of English and American Law (1966) 15 ICLQ 175, 177, in Robertson, A. (ed) Privacy & Human Rights (1973) Manchester: Manchester University Press, 32.

[62] Velu, J. The European Convention on Human Rights and the right to respect for private life, the home and communicaitons in Robertson, A. (ed) Privacy & Human Rights (1973) Manchester: Manchester University Press, 32.

[63] Feldman (fn 30) 265.

[64] Wacks, R. The Poverty of Privacy (1980) 96 LQR 73.

[65] Foster (fn 25) 559.

[66] Moreham, N. The right to respect for private life in the European Convention on Human Rights: a re-examination (2008) EHRLR 44, 45.

[67] While all agree upon its value as a basic human right, there is inconsistency in the usage of the term: Shorts, E. and de Than, C. Civil Liberties: Legal Principles of Individual Freedom (1998) London: Sweet & Maxwell, 360. The Commission and Court have failed to define or explain the provision: McCrudden, C. and Chambers, G. Individual Rights and the Law in Britain (1994) Oxford: Clarendon Press, 289.

[68] Ghaidan v Godin-Mendoza [2004] UKHL 30, [9] (Lord Bingham).

[69] Article 14: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’ European Convention on Human Rights, 1950.

[70] Like Article 8, the case law is underdeveloped, here because it plays a ‘subordinate role’ - Davis (fn 48) 136. If a substantive right is breached, the Court rarely goes on to elucidate and apply its principles. For example in Dudgeon (fn 8) ‘no useful legal purpose’ was seen to be served by going on to assess Article 14. Discrimination is only considered separately if ‘a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case’ Airey v Ireland (1979) 2 EHRR 305, [30].

[71] Whitty et at (fn 19) 404.

[72] Unlike Article 26 of The International Covenant on Civil and Political Rights. Article 1 of Protocol 12 of the European Convention prohibits discrimination in relation to ‘any right set forth by law,’ however the United Kingdom is not a signatory to this.

[73] M v Secretary of State for Work and Pensions [2006] UKHL 11, [13].

[74] Davis (fn 48) 136.

[75] Clayton and Tomlinson (fn 25) 1235.

[76] Case Relating to Certain Aspects of the Laws on the Use of Languages In Education in Belgium (1979-80) 1 EHRR 252 (Belgian Linguistics).

[77] Ibid [9].

[78] Gaygusuz v Austria (1996) 23 EHRR 364.

[79] Article 1 of Protocol 1: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’.

[80] Stec v United Kingdom (2005) 41 EHRR SE18 affirmed in Stec v United Kingdom (2006) 43 EHRR 47.

[81] Ibid [53].

[82] Grasp, hold.

[83] Field.

[84] Petrovic v Austria (2001) 33 EHRR 14.

[85] Ibid {28}.

[86] For example in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, no breach of Article 8 was found, but the issue was sufficiently within the ambit of that right for the purposes of Article 14.

[87] Managhan, K. Equality Law (2007) Oxford: Oxford University Press, 157.

[88] Botta (fn 10).

[89] Belgian Linguistics (fn 76).

[90] Fretté v France (2004) 38 EHRR 21. [28].

[91] In this case, relevant on the facts as it considered the restriction on a man’s ability to adopt a child on the basis of his homosexuality, a majority (4-3) considered it to be within the ambit of Article 14, although a different majority (4-3) considered that right not to be violated.

[92] Clayton and Tomlinson (fn 25) 1236.

[93] O’Connell, R. Cinderella comes to the ball: Art 14 and the right to non-discrimination in the ECHR (2009) 29(2) Legal Studies 211, 216.

[94] Sidabras v Lithuania (2006) 42 EHRR 6.

[95] Ibid.

[96] Schmidt and Dahlström v Sweden (1979-80) 1 EHRR 632.

[97] Abdulaziz (fn 86).

[98] In this case, Article 8.

[99] Schmidt and Dahlström (fn 96).

[100] M v SSWP (fn 73) [61).

[101] See, for example, Eskelinen v Finland (2007) 45 EHRR 43, [92] – [93].

[102] Botta (fn 10).

[103] Botta (fn 10) [35]

[104] NHS Blood and Transplant Deferral of men who have sex with men from blood donation (2011) Available from <http://www.blood.co.uk/can-i-give-blood/exclusion/> (Accessed: 14/02/12).

[105] DH v Czech Republic (2008) 47 EHRR 3.

[106] Ibid [175].

[107] Thlimmenos v Greece (2001) 31 EHRR 15.

[108] For example, National and Provincial Building Society v United Kingdom (1997) 25 EHRR 127.

[109] For example, Lithgow v United Kingdom (1986) 8 EHRR 329.

[110]  Stec (fn 80).

[111] DH (fn 105).

[112] Salgueiro Da Silva Mouta v Portugal (2001) 31 EHRR 47. See also R (Carson) and R(Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37 (Lord Walker) or L and V v Austria (2003) 36 EHRR 55.

[113] Petrovic (fn 84).

[114] Some argue that it is ‘highly unlikely’ any serious application would be rejected on the basis that there is no difference in treatment: Grosz, S., Beatson, J. and Duffy, P. Human Rights: The 1998 Act and the European Convention (2000) London: Sweet & Maxwell, 328.

[115] For example giving fewer rights to part-time workers was indirectly discriminatory against women as the majority of part-time workers were women, in EOC v Secretary of State for Employment [1995] 1 AC 1.

[116] Henrard, K. Non-Discrimination and Full and Effective Equality in Weller, M. (Ed.) Universal Minority Rights: A Commentary on the Jurisprudence of International Courts and Treaty Bodies (2007) Oxford: Oxford University Press.

[117] Thlimmenos (fn 107).

[118] For example DH (fn 105) [175] or Belgian Linguistics (fn 76) [10].

[119] See, for example. Davis (fn 48) 131.

[120] See R (On the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26 and Huang v Secretary of State for the Home Department [2007] UKHL 11.

[121] See, for example, Hentrich v France (1994) 18 EHRR 440.

[122] de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69.

[123] Ibid [80] (Lord Clyde).

[124] Huang (fn 120).

[125] Razgar (fn 41) [20] (Lord Bingham).

[126] Vamvakas, E. C. Editorial: Why are all men who have had sex with men even once since 1977 indefinitely deferred from donating blood? (2009) 49 Transfusion 1037.

[127] This is the paradigm in blood safety: ‘even the miniscule movement in risk that would result from the revised policy appears unjustified and undesirable to many…even the prospect of a positive impact on the availability of blood donors does not appear to make a difference to those who are exquisitely concerned about blood safety. German, M. and Sher, G. Men who have sex with men and blood donation: is it time to change our deferral criteria? (2002) 1 Journal of the International Associations of Physicians in AIDS Care 86, 87.

[128] Franklin, one of the few to consider both perspectives, compares the two as irreconcilable aims. Franklin, I. M. Is there a right to donate blood? Patient rights; donor responsibilities (2007) 17 Transfusion Medicine 161.

[129] Hochberg, F. A. HIV/AIDS and blood donation policies: a comparative study of public health policies and individual rights norms (2002) 12 Duke Journal of Comparative and International Law 231, 233.

[130] Terrence Higgins Trust Blood donations by people at higher risk of HIV: Terrence Higgins Trust’s policy (2007) p1. Available from <http://www.tht.org.uk/binarylibrary/blloddonationsbypeopleathigherriskofhiv.pdf> (Accessed 12/01/12)

[131] Hurley, R. Bad blood (2009) 338 British Medical Journal 568, 570.

[132] SaBTO (fn 6) 52.

[133] Namely the Blood Safety and Quality Regulations 2005 and paragraph and the Equality Act 2010 Sch. 3 para. 13..

[134] Namely Directive 2002/98/EC.

[135] Correspondence from J. Bardsley to the Department of Health dated 28/11/11 and from C. Hall to J. Bardsley dated 23/12/11.

[136] Hurley (fn 131) 570.

[137] SaBTO (fn 6) 19. Estimated elsewhere as 0.14% in 2009 by Health Protection Agency HIV in the United Kingdom: 2010 Report (Health Protection Report Vol. 4 No. 47) (2010) 4.

[138] Health Protection Agency Sexually transmitted infections in men who have sex with men in the UK: 2011 report (2011) 4.

[139] SaBTO (fn 6) 19. See also HPA STIs in MSM (fn 138) 5: 45%; or HPA HIV in the UK (fn 137) 5: 42%.

[140] Canadian Blood Services v Freeman (2010) ONSC 4885, [3] (emphasis added).

[141] Sanchez, A. M. et al The impact of male-to-male sexual experience on risk profiles of blood donors (2005) 45 Transfusion 404, 405.

[142] Wainberg, M. A. et al Reconsidering the lifetime deferral of blood donation by men who have sex with men (2010) 182(12) Canadian Medical Association Journal 1321, 1322.

[143] The new test was introduced in 2009. Health Protection Agency Safe Supplies: Focusing on Epidemiology. Annual Review from the NHS Blood and Transplant/Health Protection Agency Colindale Epidemiology Unit, 2010 (2011) 4.

[144] 12 days on average: ibid 4. Range is 9-15 days: SaBTO (fn 6) 36.

[145] Roehr, B. The Gift of Life: Gay Men and US Blood Donation Policy. Understanding existing discrimination and how it might be changed 2. Available from <http://libertyeducationforum.org/docs/whitepapers/1h_whtpa_pbl00.pdf> (Accessed 11/01/12).

[146] Wainberg et al (fn 142) 1322.

[147] SaBTO (fn 6) 38.

[148] HPA Safe Supplies (fn 143) 11.

[149] Eleftherios, C. V. Scientific background on the risk engenderd by reducing the lifetime blood donation deferral period for men who have sex with men (2009) 23(2) Transfusion Medical Review 85.

[150] HPA Safe Supplies (fn 143) 11.

[151] HPA Safe Supplies (fn 143) 4.

[152] Roehr The Gift of Life (fn 145) 2.

[153] HPA STIs in MSM (fn 138) 4.

[154] Sufferers aware of their HIV status will be excluded under other criteria, whether MSM or not.

[155] Applying the highest estimate of the NAT failure rate (0.19 per million), the national average for donating blood (5%) and assuming those who do donate blood will do so the maximum of 4 times per year.

[156] The variables for this are: 10,400 MSM unaware of their HIV+ status, a testing failure rate of 0.19 per million, a likelihood of 5% that an individual will donate based on national behavior, and an assumption that those who do donate blood, do so 4 times a year.

[157] SaBTO (fn 6) 48.

[158] Velati, C., Formiatti, L. and Baruffi, L. The risk of HIV transmission by transfusion in Italy does not increase after the abolition of ban on blood donations from homosexual men (2007) 93 suppl 1 Vox Sanguinis 9.

[159] Suligoi, B. Aggiornamento delle nuove diagnosi di infezione da HIV al 31 Dicembre 2007 e dei casi di AIDS in Italia al 31 Dicembre 2008 (2009) 22(3) Suppl 1 Notiziario dell‘Istituto Superiore de Sanita 14.

[160] Ministerio de Sanidad y Consumo HIV/AIDS Epidemiological Surveillance in Spain National Register of AIDS Cases (2007) table 2.

[161] Greer, S. C. The European Convention on Human Rights: Achievements, Problems and Prospects (2006) Cambridge: Cambridge University Press, 223.

[162] Lord Lester The European Convention on Human Rights in the New Architecture of Europe (1996) Public Law 5.

[163] Sunday Times v UK (1979-80) 2 EHRR 245.

[164] Ibid [59].

[165] Klass (fn 23).

[166] Klass (fn 23) [49].

[167] Handyside v United Kingdom (1979-80) 1 EHRR 737, [48].

[168] Lingens v Austria (1986) 8 EHRR 407, [40].

[169] Handyside (fn 167) [47]: the ‘margin of appreciation goes hand in hand with…supervision’, and [50]: ‘The Court must decide, on the different data available to it, whether the reasons given by the national authorities to justify the actual measures of ‘interference’ they take are relevant and sufficient’.

[170] See fn 112.

[171] Henrard (fn 116) 75.

[172] Stec (fn 80).

[173] Petrovic (fn 84).

[174] It is on this basis that the case of Fretté (fn 90) can be distinguished. Here the Court found the restriction on a man’s ability to adopt a child due to his homosexuality was justified. This was due to justifications of family life and morality that are of an entirely different character to the medical justifications at play with blood donation.

[175] Leander v Sweden (1987) 9 EHRR 433.

[176] Handyside (fn 167).

[177] National Provincial Building Society (fn 108).

[178] Dudgeon (fn 8).

[179] Sutherland v United Kingdom, European Court of Human Rights, The Times 13 April 2001.

[180] As in EB v France (2008) 47 EHRR 21.

[181] Marckx v Belgium (1979-80) 2 EHRR 330.

[182] Cahill, S., Schaefer, N. and Guidry, J. A. (Eds.) A drive for change: reforming US blood donation policies: a report by Gay Men’s Health Crisis (2010) 6. Available from <www.gmhc.org/files/editor/file/a_bb_drivechangereport.pdf> (Accessed 12/01/12).

[183] SaBTO (fn 6) 22.

[184] Roehr, B. Should men who have ever had sex with men be allowed to give blood? Yes (2009) 338 British Medical Journal 311.

[185] The precautionary principle applies where public health in danger and no conclusive scientific information available. Policymakers may act cautiously without robust scientific evidence, ‘however the precautionary principle may be relied upon only to the extent that no new scientific evidence regarding the spread and origin of a disease becomes available. Otherwise, measures must be taken so that public resources are not expended on implementing an outdated policy’ Wainberg et al (fn 142) 1322.

[186] Roehr The Gift of Life (fn 145) 2. See also Wainberg et al (fn 142) 1322 or Neill, U. S. Editorial: Don’t ask, don’t tell…and don’t donate (2010) 120(5) The Journal of Clinical Investigation 1364.

[187] HPA STIs in MSM (fn 138) 14.

[188] Daly (fn 120) [17] (Lord Bingham).

[189] de Freitas (fn 122).

[190] Daly (fn 120) [18] (Lord Bingham).

[191] There has not been a transfusion transmitted infection since 2005: SaBTO (fn 6) 11.

[192] Neill (fn 186).

[193] A good example may be university students, who have boycotted donations. There have been boycotts in a number of universities, and the National Union of Students opposes the policy through its ‘Donation not Discrimination’ campaign.

[194] Daly (fn 120) [21] (Lord Bingham). For the European Court, see for example, Hentrich (fn 121).

[195] It is important to note that the current deferral is widely referred to as ‘behavior based’ in that it is technically based on ‘sexual behaviour’ rather than sexuality. Its effect, however, is to exclude all sexually active homosexuals. As discussed above, for the purposes of the Convention, the Strasbourg Court will recognise this policy as based on sexuality.

[196] HPA STIs in MSM (fn 138) 4.

[197] Cain v The Australian Red Cross Society [2009] TASADT, 100-0607003.

[198] Ibid [381].

[199] Phillips, K.  Does blood discriminate? 371 The Lancet 1983, 1984.

[200] Cahill et al (fn 182) 12.

[201] Erens, B. et al National Survey of Sexual Attitudes and Lifestyles II: Technical Report (2001).

[202] ‘X may be classified as belonging to set S1, or to set S2, and so on. Qua member of S1, its probability is p1, qua member of S2, its probability is p2, where p1p2, and so on.’ Hajek, A. The Reference Class Problem is your problem too (2007) 156 Synthese 563, 565.

[203] Ibid, 564.

[204] Within the group (MSM) there are a number of factors that indicate high risk behaviour or likelihood of HIV: Osmond, D. H. et al Changes in prevalence of HIV infection and sexual risk behaviour in men who have sex with men in San Francisco 1997-2002 (2007) 97(9) American Journal of Public Health 1677.

[205] Black women are 19 times more likely to have HIV than white women; black men are 8 times more likely than white men: Centers for Disease Control and Prevention Disparities in diagnoses of HIV infection between black/African Americans and other racial/ethnic populations – 37 states, 2005-2008 (2011) 60(4) Morbidity and Mortality Weekly Report 93.

[206] SaBTO (fn 6) 49.

[207] NHSBT Deferral of men (fn 105).

[208] Although 12 days is the average window period, the range is wider, therefore a deferral period of 30 days is suggested.

[209] Roehr The Gift of Life (fn 145) 2.

[210] Phillips (fn 199) 1984.

[211] For this reason, international comparison should be made cautiously, where private organisations collect blood and therefore cost is of critical importance.

[212] Balancing is ‘an aspect which should never be overlooked or discounted’: Huang (fn 120) [19] para (Lord Bingham).

[213] In the UK see, for example, R (On the application of Begum) v Governors and Headteacher of Denbigh High School [2006] UKHL 15 and in Europe see, for example, Dudgeon (fn 8).

[214] This is the long-standing tagline of the NHS blood donation advertisement campaigns. NHSBT Giving blood (fn 1). 

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