Wilhelm Disbergen
The Human Rights Commission (HRC) this week briefed top South African advocate Gilbert Marcus to advise it on the best way forward to solve the impasse between the commission and the South African Blood Transfusion Service (SABTS).
This comes after two years of negotiations between the HRC and the service on whether gay men should be allowed to donate blood.
In July 1999 Andrew Barnes walked into a blood transfusion centre and filled in a questionnaire that had changed slightly from a few years before when he had last donated blood.
The third question read: “Have you had sex with another male in the past five years?”
Barnes answered in the affirmative he had been in a monogamous gay relationship and was HIV-negative. When he gave the form back to the nurse, he was told bluntly that he would be unable to donate blood.
This was at a time when there was a severe shortage of blood in the Western Cape and appeals were sent out in the media urging all healthy adults with a minimum weight of 50kg to donate blood. What the appeal did not say was that homosexual men were not eligible.
According to Robyn Solomon, senior legal officer at the HRC, Barnes’s case is, on the face of it, an apparent violation of the equality clause of the Constitution.
Dr Robert Crookes, medical director of the SABTS, says according to World Health Organisation regulations, homosexual men, prostitutes, intravenous drug users and victims of sexual assault are a “high-risk group” and are thus disqualified from donating blood.
In the United States, the Food and Drug Administration regulations ban anyone who has had a male-to-male sexual experience since 1977 from donating blood. The Australian Red Cross has a 12-month exclusion of donors with a same-sex sexual experience.
The SABTS’s exclusion of high-risk categories was, according to Crookes, a risk management exercise that was vital to maintaining the transfusion service’s blood supply as one with the lowest prevalence of HIV contamination in the world (0,007% to 0,03%).
The SABTS’s reliance on international standards isn’t enough to limit Barnes’s right to equality, the HRC believes.
But the transfusion service says Clause 36 (1) of the Bill of Rights, on limitation of rights, allows it to exclude gay men from donating blood because such exclusion is paramount to safeguarding the blood supply and preventing an HIV infection of the blood recipient.
The limitation of rights may be legally allowable if it can be proven that a less restrictive means to achieve the same purpose cannot be found. Research has shown that the service can find these means.
Blood from people who engage in high-risk sexual behaviour could increase the incidence of HIV transmission via blood transfusions. These people may have contracted the virus and donated within the “window period”, where antibodies have not yet formed in the blood, making the detection of HIV impossible. This undetected HIV could then unknowingly be transfused to the recipient of the donated blood.
This “window period” is determined by the kind of HIV test done on the donated blood. With a PCR HIV test (costing R407,30), the window period for HIV transmission is only one week while with the standard anti-HIV antibody test or Elisa HIV test (currently used by the SABTS and costing R108,60) the window period is from three weeks to three months.
Crookes said at present the service did not have a blood shortage, contrary to popular belief, and could therefore be as selective as it deemed necessary. But even if another blood shortage emergency is declared, it will again refuse to allow gay men like Barnes to donate.
Professor Brian Williams, a leading South African epidemiologist who is currently working at the World Health Organisation’s headquarters in Geneva on a project on communicable diseases, says: “There is no evidence that the prevalence of infection among men who have sex with men is higher than in the heterosexual male population. Indeed, there is good reason to believe that it is lower. Asking this question [to potential donors about gay sex] does therefore not identify people at high risk of infection.”
Williams says in the South African context, excluding men who have gay sex would not necessarily guarantee a safer blood supply.
Research by Mark Colvin and Eleanor Gouws at the Medical Research Council shows black South Africans are 4,4 times more likely to be HIV-positive than their white counterparts and constitute a high-risk group. Crookes said black South Africans are not excluded from donating “on the basis of who they are”, but according to what high-risk behaviour they engage in.
Williams says: “Among women in the general population in Khutsong, the prevalence of HIV infection is now 67% in 25-year-old women. If one intends to exclude all people at high risk one should probably exclude everyone over the age of 15 in KwaZulu-Natal and everyone between 25 and 40 everywhere else.”
The SABTS targets schools. It obtains 15% of its blood supply from its “Club 25” group (post-school donors under 25 years). With 60% of HIV infections (2,52-million) in South Africa occurring in the age group 15 to 25 years with 80% of teens sexually active before the age of 15 blood is collected from an extremely high-risk group.
In official correspondence with Barnes dated December 1999 on his allegation that the Western Cape Blood Transfusion Service discriminates against gay men, the reply from the service was: “In South Africa the transmission of HIV is predominantly heterosexual.”