Thursday 20 June 2019

Man brings court challenge against blood transfusion service after they prevented him from donating

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A gay man has brought a High Court challenge against the Irish Blood Transfusion Service (IBTS) policy which prevents him from donating blood unless he abstains from having sex for 12 months.

The action has been taken by 27-year-old Tomas Heneghan, with an address at East Wall in Dublin 3.

He claims that the IBTS policy of not accepting blood donations from men who have anal or oral sex with other men within the previous 12 months is unlawful.

He had attempted to make a blood donation to the IBTS last April.

However, after filling out a questionnaire he was told by a member of the IBTS's staff that he could not donate because he had sex within the 12 month period.

He was informed that under the IBTS's policy, he was deferred from making a donation until January 2020.

Some weeks before he attempted to make the donation Mr Heneghan said he underwent a series of routine blood tests.

The results of those tests showed conclusively that he was healthy and not a risk to the national blood supply should he decide to make a blood donation.

He says he cannot understand the reasoning behind the IBTS policy.

He also argues that the questionnaire does not enable the IBTS to make a full evaluation of the level of risk presented by an individual donor due to their sexual behaviour.

He said that according to the IBTS's own website there is a window period following infection during which HIV and hepatitis may not be detected in the blood.

This window he said is seven days for HIV and 16 days for hepatitis.

He claims that a far less onerous restriction could be imposed, rather than the 12-month deferral, which would protect blood recipients.

Mr Heneghan also claims the decision to place what he claims is an automatic deferral on him is unlawful and in breach of European Union Law, and European Communities Regulations on the Quality and Safety of Human Blood Products.

He also claims that the policy is disproportionate, discriminates against homosexual and bisexual men, and breaches his constitutional rights and rights under the European Convention on Human Rights. 

As a result of the IBTS's decision, which he says was communicated to him verbally on April 16 last, he took the judicial review proceedings against the IBTS, the State and the Minister for Health.

In his action, Mr Heneghan seeks an order quashing the IBTS's decision that prohibits him from making a donation until the 12 month period has elapsed.

He also seeks a declaration that the process followed by the IBTS in his case, and the policy the service uses to assess the risk of disease transmission posed by him was unlawful.

He also seeks damages.

The application came before Mr Justice Seamus Noonan who granted Mr Heneghan permission, on an ex-parte (one side only represented) basis, to bring the challenge.

Mr Heneghan previously brought a High Court challenge aimed at ending what had been the permanent ban on accepting blood donations by gay men.

That action was withdrawn in 2016, after the Government, based on a report from the IBTS, decided to remove the permanent ban.

The ban was introduced here in the 1980s when AIDS became a major sexual health risk.

The new challenge was adjourned to July.

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