As it stands, the possibility of HIV transmission by blood is significantly slim, with an estimated risk of one in 1.5-2 million transfusions. Aside from MSM individuals, the only groups facing permanent deferral are individuals who have received payment for sex, intravenous drug users, and individuals who have tested positive for HIV and other infections. Uneven application of exclusion to at-risk individuals suggests that risk aversion disproportionately impacts MSMs. For example, a non-MSM individual who has had sexual contact with a commercial sex worker or HIV-positive partner is deferred for only twelve months while other groups are not subject to deferral at all.
Dr. Brian Custer, Associate Investigator in Epidemiology and Health Outcomes at BSRI, supports Dr. Busch's stance by calling for parity in the eligibility rules for blood donation. Dr. Custer points out that the current policies are selective in how donations from potentially higher-risk persons are regulated. To this end, he is leading a series of studies that seek to provide the FDA with scientific evidence to inform possible change to the MSM deferral policy.
The first study, supported by the National Heart, Lung, and Blood Institute (NHLBI) of the National Institutes of Health (NIH), is being conducted as part of the second Retrovirus Epidemiology Donor Study (REDS-II). This study includes the American Red Cross, Blood Systems, the New York Blood Center, and OneBlood, which together are responsible for collecting more than 60% of the US blood supply. An analysis of existing data on the proportion of blood donors testing positive for transfusion-transmissible infections including HIV and hepatitis B and C, and associated risk factors for these agents was initiated in 2011. This study will provide baseline estimates of the current risks of transfusion-transmitted viral infections in the US blood supply. Additionally, the study will determine risk behaviors in donors who "passed" the donor screening questionnaire, including those donors who denied any risk factors but were found to test positive for HIV. The study attempts to gauge how misinformation enters the screening interview and undermines the vetting process for donor eligibility. The study does not seek to "point fingers" at those who provided incomplete information during the screening interview; instead, by analyzing the background of those donors, it provides a clearer picture of what the risk factors in blood donors with HIV and other infections are, thus providing the FDA with a "baseline for risks in the blood supply," according to Dr. Custer.
The second key study, developed in collaboration with University of California San Francisco Center for AIDS Prevention Studies, is being conducted as part of the NHBLI Recipient Epidemiology and Donor Evaluation Study (REDS-III), a larger research program aimed at helping improve blood transfusion product safety and availability in the US and internationally. The new study is an assessment of opinions and perspectives on the current MSM blood donation policy. This study seeks to identify behaviors of men who are currently eligible to donate as well as those who are not, as little data exists on the prevalence of risk within those groups. In considering whether to move to a one-year or five-year deferral policy for MSM (another possibility that has been discussed), it is crucial to understand whether attitudes toward compliance would change--whether lifting the stigma of the lifetime ban would encourage individuals to be more honest during the screening process, and whether a new policy would result in a net increase in donors. Dr. Custer emphasizes the importance of compliance with whatever policy the FDA decides upon.
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Additionally, the FDA has indicated a willingness to revisit its policy, as evidenced by a Request for Information (RFI) published online in the spring of 2012. Studies that allow certain MSM to donate could potentially alter the illusion that all MSM individuals constitute a uniform risk to the blood pool -- one that requires that they be excluded for life.
Many countries including the United Kingdom and Brazil have a one-year deferral period, allowing MSMs to donate blood if they have not had intercourse with a new partner within that time. The United States lags behind other countries that have moved away from questions concerning sexual orientation or MSM contact during the donor screening process. Dr. Busch explains that South Africa and Italy base eligibility on the number of sexual partners in the period before donation. According to Dr. Custer, the Australian equivalent of the FDA is contemplating reducing the one-year deferral criterion for MSM individuals to six months due to technological advancements that have narrowed "the window" of detection.
The fact that the U.S. upholds a lifetime ban on MSM donation while Australian policy allows MSM individuals to donate a year or less after contact reveals a glaring discrepancy. Both ethics and science point to a flaw in FDA policy. That I could have had sex with 365 partners this year and be a perfectly fine candidate for donating blood, while the MSM next to me wouldn't qualify, betrays a faulty line of logic.
The celebratory sentiment of Quilt volunteers on the Mall would likely have wavered had they known that close by the myth that AIDS is a "gay disease" is alive and well. The irony is obvious: a tribute to AIDS victims on the Mall and AIDS discrimination in the House. This summer, the U.S. Department of Health and Human Services and the Centers for Diseases Control and Prevention launched the 'Lets Stop Aids Together' campaign to help eliminate the long-standing stigma and misconception surrounding HIV in the U.S. Additionally, the international AIDS conference was held in Washington, D.C. for the first time in twenty years following the lift of a travel ban on HIV-positive individuals. But how complete are these triumphs when a federal agency still clings to outdated and misguided policies?
Looking east towards the Supreme Court building, I wondered how the nine justices would respond to this inconsistency. Is it permissible to turn away one high-risk group of individuals while letting others, of arguably equal risk, participate? Is that not the essence of discrimination, the issue over which Tom Hanks' character in Philadelphia sued the law firm that fired him? It seems dangerously reductionist to say that a gay man, irrespective of his risk for carrying HIV, should be banned from giving blood for life, while the notoriously promiscuous man sitting next to him might receive a yearlong deferral at most.
The Equal Protection Clause of the Constitution stands for the equitable application of US laws to all individuals. Historically, the Supreme Court has struck down legislation that unfairly targets groups of individuals based on race, sex, religion, and, more recently, homosexuality. In 2011, after declaring part of the Defense of Marriage Act unconstitutional, the Obama Administration called for stricter application of constitutional protections for homosexuals. The FDA's policy of accepting blood donations from groups of equal -- if not greater -- risk of contamination, while disallowing MSMs, highlights the policy's arbitrary and unconstitutional construction.
This year, a committee at Vermont Law School organized a petition and awareness campaign in conjunction with its blood drive; the committee gathered 140 signatures to send to the FDA advocating for repeal of the ban. The lesson these efforts teach us is clear: the FDA policy is unconstitutional and should be overturned. According to VLS Professor of Law Greg Johnson, "VLS has long been a leader in defending the rights of the LGBT community. Modern detection techniques make the FDA's lifetime ban over-inclusive. The ban is grounded in discrimination, not science. VLS should join Middlebury College and others in leading the fight to repeal this illogical ban." Johnson's theory for how to reform blood donation makes sense. He argues that rather than implementing a blanket one-year ban, which would effectively disqualify most MSMs for life, the Red Cross should be allowed to modify its policies to reflect medical advances. One example would be to alter the questionnaire in order to restrict all high-risk blood donations.
I'd like to think that we've made progress since the AIDS Quilt first came to the Capital. I'd like to believe that, because President Obama and Vice President Biden have publicly sanctioned marriage regardless of sexual orientation, discrimination towards gay and bisexual men would not be so prominently displayed in the White House backyard. Yet my experience, and perhaps that of thousands more, was soured that day on Capitol Hill. Blood is in high demand, and science should speak louder than stigma in determining who can help meet this need. I am proud to have given blood. And I don't believe that my blood is worth more than that of the man who has slept with a man -- even once.