Canadian Blood Services vs. Kyle Freeman

About a month ago, I heard about a lawsuit and countersuit between Canadian Blood Services (CBS) and Kyle Freeman and realized that, even though the case deals with everything from public perception to reasonable limits of people’s rights, science would be a large part of it.

Kyle Freeman is gay, and donated blood regularly. To get past the screening process, he lied in response to the question “Have you ever had sex with a man, even once, since 1977?” An affirmative answer results in an indefinite ban from blood donation. In June 2002, Mr. Freeman sent an anonymous email to CBS to explain his form of protest against the question. The email was traced, and CBS sued him for negligent misrepresentation. Mr. Freeman is countersuing with the claim that, since CBS is federally regulated, the question violated his Charter rights.

Is an indefinite ban on men who have sex with men (MSM) backed by the science?

When the indefinite ban was put in place in 1988, HIV was still not well understood, and the first blood tests for it had only been out for three years. At the time, a broad, indefinite ban was the best way to protect the blood supply from more cases of HIV transmission. Men who had ever had sex with a man since 1977, along with other groups at high risk for HIV infection, were banned from blood donation, pending further research. MSM is a high risk group for HIV infection, even today. Though the tests performed on every unit of blood donated are highly sensitive, there is the potential risk for a unit of infected blood to sneak by. No test is 100% accurate, and human error is a real possibility. Reducing the number of donors who are at risk of HIV infection also reduces the risk that a person who needs a transfusion will receive infected blood.

CBS is aware that people are upset with the continued indefinite ban. The problem is that when they defend it, at least based on the information I could find on the topic, their defence doesn’t hold water.

The most common reason given for continuing the indefinite ban is the window period during which a new HIV infection cannot be detected. Given the advancements in testing in the past 21 years, this window period is about 3 weeks, but, for safety’s sake, six months is usually used as the cut off. In rare cases, it may take more than 6 months to test positive. This explains a year of the deferral, but not the other 31 years worth. Lorna Tessier, the director of public relations, was interviewed by CBC’s The Current. Despite the host’s questions that effectively pointed out that a 32-year deferral period for a 6 month window was rather excessive, Ms. Tessier focused her discussion on the window-period itself, not the deferral-period.

The position of CBS on this topic is that any change to the donor criteria must result in a zero change or decreased risk to the blood supply. This is a perfectly reasonable position for a health services provider to hold. However, an indefinite ban is not required. A report commissioned by CBS suggested that a 5 year deferral is enough. A man who has not had sex with a man for 5 years does not increase the risk to the blood supply. In 2007, CBS decided not to change the existing policy. Other countries have moved away from indefinite deferrals: Israel has a 30 year deferral; New Zealand reduced its 10 year deferral to match South Africa’s 5 year deferral; and Argentina, Australia, Hungary, and Japan have 1 year deferrals.

A 5 year deferral, with no other changes to the screening questions, would still prevent most gay men from donating blood*, but it would be a step in the right direction. Ms. Tessier suggested in her interview that interest groups against the indefinite ban would still be dissatisfied with a 5 year deferral. While true, (the position of the Canadian AIDS Society is that additional questions need to be added to the questionnaire) this doesn’t change the fact that the indefinite deferral is not scientifically supported and should be changed to a deferral that is.

The court case started in an Ottawa court on September 28. Canadian Blood Services will have the chance to present all its science**, and the judge will have a chance to decide if CBS has been reasonably cautious or not. I, for one, am curious to see how it turns out.

* Statistics for this sort of thing are powerful, but not very personal. So, even though there are gay men out there who are militant about safe sex, have only ever had one partner, and do everything right, they will get lumped into the same demographic as the higher risk playboys, unless CBS completely changes the way they manage the donor questionnaire.

**As a side note, CBS also has some personality traits by blood type information on their web site that readers of this blog may find amusing (or mildly offensive, your choice). [UPDATE 2011: CBS has removed the personality traits from their blood type program.]

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  • Marion Kilgour

    Marion is a mechanical engineer, and also works to promote critical thinking and scientific literacy through local skeptical and atheist activism in Edmonton, Alberta. Marion especially wishes to encourage girls to consider science or technology-based careers, and is involved in the University of Alberta's Women in Scholarship, Engineering, Science and Technology (WISEST) project.