ABSTRACT
This paper examines the current US Food and Drug Administration (FDA) blood donation policy, which prohibits men who have sex with men and transgender individuals. Although the FDA updated its recommendations in 2023 to allow MSM and the LGBTQ+ community to donate blood, India continues to adhere to outdated policies.However, it is noteworthy that a constitution based on lofty values appears to have made little difference for this community of people, since they continue to face discrimination and obstacles in the form of a complete ban on blood donation. Identity is a key variable in society that distinguishes people or groups.People who identify as lesbian, gay, bisexual, or transgender are collectively known as the LGBT community, represents a diverse spectrum of sexual orientations and gender identities.This paper will illuminate a medico-legal issue concerning the lifetime prohibition of blood donation for MSM (men who have sex with men), predicated on the presumption of potential HIV infection and the associated risk of transmission through blood transfusion. The decriminalization of homosexuality marks merely the initial step in the broader quest for the acknowledgment of LGBT rights in India. The rainbow community now requires enhanced acknowledgment across diverse domains. Although all blood banks are licensed, contemporary methodologies such as chemiluminescence and nucleic acid testing (NAT) are conspicuously absent from the Drugs and Cosmetic Act (D and C Act).The National AIDS Control Organization (NACO) and the National Blood Transfusion Council (NBTC) warrant a more assertive involvement in the licensing procedure. The window period for HIV testing, along with international blood donation norms, indicates that the universal ban is both scientifically unfounded and constitutionally invalid, infringing upon fundamental human rights.
KEY WORDS: Blood Donation, LGBTQ+, Drugs and Cosmetic Act, MSM, National Aids Control Organization.
INTRODUCTIONBlood plays a crucial role in preserving the lives of countless individuals daily, particularly those who are victims of accidents or undergoing specific surgical procedures. Non-governmental organizations, influential figures, and governmental entities are tirelessly engaged in efforts to enlighten the public about the advantages of blood donation. A multitude of young individuals engage through social media platforms such as WhatsApp, participating in various groups dedicated to volunteering for blood donations and assisting those in need. On one hand, there exists a notable scarcity of blood, prompting the concerted efforts of countless individuals, NGOs, and governmental bodies striving to address this pressing issue. Conversely, a significant portion of individuals is excluded from the realm of blood donation due to their sexual orientation. India encountered a significant challenge regarding blood scarcity during the COVID-19 pandemic, resulting in the tragic loss of thousands of lives. Despite this pressing issue, the country maintained its policy prohibiting blood donations from gay and bisexual individuals throughout the crisis.[1]
The policy aims to mitigate the risk of transfusion-transmitted HIV infections. Men who engage in sexual relations with other men, referred to as ‘MSM’ in medical discussions around HIV, are considered to be at an elevated risk of infection, hence posing a possible threat to the protection of the blood supply. Although all blood that was given undergoes testing for recognized pathogens, tests designed to identify HIV in donated blood are not entirely infallible, partly due to the well-known yet diminishing ‘window period’ amid the initiation of HIV infection in an individual and the capacity of tests to identify the virus in their blood. To ‘close this window’, pre-donation evaluations, typically comprising questionnaires filled out by prospective donors or interviews conducted by phlebotomists or other personnel, exclude ‘high-risk individuals’ from the donor pool—those who have participated in behaviors deemed to elevate their jeopardy for HIV infection. These scrutiny procedures may be referred to as ‘behavioral risk-factor screening’ or ‘donor self-exclusion’. HIV is not the sole focus; other significant infections include hepatitis, malaria, West Nile Virus, and Creutzfeldt-Jakob disease.[2]
People who identify as queer—including those who are bisexual, transgender, lesbian, gay, or otherwise non-heteronormative—face discrimination and prejudice on many levels, including social, cultural, and institutional ones. The phrase “queer stigmatisation” captures this phenomenon. There are various forms of stigmatization, including:
1.Marginalization: Queer people may face social, familial, and community marginalization due to their gender identity or sexual orientation.
- Bias: The queer community also faces bias, which manifests itself in a variety of forms of discrimination in many areas of life, including but not limited to: housing, healthcare, workplace, and public accommodations.
3.Crimes: Due to their gender and sexual orientation, LGBTQ people are more likely to face verbal and physical assault, hate crimes, bullying, and harassment.
4.Psychosocial impact: Stigmatization may result in mental health disorders, including sadness, anxiety, and diminished self-esteem as well as internalized homophobia or transphobia.
- Legal barriers: The stigmatization of queer individuals is intensified by discriminatory legislation and regulations, like those that ban same-sex marriage or limit the rights of transgender individuals.
- Religious and cultural repudiation: Specific religious or cultural tenets may stigmatize and reject LGBTIA+ identities, leading to ostracism and stigmatization within these communities. Eradicating LGBTQ stigmatization necessitates a multifaceted approach, including the promotion of legislative reforms, the creation of supportive networks for LGBTIA+ individuals, and the implementation of legal protections and educational initiatives that foster acceptance and comprehension. Mitigating stigma and confronting stereotypes can also be accomplished by enhancing the visibility and representation of queer individuals in media and public discourse.[3]
Annually, about 100 million blood donations are collected worldwide. To safeguard receivers of blood products and preventinfections associated with transfusions, the World Health Organization (WHO), the European Union (EU), and many national Health Ministries have established criteria for exclusion for prospective blood donors. The European Union and the World Health Organization prohibit blood donation from individuals whose sexual conduct poses a significant risk of contracting severe infectious diseases transmissible by blood. Nevertheless, the standards established by these organizations remain neutral regarding the sexual orientation of prospective donors.[4]
[1] Niteesh Kumar Upadhyay, Sangeeta Taak, Ardyllis Alves Soares and Pyali Chatterjee, ‘Challenging the blood donation ban of LGBTQ+ individuals in India: a medico-legal and public policy analysis’ (2025) 13(1)REDES<file:///C:/Users/Administrator/Downloads/Dialnet-ChallengingTheBloodDonationBanOnLGBTQIndividualsIn-10224571%20(1).pdf> accessed 22 September 2025
[2]Thomas Strong, ‘Vital Publics of Pure Blood’(2009) 15(2)Body Soc <https://doi.org/10.1177/1357034X09103441> accessed 15 August 2025
[3]Sabrin Mariam Philip and P G Sunanda Bhagavathy, ‘Stigmatisation of TransgenderPeoplein Indian Blood Donation Policies’ (2024) 6(4) KrimOJ<https://doi.org/10.18716/ojs/krimoj/2024.4.6> accessed 15 July 2025
[4] Georgios Karamitros, Nikolaos Kitsosand Ioanna Karamitrou, ‘The ban on blood donation on men who have sex with men: time to rethink and reassess an outdated policy’ (2017) 27(1)Pan Afr med j<https://www.ajol.info/index.php/pamj/article/view/159910> accessed 2 August 2025