Omosessualità ed esclusione sociale nella donazione di sangue:divieti permanenti e divieti temporanei come fattore di discriminazione

Around the world, as a consequence of the contamination of theblood supply by HIV and Hepatitis C and B in the early 1980s, publicand private blood banks have required blood donors to complete adonor health assessment questionnaire to identify various risk factorsfor sexually transmitted diseases including, for men, the act of havingsex with a male partner. In this latter case the policy provides for apermanent or temporary ban on donation.This deferral policy, which aimed to protect recipients of bloodand blood products, in recent years has been subject to criticism in sofar as this exclusion seems to be an unfair discrimination against gaymen on the basis of sexual orientation. At present, despite new technologies and recent testing procedures that allow the identificationof contaminated blood, donor selection is still based on groupcharacteristics (such as the MSM group: “men who have sex withmen”).After having analysed the two core judgments in the western legaltradition regarding the MSM deferral policy—namely: the decision ofthe Ontario Superior Court of Justice in the case Canadian BloodServices v. Kyle Freeman and the decision of the European Court ofJustice in the case Geoffrey Léger v. Ministre des Affaires sociales, de laSanté et des Droits des femmes —, the essay enquires into what can beviewed as a reasonable response to the issue of discrimination. Inparticular, the Author looks at two main subjects: 1) the adoption inat least two European countries (Italy and Spain) of a differentapproach based on an individualised donor assessment; 2) the proportionalityof group refusal taking into account the negative stereotypesabout gay men and, in particular, the association of homosexualitywith AIDS.