SC Emphasises “Clean Blood” Amid Plea Challenging Donor Guidelines

In a pivotal development, the Supreme Court underscored the need to ensure the cleanliness of blood used in transfusions during a hearing on Wednesday. The hearing was in response to a plea challenging the 2017 guidelines that excluded transgender people, men having sex with men, and female sex workers from being eligible blood donors.

The bench, comprising Justices Sanjay Kishan Kaul and Sudhanshu Dhulia, refrained from issuing an immediate notice on the plea but instead tagged it with another petition that also raised concerns regarding the same issue. 

This move comes following the Supreme Court's earlier solicitation of responses in March 2021 from the Centre and other concerned parties regarding a separate plea challenging the 2017 guidelines.

Counsel Highlights Adverse Effects on Certain Categories

During Wednesday's hearing, the counsel representing the petitioner from Maharashtra emphasised how the guidelines excluding specific categories of people from blood donation negatively impacted them. 

They specifically pointed out that "the blood recipient must be assured that the blood being transfused is clean blood," underscoring the importance of this assurance in the context of blood transfusions.

Reference to "Risk Behaviour" in Guidelines

The bench drew attention to the term "risk behaviour" mentioned in the blood donor selection criteria within the guidelines, which stipulate that donors should not be individuals considered "at risk" for HIV, Hepatitis B, or C infections. 

This criterion became a focal point of the discussion.

One of the contentious issues raised by the petitioner's counsel was the requirement for individuals to disclose their sexual identity and orientation when donating blood. 

They argued that the guidelines, which prohibit transgender people, men who have sex with men, and female sex workers from donating blood, were problematic in this regard.

Evolution of the Law

The bench acknowledged the changing societal landscape, noting that while people might have previously kept their sexual identity and orientation concealed, there has been a shift towards greater openness. 

They contended that the law has adapted accordingly, primarily with the objective of safeguarding the blood supply for those in need, and that issues of Article 14 (equality before the law) should not arise in this context.

When the petitioner's counsel referenced certain data, the Supreme Court cautioned against relying solely on such statistics. 

Furthermore, the bench inquired whether a similar issue had been raised in another pending petition. 

The counsel confirmed this, leading the bench to announce that it would not issue an immediate notice but rather tag the current plea with the pending petition.

Background on Earlier Petition

In March 2021, the Supreme Court issued notices to the Centre, the National Blood Transfusion Council (NBTC), and the National AIDS Control Organisation (NACO) regarding a petition filed by a transgender activist from Manipur. 

This earlier petition sought to challenge the 2017 guidelines, alleging that the permanent exclusion of transgender people, men having sex with men, and female sex workers from blood donation was arbitrary, unreasonable, discriminatory, and unscientific.

The petitioner in the 2021 case contended that barring these groups from donating blood solely based on their gender identity and sexual orientation was entirely arbitrary and unreasonable. 

Moreover, they asserted that the guidelines were stigmatising, as they did not align with how HIV transmissions actually occur or the real risks involved in specific activities but instead focused on the donors' sexual identity and orientation.

As this significant legal battle unfolds in the Supreme Court, the emphasis on ensuring “clean blood” for transfusions remains at the forefront, along with the broader question of inclusivity and discrimination in blood donor guidelines.

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