I was asked for a comment this week on the recent Ontario court decision to allow a fertility clinic to exclude a gay man from donating his sperm for the benefit of a lesbian friend. It was a refusal based on the risk of his being HIV positive, her being infected and the possible liability of the clinic.
I've faced a similar dilemma being asked about the blanket exclusion of gay men (actually all men who have had sex with men since 1978, I believe) from making donations of blood to the Canadian Bloood Services Agency or Hema Québec. I tend to understand the health perspective, statistically, and I don't really get the notion of a right having been violated.
Let's start with the health and statistics issue. The HIV prevalence rate among gay men in Canada's major urban centres is somewhere around 15% or more (prevalence being the percentage of individuals in the given population who are infected with the virus, cumulatively, and still living). That is about one hundred times the prevalence rate in the general population, so you might see how it is that as a statistical exercise it makes sense for these health authorities and clinics to apply this blanket exclusion. Add to this the generally accepted statistic that up to one third of individuals living with HIV don't know their status, and it becomes even more self-evident.
I can hear the other objections now: aren't all these samples tested for HIV anyway? Well, presumably they are, but we all also have to remember the 'window' period for HIV, the time between getting infected and developing antibodies to the virus, which is what is tested for. No, the window period is not 30 years, so there should certainly be some adjustment of the exclusion time. Hema Québec tried to adhust the exclusion period to one year since last having had a sexual relation with another man, but this was vetoed by Health Canada and the other international blood supply actors (we have to remember that these things, too, are integrated on an international scale, so many of these decisions cannot be made at a local, regional or even national level.
Let's move on, then to the notion that this is a right that is being violated. I can't really wrap my head around that one. I tend to think of a right as being something that confers a benefit, the violation of the right being something that deprives the individual of the benefit. So what is the benefit — to the donor — of a donation of sperm or blood? It is illegal in Canada to buy or sell body parts, including those two products, so there is no monetary benefit that is being missed due to the ban. That leaves us, pretty much, with the idea that this ban communicates some kind of lesser citizenship for gay men (or, using the blood example, anyone who spent a significant amount of time in Britain during the mad cow years, anyone who has ever had malaria, etc.). But in a system which does not demand proof of having donated these things in exchange for any kind of status (these donations are largely anonymous from the perspective of the general public), I'm not sure that this argument of lesser citizenship holds up either.
In my own case, I am old enough to have donated blood before the ban came into effect. When the ban was imposed, I probably shared some of the outrage that I hear from other gay men today. When, years later, I tested positive for HIV and learned that I had probably been infected for over a decade (these things are not precise: when diagnosed in 1997, I had a CD4 count of 4, and it is difficult to say just how long it took the virus to ravage my immune system to that extent), I was relieved that the ban had prevented me from passing HIV on to someone else through the blood system.
I fully expect, however, that there will be blood for me if I should ever need a transfusion. And that it will be disease free.