In the information society the decisions affecting sensitive matters immediatelycapturethe attention of media and public. Theimmediacy of digital media and summarizing very complex mattersina mere headline or 140 characters sometimes prevents us from forming an accurate opinion on the issue. This seems to occur with this judgement regarding the prohibition of blood donation for sexualityreasons. It could be said, according to certain article published, that the ECJ approves discrimination based on safetyreasons, although a careful reading contradicts such conclusion.<\/p>\n
Facts of the case<\/strong><\/p>\n The case\u00a0stems from an appeal\u00a0lodged by an individual before a French court, after\u00a0a doctor\u00a0denied him the possibility\u00a0to donate blood\u00a0as a result of having declared\u00a0that he had had sexual intercourse\u00a0with another man. The doctor\u00a0denied\u00a0the donation on the grounds that\u00a0the French regulations consider this circumstance\u00a0a reason for permanent exclusion. The French court decided\u00a0to suspend the proceedings and\u00a0to pose to the ECJ\u00a0whether such regulations respect the\u00a0EU Charter of Fundamental Rights.<\/p>\n Safety and Proportionality<\/strong><\/p>\n The ECJ\u00a0departs from the fact that Directive 2004\/33 on\u00a0technical requirements\u00a0for blood\u00a0permits permanent exclusions\u00a0if\u00a0there is\u00a0a “high risk” for the recipient\u00a0to\u00a0get\u00a0a serious infectious disease, leaving some flexibility to the Member States to\u00a0define\u00a0such cases. However, the European Court\u00a0insists on the fact that\u00a0such limitations imposed\u00a0by Member States\u00a0must not go beyond what is strictly necessary\u00a0to protect the recipient’s health, seeking always the least coercive measure possible.<\/p>\n The defenders\u00a0of the measures that\u00a0prevent homosexuals from donating blood\u00a0emphasized\u00a0that the current state of science\u00a0cannot prevent a \u00abwindow period\u00bb during which, infections cannot be detected.\u00a0Given that infections can be sexually transmitted, and\u00a0since\u00a0it would not be possible to determine\u00a0if there is an infection when making the donation, they consider reasonable\u00a0to exclude\u00a0the possibility\u00a0of homosexuals to donate blood.<\/p>\n The ECJ\u00a0understands\u00a0that this exclusion may be compatible with European\u00a0law, and it requires the national court to decide on the basis\u00a0of the\u00a0principle\u00a0of proportionality\u00a0and to assess, taking into account\u00a0the rights\u00a0of the potential donors, whether it is possible to ensure\u00a0a high level of health protection\u00a0using detection techniques that are\u00a0more effective and less coercive\u00a0than permanent exclusion. If that were the case, the contraindication included\u00a0in the French laws\u00a0would infringe the principle\u00a0of proportionality\u00a0and should be revised. Therefore, it will be necessary to wait for\u00a0the decision\u00a0of the French court, although it is possible\u00a0that this decision may never come\u00a0given that the French authorities\u00a0announced that current regulations will be revised.<\/p>\n <\/p>\n