Benjamin L. DeVore ’15 wants to donate blood. He is young, healthy, and with a recent nationwide drop in donations, his blood could save lives. There’s only one problem: He is a gay man.
Since 1986, the Federal Drug Administration has required all blood donor applications to ask a potential male donor if he has had sex with a man one or more times since 1977. If the box is checked, the volunteer is turned away.
“It’s very disheartening to see a sign like ‘Blood Drive next Thursday,’ and know that you can’t contribute,” DeVore says. “Especially when you know you’re not HIV-positive.”
In 1983, with the AIDS epidemic intensifying, the FDA began to issue guidelines regarding donations by those at increased risk for HIV. Initially, this was limited to men with multiple male sexual partners or who had clear signs of immune deficiency. But the current stricter law has been in effect for almost 30 years.
DeVore, political co-chair of Harvard’s Queer Students and Allies, is one of a number of students currently lobbying to lift the ban.
Earlier in the semester, DeVore was approached by Corinne H. Curcie ’15, president of the Harvard Libertarian Forum, about possible activism efforts against the regulation. “We talk about government regulation [in the club],” Curcie says, “and this is a form of collectivism that really makes us angry.”
From a libertarian perspective, she says, the ban is a regulation that is both inconsistent and discriminatory. “If a woman has had a lot of unsafe sex, has multiple sexual partners,” Curcie adds, “[the regulation] doesn’t take that into account.”
To Curcie, partnership with the QSA seemed a natural next step. The Libertarian Forum, though coming at the issue from a regulatory standpoint, was able to find common ground with QSA’s emphasis on civil rights and queer discrimination. “There’s a large amount of scientific and medical evidence that this ban is outdated, inefficient—that it needs to be changed,” says Devore.
Since 2002, advances in testing technology have significantly reduced the risk of HIV transmission through blood donations: Sources peg the current risk at one unit in one to two million donations. But given the 20 million yearly donations, the FDA has continued to turn to social factors. The FDA’s website says that, since the prevalence of HIV is hundreds of times higher among men who have had sex with men, the policy is no more than a matter of statistics.
But, over the past decade, other groups have begun to challenge that assessment. Since 2006, the Red Cross has voiced its support to lift the FDA ban. America’s Blood Centers, a non-profit network of blood centers, and the American Association of Blood Banks have joined in the conversation, claiming that there is simply not enough medical proof to continue justifying the policy. In June, Massachusetts senator John Kerry and Illinois representative Mike Quigley, along with 64 other lawmakers, sent a letter of protest to the Department of Health and Human Services. “This is a matter of life and death,” Quigley told CNN at the time, “and we are turning away over 50,000 healthy men who want to donate blood.”
I. Glenn Cohen, Co-Director of the Harvard Law School’s Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, suggests that the ban could be challenged in courts on the basis of unconstitutionality. The most likely scenario would be “a claim that the ban discriminates in a way that violates the Equal Protection clause,” he writes in an email. Cohen could not be reached over the phone because he was abroad.
“If the blood donation ban is reviewed under ‘pure rational basis’ review,” he continues, “the government’s ban will very likely survive.” On the other hand, “if gays are treated as ‘suspect or quasi-suspect class’…given the scientific evidence FDA may have a hard time claiming that it can satisfy that standard.”
Countries like Australia, Hungary, and the United Kingdom have all loosened their regulations on blood donations by gay men in recent decades. Curcie and DeVore see their efforts as attempts to reach these standards, beginning with a one-year, rather than lifetime, deferral on blood donations from men who have had sex with men. For them, though, a merely medical discourse is not enough; personal and ethical factors play just as large a role.
“[The law] doesn’t take into account many cases,” says DeVore. “For instance, a male who is in a monogamous relationship—that might be the only sexual relationship he’s ever had.”
“The law needs to be more nuanced,” he concludes. “A lot of men who have sex with men really want to contribute, and a lot of these men are not at high-risk.”
On Friday, the Libertarian Forum and QSA began a dining-hall campaign of letter-writing to be sent to the FDA. Three hundred and seventy-eight letters were logged the first night of the campaign. With each signature on a letter packaged in its own envelope, the organizations’ leaders hope that their efforts will make a profound impact at the FDA. An additional goal, though, is to raise awareness about the ban among the Harvard student community.
“A lot of people might have some idea about the policy,” says Curcie, “but what they don’t realize is that it’s a federal regulation”—one with which the Red Cross, for example, no longer agrees.
For Curcie, the policy is more sinister than many realize. “It’s telling a group of people that you can’t be life-savers because you’re somehow tainted,” she says. “It labels an entire group of people as somehow being less.”
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