Amicus Curiae: The One-Year Deferral Period for Gay & Bisexual Men – Is Blood Thicker Than Prejudice?

Content Contributor, Daniel Gambitsis

In the wake of the despicable shooting in the “Pulse” LGBT nightclub in Florida earlier this year, the special treatment of gay and bisexual male blood donors came once again to the fore. Due to the Food and Drug Administration rules, gay and bisexual men could only donate blood having been celibate for one whole year, even if they had been in a long-term monogamous relationship. This resulted in the deplorable situation where a gay/bisexual man could not donate blood to his own husband, boyfriend, partner or friend. Is it right that the New Zealand Blood Service also requires a deferral period of one year for gay and bisexual men who have had anal or oral sex with another man?

The current New Zealand Blood Service policy states that you must not give blood for 12 months following oral or anal sex with or without a condom with another man (if you are male).


According to the New Zealand AIDS Foundation, the logic behind having such a deferral period is that men who have sex with men are at the highest risk of HIV transmission, and have higher levels of HIV prevalence. The deferral period will thus ‘protect’ the blood supply, which is important because blood is often necessary in situations of medical urgency. Although detection methods are improving, the virus can be difficult to detect in its early stages, so the deferral period allows for greater protection of the blood supply. Men who have sex with men are indeed at a greater risk of HIV infection, due (among other reasons) to the nature of receptive anal intercourse, the higher prevalence of HIV and other STIs (often asymptomatic) among the group, as well as continued discrimination against them.


Nonetheless, some argue that the policy regarding gay and bisexual men is a legacy of the homophobic backlash towards men who have sex with men in the 1980s AIDS epidemic. Indeed in New Zealand (and in many other countries), gay men were originally banned outright from donating blood, which was then cut to 5 years in 1998 and to 1 year in 2014.

Outright bans were only ever arguably justifiable when there was a lack of effective screening technology for HIV. However, today’s science has allowed detection which ‘can identify the HIV virus within just a few weeks of exposure’. The current policy, regardless of its intentions, indubitably stigmatises gay and bisexual men, who are grouped together with addictive drug users, sex workers and those who have lived in a country with a high risk of HIV infection.

The fact that men who have sex with men even with condoms are prohibited from donating for 1 year is justified by the explanation that even consistent safe sex, while ‘sufficient to end the sexually-transmitted HIV epidemic’ among men who have sex with men, simply does not meet the 100 percent threshold necessary to protect the blood supply. While the need to protect the blood supply is not in doubt, this logic seems to imply that men who have sex with men cannot be trusted to know their status or to consistently practise safe sex, amongst other concerns. Slate writer Mark Joseph Stern notes this paradox:

“Straight people who frequently have unprotected sex with multiple anonymous opposite-sex partners face no deferral at all.”

The New Zealand Blood Service, like the USA’s Food and Drug Administration, assumes that heterosexuals will not lie about their HIV status, and only disallows heterosexuals from donating blood if they ‘think’ they need an HIV test because they have engaged in HIV high-risk activities. After all, even if heterosexuals are unaware of their status and are HIV-positive, the blood screening process will sort out the infected blood anyway. There is no blanket ban preventing heterosexuals from giving blood unless they are celibate for an entire year. But men who have sex with men, even with condoms or in a monogamous long-term relationship, are banned from donating blood. Why, if men who have sex with men can be trusted to reveal the very fact that they have sex with men, should society then distrust their capacity to protect themselves?

A viable alternative?

An oft-suggested alternative is to develop individual risk assessments for all people seeking to donate blood. For example this would involve asking a gay man whether he has had unprotected sex. The factors which expose men who have sex with men to the risk of infection are applicable to heterosexuals as well: unprotected sex, lack of knowledge of HIV status, and multiple sexual partners. Rainbow Wellington acknowledges that this questioning would be intrusive and would require more work, but opines that such an arrangement would avoid the discriminatory aspect of the current “blanket ban” approach to men who have sex with men. Rainbow Wellington suggests that the current policy discourages such men from donating and would encourage more regular testing. Due to progress in screening, errors occur very rarely, and this calls into question the argument that the safety of the blood supply would be endangered by removing the deferral period.

Multiple countries such as Argentina have already ended deferral periods for men who have sex with men, moving to a system which bases its assessments on risky behaviours rather than on at-risk groups and sexual orientation. This demonstrates that there is a viable alternative arrangement which recognises the risk posed to all groups by HIV and other ailments.

Gay and bisexual men do face a greater risk of HIV infection than the wider community. However, although a 1 year deferral period is progress compared to the previous lifetime ban, there is a serious argument for individual risk assessments rather than subjecting the group to undue stigma. It seems frankly irresponsible and illogical given that the nation faces a shortage of blood, to deny willing and uninfected donors the opportunity to save lives, and to demand that gay and bisexual men remain celibate for an entire year with no equivalent penalty for heterosexual donors.

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