Student takes privately-owned Quebec blood bank to court

McGill student hopes to reverse policy of discriminating against men who have sex with men

Claire Crighton, The McGill Daily (McGill University)

MONTREAL (CUP) — A McGill law student whose blood was rejected from a Héma-Québec drive last year because of his sexual orientation is now suing the blood-collection agency for “moral injury.”

Adrian Lomaga’s blood donation was declined when he responded affirmatively to the question, “Have you had sex with a male, even one time, since 1977?” According to current Héma-Québec donor qualification criteria, men who have had sex with men are ineligible to give blood because HIV infection rates are higher among members of this group.

But Lomaga believes this ban is scientifically invalid and violates equality rights guaranteed by the Quebec and Canadian Charters of Rights. He filed suit in the small claims division of the Quebec Court last Friday, seeking a sum of $1,500.

The second-year law student decided to pursue legal action after conducting academic research on the issue over the summer.

“The statistics have changed. With the advances of science, Héma-Québec can’t justify a life-long deferral,” said Lomaga, explaining that HIV can now be detected nine to 11 days after infection.

Héma-Québec’s public statement on the organization’s policy to refuse donation on this basis cites a rate of infection of 10-15 per cent among males professing to have sex with another man, compared to 0.2 per cent of the general Canadian population.

“It must be understood that giving blood is a privilege and not a right, and that discriminatory measures are possible when they are justified for public health reasons,” the statement explained.

Quebec Haemovigilance and Health Canada considered reducing the permanent exclusion to 12 months, but decided against it.

“If you read our statement, you will understand what we do. We don’t give interviews. It’s our qualification criteria, we have the explanation on the paper that we send you. All that we can say . . . . is written on our statement,” said Michel Thisdel, information officer for Héma-Québec.

The statement from Héma-Québec also noted that its policies to ensure the safety of donated blood require 18 per cent of potential donors to be turned away, which is particularly disconcerting as only three per cent of Quebeckers volunteer to donate blood.

Lomaga’s scientific claims are supported by Norbert Gilmore, an AIDS specialist and McGill professor.

“It’s obviously stupid to have a rule going back to ’77,” said Gilmore, proposing that a year-long blood donation ban on men who had sex with men would compensate for possible screening failures.

However, Gilmore speculated that the reason that Quebec upholds the ban is because the same measures are used by blood-collection agencies throughout Canada and the United States. Because blood is often transferred between these locations, a universal standard must be maintained.

“It would be nice if the policy could change,” said Gilmore. “But blood would then be non-usable outside of Quebec.”

Michael Bergman, a Montreal lawyer who represents The McGill Daily, explained that to defend its policies in court, Héma-Québec must prove that its discrimination is a medically justified violation of Charter rights.

Bergman believes that because the policy seems to inappropriately single out male homosexuals, Lomaga’s case has a good chance of success.

“It seems to me to be a grounds for discrimination, contrary to the Charter of Rights,” said Bergman.

Though Lomaga admitted that he is not expecting his case to be a “cakewalk,” he was confident that the Quebec court would rule in his favour, setting a precedent for blood policy across Canada.

“I don’t think Héma-Québec has either the scientific backing to justify nor do they have a legal leg to stand on,” he said. Lomaga explained that he would like to see the agency’s policy changed to address the risk of sexual activity being practiced, rather than categorically discriminating against a whole segment of the population.

Though Lomaga’s suit is the first legal action that a McGill student has taken against Héma-Québec, members of Queer McGill have been campaigning against the agency’s policies for more than a decade.

The Student Society of McGill University (SSMU), which hosts three or four Héma-Québec blood drives on campus each year, has recently become involved in Queer McGill’s campaign for these policies to be changed. In October, SSMU sent a letter to Héma-Québec questioning the scientific justification of the agency’s policies.

But Lomaga criticized SSMU’s approach, maintaining that if SSMU wants to see the discriminatory policies changed, the society must exert pressure on Héma-Québec beyond letter-writing.

He proposed that the society reconsider hosting Héma-Québec blood drives altogether, as they perpetuate homophobia and alienate homosexual male students.

“Actions speak louder than words . . . SSMU should take a more active role in forcing Héma-Québec to change policy,” he said.

But Roz Freeman, SSMU vice-president communications and events, said that neither SSMU nor Queer McGill has considered shutting down the blood drives altogether.

“The last thing we want to do is stop a blood drive, [which] provides a good for greater society,” she said.

- With files from Tessa Vanderhart