Blood Donation, Deferral, and Discrimination: FDA Donor Deferral Policy for Men Who Have Sex With Men
Authors: Charlene Galarneau
Journal: The American Journal of Bioethics (2010)

Abstract U.S. Food and Drug Administration (FDA) policy prohibits blood donation from men who have had sex with men (MSM) even one time since 1977. Growing moral criticism claims that this policy is discriminatory, a claim rejected by the FDA. An overview of U.S. blood donation, recent donor deferral policy, and the conventional ethical debate introduce the need for a different approach to analyzing discrimination claims. I draw on an institutional understanding of injustice to discern and describe five features of the MSM policy and its FDA context that contribute to its discriminatory effect. I note significant similarities in the 1980s policy of deferring Haitians, suggesting an historical pattern of discrimination in FDA deferral policy. Finally, I point to changes needed to move toward a nondiscriminatory deferral policy. Keywords: blood donorsdiscriminationethicsFDAsexual partnerssocial justice My thanks to Rachel E. Goldstein and Cathy Chu for their helpful research assistance. Notes 1. In an April 2008 Congressional hearing, Representative Sam Farr (D-CA) requested that the 2009 Agriculture Appropriations bill that funds the FDA contain a requirement that the FDA reconsider its "discriminatory" MSM policy (Kaiser 2008b). This request was denied. In February 2008, the Board of Supervisors of Santa Clara County, California, voted to oppose the MSM policy and to encourage its lobbyists to work to end it (Kaiser 2008a). 2. A representative of the Gay and Lesbian Medical Association testified at the 2000 BPAC meeting about the discriminatory nature of the policy (CitationBPAC 2000, 251–255). The HIV Medicine Association has argued that given NAT testing, the MSM policy is "discriminatory and unnecessary" and "needlessly limit[s] and strain[s] the donor pool while promulgating the misconception that sexual orientation itself is a primary risk factor for the transmission of a deadly infectious disease" (CitationVolberding 2004). 3. In January 2008, the President of San Jose State University suspended campus blood drives after determining that this FDA policy violates the University's nondiscrimination policy (CitationKassing 2008). Many college student groups have opposed the FDA policy for the same reason. My involvement with this issue was sparked by student claims of discrimination at Tufts University in 2004 (CitationPesavento and Schmidt 2005). 4. Moreover, the data presentation in the FDA's current MSM policy explanation is plain sloppy (FDA 2007). None of the four references listed at the end of this document is cited in the document text. Furthermore, the references are of questionable value in justifying current U.S. policy: Two of the four references assess the risk effects of MSM policy change in other countries—Canada (CitationGermain, Remis, and Delage 2003) and England (CitationSoldan and Sinka 2003). A third reference compares HIV risk reduction in the United States given two types of NAT screening (CitationBusch et al. 2005), and the fourth reference, "Presentation at FDA Blood Products Advisory Committee Meeting, September 2000," includes no specific reference to author or page in this 315-page meeting transcript. 5. In late 2008, BPAC had 16 members, most of whom are clinical researchers with appointments at academic medical centers. Thirteen members held M.D. degrees, several held Ph.D. degrees or other graduate or professional degrees, and several held two or more graduate/professional degrees. The consumer representative held M.D. and Ph.D. degrees and an appointment at a major academic medical center (CitationBPAC 2008b). 6. The term "conceptual round-up" is from Farmer (1992, 211). 7. A recent blood journal article well illustrates this marginalization (CitationReik et al. 2006). 8. BPAC also recommended that the FDA develop donor screening questions related to heterosexual HIV risk and consider the prescreening of first-time blood donors (CitationBPAC 1990, 31).