The court has ruled unconstitutional the ban for 10 years on blood donation for MSM community

On December 17, 2019, the Constitutional Court of Georgia ruled the ban on blood donation for gay and MSM communities for 10 years from the certain sexual conduct is unconstitutional.

An order by the Minister of Internally Displaced Persons from the Occupied Territories, Labor, Health and Social Affairs has been appealed, stating that a man’s sexual intercourse with a man (MSM conduct) is the basis for limiting the donation of blood and its components during the last 10 years from the sexual contact.

According to the plaintiffs, the high risk of infecting blood-borne diseases may be the sexual behavior of both MSM and heterosexual persons. However, the impugned norm was discriminating because it restricted the right of blood donation for 10 years only for MSM persons, but in all other cases the right was restricted to 12 months after risky behavior.

The plaintiffs also argued that the restricted period for MSM persons was much longer than was objectively necessary for the security of the donation process. Therefore, they argue, the rights of equality and free personal development are disproportionately restricted. The plaintiffs also argued that the impugned norm had the identical content as the norm unconstitutionally recognized by the decision of the Constitutional Court of Georgia dated February 4, 2014 № 2/1/536.

According to the defendant, MSM community has a much higher risk of acquiring a blood-borne infection. Consequently, it was justified to limit the right of blood donation for MSM persons for a longer period. In addition, according to the defendant’s argument, the impugned norm differed substantially from the norm declared unconstitutionally earlier. In particular, the Constitutional Court of Georgia, by its decision №2/1/536 of 4 February 2014, ruled unconstitutional a provision limiting the right of individuals to donate blood for a lifetime, and in this case restriction comprised only ten years.

The Constitutional Court of Georgia has indicated that, according to the standard established by Decision No. 2/1/536 of 4 February 2014, a medical examination may not completely exclude the risks of HIV infection of recipients as the virus cannot be detected during the incubation period (Window period). However, given the current technological progress, it is possible to detect HIV in the blood after the Window Period, which allows to restrict blood donation for MSM persons for a period which is necessary to exclude the risk of a “false negative” response.

In the present case, the Constitutional Court indicated that 10 years were much longer than the Window Period and that the disputed norm restricted the rights of MSM community for much longer than necessary. In view of the above, the Constitutional Court of Georgia declared that the impugned norm had been repealed the content of the norm recognized unconstitutionally by the Constitutional Court’s decision 2/1/536 of 4 February 2014. Thus it was plentiful ground to find unconstitutional the order which restricted the right for blood donation.

In addition, the Constitutional Court of Georgia postponed the invalidation of the disputed norm by 31 March 2020 for the purposes of protecting the life and health of the recipients as well as the safety of the blood donation process.