INTRODUCTION
The National AIDS Control Organisation (NACO) guidelines, on blood donor selection and blood donor referral, 2017, permanently defers the transgender community from blood donation, since they have a higher risk of contracting Human Immunodeficiency Virus (HIV). This article analyzes the loopholes and the constitutionality, vis-a-vis the purpose of the deferral policy and the HIV-AIDS (Prevention and Control) Act, 2017.
HISTORY
The permanent deferral policy in India is introduced on the lines of the guidelines issued by WHO, though not with the same scientific temperament. It is imperative to note the historic background, resulting in this globalised policy on blood donation deferrals. During the HIV epidemic breakout, in the 1980s, the United States alone had 179,136 AIDS cases and it had also spread to multiple continents. Since HIV was first found in Men who have sex with men (MSM) and sex workers, The Centre for Disease Control in the United Stated along with several other countries categorized these groups, including the transgender community which was previously under the MSM category for HIV surveillance, as High-Risk-Group and permanently deferred them from donating blood.
ANALYSIS OF THE NACO GUIDELINES
The said NACO guidelines, the intention is to facilitate a safe and sufficient supply of blood with minimal risk of infections amongst donors. Every unit of blood is screened for Transfusion Transmissible Infections. Further, the transgender community along with other potentially High-Risk Groups (HRG) are periodically subjected to HIV tests, as provided under Section 6(c) of the HIV-AIDS (Prevention and Control) Act, 2017 (hereinafter referred to as ‘the Act’). As per the NACO guidelines itself, these surveillance and screening tests are to be conducted every six months. These tests are done without the consent of the HRG, for epidemiological and surveillance purposes.
The Supreme Court, while reading down Section 377 of the Indian Penal Code to confine it to the offence of bestiality and non-consensual acts, in Navtej Singh Johar Vs Union of India, had also noted that behaviour and not sexual identity places people at risk of HIV. Therefore, transmission of HIV is not linked with sexual orientation or gender, rather, it is due to the differences in the knowledge about transmission, that puts people at risk of HIV. Further, the definition of ‘Significant risk’, as per Section 2(v) of the Act, means the presence of a significant risk body substance or a circumstance constituting a significant risk for transmission or in the presence of an infectious source and an uninfected person. Further, as noted by UNAIDS, HIV infections are not restricted to homosexuals and drug users. Anyone who has unprotected sex, blood transfusion with contaminated blood, sharing unsterilized equipment can be infected with HIV. This classification being scientific and subjective does not restrict communities based on gender or sexual orientation.
The Supreme Court in the case of National Legal Services Authority Vs Union of India had recognised the fundamental right of the transgender population as citizens of the country to possess an equal right and realise their full potential as human beings. Hence, the guidelines to bar transgender persons would alienate them and violate their right to a dignified life provided under Article 21 of the Constitution of India.
At the same time, it cannot be denied that there lies a duty on the State to identify HIV infected persons to stop further transmission via infected blood pool. However, the transgender community undergoes pre-blood screening, HIV tests, counselling and education. Further, as noted by the WHO, “during a pandemic situation, the risk of blood shortage far outweighs the risk of transfusion transmission. Further, though the positivity rate of the Transgender persons remain high, due to their mobility and indulgence in unprotected sex, yet, as per the study conducted by NACO, Transgender people have the lowest risk of contracting sexually transmitted infections, upon every clinic visit, when compared to the other High Risk Groups such as Female Sex Workers, Men who have sex with men, migrants, truckers and injecting drug users. Transgender persons also visit clinics for testing and treatment, more than any other High Risk Groups, at 79.06%, during every quarter. This reason could also attribute to the high positivity rate.
CONCLUSION
It is also to be noted that this had happened more almost three decades back and the research and development in the field of testing and treatments have been monumental. Today, we have tests which can detect HIV in the blood with high accuracy as early as 10 days in case of Nucleic Acid Tests (NAT) which also has a specificity and sensitivity of a 100%, and latest by 90 days in case of Antibody tests which also has very high specificity. Further, a recent estimate suggests that risk of HIV transmission through blood transfusion is 1 in 1.5 million which is far lesser than other transfusion related complications. As per guidelines issues by WHO, donor selection criteria and deferral of High-Risk Groups is to be done only in case, appropriate screening assays are not available. India statutorily mandated surveillance and screening amongst potentially high-risk groups every 6 months, combined with the advanced testing technology used today, significantly reduces the risk of transmission via transfusion. Hence, it is proposed that it is time for India adopted a time-based deferral of 3-6 months post unprotected sexual activity and not risk based deferral which not only deviates from the underlying purpose in the guidelines but is also discriminative of a group of people based on their gender and hence violative of article 14 therefore ultra-virus to the constitution.