Sexually active gay men face a lifetime ban on blood donation in the United States. In a newly published commentary, Dr. Eli Y. Adashi argues it is time for the United States to replace the outdated and discriminatory ban with a modern, fair, and sensible approach.

PROVIDENCE, R.I. [Brown University] — The U.S. Food and Drug Administration bans blood donation for life by any man who has had sex with a man even once since 1977. In a new commentary in the Journal of the American Medical Association, Dr. Eli Y. Adashi, former dean of medicine and biological sciences at Brown, I. Glenn Cohen, professor of law at Harvard, and recently graduated Harvard law student Jeremy Feigenbaum (Brown class of 2011), write that the policy is not only outdated but plainly discriminatory against men who have sex with men (MSM).

They propose a policy change that goes beyond that advocated by many major medical organizations. Rather than merely reducing the ban to a year since the last sexual encounter, Adashi and his co-authors propose adopting a model similar to that of Italy in which all potential donors “MSM or otherwise” are questioned to assess their individual risk behaviors. Adashi discussed the issue with David Orenstein.

What was the original rationale for banning donations from MSM?

This dates to 1981, to the first reports that something was afoot. The individuals who were affected by this disease, HIV, the nature of which we didn’t really recognize at the time, were all young men who had sex with men.

The reason that the preclusion of MSM from donating made sense at the time is because we didn’t even know what the disease was, we couldn’t measure or diagnose the agent, whatever it may have been, and so we were groping in the dark. At that point it made a lot of sense to keep people who were in the MSM category out of the blood pool until we could better assess their potential to transmit disease.

Why is it demonstrably out of date to continue the ban?

Diagnostic technologies are now at the nucleic acid level, meaning we can detect in the circulation of individuals the nucleic acids corresponding to the HIV virus. Usually it’s the RNA of the virus that is picked up by very sensitive contemporary molecular biologic techniques. None of this was available but it’s getting increasingly sensitive. We can now pick up an early infection easily within two weeks. You can be comfortable that if you test somebody over two weeks and they are negative that they just are not likely to carry the disease.

Also, if you exclude anybody who answers the questionnaire as having had sex sometime once since 1977, you basically require that to donate blood they have to be celibate and that’s of course not a reasonable expectation. Effectively by doing this you have excluded the entire population of men who have sex with men in the United States, of which there are millions. It’s impractical and unreasonable to demand celibacy as a condition for a donation.

A third point is the issue of comparability with international standards relative to other developed nations, and we are lagging behind.

And the fourth issue is the internal inconsistencies of the policies. Men who have sex with men are banned for life, but men who have sex with women of unknown status or HIV-positive status are only banned for 12 months.

How is it harmful that the ban has remained in place?

It’s unnecessarily exclusionary. You cannot make any extraordinary arguments about the quality of life of the individuals who are precluded from donating, but that doesn’t make it right. If you carry it to other examples of discrimination, let’s say racial segregation, sitting at the back of the bus doesn’t “hurt” anybody or prevent somebody from getting from point A to point B, but it’s still fundamentally wrong and discriminatory. That’s precisely what this is. It doesn’t deprive anybody of their livelihood or materially affect people’s lives, but that doesn’t make it right any more than sitting at the back of the bus was right.

What is wrong with revising the policy to end the lifetime ban and shorten the exclusion period?

The compromise that is being proposed and being supported by the [American Red Cross, America’s Blood Centers, the American Association of Blood Banks], the AMA and other organizations, is that we basically shorten the ban to 12 months. That would achieve two things. We’d get a tad closer to international standards and we would harmonize the internal inconsistencies. That would be symbolic evidence of progress, but on the other hand that kind of move misses the bigger picture because it still operates on the same principle that it did before. It still excludes millions of Americans who are MSMs and cannot be expected to be celibate. We will have not moved from basically broadly painting with a single brush everybody who is MSM to a more discerning policy that stratifies people by their level of risk and then applies the necessary process to deal with various risk levels.

What do you propose and why is it better?

The current questionnaire, with the sole question being have you had sex with men even once since 1977 does not stratify the community into let’s say MSMs who are in a monogamous relationship or MSMs who are on pre-exposure prophylaxis or MSMs who are regularly using protection.

The idea that other nations have come up with — Italy for example — is to offer a detailed questionnaire that would stratify the level of risk and then augment that with an interview with a healthcare professional and then divide the population into a few [risk] categories. Low-risk or no-risk are allowed to donate and they don’t have to be celibate to do so. The ones that are considered to be at risk are given a four-month delay and then retested. If they are still negative then they could donate. And those that are truly high risk, who engage in intravenous drug use, for example, are relegated to a ban for life.

Is there concern that a more detailed questionnaire would prove a deterrent to donation?

We acknowledge that. This will have to be studied. Nobody is suggesting that we jump into a new system willy-nilly. But in the paper we didn’t just knock off the current paradigm. We delved into potential solutions and looked at where a new solution has been implemented and where it seems to be workable without compromising the national blood supply. There was data to back that up, meaning a peer-reviewed report that actually measured the outcome. [In Italy,] they do not have a terrible problem with their blood supply.