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The Supreme Federal Court He formed a majority on Friday the 1st against a measure that prevents “men related to men” from donating blood for a year from the last sexual relationship. The case has been on trial since 2016 and was resumed in a virtual session today, with the favorable vote of Gilmar Mendes.
Gilmar was the sixth minister to consider an unconstitutional government decree Ministry of Health and a resolution of the National Agency for Health Surveillance (Anvisa), which only allows the donation of “men who relate to other men” after 12 months of sexual abstinence. The direct unconstitutionality action was filed by the Brazilian socialist party (PSB) In 2016, when the then attorney general of the republic Rodrigo Janot presented a favorable opinion on the action.
Until then, ministers. Edson Fachin, rapporteur of the process, Luis Roberto Barroso, Rosa Weber and Luiz Fux they voted in favor of the action and declared that both measures were unconstitutional. Already Alexandre de Moraes He presented a favorable vote to lift only the one-year restriction, but he did not agree with his colleagues and argued that the material should be stored in the laboratory pending an immunological window that will be defined by the Ministry of Health.
In these cases, the minister explained, after the necessary evaluation, including the completion of the individual questionnaire, the material collected from the men who had sex with other men, regardless of the 12-month period, must be identified, separated, stored and subjected to serological tests. only after the immunological window period, to be defined by the competent organisms, to rule out any possibility of contamination.
Lawyer Rafael Carneiro, of Carneiros e Dipp Advogados and PSB representative in the lawsuit, believes that the exception made by Moraes maintains the discriminatory nature that justified the lawsuit in the first place. “Discrimination ceases to exist at the time of collection and becomes the treatment of donated blood, creating great concern about how this suggestion will be processed. There will be a separate bag for homosexuals or within the refrigerator we will have a division between the blood of heterosexuals and homosexuals? “he asks.
Both Ordinance 158/2016 of the Ministry of Health and Resolution 34/2014 of Anvisa were made based on the recommendations of the World Health Organization (who), which discouraged blood donation by gay men in the 1980s, during the height of the HIV epidemic HIV/ /AIDS. “At the time, there was nothing to prevent HIV except abstinence. Time passes, things change, and determinations too. Today, we understand how long it takes for the virus to appear in the body and what its immune window is,” Explain. the infectious disease specialist doctor at the University of São Paulo Rico Vasconcelos.
In a demonstration obtained by LGBTI National Alliance, who acted in the case as a friend of the Court (amici curiae), the deputy director-general of the WHO Universal Health Coverage department, Naoko Yamamoto, acknowledged that the body’s guidelines were developed at a time when research on the risk of blood transfusions was still evolving. In the document submitted to the STF, it stated that, in recent years, there has been considerable progress regarding the secure collection of this data.
“The big criticism is not to prevent gays from donating for 12 months, but it is entirely based on a wrong assumption, under which the only effective HIV prevention strategy is sexual abstinence and monogamous heterosexuality,” argued Vasconcelos. According to him, a homosexual who maintains protected relationships (using condoms) with multiple partners would be safer than a heterosexual man who has unprotected sex with a fixed partner.
In his vote, Gilmar paid attention to this discrimination and acknowledged that the classification of donors by “risk groups” and not by “risk behavior” is a “backward and outdated” concept. “In my opinion, the high risk of gay / bisexual men contracting sexually transmitted diseases is not due to the fact that they are gay / bisexual, but to the practice, as a general rule, of certain behaviors with higher risk of infection, like anal sex. ” This behavior is not limited to homosexual men, but is also practiced interchangeably by heterosexual couples. ”
According to Pedro Martínez, coordinator of the human rights commission of the Union of Lawyers of the State of São Paulo (Sasp), this classification by group and not by behavior, since it still prevails in the exception made by Moraes, is discriminatory and goes against what the STF itself states. “It stigmatizes a specific group of gay, bisexual, transvestite and transsexual men. It has no basis other than discrimination. They prevent citizens from exercising voluntary and necessary service, especially in times of pandemic,” he observes.
The crisis of coronaviruseven motivated the Food and Drug Administration (Fda), the US food and drug regulatory agency. USA United Statesand the Disease Control Center (CDC) to decrease the time limit for the donation of homosexual men from 12 to three months. The decision was published on April 2, when 2,700 units of blood from the Red Cross were closed in the country due to concerns about the crowding of people in the workplace
The virtual session of the STF continues until the next day 8, when it will have a definitive result after the position of the other five ministers. Until then, the votes declared so far can also be changed.
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