Discrimination of gay blood donors in Croatia
06/06/2007
Submitted by
Sanja Juras
Letter of the Team for Legal Changes of Iskorak and Kontra to the Ministry of Health and Social Welfare regarding the Ordinance on Blood and Blood Components
To whom it may concern,
We are addressing you in regards to the Article 16 of the Ordinance on Blood and Blood Components (Official Gazette, nr. 14/99, hereinafter referred as OBBC). We consider the provision from this article to be discriminative in regards to the sexual orientation, and are suggesting that you make changes in the provision to harmonize it with the positive legislation of the Republic Croatia.
Namely, the provision from the Article 16 proscribes that the persons with „homosexual behaviour“ should be excluded from being blood donors. According to the Article 6 of the Gender Equality Act (Official Gazette, nr. 116/03), prohibits any discrimination based on the sexual orientation. Blood of the voluntary blood donors will be tested on all pathogenic microbial agents, including HIV, according to the Article 13, Paragraph 6 of the Act on Protection of Citizens against Infectious Diseases (Official Gazette, nr. 60/92). The Article 16, Paragraph 1 of the Constitution of the Republic of Croatia (Official Gazette, nr. 41/01) proscribes that it is possible to restrict freedoms and rights of others by law if this action is necessary for protection of the others. Furthermore, Paragraph 2 of the mentioned Article proscribes that any restriction of the right has to be proportional to the need to restriction and determined in each individual case. Therefore, it is possible to restrict the right to protection from discrimination.
In relation to the mentioned provisions, we consider that putting emphasis on the “persons with homosexual behaviour” as a high risk group for transmission of the HIV and other infectious diseases is not proportional to the need for restriction of the right to protection from discrimination. According to the official data of the Croatian Institute of Public Health, share of the persons with the homosexual behaviour in the total number of persons infected with the HIV in the period from 1985 to 2006 is 41.8%.
Homosexual sexual behaviour is not the only form of sexual behaviour that facilities spreading of the HIV. Namely, according to the same data, 26,2% is related to the promiscuous heterosexual persons. Regardless of the fact that heterosexual transmitting of the virus is present in the epidemic of HIV infection in Croatia, this has not affected the content of the Act on Protection of Citizens against Infectious Diseases. Homosexual sexual relations per se do not have to be any more risky than heterosexual relations, if proper protection is used. This is confirmed by numerous scientific analyses from fields of epidemiology and infectology. High risk sexual behaviours for transmitting of the HIV are not based in the sexual orientation of the person, but in her/his sexual behaviour. Therefore, persons with homosexual sexual behaviour, same as persons with heterosexual sexual behaviour, do not have to be risky for transmitting of the HIV, while both groups can be risky, if they are not following rules of responsible sexual behaviour.
In our opinion, the categorization of persons due their sexual orientation in the OBBC is not necessary because it does not achieve it protective purpose proscribed by law. As regards article 16 of the OBBC, instead stating „people with homosexual behavior“, we suggest to say „people with high-risk sexual behavior“. In that way, all groups of people practicing high-risk sexual behavior will be covered and thus better protective purpose of the OBBC achieved.
We want to emphasize that it remains to be unclear why questionnaires on blood donor's sexual behavior are administered while there are measures of obligatory testing of blood and blood components. However, that could be also considered as one of the protective measures if condition that interviewees were honest is fulfilled. We also want to emphasize the fact that Blood and Blood Components Act (Official Gazette no. 79/06; hereinafter referred as BBCA) does not require examination of blood donor's sexual behavior. It only proscribes mechanisms that are used to test quality of blood and blood components by laboratorial and biochemical methods. Furthermore, the provisions of the BBCA were taken from CoE Directive on Safety of Collecting, Testing, Processing, Storing and Distribution of Human Blood and Blood Components no. 2002/98/EC requiring no examination of blood donors' sexual behavior.
Our proposition to change the OBBC follows the recommendations given by UN Theme Group on HIV/AIDS in relation to HIV/AIDS and legislation on the Republic of Croatia. The need to change article 16 of the OBBC to comply with principles of non-discrimination according to Croatian positive regulations is mentioned there (Turkovic et al., 2006. „HIV/AIDS in the Legislation of the Republic of Croatia – An Analysis with Proposals for Modifications to Current Legislation and the Strenghtening of Human Rights of People Living with HIV“, p. 13). This document passed National Committee on HIV/AIDS as well.
Respected minister, we would like to remind you on your obligation from the article 46 of the BBCA to adopt new regulations under six months of the Act coming in force. Furthermore, the article 48 of the BBCA proscribes that validation of the OBBC expires when the BBCA come in force. The BBCA came in force on July 25th, 2006 and deadline for adopting new ordinance was set for January 25th, 2007. Till present, the new regulations are not adopted.
We hope that you will accept our proposition during preparation of novel Ordinance bearing in mind its harmonization with international standards and positive regulations of Croatian legislation regarding protection of people from discrimination on the basis of sexual orientation.
This proposition will be delivered to the Office of Ombudswoman for Gender Equality.
To whom it may concern,
We are addressing you in regards to the Article 16 of the Ordinance on Blood and Blood Components (Official Gazette, nr. 14/99, hereinafter referred as OBBC). We consider the provision from this article to be discriminative in regards to the sexual orientation, and are suggesting that you make changes in the provision to harmonize it with the positive legislation of the Republic Croatia.
Namely, the provision from the Article 16 proscribes that the persons with „homosexual behaviour“ should be excluded from being blood donors. According to the Article 6 of the Gender Equality Act (Official Gazette, nr. 116/03), prohibits any discrimination based on the sexual orientation. Blood of the voluntary blood donors will be tested on all pathogenic microbial agents, including HIV, according to the Article 13, Paragraph 6 of the Act on Protection of Citizens against Infectious Diseases (Official Gazette, nr. 60/92). The Article 16, Paragraph 1 of the Constitution of the Republic of Croatia (Official Gazette, nr. 41/01) proscribes that it is possible to restrict freedoms and rights of others by law if this action is necessary for protection of the others. Furthermore, Paragraph 2 of the mentioned Article proscribes that any restriction of the right has to be proportional to the need to restriction and determined in each individual case. Therefore, it is possible to restrict the right to protection from discrimination.
In relation to the mentioned provisions, we consider that putting emphasis on the “persons with homosexual behaviour” as a high risk group for transmission of the HIV and other infectious diseases is not proportional to the need for restriction of the right to protection from discrimination. According to the official data of the Croatian Institute of Public Health, share of the persons with the homosexual behaviour in the total number of persons infected with the HIV in the period from 1985 to 2006 is 41.8%.
Homosexual sexual behaviour is not the only form of sexual behaviour that facilities spreading of the HIV. Namely, according to the same data, 26,2% is related to the promiscuous heterosexual persons. Regardless of the fact that heterosexual transmitting of the virus is present in the epidemic of HIV infection in Croatia, this has not affected the content of the Act on Protection of Citizens against Infectious Diseases. Homosexual sexual relations per se do not have to be any more risky than heterosexual relations, if proper protection is used. This is confirmed by numerous scientific analyses from fields of epidemiology and infectology. High risk sexual behaviours for transmitting of the HIV are not based in the sexual orientation of the person, but in her/his sexual behaviour. Therefore, persons with homosexual sexual behaviour, same as persons with heterosexual sexual behaviour, do not have to be risky for transmitting of the HIV, while both groups can be risky, if they are not following rules of responsible sexual behaviour.
In our opinion, the categorization of persons due their sexual orientation in the OBBC is not necessary because it does not achieve it protective purpose proscribed by law. As regards article 16 of the OBBC, instead stating „people with homosexual behavior“, we suggest to say „people with high-risk sexual behavior“. In that way, all groups of people practicing high-risk sexual behavior will be covered and thus better protective purpose of the OBBC achieved.
We want to emphasize that it remains to be unclear why questionnaires on blood donor's sexual behavior are administered while there are measures of obligatory testing of blood and blood components. However, that could be also considered as one of the protective measures if condition that interviewees were honest is fulfilled. We also want to emphasize the fact that Blood and Blood Components Act (Official Gazette no. 79/06; hereinafter referred as BBCA) does not require examination of blood donor's sexual behavior. It only proscribes mechanisms that are used to test quality of blood and blood components by laboratorial and biochemical methods. Furthermore, the provisions of the BBCA were taken from CoE Directive on Safety of Collecting, Testing, Processing, Storing and Distribution of Human Blood and Blood Components no. 2002/98/EC requiring no examination of blood donors' sexual behavior.
Our proposition to change the OBBC follows the recommendations given by UN Theme Group on HIV/AIDS in relation to HIV/AIDS and legislation on the Republic of Croatia. The need to change article 16 of the OBBC to comply with principles of non-discrimination according to Croatian positive regulations is mentioned there (Turkovic et al., 2006. „HIV/AIDS in the Legislation of the Republic of Croatia – An Analysis with Proposals for Modifications to Current Legislation and the Strenghtening of Human Rights of People Living with HIV“, p. 13). This document passed National Committee on HIV/AIDS as well.
Respected minister, we would like to remind you on your obligation from the article 46 of the BBCA to adopt new regulations under six months of the Act coming in force. Furthermore, the article 48 of the BBCA proscribes that validation of the OBBC expires when the BBCA come in force. The BBCA came in force on July 25th, 2006 and deadline for adopting new ordinance was set for January 25th, 2007. Till present, the new regulations are not adopted.
We hope that you will accept our proposition during preparation of novel Ordinance bearing in mind its harmonization with international standards and positive regulations of Croatian legislation regarding protection of people from discrimination on the basis of sexual orientation.
This proposition will be delivered to the Office of Ombudswoman for Gender Equality.
