quinta-feira, outubro 01, 2009

política do instituto português de sangue:

para quando um caso como este:

OTTAWA - Canadian Blood Services is suing a man who admits he lied repeatedly about having sex with men when he donated blood.

Kyle Freeman is counter-suing, arguing that the lifetime ban on gay men being blood donors isn’t scientifically valid and violates his constitutional right to equal treatment regardless of sexual orientation.

At the heart of Canadian Blood Service’s claim is whether a blood donor has a duty to tell the truth about his personal and sexual history — whether or not he thinks the questions are unnecessary or even discriminatory, lawyer Sally Gomery said.

The court needs to decide if Freeman’s rights were violated and, if so, whether that’s a defence for negligent misrepresentation.

Gomery argued that if Freeman believed the policy was wrong, he should have fought it.

“What that individual cannot do is take the law into his own hands,” she said.

Freeman, who is not HIV positive, admits he lied when asked if he’s had sex with another man — even once — since 1977.

He donated blood 18 times but the lawsuit focuses on four donations between 1998 — when CBS was formed after the Krever Inquiry into tainted blood — and 2002.

That’s when the agency linked him to anonymous e-mails stating he had lied when giving blood.

Freeman argues the question excludes gay men because they’re gay – not because they’ve engaged in behavior that puts them at high risk for getting HIV and other diseases.

Instead, he argues, CBS could ask people if they’d had unprotected sex, then exclude them from donating during the three months it would take for HIV to be detected in their blood if they were infected.

Freeman was asked in pre-trial discovery why he donated.

“I had been tested,” he said. “I had been cleared. I guess at that point it was a political statement. I felt that the benefit of giving blood would outweigh the political position of the blood services.”

Freeman is seeking $250,000 for “pain, humiliation and degradation” when asked about his sexual history and feeling “marginalized and excluded” because he’s gay.

The CBS argues it needs to screen out high-risk donors because there are no tests for diseases such as malaria and the human version of mad cow disease. It’s impossible to test for unknown pathogens and there’s always the risk that blood testing could fail.

The complex case — including medical evidence and constitutional arguments — could run until December.

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