Strasbourg Observers

Blood donation by men having sexual intercourse with other men: a prospective analysis of Drelon v. France

March 21, 2023

By Titouan Berhaut-Streel & Charly Derave

On 8 September 2022, the European Court of Human Rights delivered its judgement in Drelon v. France. The case concerns Mr Drelon’s denied applications to donate blood because he refused to answer whether he had ever had sex with other men and therefore to disclose his alleged sexual orientation. Although the Court declared the claim inadmissible, we offer a prospective analysis of key conceptual elements that could direct the Court’s reasoning if it were to hear another case about (permanent or temporary) contraindication to blood donation imposed to men having sex with men.

Facts 

The applicant, Mr Drelon, was born in 1970 and currently lives in Paris. On 16 November 2004, he went to a collection site of the French blood donation service, the Établissement Français du Sang (“EFS”). During the pre-donation medical interview, Mr Drelon refused to say whether he had ever had sex with other men (“MSM”) and his application to donate blood was therefore rejected (§4). Personal data about him was collected and stored in a computer file specific to the establishment. It was recorded that the applicant was subject to a – then permanent – contraindication to donating blood (“FR08”) because of the presumed sexual intercourses he had had with other men (§5). This contraindication was valid until 2278. 

His next two attempts to donate blood, on 9 August 2006 and on 26 May 2016, were both rejected because he was listed under code FR08 and was excluded from giving blood in spite of a recent biological analysis attesting to his seronegativity – during his 2016 attempt (§§6-7). 

On 6 February 2007, the applicant lodged a criminal complaint denouncing, on the one hand, the discriminatory nature of the refusals from donating blood in 2004 and 2006 and, on the other hand, his referencing in the EFS databases for his alleged homosexual practices. This complaint was dismissed and then confirmed by the Court of Cassation in a ruling of 8 July 2015. The Court decided that the practice was justified in terms of the legitimate aim of protecting public health (§§8-21).

In parallel with these criminal proceedings, on two occasions, the applicant brought an administrative appeal before the Council of State on the grounds of misuse of power against the successive refusals of the Minister of Health to repeal his 12 January 2009 and 5 April 2016 decrees. Since 2009, the contraindications to blood donation have been legally defined. In a decision of 18 July 2016, the Council of State ruled that there was no need to rule on the first appeal, as the decree in question had been repealed during the proceedings. On 28 December 2017, it dismissed the second appeal, ruling that the temporary contraindication (then set at 12 months) was proportionate in light of the scientific data available (§§22-27). 

Applications to the ECtHR

Mr Drelon lodged a first application to the ECtHR on 8 January 2016, following the 2015 judgment of the Court of Cassation. On 8 June 2018, Mr Drelon lodged a second application, following the 2017 Council of State’s ruling.  In its judgment, the Court examines the two applications together and divides its reasoning into two parts (§69). The first relates to the collection and storage by the EFS of data reflecting the applicant’s alleged sexual orientation (1). The second, that treats claims supported only in the 2018 application, deals with the refusal of Mr Drelon’s applications to donate blood (2). 

1) Arguments and reasoning of the Court relating to the collection and storage of sensitive data

In both applications, Mr Drelon firstly argues that the collection and retention of personal data reflecting his alleged sexual orientation by the EFS infringes his right to respect for private life, guaranteed by Article 8 of the Convention, and constitutes discrimination on the grounds of his sexual orientation under Article 14 (§70). 

The Court finds that the case’s facts fall within the scope of Article 8 and constitute an interference with Mr Drelon’s right to respect for private life (§§79 and 86). It thus roots its reasoning in the negative obligation of States (§85). While the Court observes that the interference meets the condition of lawfulness and pursues a legitimate aim of protecting health (§§87-89), it nevertheless concludes that the national authorities have exceeded their margin of appreciation. Following a reinforced proportionality test justified by the sensitive nature of the processed data (relating to the applicant’s presumed sexual orientation – §95), the Court rules that the practice is disproportionate to the objective pursued. More specifically, it highlights the lack of accuracy of the personal data collected – the applicant having merely refused to answer a question – and the (over)excessive length of data storage (§§90-100). 

In the light of these developments, the Court does not consider it necessary to examine these complaints under Article 14 of the Convention (§102). 

2) Arguments and reasoning of the Court concerning the refusal of Mr Drelon’s applications to donate blood

In his 2018 application, the applicant argues that the refusal of his applications to donate blood amounts to a violation of Article 8, read alone or in conjunction with Article 14. He challenges the foreseeability and proportionality of the contraindication in that it has been targeting the male homosexual population indiscriminately, whereas it should instead have aimed at the individual sexual practices of blood donation candidates. The applicant also criticises the discriminatory nature of this contraindication based on his presumed sexual orientation (§§103-104).

These complaints are rejected by the Court as untimely in respect of the 2006 and 2009 refusals (§108) and manifestly ill-founded in respect of the 2016 refusal in that the complaint is essentially based on a ministerial decree which was not yet into force at the time of the refusal (§§109-113).

Analysis

Drelon v. France allowed the Court to clarify its position on the processing of personal data relating to one’s sexual orientation and life. However, because the Court rejected the complaints, it is at the same time a missed opportunity for the Court to rule on the discriminatory nature of contraindications to blood donation specifically targeting MSM.

Yet, this decision was long awaited, especially in light of recent debates on the issue of MSM’s access to blood donation in the Contracting Parties. Germany, France, Greece, Austria, the Netherlands and the United Kingdom have recently abolished the temporary deferral criterion for MSM, while other States, such as Belgium, Switzerland, Denmark and Luxembourg, maintain deferral periods. Croatia, Moldova and Turkey still deny access to blood donation for MSM. 

Considering this, one may wonder what position the Court could have taken if it had examined the case on the merits under Articles 14 and 8. In what follows, we offer a prospective analysis to highlight what elements of its case law the Court could rely on if it were confronted with a similar case in the future.. Our analysis is thus based on the traditional conceptual approach followed by the Court when assessing whether there is a discrimination within the meaning of the Convention (see Rasmussen v. Denmark, §§ 29-42 ; Beeler v. Switzerland, §§98-116).  

1) Could the complaint fall within the ambit of Article 8? 

Article 14 does not exist independently but complements other articles of the Convention. It requires that the alleged situation falls within the scope of at least one other ECHR normative clauses – in our case Article 8 on the right to respect for private life. The scope of this provision is interpreted very broadly by the Court (A. v. Norway, §§ 63 and 64, 9 April 2009; E.B. v. France, §43, 22 January 2008; Fretté v. France, §§27 to 33, 26 February 2002). Blood donation is not in itself a right protected under the Convention – as the French Government rightly argued. However, one could argue that there is a right, guaranteed by national law, to participate in a procedure (pre-donation interviews and questionnaires) aimed at admitting a candidate to donate blood by analogy with the Court’s reasoning in its E.B. and Fretté v. France rulings. Also, participation in this procedure constitutes an act of solidarity, making sense of an individual’s membership of the social body. In this respect, blood donation impacts various components of an individual’s private life as depicted by the Court in its case law, such as the right to self-determination, autonomy and personal development, the right to control one’s own body, and the right to shape and develop relationships with fellow human beings. Furthermore, the contraindication, which is based on the the sex life of blood donation candidates, falls within the realm of the personal sphere protected under Article 8 (Beizaras and Levickas v. Lithuania, 14 January 2020, §109). Therefore, there seems to be little or no difficulty in bringing the situation under this provision. 

2) Could there be a difference in treatment? 

Firstly, there is a difference in treatment insofar as MSM (to which supposedly Mr. Drelon belongs) are denied their application(s) to donate blood solely on the basis of their alleged sexual practices and orientation. By expressly targeting MSM, the contested contraindication introduces a difference in treatment based on the intersection of two grounds of discrimination, sex (since the measure targets men) and sexual orientation (since the measure targets homosexual practices). Secondly, despite higher HIV incidence and prevalence rates among the MSM population, it can be said that MSM candidates with a potentially stable, sexually protected relationship or a proof of seronegativity are in a similar situation to other candidates and yet the selection criterion is likely to exclude them from donating blood (§7). 

3) Could the difference in treatment be objectively and reasonably justified? 

A difference in treatment is not discriminatory if it meets the proportionality test (see Belgian linguistic case, §10 under “the law” section). This test aims to determine whether the difference in question pursues a legitimate aim by appropriate and strictly necessary means, while respecting the margin of appreciation left to States when they apply the Convention. The extent of this margin varies according to different parameters. In our case, three elements are likely to affect this margin of appreciation, or even restrict it, bearing in mind that the Court’s case law tends to defer to States when dealing with ethical and moral issues (A.P., Garçon et Nicot c. France, §121 ; Hämäläinen c. Finlande, §67). Firstly, sexual orientation and sex as protected grounds for differential treatment. Secondly, the Court’s case law on particularly vulnerable groups . Thirdly, the emergence, if not of a consensus, of a European and international trend . 

To the first point, contrary to the argument of the French Government, which assumes that the contraindication “is not based on sexual orientation, but on sexual behaviour” (§91), the Court meaningfully decides in its ruling not to dissociate the applicant’s “sexual practices and orientation” when assessing the justification for the collection of Mr Drelon’s personal data by the FBE (§94). In doing so, it agrees with the position of the Court of Justice of the European Union in its Léger judgment, which dismisses a similar argument by the French government (see Geoffrey Léger v French Public Health Minister, pt. 49). Sexual orientation is a “suspect” ground of discrimination. It involves a narrow margin of appreciation for the respondent State (see also L. and V. v. Austria, §45; Smith and Grady v. United Kingdom, §90). Indeed, the Court has held that the justification of a difference in treatment on this ground requires “particularly convincing and weighty reasons” (Beizaras and Levickas v. Lithuania, §114; Bayev and others v. Russia, §89). The same reasoning applies to the ground of sex (Abdulaziz, Cabales and Balkandali v. United Kingdom, §78; Konstantin Markin v. Russia, §127).

To the second point, in its Kiyutin v. Russia judgment, dealing with the refusal of a foreigner’s application for a residence permit on the basis of, inter alia, his HIV status, the Court recognises that where a “restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question” (§63). Like the applicant living with HIV in the Kiyutin case, the MSM blood donation candidates targeted by the contraindication have experienced “considerable discrimination in the past”. Since its discovery and until 1983, HIV has been referred to by the acronym GRID (Gay-related immune deficiency), or even as the “gay cancer”. HIV’s public representation is marked by the conflation of seropositivity and male homosexuality, which was for a time assumed as the main criterion for the diagnosis of immunodeficiency. Furthermore, the Court also notices in its judgment M.C. and A.C. v. Romania that “the LGBTI community in the respondent State is in a precarious situation, as it is subject to negative attitudes towards its members” (§§114 and 118). This finding has led to the conclusion that the protection afforded to particularly vulnerable groups could be extended to the whole LGBTI community.

Finally, the margin of appreciation of the national authorities also depends on whether there is a consensus at the level of the Member States considering the issue at stake (see Y. v. France, §73). While in the context of Drelon v. France, there was not a clear tendency in favour of abolishing the specific counterindication (this parameter being assessed retroactively at the time of the refusals of applications), this context is different today. Indeed, almost two thirds of the Contracting Parties allow MSM to donate blood without distinction related to their sex and sexual orientation. While this does not lead to the conclusion that there is an unequivocal consensus on this matter, it shows a trend in this direction, which can also be observed on the international scene (Argentina, South Africa, Brazil, Canada, United States).

Conclusion

In this (way too short) comment, we have tried to go beyond the Court’s decision to declare inadmissible the applicant’s claim because of the refusals to donate blood. We have suggested a prospective analysis of key conceptual elements that could guide the Court’s reasoning in a future analogue case. Amongst them, three could impact and consequently narrow the States’ political discretion when deciding on such ethical and moral issue. At the very minimum, they invite the Court to ground its ruling in MSM’s human dignity by recognising that the exclusion from blood donation locks these applicants in a category of undesirables and leaves them at the margins of a not so much pluralistic society. One could only hope the Court will go down this path.

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