McGill alumnus versus Héma-Québec

Adrian Lomaga says Quebec blood bank’s deferral policy regarding homosexuals is discriminatory

Six years after initiating a lawsuit against Héma-Quebec, McGill alumnus Adrian Lomaga will meet the provincial bloodbank in court today over what he describes as a “moral injury.” This injury is the result of the lifetime deferral from blood donation Lomaga received after admitting that he had had sex with a man at a Héma-Québec blood drive in 2004.

Moral injury is defined in Quebec law as injury to one’s dignity. Lomaga filed his suit for $1,500 in Quebec small claims court under this definition.

“At that time I wasn’t really comfortable with my sexual orientation. I thought that the denial of allowing me the opportunity to give blood was an affront to my dignity, I felt like a second class citizen,” said Lomaga. “I felt even worse thinking, ‘I may be gay, this is how I’m going to be treated in society.’”

Anyone wishing to donate blood in Canada has to fill out a questionnaire. One of the questions asks: “Male donors, have you had sex even once with another man since 1977?” If donors answer that they have, they are subject to a lifetime deferral from blood donation due to potential risks of infections such as HIV, Hepatitis A, B and C, and syphilis.

Heterosexual donors, meanwhile, are subject to a six-month deferral if they’ve had sex with someone whose sexual background they are unsure of. Deferrals are imposed to prevent people who may have contracted dangerous infections recently enough that the infections would pass undetected through biological screening from donating blood.

Marc Germain, Vice President (Medical Affairs) for Héma-Québec, would not comment on Lomaga’s suit since it is currently in court. However, he did comment on the reasons behind Héma-Québec’s deferral policy.

“In the case of a man who had sex with men, it’s well-recognized, there’s a very wide consensus – not only consensus, but it’s actually a fact – that this particular population is at higher risk, at much higher risk for certain infections that can be transmitted through transfusion, in particular, of course, HIV,” said Germain.

Héma-Québec categorizes incidents like Lomaga’s as an “MSM deferral.” MSM is an acronym for “men who have sex with men.”

“We’re using that term because, basically, that is the activity at risk. It’s not the fact that someone is gay or not,” added Germain. “In fact, we do not have similar selection criteria for gay women simply because the sexual activities related to women having sex with women do not entail a risk such as exist with men who have sex with men.”

Lomaga argued, however, that improved screening technology has eliminated the need for a lifetime deferral for MSM donors.

“The problem is that the tests used to pick up those diseases are no more accurate or no less accurate than when applied to gays or heterosexuals,” said Lomaga. “These tests will pick up the diseases, and if you’re comfortable with a six month deferral period for heterosexuals, well, why isn’t it the same case for gays?”

According to Germain, Héma-Québec tried to reduce the length of the MSM deferral to five years in 2009, but the Héma-Québec vigilance committee voted the proposal down.

“If a man did not have sexual relationship with another man in the last five years he would become eligible for blood donation,” said Germain. “We think that it would be just as safe for the recipients if we were to go in that direction.”

Lomaga questioned the impartiality of the Héma vigilance committee.

“My understanding is that the Héma vigilance committee is composed of stakeholders – such as the Hemophiliacs Society, and other individuals who are more prone to require blood donations, blood transfusions rather – and they just weren’t comfortable with any possibility of increasing risk into the blood supply,” said Lomaga.

Germain also noted that Héma-Québec had to consider the concerns of transfusion recipients.

“The system as it is is extremely safe, and any change to a less-safe selection criterion could be detrimental to the recipients, and for those reasons they don’t agree,” he said.

“They’re the ones that run the risk, maybe a very small risk, but they’re the ones who risk this. And why should they accept that there is even a very small increase in risk? And I think we have to listen to those arguments.”

Lomaga maintained, however, that there is“no scientific explanation to justify the 33 year deferral period.”

“What it boils down to is imposing a standard of perfection on gay and bisexual men, when a much lower standard is applied to heterosexual donors,” he said.

Lomaga majored in History and Political Science as an undergraduate at McGill. In 2007, he received a Masters Degree in Law. He has been in contact with organizations in Montreal’s queer community – including Queer McGill – to try and drum up support for his cause.

Lomaga said part of this approach would involve trying to determine whether a “reasonable” gay person would find the current ban on MSM donations discriminatory.

“Héma-Québec can succeed in winning their case if they can portray me as a super sensitive guy, who is just kind of an oddball activist out there,” he said.