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In the matter of Thangjam Santa Singh v. Union of India, challenging Constitutional validity of Guidelines on Blood Donor Selection and Blood Donor Referral, 2017 passed by National Blood Transfusion Council and the National Aids Control Organization, Supreme Court issued notice on Friday, seeking response from the Government. The Bench further added that since the matter requires medical expertise to determine the grounds taken in the plea, no direct orders can be passed. 

Challenge has been sought against clauses 12 and 51 of the general criteria under blood donor selection of the impugned guidelines, to the extent that it permanently defers transgender persons, men having sex with men and female sex workers, from donating blood and further considering them at high-risk category of being HIV/AIDS infected. 

The petitioner contends that the exclusion of transgender persons, men having sex with men and female sex workers from being blood donors and also permanently prohibiting them from donating blood solely on the basis of their gender identity/sexual orientation is completely arbitrary, unreasonable, discriminatory and unscientific. 

“In fact all blood units that are collected from donors are tested for infectious diseases including Hepatitis B, Hepatitis C, HIV/AIDS and hence permanently excluding them from donating blood and categorising them as high-risk only on the basis of their gender identity and sexual orientation is violative of their right to be treated equally as other blood donors”, the plea states.

Petitioners further contend that the guidelines solely rests on “negative stereotypes” amounting to discrimination under Article 14 and 15 of the Constitution.

Highlighting difficulty faced by the discriminated community even more, during the time of COVID-19 pandemic, the plea mentions, “…many members of the community who needed blood were unable to get it from their Trans relatives and loved ones due to the Guidelines. Transgender persons and gay and bisexual men who have been requesting to donate blood during the pandemic when their community and family members needed blood for emergency medical treatment were refused due to the permanent deferral under the Impugned Guidelines. Persons who are barred are not even able to donate plasma for research for COVID, due to this prohibition.”

Grounds

1. Impugned guidelines are stigmatizing as they are not based on how HIV transmission actually works, nor are they based on the actual risks involved in specific activities but are based only on the identities of donors, such as, whether they are transgender, gay or bisexual men or female sex workers.
2. The said restrictions are arbitrary, illegal and violative of Articles 14 and 15. Reliance is placed on  NALSA v. Union of India, (2014) 5 SCC 438 and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. 
3. Right to Access Medical Facility as a facet to Article 21 is further violated by the impugned regulation.
4. No scientific reason has been taken into account for formulating the said guideline.

Case Title: Thangjam Santa Singh v. Union of India

Law Point/Statute Involved: Guidelines on Blood Donor Selection and Blood Donor Referral, 2017