Academic journal article Duke Journal of Comparative & International Law

HIV/AIDS and Blood Donation Policies: A Comparative Study of Public Health Policies and Individual Rights Norms

Academic journal article Duke Journal of Comparative & International Law

HIV/AIDS and Blood Donation Policies: A Comparative Study of Public Health Policies and Individual Rights Norms

Article excerpt

I. INTRODUCTION

This paper presents a comparative study of blood donation policies in force in the United States, Canada, Denmark, Australia, Uganda, and Singapore which demonstrate the balance between effective health policy and individual rights norms. This study examines national public health policy formulation and implementation, specifically focusing on how the paradigms of law and epidemiology are reconciled to create effective public health policies. This analysis highlights policy differences between states like the United States and Canada, where the national governments have limited power and confer comparatively strong individual rights guarantees, and those like Denmark and Singapore, which assume a "duty `to do right for the people'" and in which, in certain circumstances, collective rights subordinate individual rights. (1)

Especially since the diagnosis and identification of human immunodeficiency virus (HIV) and its end-stage disease acquired immune deficiency syndrome (AIDS), national governments, often in concert with non-governmental organizations, have sought to guarantee safe blood supplies. (2) Governments are compelled by national and international interests to guarantee safe blood supplies. (3) Many critics, however, view the terms of blood donation and screening policies in the United States and other countries as unreasonably burdening individual rights, though these policies were conceived to comply with international recommendations, like those promulgated by the World Health Organization (WHO). (4)

This paper takes as its point of departure concerns that the exclusionary criteria for blood donation used in the countries studied may be viewed as discriminatory. The prohibition of blood donations by groups considered at high risk for HIV, including men who have sexual relations with other men (MSM), is an example of a potentially problematic exclusionary criterion. This paper discusses whether these criteria, including the prohibition on blood donations by MSM, may be regarded as justifiable to prevent transfusion-related transmission of HIV and other blood-borne pathogens, and to protect the public health and the rights of individuals receiving blood transfusions. Ultimately this paper concludes that the policy determination that exclusionary criteria are justifiable depends upon the reconciliation of the differing concepts of right and risk in law and epidemiology. In the context of blood donation policies in the countries discussed, exclusionary criteria that effectively target individuals in high risk groups and prevent them from donating blood are justifiable because they reduce the risk of contaminated blood entering the blood supply.

Because public health interventions, such as those described in the six case studies, are concerned with maximizing community health, individual interests or rights often are not the primary focus of public health policy makers. Public health analysis, specifically that undertaken by epidemiologists, is concerned predominately with the health of populations or communities. The individual is considered as a part of the community, not as an individual per se. A public health policy thus might appear to be overbroad, or an exclusion unjustifiable, when considered from a legal perspective concerned with protecting individual rights. However, such apparent overbreadth may be, and often is, acceptable and even necessary in cases in which the public health policy is proven effective. In a legal analysis, even broad exclusions may be viewed as sufficiently narrowly tailored when the exclusion is strictly drawn epidemiologically. For example, where HIV seroprevalence is high in a given population--as it is among MSM or injection drug users in several of the countries studied--the prohibition of blood donations by individuals within those populations is considered an acceptable and effective measure to prevent transfusion-related transmission of HIV. …

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