NHRC Issues Recommendation to Minister of Health and Welfare to Amend the「Enforcement Regulation of the Blood Management Act」
Charging that「the existence of a question asking, ‘Have you had sexual contact with someone of the same sex or indeterminate sex’ on the health history questionnaire given to prospective blood donors violates the right of equality on the basis of sexual orientation,」 the「Solidarity for Lesbian, Gay, Bisexual, Transgender Human Rights of Korea」 (hereafter「Solidarity for LGBT Human Rights」) filed a petition in December 2003 against the Minister of Health and Welfare. The National Human Rights Commission (NHRC) found that the questionnaire item violated the right of equality, enshrined in article 11 of the Korean Constitution, without due cause and issued a recommendation to the Minister of Health and Welfare to (1) amend the health history questionnaire in a direction such that sexual contact with a person of the same sex is not construed as equivalent to carrying HIV, and (2) restrict questions relating to sexual contact with persons of the same sex to only men.
The NHRC investigation found that article 12: clause 1 of the Enforcement Regulation of the Blood Management Act stipulates that,「before blood collection, the doctor or nurse must carry out a medical checkup and fill out a blood donor documentation card according to the form in annex 5.」 Item 15 of the annex asks whether,「Potential donor had sexual contact with a person of the same sex or of indeterminate sex,」 and further, when item 15 is checked, the regulation prohibits the collection of the prospective donor’s blood.
In the course of the NHRC investigation, the Minister of Health and Welfare responded as follows: (1) the medical questionnaire is carried out to prevent medical complications for and to protect the health of blood transfusion recipients, and the main content of the questionnaire aims to grasp the prospective donor’s health condition and whether he or she might be carrying blood-born disease (hepatitis, syphilis, AIDS, malaria, Creutzfeldt-Jakob Disease/variant-CJD); (2) the medical questionnaire is important in screening out prospective blood donors who carry or are at risk for blood-transmissible disease that cannot be detected with current testing methods, for example the AID virus in the pre-antibody production stages; (3) the health history item in question is meant to rule out the possibility that prospective blood donors could possibly be infected with HIV, but because the item on sexual contact with a person of the same sex could be interpreted as jumping to the conclusion that such sexual contact alone means that a person could be carrying AIDS, the Ministry said it would take that into consideration when it revises the Enforcement Decree of the Blood Management Act.
The NHRC notes that (1) HIV infection does not depend on one’s sexual orientation and heterosexual persons could also contract AIDS; (2) but HIV carriers and infection risk factors do include certain types of sexual contact; and (3) concluding that a person has AIDS based solely on the fact that one has had sexual contact with a person of the same sex is not right. Thus, the health history questionnaire excludes LGBT persons with no probability of carrying AIDS from donating blood. Not only does such a health history question deepen prejudice that wrongfully considers sexual orientation to cause AIDS, but it also does nothing to further AIDS prevention education among heterosexuals. In light of the fact that health history questionnaires abroad (USA, Canada, UK, Japan) ask only men whether they have had sexual contact with a person of the same sex since the probability of AIDS infection among women who have had same-sex sexual contact is extremely low, this health history question also violates, on the basis of sexual orientation, the constitution right to equality.
Thus, the NHRC recommended to the Minister of Health and Welfare that the health history questionnaire be revised in the direction such that same-sex sexual contact in and of itself is not interpreted to mean that a person could be infected with AIDS, but that questions dealing with same-sex sexual contact be limited to questionnaires for prospective blood donors who are male. –End.
