The Federal Supreme Court formed a majority on Friday, 1st, against a measure that prevents “men who relate to men” from donating blood for a year since the last sexual intercourse. The case has been on trial since 2016 and was resumed in a virtual session today, with the favorable vote of Gilmar Mendes.

Gilmar was the sixth minister to consider an ordinance from the Ministry of Health and a resolution by the National Health Surveillance Agency (Anvisa) unconstitutional, which only allows the donation of “men who relate to other men” after 12 months of sexual abstinence. The direct action of unconstitutionality was filed by the Brazilian Socialist Party (PSB) in 2016, when the then attorney general of the Republic Rodrigo Janot presented a favorable opinion to the action.

Until then, ministers Edson Fachin, rapporteur of the process, Luís Roberto Barroso, Rosa Weber and Luiz Fux had voted in favor of the action and declared both measures unconstitutional. Alexandre de Moraes, on the other hand, presented a favorable vote to lift only the one-year restriction, but he disagreed with his colleagues and argued that the material should be stored in the laboratory awaiting an immunological window to be defined by the Ministry of Health.

In these cases, explained the minister, after the necessary screening, including the completion of the individual questionnaire, the material collected from men who had sex with other men, regardless of the 12-month period, must be identified, separated, stored and subjected to serological testing. only after the period of the immunological window, to be defined by the competent bodies, to rule out any possibility of contamination.

Lawyer Rafael Carneiro, from Carneiros e Dipp Advogados and PSB representative in the lawsuit, believes that the exception made by Moraes maintains the discriminatory character that justified the lawsuit in the first place. “Discrimination ceases to be at the time of collection and becomes the treatment of donated blood, creating a great concern about how this suggestion is going to be proceduralized. There will be a separate scholarship for homosexuals or inside the refrigerator we will have a division between the blood of heterosexuals and homosexuals? “, he asks.

The virtual session continues until the next 8th, when it will have a definitive result after the position of the other five ministers. Until then, the votes declared so far can also be changed.

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