The Federal Supreme Court already considers unconstitutional the rules of the Ministry of Health and the National Health Surveillance Agency (Anvisa) that prohibit “men who have sex with men” from donating blood for one year after the last sexual intercourse. Until then, there was a majority favorable only to the suspension of the 12-month period of sexual abstinence, but not to the unconstitutionality of the restriction.

With the favorable vote of Minister Ricardo Lewandowski at dawn on Friday, 8, the Supreme Court reached the six votes necessary for the ordinance of the Ministry of Health and Anvisa’s resolution to be considered unconstitutional. Ministers Edson Fachin, rapporteur for the process, Rosa Weber, Luís Roberto Barroso, Luiz Fux and Gilmar Mendes had already voted in favor of the action.

Anvisa and Ministry of Health rules forbade blood donation by “men who have sex with men” for the period of 12 months after the last sexual intercourse

Photo: Marcelo Camargo / Agência Brasil / Estadão

So far, ministers Alexandre de Moraes and Marco Aurélio Mello were the only ones who disagreed with the rapporteur. However, Moraes also defended in his vote that the one-year term of sexual abstinence by men who relate to men should be dropped, but suggested that the material collected should be stored by the laboratory. Only after a new immunological window, still to be defined by the ministry, that the donation would be effected.

Both Ordinance 158/2016 of the Ministry of Health and Resolution 34/2014 of Anvisa were made based on recommendations from the World Health Organization (WHO), which advised against the donation of blood by gay men in the 1980s, during the peak of the HIV / AIDS epidemic. In a demonstration obtained by National LGBTI Alliance, who acted in the case as a friend of the Court (amici curiae), the assistant director general of the WHO Universal Health Coverage department, Naoko Yamamoto, acknowledged that the organ’s guidelines were developed at a time when research on the risk of transfusions of blood were still evolving. In the document delivered to the STF, she stated that, in recent years, there has been a considerable advance in relation to the safe collection of this data.

With the coronavirus pandemic, Food and Drug Administration (FDA), the United States food and drug regulatory agency, and the Disease Control Center (CDC) to decrease the time limit for donation by gay men from 12 to three months. The decision was published on April 2, when 2,700 units of blood from the Red Cross were closed in the country due to concerns about the crowding of people in workplaces

Ministers Celso de Mello, Dias Toffoli and Cármen Lúcia have not yet voted. The trial, which follows in the virtual plenary session, ends this Friday.

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