Legal Commentary

Relative Risks of HIV Infection Among Gay and Bisexual Males

By Eugene Volokh

The issue came up on this blog some years ago, and remains relevant to the debate about limits on gay males? donating blood and other fluids and tissues. I therefore I thought I?d note the data from the latest CDC report (apparently just released last week, though it was based on 2006 data):

[T]he rate of new HIV diagnoses among MSM [men having sex with men] in the U.S. is more than 44 times that of other men (range: 522?989 per 100,000 MSM vs. 12 per 100,000 other men).

(Note that ?more than 44? appears to mean ?44 to 82,? given the 522?989 range.)

It may well be that, despite that, gay men should be disqualified from donating blood only if they report they have had sex with a man in the last 12 months, as opposed to the current American system, which disqualifies any man who reports he has had sex with a man since 1977 ? especially since it seems that modern testing has narrowed the window during which HIV is undetectable in blood to just 11 days. I take it the reservations about relying on self-reporting and testing are that (1) there is always risk of human error in the testing process; (2) (possibly) some number of people will (innocently) misreport whether they had sex with a man in the last 12 months, even when they would have accurately reported that they had sex with a man since 1977; (3) because the policy disqualifies only a small fraction of all possible donors (just those men who have had sex with a man since 1977 but not in the last 12 months), there is little health benefit to broadening the eligibility, and the small health benefit from getting more uninfected blood exceeds the small health risk from the possibility of getting infected blood; and (4) the focus should be solely on the aggregate health risk and not on the feelings of the donors or the message supposedly sent by the exclusion. I don?t know what the right answer is, because I haven?t studied the likely risks (though I?m pretty sure that, as to item 4, the focus should indeed be solely on the health risk).

But it does seem to me significant to also understand just how much more risky a particular group of prospective donors might be. And since my earlier posts on this topic yielded responses from people who didn?t think the relative risk was quite so high, I thought I?d post the most recent data. Finally, just to make things crystal clear, let me stress that I wish the HIV rate for all groups, gay and otherwise, were zero; that I think the view that HIV is somehow a justified punishment for supposedly immoral behavior would be laughable if it weren?t so horrible; and that I would think this even if I thought male-male sex were indeed immoral (which I don?t).

Full post as published by The Volokh Conspiracy on March 16, 2010 (boomark / email).