New Delhi: Citing expert committee reports in affidavits filed before the Supreme Court of India, the central government has stoutly defended its policy of excluding transgender persons, men who have sex with men (MSM) and female sex workers (FSW) from donating blood.
The government contends that these exclusions are not discriminatory but are essential safeguards designed to protect the integrity of the blood supply from Transfusion-Transmitted Infections (TTIs), such as HIV and Hepatitis.
A Bench of Chief Justice of India Surya Kant, and Justices Joymalya Bagchi and Vipul Pancholi seized of related writ petitions was informed via the Centre Thursday. Hearing the petition, the CJI referred to the risk of infections, saying, “Tell us one good reason that we should issue a direction. After all, there are millions and millions of poor people who take free blood facilities. They cannot afford private hospitals.”
At this, senior advocate Jayna Kothari, appearing for the petitioners, said, “The core issue is once blood is donated by anybody, the blood donated has to be tested and then only used. In fact, after every blood donation is done, HIV testing is done. Nucleic Acid Testing (NAT) testing is done.”
What petitioners want
The petitioners, led by transgender activist Thangjam Santa Singh, approached the Supreme Court petitioning it to strike down Clauses 12 and 51 of the Guidelines for Blood Donor Selection and Blood Donor Referral, 2017. Formed by the central health ministry’s National Blood Transfusion Council and the National Aids Control Organisation, Clause 12 identifies transgender persons, MSM, and FSW as “at risk” for infections, while Clause 51 mandates their “permanent deferral” from donating blood.
“Today, if a heterosexual married person wants to donate blood, that person is not asked a question when was your last unprotected sex. The risky behaviour is the unprotected sexual act. Not my identity. There can be a heterosexual person who may have had a risky act. Would that person’s blood not be risky?” Kothari said. She also told the court that while the expert committee report has been put on record, the reasoning of the committee has not come up.
Filed in 2021, the petition contends that these clauses are unconstitutional and violate Articles 14, 15, and 21 of the Constitution, as they constitute discrimination based on sex and gender identity. They argue that the exclusion lacks a “rational nexus” with the goal of blood safety because all donated blood is already tested for Transfusion-Transmitted Infections (TTIs) and detailed information on sexual contact is collected from all prospective donors.
Instead of an absolute, permanent ban, the petitioners want the government to adopt a system of individual risk assessment and temporary deferral which they argue would adequately minimise risk while respecting the rights of marginalized communities.
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Recipient safety as a paramount right
The core of the government’s reasoning rests on the principle that the health of the blood recipient must take precedence over the desire of any individual to donate. Accessed by ThePrint, the preliminary affidavit of the Ministry of Health and Family Welfare (MoHFW) says that a robust blood transfusion system is a “major public health responsibility”.
On Thursday, Additional Solicitor General Aishwarya Bhati along with her team, including advocates Shivika Mehra, Shagun Thakur and Ketan Paul, said that the expert committee has reinforced the necessity of the ban in public interest.
Crucially, the government asserted that the right to receive safe blood is a superior right in this context, “the right of the recipient to receive a safe blood transfusion far outweighs the right of an individual to donate blood”. It further maintained that the issue falls squarely within the domain of the executive and medical experts, suggesting that constitutional courts should “defer to the judgement of domain experts” in matters of public health.
The science of ‘high-risk’ groups
The government’s primary justification for the exclusion is that it is rooted in statistical and scientific data regarding the prevalence of HIV and other infections among specific population groups. According to the 2020-2021 Annual Report of the Department of Health and Family Welfare cited in the affidavits, the HIV prevalence among transgender persons, MSM, and FSW is “6 to 13 times higher than adult HIV prevalence”.
Following a Supreme Court direction in May 2025 to reconsider the prevailing policy, the government constituted a new expert committee comprising specialists from government bodies, NGOs, and medical societies. In the latest affidavit filed in August 2025, seen by ThePrint, the government revealed that this committee had concluded that “no change is warranted at this stage”.
The committee reaffirmed that the 2017 guidelines are “firmly rooted in national and international research”, and that any relaxation could “pose a serious risk to the safety and integrity of the national blood supply”. The government invoked the “precautionary principle” under Article 47 of the Constitution, stating it is constitutionally mandated to protect public health by preventing systemic risks.
(Edited by Nardeep Singh Dahiya)
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