| 1. Brazilian Institute of Family Law (IBDFAM - Instituto Brasileiro de Direito de Família), Amicus Curiae, defended blood donation as a right to citizenship and that ANVISA assumed that homosexuals were promiscuous, in a totally prejudiced way. Inability for 12 months was disproportionate, and international treaties endorse LGBTQIAP+ rights as human rights. |
| 2. Dignidade Group - For the Citizenship of Gays, Lesbians and Transgenders (Grupo Dignidade - Pela Cidadania de Gays, Lésbicas e Transgêneros) raised that there should not be any discrimination in blood donation and that such difference promotes a hierarchy that violates the constitutional principle of isonomy. |
| 3. Brazilian Institute of Civil Law (IBDCIVIL - Instituto Brasileiro de Direito Civil), as Amicus Curiae, said that the bioethical principle of precaution, in fact, brings with it precautionary measures to prevent damage from materializing and that this ineptitude restricts the right to fraternity to free blood donation. |
| 4. Federal Public Defender’s Office (DPU - Defensoria Pública da União) highlighted that a statistical stereotype is used when an individual is attributed a certain characteristic that is believed to be relevant to the social group to which they belong. |
| 5. Constitutionalism and Democracy Research Nucleus of the Universidade Federal do Paraná (UFPR) explained that, in France in 2016, the principle of non-discrimination against MSM for blood donation was openly affirmed, which was followed by several other countries, such as Italy, Spain, Poland, Portugal and Latvia. |
| 6. Brazilian National Association of Public Defenders (ANADEP - Associação Nacional dos Defensores Públicos) was in the sense that ANVISA, in item 25 of its statement, stated that it was based on a study by the World Health Organization (WHO), which, in fact, never mentions blood donation and recommends respect for human rights and non-discrimination in health care, not recommending, in any way, a temporary ban on blood donation for MSM. |
| 7. Minister Edson Fachin voted for the merits of the requests of the action because he understands that there is a violation of respect for diversity which, here, translates into respect for human beings’ dignity. He explained that, although there is no longer a perpetual impediment (in theory) for MSM to donate blood, by requiring 12 months of sexual quarantine, this condition may prove to be a restriction on the possibility of exercising alterity. |
| 8. Minister Rosa Weber, in her vote, pointed out that FSC must analyze whether or not the form of the regulation and its results imply an affront to constitutional principles. In her view, there is discriminatory treatment arising from the rules under trial. Therefore, the minister accompanied the rapporteur’s vote in full, took note of the action and upheld it. |
| 9. Minister Luiz Fux manifested himself for the unconstitutionality of the norms, claiming that impugned norms are based on the premise that most homosexuals would have HIV, which goes against what researches and epidemiological data say, considering that maintaining the window period for 12 months for MSM is disproportionate, because creating obstacles to blood donation in Brazil is something extremely deleterious, given the great shortage in blood banks. |
| 10. Minister Luís Roberto Barroso voted for the unconstitutionality of disputed norms, judging them disproportionate, based on the fact that the laboratory window period is 10 to 12 days, there being no reasonable reason for maintaining the period of sexual abstinence of 12 months by male homosexuals. He exposed, as a basis, the case of Mexico12 which, since 2009, has not prohibited the donation of blood by MSM, noting that there were no cases of HIV contamination in said donations. |
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Against LGBTQIAP+ blood donation
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| 1. Minister Alexandre de Moraes, diverging from the rapporteur’s vote, voted for partial recognition of the claims of the action on the grounds that, in his view, scientific and technical information still presents relevant information about HIV infection in MSM and bisexual men; then he mentions that European countries determine deadlines equal to or greater than those of Brazil and that this does not represent a discriminatory act. Thus, the minister voted partially because he suggests removing the 12-month quarantine period as long as the blood was only used after an immunological test, which should be carried out after the serological window defined by health authorities. |
| 2. Minister Ricardo Lewandowski justified his vote by saying that he thought it was not up to the FSC, with regard to the window period, to decide on its deadline, and that this should be defined by health authorities. Furthermore, he stated that the Supreme Court must exercise a self-contained behavior in relation to the prescriptions of authorities and health bodies, especially when these are based on technical and scientific probative data. He voted to maintain blood donation restriction by MSM and bisexual men. |
| 3. Minister Marco Aurélio disagreed with the rapporteur’s vote, justifying that although the risk in collecting blood from homosexual men does not result from sexual orientation, the high incidence of contamination observed, when compared to the general population, justifies the caution implemented by the health authorities, in order to enhance public health protection. Even though the measure may be considered severe, in cases where the candidate is declared unfit for twelve months, in the situations provided for in the contested rules, there is a measure consistent with the greater legal good that is intended to be protected - public health. |
| 4. Minister Celso de Mello also voted for the dismissal of the action based on health professionals’ report and epidemiological data from the Ministry of Health. |
