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The Expressive Dimension of Donor Deferral

10 AM. J. BIOETHICS 42 (2010)

4 Pages Posted: 24 Nov 2009 Last revised: 4 Aug 2012

Dov Fox

University of San Diego: School of Law

Date Written: November 20, 2009

Abstract

What if anything is wrong with the government policy that excludes men who have sex with men (MSM) from giving blood? Federal guidelines require that blood collection agencies permanently refuse donation by men who have had sexual contact with another male any time since 1977, the year that HIV is thought to have been introduced to the United States. The FDA justifies lifetime MSM deferral on the ground that it reduces the risk of transmitting the virus that causes AIDS.

This short essay argues that the ethics of this policy depend on three dimensions of wrongful discrimination: discriminatory intent, discriminatory effect, and discriminatory expression. Discriminatory intent turns on whether illegitimate attitudes such as homophobia or irrational fear motivated enactment of the MSM deferral policy; discriminatory effect turns on whether the policy causes material or psychological harm; discriminatory expression turns on whether the policy communicates a social meaning - independent of any bad intent or bad effect - that reinforces the inferior social status of gay men as less respected members of the political community.

Teasing apart these components is not just a matter of semantics. Doing so clarifies the policy’s moral stakes and shows why its expressive dimension is the greatest reason for disquiet. The wrong of discriminatory expression does not necessarily mean that the exclusion policy is not justified, in the absence of robust risk analyses and HIV screening, to protect public health. But it demands of the FDA a suitably worthy purpose, enacted with sufficient consideration of available alternatives, to offset the expressive costs that its exclusion incurs to the terms on which we understand ourselves and relate to others

Keywords: blood donation, HIV, FDA, antidiscrimination, critical legal theory

JEL Classification: I18, J78, K19, K32

Suggested Citation

Fox, Dov, The Expressive Dimension of Donor Deferral (November 20, 2009). 10 AM. J. BIOETHICS 42 (2010). Available at SSRN: https://ssrn.com/abstract=1510421

Dov Fox (Contact Author)

University of San Diego: School of Law ( email )

5998 Alcalá Park
San Diego, CA 92110
United States
(619) 260-4600 (Phone)

HOME PAGE: http://www.sandiego.edu/law/news/news_releases/newslist.php?_focus=44957

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