ADI 5.543/DF: DA INCONSTITUCIONALIDADE DA PROIBIÇÃO DA DOAÇÃO DE SANGUE POR HOMOSSEXUAIS

DA INCONSTITUCIONALIDADE DA PROIBIÇÃO DA DOAÇÃO DE SANGUE POR HOMOSSEXUAIS

Abstract

Since the AIDS epidemic arrived in Brazil, homosexuals have been considered as risk groups, especially since there was a total lack of knowledge about the disease, tests and remedies that could cure it. Churches, the State and the media have strengthened the stigma of “gay cancer”, however, the current situation is completely different, as in addition to controlling the disease that can cause an AIDS person to live for decades, it has been revealed that heterosexuals can also contract and transmit the disease. Art. 64, IV, of Ordinance No. 158/2016 of the Ministry of Health and art. 25, XXX, “d”, of the Resolution of the RDC Collegiate Board nº 34/2014 of the National Health Surveillance Agency (ANVISA) were unconstitutional in the face of the new constitutional order that promotes the dignity of the human person as one of the foundations of Brazil, equality as a fundamental right. Direct unconstitutionality action no. 5,543 against the aforementioned articles was upheld, which means that the decision is binding and effectively raises omnes, and the blood banks can no longer refuse to receive the blood of the homosexual male donor who has had sex within twelve months. Due to the emancipatory interpretation of the Federal Constitution, blood donation will no longer pass through the discriminatory and prejudiced sieve of heteronormative society that Brazil still contemplates. It is a research carried out under the historical and deductive method, as it brings a historical part about the prejudice suffered by AIDS and part for the specific aspect, that is, the victory of the LGBTQ movement, in the sense that their blood will no longer be discriminated.