Rich Vaughn Blog: FDA Lifting of Ban on Gay Blood Donors Mirrors Progress for Hiv+ intended Parents

Lifting of Ban on 'Gay Blood' Donation Mirrors Progress for HIV+ Intended Parents

The U.S. Food and Drug Administration announced earlier this week that it is lifting its three-decade-old rule prohibiting gay and bisexual from donating blood. However, the agency said it will continue to prohibit blood donations from men who have had sex with men during the previous 12 months.

In its press statement, the FDA wrote: “As part of today’s finalized blood donor deferral guidance, the FDA is changing its recommendation that  men who have sex with men (MSM) be indefinitely deferred— a policy that has been in place for approximately 30 years—to 12 months since the last sexual contact with another man. These updated recommendations better align the deferral period for MSM with the deferral period for other men and women at increased risk for HIV infection—such as those who had a recent blood transfusion or those who have been accidentally exposed to the blood of another individual. The FDA examined a variety of recent studies, epidemiologic data, and shared experiences from other countries that have made recent MSM deferral policy changes.”

The UCLA-based Williams Institute estimates that the rules change could add about 317,000 pints of blood to the nation’s supply annually, an increase of 2 percent to 4 percent. However, in excluding the estimated 3.8 percent of American men who report having had a male sexual partner in the past year, the increase in supply will only be half as large as it potentially could be, the institute reported.

The new FDA rule is a baby step toward ending a policy that discriminates against and demeans gay and bisexual men. Sean Cahill of the Boston-based research and advocacy center Fenway Institute called it “an important incremental step toward a better policy,” as cited by The New York Times when the FDA announced its preliminary recommendation last year. “That’s how policies often change— incrementally,” Cahill said.

But other LGBT and health advocacy groups have criticized the requirement of a year-long abstinence from gay sex in order for gay and bisexual men to be blood donors.

Kelsey Louie of GMHC (formerly Gay Men’s Health Crisis) said the FDA rule “ignores the modern science of HIV-testing technology while perpetuating the stereotype that all gay and bisexual men are inherently dangerous,” the Times reported this week.

David Stacy of LGBT advocacy organization Human Rights Campaign said the new policy prevents men from donating blood “based solely on their sexual orientation rather than actual risk to the blood supply” and “continues to stigmatize gay and bisexual men.”

The newest blood testing technology is able to narrow the period when the HIV virus might not show up in the sample of a donor who had been infected with HIV to just nine days.  That nine-day “window”—when an HIV-infected donor might test negative but still transmit the disease—is the justification the FDA uses for the year-long “deferral period.” A 12-month waiting period for approval as a blood donor also is applied to individuals with other risk factors, such as getting a tattoo or piercing, an accidental needle stick, or treatment for syphilis or gonorrhea. People who have traveled to regions where malaria is common are prohibited from donating blood for a year, even though malaria symptoms occur within 40 days of exposure. The 12-month waiting period also is imposed on heterosexual people who have sex with prostitutes or intravenous drug users.

The FDA’s Dr. Peter W. Marks, deputy director of the agency’s Center for Biologics Evaluation and Research, said the 12-month deferral period is “supported by the best available research” and is similar to deferral periods imposed in Britain and Australia, The New York Times reported. The agency has said there are no studies currently in existence that show that a shorter deferral period would protect the blood supply.

Experience tells us that the science of blood screening will continue to advance, and eventually we will have the evidence we need to ensure that it is safe for gay and bisexual men to give blood. As I noted in a presentation at the American Society for Reproductive Medicine annual meeting last year, not so long ago, it was unthinkable for a man living with HIV to intentionally father a child. The danger of transmitting the disease, via infected sperm, to the mother or surrogate and the unborn child, was prohibitive. But over the past 17 years, researchers have developed sophisticated testing and sperm-washing procedures that have eliminated virtually all risk of such transmission. The first baby was born using these new technologies in 1999, and the number has since grown to more than 260, with all moms, surrogates and babies testing negative for HIV. As the science has advanced, the stigma associated with HIV+ men seeking to become fathers has diminished. I have faith the same slow, steady progress will occur in the science of blood screening, that studies of the efficacy of shorter deferral periods will be conducted, and as those advancements take place, the current prejudice and discrimination against gay blood donors will also one day be just a memory from a less enlightened past.


Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.