EU Directive 2012/53/EU requires Member States of take all necessary measures to safeguard the recipients of organs. This was transposed by the European Union (Quality and Safety of Human Organs Intended for Transplantation) Regulations, S.I. No. 325 of 2012.
The Regulations apply to donation, procurement, testing, characterisation, transport and transplantation of organs. They set out a clear legal framework for the application of quality and safety standards for human organs intended for transplantation. The Regulations, however, do not specify who should or should not be donors, but state that selection assessments carried out pursuant to the regulations may provide for the exclusion of persons whose donation could present unacceptable health risks.
In order for transplantation to proceed safely all potential donors are risk assessed in order to prevent inadvertent transmission of infection. All potential donors, or in the case of deceased donors their next of kin, must answer a range of questions prior to the organ donation process proceeding. They include questions in relation to certain risk behaviours. The decision on whether someone who is gay may become a donor is not based on sexual orientation, but because it is known that there is an increased level of HIV infection rates in MSM in Ireland. Testing for HIV remains very sensitive and effective, but there remains a period between infection and detection which could permit the transmission of the virus to a recipient. For this reason sexually active gay men are currently excluded from becoming organ donors.