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HIV-Infected Blood Transfusions and Medical Donations - California Health and Safety Code HSC 1621.5

Posted by Raoul Severo | Nov 12, 2020 | 0 Comments

In most places in the world, the risk of getting Human Immunodeficiency Virus (HIV) from a blood transfusion is very low. Still, that does that mean that you do not need to be vigilant or careful. In the unfortunate event that a person who is HIV-positive donates blood products that are not tested, the person who receives the blood product is likely to develop HIV, too.

The effects of HIV is devastating, as we have seen it claim the lives of at least 500,000 people worldwide. In order to curb this number, California enacted it's Health and Safety Code HSC 1621.5. This law makes it illegal for anyone who is consciously aware that they are HIV positive to donate any of the following:

  • Blood;
  • Organs or other bodily tissue;
  • Semen; and/or
  • Breastmilk

In order to be penalized under this law, the prosecutor must first prove the following:

  • The defendant knew that he/she tested positive for HIV, and
  • The defendant donated blood, tissue, semen, or breastmilk to a medical organization that receives these substances for the purpose of distribution.

With the second bullet in mind, a person cannot be convicted guilty under this law if the donated substance was used for their own good. For example, an HIV positive individual undergoing surgery may need to give blood to the doctors in case of an emergency (i.e., loss of blood). The donation was not necessarily made for the purpose of distribution to other people, but rather, it was benefited by the same infected person. Hence, there can be no possible transmission in the process.

Examples

To be further enlightened, we have provided possible scenarios which violate HSC 1621.5:

  • A young man learned about a clinic that gives monetary incentives to those who are willing to donate sperm. The donated sperm will then be used by females who are looking to raise a child without going through sexual intercourse. The young man decides to participate and donate his sperm despite knowing that he tested positive for HIV weeks prior. 
  • A newly-wed couple has just welcomed their firstborn child. The problem is, the mother cannot produce enough breastmilk for the child. So, she asks a co-worker if she could donate some of her breastmilk for her child to consume. The co-worker was reluctant at first since she knew that she was infected with HIV. But after the other mom promises to pay her for her donation, she agrees without disclosing her status.
  • You recently discovered that you acquired HIV after getting tested. You didn't want anyone to know about this information in fear that you would be discriminated against or rejected by your friends and family. However, a friend of yours invited you to participate in a blood donation program and you thought that if you refused, they would become suspicious of your health. Instead of telling them the truth, you attend the program anyway and give a bag of your HIV-infected blood.

Related Laws

California Health and Safety Code HSC 1621.5 is closely related to other distinct laws in the state, including:

  • California Health and Safety Code HSC 120290 (wilful exposure to communicable disease);
  • California Health and Safety Code HSC 120291 (non-disclosure of status and infecting another individual with HIV)
  • California Penal Code 261 (rape)

Penalties for HIV-Infected Donations

Donating blood, tissue, semen, or breastmilk despite knowing that it is HIV-infected is a felony offense, as opposed to a misdemeanor or an infraction. A felony is the most severe form of a criminal conviction as it always involves years of state prison imprisonment. In this case, a person may face either:

  • Two;
  • Four; or
  • Six years in state prison.

You may face these penalties regardless of whether you're a paid donor or a volunteer, as long as you carelessly donated HIV-infected substance to a program that will use it for distribution.

Get Legal Help from Criminal Defense Lawyers

While we cannot effectively eradicate the stigma that is tied to HIV-victims, we can get you out of potential legal penalties. Our criminal defense attorneys will make sure that you are properly represented in court. Talk to us so we can discuss the possible defenses in your case as early as now. 

Send us a message! We'll get back to you ASAP

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