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Same-sex couple issues judicial review against “discriminatory” IVF policy

Judicial review proceedings have been issued in the High Court against a NHS Clinical Commissioning Group relating to their policy on providing IVF to same-sex female couples.

Posted on 10 November 2021

Megan and Whitney Bacon-Evans have brought the case against Frimley Clinical Commissioning Group regarding their policy which they say discriminates against same-sex couples.

Frimley Clinical Commissioning Group (CCG) requires same-sex couples seeking one cycle of NHS funded IVF treatment to undergo 12 cycles of intra-uterine insemination (IUI) at their own cost, with six of those being carried out in a clinical setting.

The couple, who live in Windsor and are well-known on social media with over 300,000 followers, argue in their legal claim that the policy is directly and indirectly discriminatory on the basis of sexual orientation, contrary to the Equality Act. If they were to compare themselves to an opposite-sex couple who can have unprotected sex but cannot conceive without medical assistance the policy applies differently. Although both couples are unable to conceive as a result of having unprotected sex, the opposite-sex couple are able to prove that they are infertile by failing to conceive after reporting having had “regular” unprotected sex for two years. In Megan and Whitney’s case they must prove they are infertile by self-funding 12 rounds of artificial insemination, including 6 rounds of IUI in a clinical setting, costing up to around £26,000. They argue that this clearly amounts to less favourable treatment.

If Megan and Whitney attempted 12 cycles of artificial insemination at home with a private sperm donor, or even attempted an insemination every day for two years at home, they would not meet the eligibility criteria and they would still be required to undergo six rounds of IUI in a clinical setting.

As well as causing direct and indirect discrimination contrary to the Equality Act the couple also argue that the Frimley CCG policy is contrary to article 14 in conjunction with article 8 of the European Convention on Human Rights (ECHR) which is the protection from discrimination provision in the Human Rights Act in relation to respect for private and family life.

There are also references in the Frimley CCG policy to a requirement to “discuss the possibility of the other partner becoming pregnant before proceeding to interventions involving the infertile partner”. Therefore, even if Megan did undergo the required number of IUI cycles it is unclear whether there would be grounds to refuse IVF on the basis that Whitney had not also demonstrated sub-fertility.

On the Frimley CCG website, patients can find out the residual policy that they fall under based on the location of their GP practice. There are significant differences between the services offered within the Frimley CCG: some of the former CCGs offer two funded cycles of IVF but some only offer one; some allow treatment within six months of the patient’s 40th birthday whereas for others the cut-off age is 35; some fund donor sperm and some do not.

Megan and Whitney said:

"After 12 years of being together, we were excited to start our family together, however we were shocked to discover discrimination in place after embarking on our baby journey. We presumed that as we are legally a married couple, as a family we would also be viewed as equal in the eyes of the law; but that appears to sadly not be the case. Not only were we upset to discover discrimination in place in 2020, we were also shocked that it has been in place and affecting so many same-sex couples for so long, and nothing has yet been done about it.

“We are now taking legal action in the hope that we can help create a future where LGBTQ+ families are treated as equal. If our case is successful, this could positively impact the lives of tens of thousands, or even hundreds of thousands, of LGBTQ+ people embarking on their path to parenthood now and in the future to come. It is time for discrimination to end and for there to be equal treatment with heterosexual couples in the healthcare system.”

Anna Dews, solicitor from law firm Leigh Day, added:

“Our clients believe that Frimley CCG’s policy is blatantly discriminatory on grounds of their sexual orientation and puts them at a huge financial disadvantage by treating them less favourably than heterosexual couples in a comparable situation.”

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