No discrimination in male couple fertility treatment funding refusal
A same-sex male couple in Northern Ireland denied publicly funded fertility treatment for their bid to have a child were not subjected to unlawful discrimination, the Court of Appeal ruled today.
Senior judges dismissed the challenge mounted against health authorities in a case involving a proposed gestational surrogacy arrangement.
Lord Justice Treacy held: “The court has some sympathy for their entirely understandable and legitimate desire to become parents with some biological link to their child.
“Nonetheless, we do not consider the respondents to have acted unlawfully.”
The two men had arranged with a friend who previously underwent a voluntary sterilisation procedure to act as a host surrogate for them.
Those plans involved a donor egg from another woman being fertilised with sperm from one of the civil partners and then carried through pregnancy.
Under current eligibility criteria, however, publicly funded IVF treatment is not available to anyone who has undergone voluntary sterilisation.
With the couple described as “heartbroken” at the refusal, legal proceedings were brought against the Department of Health, Belfast Health and Social Care Trust, and the Health and Social Care Board.
Lawyers for the two men claimed unlawful discrimination and a failure to make proper provision for treatment for a same sex male couple.
The court heard that criteria revised in 2019 include requirements to demonstrate a fertility problem or a sufficient number of failed attempts at artificial insemination.
In 2022 the couple’s application for a judicial review was dismissed.
A High Court judge pointed out that in the absence of any medical fertility issue affecting either of the partners or the surrogate - setting aside her sterilisation - she is not eligible for IVF.
He identified no entitlement to direct access to treatment until a medical fertility problem is indicated, adding that any differential treatment would be justified and proportionate.
Lawyers for the couple appealed the verdict, claiming they faced direct and indirect
discrimination, as well as a breach of their human rights.
But rejecting all grounds of challenge, the court stressed that a medical fertility problem was not demonstrated unlike in other cases eligible for treatment.
“The appellant was not treated less favourably on the basis of his status, and no discrimination was established,” Lord Justice Treacy said.
He concluded: “The type of publicly-funded surrogacy service advocated for by the appellant is a matter for political decision-making.
“In our judgment, its absence does not represent unlawful discrimination.”