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A same-sex couple have commenced a significant test case against a branch of the NHS fertility sector for discrimination against them on grounds of their sexuality.
Megan and Whitney Bacon-Evans are a married same-sex couple and are both social media influencers. They have started proceedings against their local Clinical Commissioning Group (CCG), alleging that the CCG’s IVF policy applies to them less favourably when compared to a heterosexual couple.
The CCG in question, Frimley, requires same-sex female couples, single women and people with wombs to pay for 12 intrauterine inseminations (IUI) or in vitro fertilisation (IVF) treatments to demonstrate their infertility, which would reportedly cost them around £26,000, before they are eligible for treatment on the NHS.
Compared to IVF, IUI is a more natural and less costly form of fertility treatment, but it also has a lower success rate.
In contrast, most cisgendered heterosexual couples simply have to report that they have regularly tried to conceive naturally for two years. There is not usually a requirement to pay privately for either IUI or IVF.
The firm representing the couple, Leigh Day, argue that even if the couple attempted 12 cycles of artificial insemination with a private sperm donor, they would not meet the eligibility criteria. Megan and Whitney would still be required to self-fund six rounds of IUI.
Megan and Whitney have instructed solicitors to apply for judicial review of Frimley’s policies, on the basis of direct and indirect discrimination under the Equality Act and their Article 8 and Article 14 rights under the European Convention of Human Rights (ECHR).
The Equality Act 2010 protects individuals from discrimination, harassment and victimisation on the basis of a protected characteristic, of which there are nine. These include race, religion or belief, and (of importance to Megan and Whitney’s case) sexual orientation.
The provisions against discrimination apply in certain situations, such as when in the workplace, when interacting with public bodies or accessing healthcare. Discrimination can be direct or indirect. Direct discrimination means that a person is treated less favourably because of their protected characteristic. In comparison, indirect discrimination is where a rule, policy or convention happens to have a worse impact on a person with a protected characteristic, when compared to another person without that characteristic.
Section 149 of the Equality Act also requires public bodies (including healthcare bodies) to consider how their policies and decisions affect people with different protected characteristics. This is known as the Public Sector Equality Duty (PSED) or the s 149 duty.
Separately, Article 8 of the ECHR protects the right of a human to have respect for their private and family life. Article 14 provides that the rights and freedoms in the ECHR apply equally and without discrimination.
The LGBTQ+ charity Stonewall UK and the British Pregnancy Advisory Service (BPAS) are intervening in the action in support of the couple.
In 2013, the National Institute for Clinical Excellence (NICE) published guidance relating to access to fertility treatment for both opposite and same-sex couples. This states that women in same-sex relationships should self-fund at least six cycles of artificial insemination by IUI. If this is unsuccessful, they should consider six further cycles before they will be eligible for NHS-funded IVF. Conversely, women in opposite-sex relationships should attempt to conceive through sexual intercourse regularly, for two years.
However, CCGs do not have a statutory obligation to comply with these NICE guidelines. The effect of this is that CCGs around the country are free to implement their own policies. According to campaigners, access to fertility treatment is a ‘postcode lottery.’ In 2019, Matt Hancock announced a review into the issue by the Department of Health and Social Care. This is currently on-going, and according to the answer to a question tabled by Dawn Butler MP on 5 July 2021, NICE are conducting a scoping process for review of their guidelines.
According to a study published by BPAS in 2021, many CCGs impose restrictions or eligibility criteria “that are likely to have disproportionate impact on female same-sex groups.” For example, IUI can cost up to £1,600 per cycle but some private clinics charge significantly more, meaning that “female same-sex couples may be required to spend around £20,000 before gaining access to NHS fertility care, depending on where they live.”
Aside from these barriers to treatment for female same-sex couples, certain CCGs impose restrictions on all fertility patients. According to the BPAS study, only 21 CCGs fund the number of IVF cycles recommended by NICE, whilst three CCGs do not fund fertility treatment at all, regardless of patient group.
The likely outcome is that only the wealthy can access NHS-funded fertility treatment, which BPAS argues is contrary to Principles 1 and 2 of the NHS, that health services are “available to all” and are “based on clinical need, not an individual’s ability to pay.”
In 2017, a similar action was brought by a female same-sex couple against their CCG, Barnsley, for unlawful discrimination under the Equality Act. This was settled when Barnsley amended their policy after receiving a pre-action protocol letter.
Should Megan and Whitney’s action also succeed, this may change the policy for the CCG in question but unchallenged policies will remain in force across England. What is required is a review of fertility policies across the country, with a view to ensuring consistent and equal access to fertility treatments for all patients.
Nevertheless, we look forward to the outcome in Megan and Whitney’s case, and welcome positive change to healthcare policies in order for LGBT parents to enjoy equal access to fertility treatment in England.
Phoebe joined Kingsley Napley in 2020. She is currently a trainee solicitor in the Public Law team. Her previous seats were with the Private Client team, where she assisted with the administration of trusts and estates, and the drafting of Wills and Lasting Powers of Attorney. Phoebe also assisted with Court of Protection matters, including the drafting of Deputyship applications; and the Medical Negligence and Personal Injury team.
Nick Wrightson is a Partner in our Public Law team. Nick has an administrative and public law practice focused on judicial review litigation and supporting clients through public inquiries and complex inquests. Nick’s experience includes representing public bodies, private companies, individuals, representative bodies and charities – often in high stakes, politically and commercially sensitive cases.
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