Last Friday, the NHS Greater Glasgow and Clyde (GGC) reversed its decision to refuse a lesbian couple IVF treatment after the couple launched a legal challenge against the local health board's decision to consider homosexual couples ineligible for fertility treatment because neither partner is medically infertile and they have not tried to conceive 'in the normal way' for the requisite minimum of two years.
The couple claims that exclusion of same-sex couples from necessary medical assistance to conceive constitutes 'indirect discrimination' in breach of the Equality Act (Sexual Orientation) Regulations and violates their European Convention human rights. On Thursday, Caroline Harris and Julie McMullan outlined their case before the Court of Sessions in Edinburgh, Scotland's highest civil court, and requested a judicial review of the decision which was granted for later this year.
The health board initially defended its decision, claiming it applied the same eligibility criteria to any couple seeking NHS-funded treatment. It argued that NHS fertility treatment was denied, not on the basis of sexual orientation but according to 'social and clinical' criteria which requires a diagnosed medical problem or 'failure to conceive after two years during which there has been sexual intercourse and no use of contraception.' However, following legal advice, the board 'reconsidered its position in light of other regulations, including the Human Fertilisation & Embryology Act 2008 and Equality Act (Sexual Orientation) Regulations 2007 and has now decided to offer treatment to this couple', announced a spokesman on Friday.
The couple have stated that they have not yet received a settlement offer. They were seeking £20,000 in damages as compensation for the expense of unsuccessful private fertility treatments obtained and for the 'substantial degree of distress and anxiety' that refusal of state funding caused them.
Harris and McMullan, who have been together seven years including two years cohabitation, approached their GP about assisted conception and were told they must pay privately. They paid for Harris to receive six inter-uterine inseminations and IVF treatment in February 2008. The couple returned to the physician having been unsuccessful and were referred to the local assisted conception unit resulting in a letter last July informing them that 'unfortunately as they are a same-sex couple they would not be eligible' for NHS funding.
The NHS GGC board considered these women to be reproductively healthy and fertile. It recognised that circumstantially, as a couple, these two individuals cannot biologically conceive- sometimes referred to as 'social infertility' - but took an initial view that this did 'not fit the criteria' for expensive NHS-funded fertility treatment (costing £3,300 for each IVF treatment) which it interpreted to be available only for medically infertile couples who have tried unsuccessfully to conceive through intercourse.
The couple claim that the national guidelines do not mention or restrict access for fertility treatments to heterosexuals. They argue that requiring heterosexual intercourse and not including social infertility within its definition of 'infertile couples' is tantamount to excluding homosexual couples from access to IVF because of their sexual orientation which prevents biological conception. The Equality and Human Rights Commission provided £60,000 in public funds to support the couple's legal action.
A spokesman for the Human Fertilisation and Embryology Authority said that lesbian women are not prohibited from IVF treatment but eligibility for public funding is decided by individual local health trusts. The couple will now join 460 couples on the GGC waiting list with a current average waiting period of 95 weeks before receiving IVF.