The IVF postcode lottery must stop

The IVF postcode lottery must stop to prevent further unjustifiable and unlawful discrimination, inequality and unfairness across the UK.

The World Health Organization formally recognises infertility as a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse (1). Given the sheer scale of infertility across the UK, there needs to be greater acceptance of IVF as a legitimate clinical need and better funding and access to IVF treatment.

The current inconsistent and inadequate level of provision of IVF treatment on the NHS is an unacceptable way to treat the one in seven UK couples (2) (3.5 million people) currently affected by infertility.

If anyone doubted its existence, the IVF postcode lottery was confirmed by the All Party Parliamentary Group on Infertility report into the provision of IVF in the UK in June 2011 (3).The chairman, Gareth Johnson MP, concluded in the report that what he 'was not prepared for was the existence of so many conditions and restrictions that are placed upon infertile couples even in PCT [Primary Care Trust] areas that offer IVF treatment'.

Currently, PCTs across the country frequently impose restrictive and arbitrary criteria which deny many women access to IVF treatment on the NHS, including criteria based on age and childlessness. Such policies are unfair, irrational and discriminatory, as highlighted by the recent cases of Andrea Heywood, who was denied IVF funding for being too young (4) and Donna Marshall, who was initially refused funding because her husband had a child from a previous relationship (5).

The Public Sector Equality Duty (6) imposed by the Equality Act 2010 (the Act) imposes a duty upon healthcare bodies to eliminate discrimination and advance equality of opportunity between persons who share a relevant protected characteristic and those who do not. The Act defines age as a protected characteristic and in light of this, many PCT IVF funding policies are in direct contravention of it.

It is therefore difficult to see how Portsmouth City PCT (under the umbrella of NHS South Central) can justify its recent refusal to grant IVF funding to 24-year-old Andrea Heywood. This woman must wait until she is 30 because the PCT's policy is to only offer funding to women aged 30 to 34. It is equally difficult to see how Portsmouth City PCT can deny a childless woman access to IVF funding on the NHS if her partner has a child from a previous relationship and that child does not live with them as a couple. This discriminates against women in relationships and denies them the opportunity to bear their own children and become mothers.

Although the draft updated guideline on fertility from the National Institute for Health and Clinical Excellence (NICE) issued in May this year proposes better access to IVF funding on the NHS, NICE guidelines are not mandatory. Since PCTs flout the existing NICE guidance, it is questionable to what extent they will embrace any changes. Especially when the draft guideline proposes three cycles of IVF treatment to women who have not conceived after two years of trying (reduced from three), the removal of the lower age limit (currently 23 years) for women and extending the upper age limit from 40 to 42 for women for whom IVF is the only possible prospect of pregnancy (that is those with absolute infertility).

The Secretary of State for Health has a legislative duty to promote a comprehensive health service (7), a core principle that has underpinned the NHS since its creation. Amendments currently being introduced by the Health and Social Care Act 2012 (the HSC Act) strengthen the overall accountability of the Secretary of State for Health in this regard (8) and go even further. The HSC Act stipulates that the Secretary for State must have regard for the need to reduce inequalities across the country concerning the benefits patients can obtain from the health service (9).

When I wrote to The Secretary of State for Health in December 2011 and called for him to investigate and review Portsmouth City PCT's IVF funding policy in light of its particularly discriminatory, arbitrary and unlawful criteria I was advised that this was an individual PCT matter referable to devolved legislative powers.

In view of the enhanced accountability of the Secretary of State for Health enshrined in the HSC Act, I would recommend that he revisit his position and take decisive action to ensure that all PCTs embrace their equality duty regarding NHS funding for IVF treatment to ensure better and fairer access for patients across the country.