There is so much more still to do for LGBT+ parents

The Government's plans to update the law on fertility screening is good news for some LGBT+ intended parents (see BioNews 1213a and BioNews 1213b). However, while the announcement has rightly been widely welcomed (including by the Human Fertilisation and Embryology Authority (HFEA) and the National AIDS Trust which campaigned for it) it represents just one step toward true equity for LGBT+ intended parents, with many other challenges still to be tackled.

The planned law change announced by the UK Government in Parliament last week is a technical one concerning how egg and sperm providers are screened within UK fertility treatment. The Government has accepted that the current law discriminates against some same-sex couples and patients living with HIV, unfairly treating them as if they are donors choosing to give their eggs or sperm to strangers, rather than as patients seeking to conceive their own biological children, and so imposing additional barriers to treatment.

Changes for reciprocal IVF

The first group of affected patients is female same-sex parents who wish to conceive via reciprocal IVF.  For those unfamiliar with the term, reciprocal IVF is where eggs are collected from one female partner, fertilised, and then the embryo is transferred to the other female partner who carries the pregnancy.  For female same-sex couples, it is a way of sharing biological motherhood, with one mother being the gestational parent while the other is the genetic parent.

Under the current law, any woman who provides an egg to another woman is automatically classified by UK law as a 'donor', which means she must be screened, not just for HIV and Hepatitis B and C (as all fertility patients are), but also for syphilis, chlamydia and certain genetic conditions, including cystic fibrosis. This adds considerably to the cost of treatment for same-sex couples, posing a barrier to treatment which does not exist for different-sex couples who are similarly transferring gametes from one partner to the other in IVF treatment.

The Government's decision to update the rules to remove this additional barrier is therefore welcome, and means that female same-sex couples will be recognised as what they are: partners rather than an egg donor and recipient.

Changes for HIV positive intended parents

The second group of affected patients is intended parents who are HIV-positive. Modern HIV medication enables patients to maintain an undetectable viral load, and AIDS charities around the world have run a longstanding 'Undetectable = Untransmittable (U = U)' campaign to raise awareness that such patients cannot pass on their HIV infection to others. However, fertility law has not kept pace with this scientific advance, and in practice, this has inadvertently created inequity between people in same-sex relationships and people in different-sex relationships.

To explain, different-sex couples conceiving through IVF can now use their own gametes in UK fertility treatment where either of them is HIV positive but has an undetectable viral load – they are treated as partners in terms of screening requirements and this allows them to proceed with fertility treatment where it is safe to do so. The same is not true for most same-sex couples, since patients using their own gametes to conceive through reciprocal IVF or surrogacy must currently be screened as if they were gamete donors.  That means a much more stringent standard, and a bar on using eggs or sperm if the gamete provider is HIV positive, even if their viral load is undetectable. The current screening rules therefore create a significant access barrier for HIV-positive intended parents seeking reciprocal IVF or surrogacy and, for obvious reasons, that disproportionately affects LGBT+ patients. 

This is an issue which has been on the map for a while.  I remember speaking about the problems at an event run by the Terence Higgins Trust in 2017 and at the British HIV Association Conference in 2018, having been involved in several cases in which HIV-positive gay men had been blocked from accessing UK surrogacy and so denied the opportunity of biological parenthood. The National AIDS Trust has since fought a determined campaign to change the law, galvanising MPs through targeted correspondence, a prominent petition and even demonstrations as part of Pride (see BioNews 1155). They should be given all due credit for persuading the Government to change the law.

The way forward

The proposed law change is a just one, which recognises that not all those currently treated by the law as donors are in fact donors, and that parents seeking to conceive their own biological children should not face unnecessary barriers, particularly where those barriers are no longer in line with modern science and discriminate against LGBT+ parents.

However, the law change has not yet happened, and no clear timescale has yet been given: the Government has simply said it will introduce secondary legislation 'as soon as we can'.  It is therefore important that this stays on the agenda, and that the Government makes good on its promises as soon as possible.

Will this solve problems of equity for LGBT+ parents?

There is also a lot more still to do to ensure that LGBT+ parents have fair access to UK fertility treatment more widely.

For female same-sex parents, Stonewall, among others, is currently campaigning against the 'gay tax' which applies to NHS funding of fertility treatment. Unlike their heterosexual counterparts, female couples must self-fund 3-12 rounds of insemination privately before they can seek NHS funding for IVF, something which can cost tens of thousands of pounds and for many patients represent an insurmountable barrier to achieving parenthood.

Fertility law still does not include transgender fertility patients at all, something which produces perverse outcomes, including transgender men who are legally male following a confidential legal process being forced to be registered as mothers on their children's birth certificates (see BioNews 1073).

For male same-sex parents, access to UK surrogacy remains difficult, given the outdated and restrictive UK surrogacy law framework and the chronic shortage of UK surrogates it creates (see BioNews 1186). The Law Commissions have worked for five years on a lengthy report, published in March 2023, which has recommended extensive UK law reform, but the six month deadline for the Government's interim response has now passed in deafening silence. 

Ultimately, the Government's announcement of reform is therefore good news for LGBT+ intended parents, but there is still a lot more that needs to be done to remove barriers for LGBT+ parents seeking to conceive families and ensure they are treated equitably.