UK couple 'too old' for publicly-funded IVF to sue the Health Secretary

A couple who were refused fertility treatment on the NHS for being 'too old' have said they intend to challenge the decision in the courts, arguing that the decision amounts to age discrimination.

The couple, known as Mr and Mrs K, were refused IVF by NHS Berkshire East PCT on the basis of Mrs K's age - who was 37-years-old - even though their difficulty in conceiving was attributed to Mr K's subfertility. The PCT said it will only treat women aged between 30 and 34-years-old.

The PCT has twice rejected the couple's appeal but has said it will now review its policy in light of new anti-discrimination laws. However, the couple has launched proceedings against the Secretary of State for Health, Jeremy Hunt, saying that NHS restructuring means the commissioning body will be abolished in April and a decision by its successor may be too late for the couple.

New age discrimination laws came into force last October which make age discrimination unlawful. Under the new law, healthcare commissioners are required to justify any decisions that differentiate services according different age groups. Speaking when the new Equality Act came into force, health minister Norman Lamb said the law would also apply to patients who are denied IVF on the NHS because of age.

'If an older woman sought to argue she should have access to treatment on the NHS she can challenge it, but she would have to show that the upper age limit was not objectively justified', he said.

'What I'd say generally is that if people in any condition feel that a judgment can't be justified, and feels arbitrary, then they should challenge it because we should always be making our judgment in the health service on clinical need', he added.

This is one of the first times that age discrimination laws have been evoked to challenge a decision about fertility treatment. It is also believed to be the first attempt to sue the health secretary directly for a decision made about healthcare rationing.

The National Institute for Health and Clinical Excellence (NICE) guideline, which is currently being updated, says that three cycles of IVF should be publicly funded until the woman is 39 but regional trusts retain the autonomy to set their own restrictions. Many PCTs do not meet the NICE guideline and instead offer fewer cycles of treatment or narrow the criteria for treatment.

Clare Lewis-Jones, chief executive of Infertility Network UK, has criticised PCTs for drawing up arbitrary rules which force couples to resort to legal disputes for a chance to receive funding.

'IVF funding should be available where it is most likely to benefit people trying to have a baby — which is precisely why we have the NICE guideline', she said. 'If Berkshire East PCT did what they were meant to do, this couple would not be in this unenviable situation today'.

Mr and Mrs K have reportedly taken out a loan in order to pursue private treatment while they await a decision as to whether they will be able to proceed with the action.