Payne Hicks Beach
Payne Hicks Beach

05 August 2022

IVF issues for LGBTQ+ couples

The government has recently announced a strategy to improve access to IVF treatment for female same-sex couples.  In England, opposite sex couples who are struggling to conceive naturally are already entitled to receive IVF treatment on the NHS free of charge. Same sex couples are also entitled to receive IVF treatment free of charge but bear an additional financial burden in proving their eligibility.

Many are critical of the way that IVF services are offered through the NHS.  The treatment offered can differ from one NHS Trust to another leading to claims that it is essentially a "postcode lottery".  This can lead to perceived unfairness from couples in one region compared to others in the next.  However, for same-sex couples the situation is even more difficult.

How do same-sex couples qualify for IVF?

Heterosexual couples will qualify to receive IVF treatment on the NHS if they have not become pregnant after two years of unprotected sex. Importantly, they will have no financial outlay in relation to “proving” that they qualify for treatment in this way..

However, the same is not the case for same sex couples. They are not entitled to receive IVF treatment for free on the NHS until they have paid significant sums for a number of cycles of Intrauterine Insemination ("IUI").  IUI is the process of directly depositing sperm into a uterus.  As same-sex couples are unable to "prove" infertility by having unprotected sex, they have to jump through additional hoops to qualify for treatment by funding a certain number of IUI treatments themselves.  A same sex couple will have to self-fund the first 6-12 rounds of IUI themselves at a cost of many thousands of pounds before they will be considered eligible for NHS funded IVF.

What are the costs for IUI treatment or for having IVF privately?

IUI treatment typically costs in the region of £1,000 per round – meaning an outlay of £6,000 upwards for same-sex couples in order to qualify for NHS IVF treatment.. Funding IVF treatment via a private clinic is ferociously expensive and can cost from £5,000 - £8,000 per cycle.  Campaigners argue that this policy is discriminatory against LBGTQ+ individuals.  It is also out of touch with other parts of the UK.  In Scotland up to six cycles of IUI are funded for all couples provided they meet the national criteria.

How is the situation changing?

Same sex couple Megan and Whitney Bacon-Evans issued a judicial review legal challenge against their local NHS health board in October 2021.  They argued that the current IVF policy discriminated against lesbian couples.  Under their local board rules, same-sex couples seeking one cycle of NHS funded IVF treatment must undergo 12 cycles of IUI treatment (6 of which must be in a clinical setting) at their own cost first.  Their case is ongoing but, happily, in July 2022 the government announced a Women's Health Strategy which is to review policy and achieve equality for women in same-sex relationships amongst other strategies.  The proposal is to remove these additional barriers to IVF for female same-sex couples.  There will no longer be a requirement for them to pay for IUI in order to demonstrate their fertility.  Instead, the NHS will fund six cycles of IUI prior to accessing IVF services should it prove necessary.  The Women's Health Strategy can be viewed in full by clicking here.

If you would like to discuss any of the issues raised, please do not hesitate to contact Kelly Gerrard or your usual Payne Hicks Beach contact

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This publication is not intended to provide a comprehensive statement of the law and does not constitute legal advice and should not be considered as such. It is intended to highlight some issues current at the date of its preparation. Specific advice should always be taken in order to take account of individual circumstances and no person reading this article is regarded as a client of this firm in respect of any of its contents.

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