Titanic Belfast in the fog

Is the refusal of publicly funded In Vitro Fertilisation (IVF) in cases of “host surrogacy” unlawful discrimination?

This was a question that was recently considered by the High Court in Belfast.

Background

The applicant and his civil partner want to have a child.

Although a surrogate has been identified, she previously underwent a voluntary sterilisation procedure. The idea is to use publicly funded IVF with a third-party donor egg fertilised with sperm from the applicant and his partner. This is known as “host surrogacy”. 

The criteria for publicly funded IVF does not, however, extend to such a scenario. Specifically, the surrogate’s voluntary sterilisation acts as a bar.

In pre-action correspondence, the Belfast Trust stated that “fertility services are only commissioned for women.”

The applicant contends that this is unlawfully discriminatory and fails to make proper provision for a same-sex male couple. He was granted leave to apply for judicial review. 

Judgment

IVF …by definition can only be provided to a woman in order to assist in achieving pregnancy, hence the repeated reference in the criteria to women trying to conceive. 

On direct discrimination, Colton J concluded:

There is no entitlement to direct access to treatment until a medical fertility problem is indicated. The intention behind the IVF criteria is not to provide a publicly funded surrogacy service for anyone, whatever their sex or sexual orientation. 

On indirect discrimination, Colton J concluded:

…that the respondents can readily demonstrate that the practice under the criteria is justified and/or proportionate. […]

The fact that in very limited circumstances a surrogate who has been voluntarily sterilised may receive publicly funded IVF treatment is justified on the basis that in such circumstances the couple seeking to conceive must have previously demonstrated a medical fertility issue.

Conclusion

There is no publicly funded surrogacy service in Northern Ireland.  

…a surrogacy arrangement should not be conflated with medical fertility treatment

This is regardless of an individual’s sex or sexual orientation.

Accordingly, the application was dismissed.  

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