Male couples in Northern Ireland seeking publicly-funded fertility treatment face significant barriers based on gender and sexual orientation, the Court of Appeal has heard. The case concerns two men who were denied access to IVF services and are now challenging this decision in court, claiming unlawful discrimination.
During the hearing, Ronan Lavery KC, representing the couple, argued that while significant efforts are being made to assist women with reproductive services, men are not provided with the same treatment options. He contended that the current system unjustly limits access to fertility services for same-sex male couples.
The couple had arranged for a female friend, who had previously undergone voluntary sterilisation, to act as a host surrogate. They intended to fertilize a donor egg with sperm from one of the men, which would then be carried by the surrogate. However, under the current eligibility criteria, IVF treatment is not available to anyone who has undergone voluntary sterilisation, which includes their surrogate.
In response, Lavery claimed that the public health services are focused primarily on women and that the revised criteria for accessing IVF only benefit female couples, leaving male couples with no equivalent support. This, he argued, amounted to gender discrimination and sexual orientation discrimination, as the couple’s inability to access the treatment stems from their sexual orientation and lack of a relationship with a woman.
The case initially went to the High Court in 2022, but their application for judicial review was dismissed. The High Court ruled that there was no entitlement to IVF because neither of the men had any medical fertility issues, which is a key requirement for publicly-funded IVF. The couple is now seeking to overturn that decision.
Mr. Lavery stressed that the policy in question was discriminatory because it disproportionately benefited women and failed to address the reproductive needs of men in same-sex relationships. He argued that although some men, like those with infertility issues, may be eligible for IVF, the system is still biased and does not accommodate gay couples seeking surrogacy.
Lord Justice Treacy, one of the judges hearing the case, pointed out that in order to qualify for publicly-funded treatment, there must be an underlying medical fertility problem. This raised questions about whether same-sex couples, even if they do not face infertility themselves, should be entitled to IVF services.
Tony McGleenan KC, representing the Department of Health, rejected the claims of discrimination, emphasizing that the IVF eligibility criteria were applied equally to all and could be justified. He explained that voluntary sterilisation typically results in ineligibility for funded treatment, and that the numbers of cases involving clinically-warranted surrogacy with a donor egg are exceedingly small. Despite this, he acknowledged that the possibility of surrogacy was still available to some extent for all couples, even though it may be difficult to access.
As the court deliberates the matter, it remains to be seen whether the judges will rule in favor of the male couple or uphold the existing IVF policies. Lord Justice Treacy indicated that there was substantial material to consider before delivering the final judgment. The case is significant not only for the couple involved but also for the broader conversation on equal access to fertility treatment for same-sex couples.
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