Changes to NHS fertility policy anticipated after discrimination claim withdrawn

Published 10 August 2023

It has been reported that Whitney and Megan Bacon-Evans have formally withdrawn their case in the High Court against NHS Frimley ICB after it agreed to introduce a new policy which "intends to tackle inequality faced by same-sex female couple in accessing NHS funding for fertility treatment."

In what would have been a significant test for NHS fertility treatment policy, the judicial review application alleged that the ICB's policy on fertility treatment was discriminatory under the Equality Act 2010 and articles 8 and 14 of the European Convention on Human Rights.   The couple's case centred on a policy which required female same-sex couples to pay for 12 rounds of fertility treatment, including six intrauterine inseminations (IUIs) in a private clinic, which the couple said would cost between £25,000 to £30,000, to demonstrate "infertility" before being eligible for NHS-funded IVF.   The couple argued this was discriminatory in comparison with heterosexual couples, who were required to demonstrate infertility by reporting to doctors that they had been trying to conceive for 2 years.  

The Court agreed to delay a decision at the request of Frimley ICB to allow time for the policy to be reconsidered.  Following a two year review the ICB agreed to introduce a new policy with the intention of dropping the distinction between heterosexual and same-sex couples.   It is unclear what the policy may look like with a public consultation due to be held in November 2023. 

Frimley ICB's decision follows a recent government pledge, part of the Women's Health Strategy for England, to remove requirements for female same-sex female couples to self-fund fertility treatment before becoming eligible for NHS funded care.  The Department of Health and Social Care has said it hopes to see this implemented by the end of 2023 but given that policy is set at ICB level it is highly unlikely we will see universal change this year with the government confirming in July 2023 that NHS England were in the process of developing advice to assist ICB's in delivering this policy.   However, the case against Frimley ICB reflects a wider momentum for change and many ICBs will be closely watching the outcome of the November consultation with a view to considering their own policies.