• CCG required same sex couple to self-fund IUI before being considered for IVF funding
  • Lawyer says heterosexual couples did not have to go through similar process so there was inequality in treatment
  • Judicial review could be a step couples take against commissioners, solicitor warns

Clinical commissioning groups that require same sex couples to self-fund intrauterine insemination before they can be considered for IVF funding have been warned they could face judicial reviews.

Requiring same sex couples to go through this additional hurdle before accessing IVF could amount to unlawful discrimination, solicitor Rosa Curling, from Leigh Day, said. Nearly 100 CCGs are thought to require IUI as “proof” of infertility – in some cases requiring same sex couples to pay for as many as 12 cycles before they will be considered for IVF.

Barnsley CCG has recently agreed to fund IVF for two clients of Ms Curling’s, who had already tried to conceive at home and then paid for three IUI cycles. The CCG, which normally requires same sex couples to undergo six self-funded cycles, agreed to fund IVF after a pre-action letter was sent to it, setting out the intention to go to judicial review.

Laura Hineson and Rachel Morgan spent 18 months trying to conceive before they went to Sheffield Fertility Centre for treatment. When this was unsuccessful, their consultant made an individual funding request to Barnsley CCG to fund IVF. This was refused by the CCG, which said the couple had to undergo another three cycles – at a cost of £1,000 per cycle – before they would be eligible for IVF funding.

Ms Curling said heterosexual couples did not have to go through a similar process and therefore there was an inequality in treatment between the two groups that would affect the time taken to conceive and cost. She said: “It was clear to us that Laura and Rachel had faced direct discrimination due to their sexuality. We are pleased that the CCG finally recognised this. My view is that it is a discriminatory practice to insist on the self-funded IUI.”

Ms Curling said although the case did not formally set a precedent, she hoped other CCGs would take note. “If we had other clients whose CCG refused to settle [judicial review] is the step we would take,” she said.

A CCG spokesman said: “Like most CCGs, Barnsley adopts common policies across a wider geographical area, in this case Yorkshire and the Humber, and where there is a view that there is clinical exceptionality this is determined by the process of individual funding requests. After looking into the specifics of Laura and Rachel’s case, the CCG has agreed IVF funding for the couple. We wish them well and hope the treatment is successful.”

The CCG would not comment on why the couple were “clinically exceptional” but confirmed its assisted conception policy had been under review since early last year.

Nearly 100 CCGs that responded to a survey by campaign group Fertility Fairness earlier this year said they only offered IVF to same sex couples after they had gone through self-funded IUI.

HSJ reported last month that some CCGs also have policies of not funding IVF using donated genetic material – which automatically excludes same sex couples. One CCG, Milton Keynes, had a blanket policy of not offering any assisted conception to same sex couples, though this is under review.