Amongst the issues in the in-tray of CCGs, the issue of funding for assisted conception (typically either intrauterine insemination or IVF) for lesbian couples is not highest on the agenda, but it is an interesting and difficult problem, and different PCTs came up with different solutions. The problem is easy to state, but is a touch harder to solve. Should the NHS fund assisted conception services to allow one of a lesbian couple to have a child with sperm donated by a male friend (or possibly anonymously donated)? I suspect that if the public were asked for their views, funding for this treatment would get a definitive thumbs down. CCGs are required to consider the public’s views when setting priorities under section 242 of the National Health Service Act, but the outcome of public engagement does not bind a CCG. If NHS commissioning was driven solely by public consultation outcomes then no popular local hospital would ever be scaled back and no money would ever have been spent by a PCT on prison health. There are other factors that must be considered, including the need to tackle health inequalities, and the need to ensure that services are not refused on a discriminatory basis.
The recent NICE Guidance on fertility treatment, published in February 2013, explains in the small print that it was produced after public consultation; but the results of that consultation are not set out in the document. My own experience is that when the public are asked about the priority to be given to assisted fertility treatments, the public rank it fairly low down the list and a long way behind primary care, A & E, and cancer drugs. NICE Guidance does, of course, tend to be produced by a committee of those with expertise in a field. However the experts also tend to be those who are committed to the importance of whatever treatment is under consideration. NICE Guidance on fertility treatment is not produced by those who would prefer NHS money to spent on other areas of healthcare.
NHS commissioners, as a whole, mostly failed to fund IVF treatment in accordance with the 2004 NICE Guidance, which broadly recommended three cycles of IVF for women up to the age of 40. However the widespread absence of previous compliance with its guidance did not deter the enthusiasts. The 2013 guidance, which is still non-binding (because it is not a Technology Assessment Guidance) recommends women up to the age of 42 should have access to funding for IVF treatment. Let’s sound a note of realism. The Court of Appeal in Condliff v North Staffordshire PCT accepted that a PCT was acting lawfully even though it had adopted a policy which departed from NICE Guidance. The policy was lawful because the PCT considered that the NICE Guidance did not accord with its locally devised priorities, and therefore it made its own decisions about treatment priorities, as expressed in its policy. With shrinking budgets and greater demands every year, it seems unlikely that many CCGs will think that now is a good time to divert money from other priorities to fund increased access to deliver more assisted fertility treatment. So the prospects of increased funding for IVF for straight couples do not seem promising.
But back to NHS funding for fertility treatment for lesbian couples. One argument is that lesbians should be treated in exactly the same way as straight couples who are unable to conceive a child. That approach, so it is argued, would mean that lesbians are not discriminated against and thus would discharge the duties of the CCG under the Equality Act 2010. A lesbian couple cannot achieve a natural pregnancy and thus, so the case goes, the NHS should be made available to assist them in the same way as the NHS assists heterosexual couples who cannot have a child.
I have considerable sympathy for that approach, but perhaps it is more complex because lesbianism is not a medical condition. Thus the comparison with straight couples who cannot conceive may not be a true comparison. Straight couples are provided with NHS funded assisted conception services because there is (or is assumed to be) a medical problem with the man or the woman (or both) which prevents the couple conceiving naturally. I knew of one case where this was not right because the man was in prison and so sex was not a possibility, but there funding was refused (somewhat artificially), because the couple could not show two years of unsuccessful attempts. Hence, applying the same criteria as the PCT applied to everyone else, funding was refused.
The “two years of unsuccessful attempts” criterion is fairly meaningless for a lesbian couple and so logically ought to be waived. But the reason that most PCTs had this criterion was that this was a proxy for demonstrating a medical problem with natural conception. Whilst a lesbian may also have a theoretical medical difficulty with natural conception, that is not generally the reason that the couple seek NHS funding for assisted conception. Thus the problem could be stated as to whether it is appropriate to provide NHS funding for a medical procedure when there is no medical problem that needs to be solved. It is not necessarily unethical to provide medical treatment in the absence of a medical problem—as is shown by the cosmetic surgery industry.
But, even if providing medical care where there is no underlying medical condition which needs treatment may be ethical, such procedures are rarely treated as a priority for NHS funding. I am not coming down on either side of this argument—because as a man it is probably not a good idea for me to do so—but I can see forcible arguments both for and against such funding and thus I suspect the debate will continue.
David Lock is a barrister and QC, No5 chambers. He is a board member of of Brook Sexual Health, a member of the BMA Ethics Committee, and a Honorary Professor at University of Birmingham.
Competing interests: I am a member of the Labour Party and Chair the West Midlands Branch of the Labour Finance and Industry Group. I am due to become a non-executive Board Member of Heart of England NHS Foundation Trust which is due to commence on 1 June 2013. My wife is a doctor who is employed by Worcestershire Partnership NHS Trust.