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Discrimination when accessing fertility treatment

This advice applies to Scotland

You mustn’t be discriminated against when you want to have fertility treatment. If you've experienced unlawful discrimination, you may be able to do something about it.

Read this page to find out more about discrimination when accessing fertility treatment.

What's meant by fertility treatment?

Fertility treatment can help you get pregnant if you're having problems conceiving naturally.

There are different types of fertility treatment. Some involve the prescription of medicines. In other situations you may need assisted conception treatments. In-vitro fertilisation or IVF and artificial insemination or IUI are both assisted conception treatments. This is where either a fertilised egg or sperm is inserted into a woman's womb.

Who can get free NHS fertility treatment?

Because of the lack of NHS resources, fertility treatments like IVF and IUI are only available in certain situations. It is your local NHS Health Board which decides if you can get fertility treatment.

It’s not unlawful for the NHS to restrict free fertility treatment using a set of rules. But the rules mustn’t be based on prejudice or assumptions about certain groups of people - for example, your ability to care for children if you’re disabled. This is likely to be unlawful discrimination.

Have you been discriminated against?

The law which says you mustn’t be discriminated against is called the Equality Act 2010. Discrimination which is against the Equality Act is unlawful. This means you can take action in the civil courts.

If you think you've been discriminated against when accessing fertility treatment, you should check whether the discrimination is unlawful.

You can follow these steps to check whether unlawful discrimination has taken place:

  • why you are being treated unfairly - unfair treatment only counts as unlawful discrimination if it's for certain reasons
  • who is treating you unfairly - unfair treatment only counts as unlawful discrimination if it's carried out by certain people
  • what kind of behaviour has taken place - only certain types of unfair treatment count as unlawful discrimination
  • how is the treatment unfair - you need to identify what kind of discrimination the unfair treatment could be.

Why are you being treated unfairly?

Remember, it’s only unlawful discrimination if you’re treated unfairly because of one of these things:

  • age
  • disability
  • gender reassignment
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

The Equality Act calls these things protected characteristics.

Who’s treating you unfairly?

All healthcare providers have a duty not to discriminate against you. This includes medical staff, such as consultants, doctors and nurses. It also includes non-medical staff, like receptionists. Organisations like local NHS Health Boards which decide who can get fertility treatment, are also covered by the Equality Act.

Examples of unlawful discrimination when you want to get fertility treatment

Your doctor or fertility clinic says you can't get fertility treatment

If you’ve been refused fertility treatment because of a protected characteristic, this is direct discrimination under the Equality Act. Direct discrimination is where you're being treated differently and worse than someone else because of who you are.

Example

Your local Health Board has a rule saying only couples in a stable relationship can get fertility treatment. You’re lesbian and have been refused NHS treatment because the fertility clinic thinks lesbian women can’t be in a stable relationship. This is direct discrimination because of your sexual orientation.

You're disabled and you've been refused fertility treatment

If you're refused fertility treatment because you’re disabled or because of assumptions about your ability to be pregnant or to care for a child, this is likely to be direct disability discrimination. However, if you're refused fertility treatment for medical reasons - for example, if you have a condition which would get worse if you were pregnant, it's not unlawful discrimination.

The NHS and private healthcare providers must also make sure they remove any barriers you may face in accessing fertility treatment when you're disabled, if it’s reasonable to do so - for example, by providing information in Braille or large print. This is called the duty to make reasonable adjustments.

You can ask your healthcare provider to make the necessary changes so you can access or use their services. If a healthcare provider refuses to do this, it’s discrimination and you can take action under the Equality Act.

If you’ve been refused NHS fertility treatment because you’re not married

Being unmarried is not a protected characteristic under the Equality Act. But, if your local health board has a rule saying unmarried women can’t get fertility treatment, it could be indirect discrimination because of sexual orientation.

Indirect discrimination is where a healthcare provider has a rule which applies to all it’s patients in the same way, but it has a worse effect on some people than others.

Taking action

If you’ve been discriminated against you can take action under the Equality Act. You can make a complaint or if necessary you can make a discrimination claim in court.

Challenging a blanket ban on NHS fertility treatment for lesbian or unmarried women

Because a NHS Health Board is a public authority, you may be able to use human rights law or the public sector equality duty to strengthen your case or to make a separate claim if you’ve been refused NHS fertility treatment.

Charter of Patient Rights and Responsibilities

Some of your rights as an NHS patient are set out in this charter. This includes the right to choose and register with a GP. It also explains that you should not be discriminated against by NHS staff and must be treated with dignity and respect for your human rights.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

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