Discrimination when accessing fertility treatment
You mustn’t be discriminated against when you access fertility treatment.
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 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. There are national guidelines by NICE which make recommendations on who should be eligible. But the guidelines are applied differently depending on where you live by the local health boards.
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?
It’s only discrimination if you’re treated unfairly because of:
- gender reassignment
- pregnancy and maternity
- religion or belief
- 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 the local 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.
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 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.
The Standards for Health Services in Wales
Some of your rights as an NHS patient are set out in these standards.The standards say you shouldn't be discriminated against by NHS staff and that they must be treat you with dignity and respect your human rights. If you've been treated unfairly by the NHS you can use the standards to make a complaint.
- You can see the standards, at www.nhswalesgovernance.com
- Taking action about discrimination in health and care services
- Identifying discrimination
- What are the different types of discrimination?
Other useful information
- NHS Direct Wales information on IVF at www.nhsdirect.wales
- NHS Direct Wales information on artificial insemination at www.nhsdirect.wales
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)
- You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com