Male couples seeking publicly-funded fertility treatment in Northern Ireland face unjustified barriers based on their gender and sexual orientation, the Court of Appeal has heard.
Counsel for two men denied access to the IVF help for starting a family claimed they have suffered unlawful discrimination.
Ronan Lavery KC contended: “Everything is being done to assist women to reproduce, and men are not treated in the same way”.
Judgment was reserved in the same-sex male couple’s ongoing legal battle with health authorities over being refused the treatment in their attempt to have a child together.
They had arranged with a female friend who previously underwent voluntary sterilisation acting as a host surrogate for them.
Those plans involved a donor egg from another woman being fertilised with sperm from one of the civil partners and then carried through pregnancy.
Under current eligibility criteria, however, publicly-funded IVF treatment is not available to anyone who has undergone voluntary sterilisation.
The couple mounted a legal challenge against the Department of Health, Belfast Health and Social Care Trust, and the Health and Social Care Board.
In 2022, the High Court dismissed their initial application for judicial review.
Based on revised criteria, a judge held there is no entitlement to direct access to the treatment because neither of the men have any medical fertility issues.
Seeking to overturn that verdict, Mr Lavery claimed the Regional Fertility Clinic (RFC) in Belfast was focused on providing services to women.
Revised criteria for the publicly-funded IVF has only opened the door to all-female couples, he told the three appeal judges.
“This is a case about there being no equivalent provision for men to assist them with reproduction. That is a straight gender discrimination case,” the barrister argued.
“Also, it is a straightforward sexual orientation case because they cannot avail of these facilities because they are gay and do not find themselves in a relationship with a woman.”
Lord Justice Treacy, Lord Justice Horner and Mr Justice Scoffield heard that the men taking legal action could not get a GP referral to the facility.
They were also told the couple have identified a potential new surrogate willing to have one of their frozen embryos implanted in a private arrangement.
“She hasn’t been sterilised,” Mr Lavery confirmed.
During submissions it was put to him that a man in a same-sex relationship who was infertile but planned to use a surrogate would be eligible for the IVF assistance.
“It demonstrates that under the scheme in order to qualify for publicly funded treatment there has to be an underlying medical fertility problem,” Lord Justice Treacy pointed out.
But Mr Lavery maintained that men with some access to the services could still face indirect discrimination.
“What we say is that this is a service for women,” he insisted.
Tony McGleenan KC, responding for the department, rejected any alleged discrimination or difference in treatment.
“Voluntary sterilisation, save for circumstances discussed, will result in ineligibility for funded treatment,” he stressed.
The court heard that even if it was more difficult for the applicants to obtain IVF, the policy is applied equally and can be justified.
Mr McGleenan added: “It’s not difficult to justify non-provision of that in this sort of case.
“The numbers that will end up where there is a clinically-warranted surrogacy arrangement using a donor egg must be vanishingly small in reality. The possibility is there, but that is all that matters, and it is there across the board.”
Following closing submissions the judges pledged to deliver their ruling as soon as possible.
Lord Justice Treacy said: “Obviously there is a lot of material that the court has to consider”.