Medical Law Review, Vol. 23, No. 4, pp.

620–645
doi: 10.1093/medlaw/fwv031
Advance Access Publication: August 3, 2015

ACCESS OF SINGLE WOMEN TO

FERTILITY TREATMENT: A
CASE OF INCIDENTAL

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DISCRIMINATION?
ATINA KRAJEWSKA*†
Cardiff School of Law and Politics, Cardiff University, Law Building, Museum Avenue, CF10 3AX Cardiff, UK
*[email protected]

A B S T R AC T
The purpose of this article is to evaluate the extent to which single women have access to
publicly funded fertility treatment. It claims that, despite the fact that great progress has
been made in removing gender inequalities in the area of assisted reproduction in
England and Wales in recent years, there are points in the regulatory framework that still
allow for discrimination against single women. The article builds on recent studies con-
cerning the reforms brought about by the Human Fertilisation and Embryology Act 2008
(HFEA 2008). However, it focusses on publicly funded treatment, thus directing scholarly
attention away from the controversies over the amended s 13(5) HFEA 1990. It argues
that the primary reason for remaining inequalities can be traced back to (a) the limitations
of the current legislative framework; (b) the ambiguities inherent in the regulatory frame-
work, which in the context of publicly funded fertility treatment is determined by the
National Institute for Health and Care Excellence clinical guidelines and Clinical Com-
missioning Groups and Health Boards’ resource allocation policies; and (c) the remaining
confusion about the relationship between ‘welfare of the child’ assessments and eligibility
criteria in National Health Service rationing decisions. The article argues that the current
regulation does not go far enough in acknowledging the inability of single women to con-
ceive naturally, but at the same time that it struggles to address the fluidity of contempor-
ary familial relationships. The analysis presents an opportunity to contribute to debates
about the role of law in shaping the scope of reproductive autonomy, gender equality and
social justice.

† Special thanks to Dr Chee Ching Chan MBChB, Final Year LLB Student at Cardiff Law School (Email:
[email protected]) for his invaluable contribution to the literature review and data collection. His involve-
ment in the project was funded by the Cardiff University Research Opportunities Project (CUROP) scheme.
I would also like to thank both reviewers for their detailed and insightful suggestions which have been very
helpful as well as all my colleagues and friends at the Cardiff School of Law and Politics and at Exeter
University, as well as Chris Thornhill, for taking the time to read through different drafts of the paper.

© The Author 2015. Published by Oxford University Press; all rights reserved. For Permissions, please email: journals.
[email protected]
• 620
 Access of Single Women to Fertility Treatment • 621

I. I N TRODU CT IO N
The purpose of this article is to evaluate the legal position of single women in the
context of publicly funded fertility treatment in England and Wales. For the purposes of
this article, the term ‘single women’ refers to women without a partner receiving treat-
ment.1 The 2008 amendments to the Human Fertilisation and Embryology Act 1990
(HFEA 1990) aimed at bringing the Act in line with the fast-progressing advances in
reproductive medicine, the deep social changes affecting ‘traditional family’ structures
and the strengthening of human rights and anti-discrimination laws with regard to sex,
gender and sexual orientation.2 A series of amendments concerning the ‘welfare of the
child’ principle, parenthood, gamete donation and surrogacy aimed at securing access to

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services providing assisted reproduction techniques (ART)3 for same-sex couples and
single women. One of the most controversial debates involved the amendment of s 13
(5) HFEA 1990,4 replacing the ‘need for a father’ with the ‘need for supporting parent-
ing’ in the welfare of the child assessments. In order to align National Health Service
(NHS) practice with these changes and with advances in reproductive medicine, in
2013, National Institute for Health and Care Excellence (NICE) issued new fertility
guidelines.5 Two years later and almost 6 years after the relevant provisions of the
HFEA 2008 entered into force in October 2009, the issue remains highly controversial.
On the one hand, it has been generally accepted that the 2008 reforms have
removed all discriminatory provisions from the legislation.6 Others believe that the Act
has simply aligned the existing law with an already liberal medical practice and in this
respect it is a display of powerful yet merely symbolic imagery.7 Nevertheless, as the
number of NHS clinics providing fertility treatment to persons defined as ‘contextually’8
or ‘socially’9 infertile has been on the rise, media reports about the preferential

1 The term has not been defined by the Human Fertilisation and Embryology Authority, but the proposed
definition was adopted in its recent responses to FOI requests discussed later in the article.
2 Human Rights Act 1998, Adoption and Children Act 2002, Civil Partnership Act 2004 and later also the
Equality Act 2010.
3 Fertility treatment falls into three main types: (1) medical treatment, (2) surgical treatment and (3) ART,
which includes any treatment that deals with means of conception other than vaginal intercourse, such as
intrauterine insemination (IUI), intracytoplasmic sperm injection (ICSI) or in vitro fertilisation (IVF). It is
the third type of ART treatment that constitutes the main focus of this analysis.
4 Hansard Reports (HC Deb 12 May 2008, Vol. 475, Cols 1063–1171) <http://services.parliament.uk/
bills/2007-08/humanfertilisationandembryologyhl/stages.html>. All internet resources were accessed on
23 April 2015.
5 NICE, ‘CG156 Fertility: Assessment and treatment for people with fertility problems’ (London: National
Institute for Health and Care Excellence, 2013) <https://www.nice.org.uk/guidance/cg156/resources/
updated-nice-guidelines-revise-treatment-recommendations-for-people-with-fertility-problems>.
6 Secretary of State for Health, Post-Legislative Assessment of the Human Fertilisation and Embryology Act 2008
(Cm 8823) (London: DH, 2014). Also, Antony Blackburn-Starza, ‘UK Human Fertilisation and Embry-
ology Act Receives Royal Assent’, Bionews 484, 17 November 2008.
7 J McCandless and S Sheldon, ‘“No Father Required”? The Welfare Assessment in the Human Fertilisation
and Embryology Act 2008’ (2010) 18 Fem LS 201, 225, 219.
8 R Deech and A Smajdor, From IVF to Immortality: Controversy in the Era of Reproductive Technology
(Oxford University Press: Oxford, 2007), 172. Also, A Smajdor and D Cutas, ‘Will Artificial Gametes End
Infertility?’ (2015) 8 Health Care Anal 1, 14 <http://www.ncbi.nlm.nih.gov/pubmed/24293033>.
9 E Lee, J Macvarish and S Sheldon, ‘Assessing Child Welfare Under the Human Fertilisation and Embry-
ology Act 2008: A Case Study in Medicalisation?’ (2014) 36 Sociol Health Ill 500, 515, 510.
622 • MEDICAL LAW REVIEW

treatment of these patients over heterosexual couples have increased.10 This criticism of
NHS practices has been further supported by politicians across the political spectrum.11
On the other hand, the regulation and practice of fertility treatment seem far more
complex. Recent studies suggest that there is a divergence between attitudes towards
lesbian patients, who are perceived as ‘ideal patients’, and single female patients whose
abilities to become parents are often questioned.12 Nevertheless, to date, relatively little
attention has been paid specifically to the legal situation of single women in the context
of fertility treatment. Their reproductive rights are usually analysed as part of broader
investigations of the welfare of the child principle stipulated in s 13 (5) HFEA 1990 or
discussions of the rights of same-sex couples.13 This seems particularly unfortunate in

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light of data recently released by the Office of National Statistics, according to which
57% of conceptions that occurred in 2012 happened outside marriage or civil partner-
ship.14 The article aims to address this gap, setting out the following argument.
Despite the fact that great progress has been made in removing sex and gender
inequalities in the area of assisted reproduction in England and Wales in recent years,
there are junctures in the legislative and regulatory framework that still allow for discrim-
ination against single women in practice. The article builds on recent studies that reveal
continuing stigmatisation of single women stemming from traditional ideas about par-
enting enduring in the HFEA 2008.15 However, it extends such studies by evaluating
the broader legislative context comprising human rights and anti-discrimination laws
that fail to provide adequate protection to single women seeking fertility treatment.
Within this remit, the emphasis on publicly funded (NHS) treatment is important,
because it helps redirect scholarly attention away from well-established debates about

10 S Adams, S Rainey and M Beckford, ‘Single women being offered IVF on the NHS’, The Telegraph (24
October 2011) <http://www.telegraph.co.uk/women/womens-health/8844762/Single-women-being-
offered-IVF-on-the-NHS.html>.
11 Ibid.
12 Lee et al. (2014), n 9 above, 515.
13 M Stanworth, ‘Reproductive Technologies and the Deconstruction of Motherhood’ in M Stanworth (ed),
Reproductive Technologies: Gender, Motherhood and Medicine (Polity Press, Cambridge 1987), 10, 35;
D Cooper and D Herman ‘Getting “the Family Right”: Legislating Heterosexuality in Britain, 1986–1991’
(1991) 10 Can J Fam L 41, 78; S Millns, ‘Making Social Judgments That Go Beyond the Purely Medical:
The Reproductive Revolution and Access to Fertility Treatment Services’ in J Bridgeman and S Millns
(eds), Law and Body Politics: Regulating the Female Body (Aldershot, Dartmouth 1995), 79, 104. S Sheldon
‘Fragmenting Fatherhood: The Regulation of Reproductive Technologies’ (2005) 68 MLR 523, 553. C
Jones, Why Donor Insemination Requires Developments in Family Law: The Need for New Definitions of Par-
enthood (Edwin Mellen Press: New York, 2007); S Golombok and S Badger, ‘Children Raised in Mother-
Headed Families from Infancy: A Follow-Up of Children of Lesbian and Single Heterosexual Mothers, at
Early Adulthood’ (2010) 25 Hum Reprod 150, 157. R Harding, Regulating Sexuality: Legal Consciousness in
Lesbian and Gay Lives (Routledge: London, 2010).
14 In 2013, conceptions outside of a marriage/civil partnership accounted for 57% of all conceptions in
England and Wales, compared with 55% in 2003 and 45% in 1993. Although this data include informal
relationships as well as single women (single women do not feature as a separate category), it is fair to
assume that the number of conceptions in this group is also growing respectively. See Office for National
Statistics, ‘Conceptions in England and Wales 2012’ (Statistical Bulletin 24 February 2015) <http://www.
ons.gov.uk/ons/dcp171778_396674.pdf>.
15 J McCandless and S Sheldon, ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of
the Sexual Family Form’ (2010) 73 MLR 175, 207; E Lee, J Macvarish and S Sheldon ‘Assessing Child
Welfare Under the Human Fertilisation and Embryology Act: The New Law’ (2012) 19 Journal of Fertility
Counselling 20, 25.
 Access of Single Women to Fertility Treatment • 623

the welfare of the child principle,16 to the analysis of other, equally important, normative
factors determining access to fertility treatment for single women who cannot afford
private treatment. Arguably, these women constitute one of the most vulnerable groups
of patients in the area of assisted reproduction, because they usually have to face not
only their infertility, but also the lack of financial resources, alone. Furthermore, the pro-
blems concerning access to ART services become much more transparent in the
context of the NHS system, which is subject to acute financial pressures. In this respect,
it draws attention to the fact that the gaps in legislation are further exacerbated by the
jurisprudential reluctance to recognise the right to access fertility treatment in the
context of resource allocation decisions.

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Against this backdrop, the article proposes that the primary reason for remaining
inequalities can be traced back to the ambiguities inherent in the regulatory framework,
which in the context of publicly funded fertility treatment is determined by the NICE
clinical guidelines and Clinical Commissioning Groups (CCGs) and Health Boards’
resource allocation policies. It argues that the recent quest for equality and human rights
has paradoxically resulted in a ‘regulatory silence’ in the NICE fertility guidelines, which
overlook single women as a separate group of patients with their own specific needs. It
also suggests that the regulation does not go far enough in acknowledging single
women’s impossibility to conceive naturally, but at the same time that it struggles to
address the fluidity of contemporary familial relationships. Finally, the article highlights
the importance of persisting misconceptions about the relationship between ‘welfare of
the child’ assessments and eligibility criteria in the NHS for the rationing decisions
determining the access of single women to fertility treatment.
To elucidate the position of single women in this complex normative framework, the
article uses several strategies. The first is doctrinal in its nature, focussing on legal ana-
lysis of statutes and relevant case law concerning the rights of single women in the
context of fertility treatment. The second is a detailed examination of policy documents
that regulate access to publicly funded fertility treatment, in particular the NICE clinical
fertility guidelines. The third involves analysis of empirical data derived from three
sources: (a) statistics provided by governmental and non-governmental bodies, includ-
ing the Office for National Statistics and Fertility Fairness; (b) responses to freedom of
information (FOI) requests available on the HFEA website; and (c) a small pilot study
based on FOI requests concerning the provision of NHS-funded ART services for
single women, the details of which are provided later in the article. This combination of
approaches provides a wealth of information supporting the argument presented in this
article and gives insight into this underexplored area of law and medical practice. The
article takes forward the recent studies concerning the HFEA 2008 amendments; con-
tributes to debates about the role of law in shaping the scope of reproductive autonomy,
gender equality and social justice; and sets directions for future research enhancing the
understanding of reproductive rights of single women in contemporary society.

16 G Douglas, ‘Assisted Reproduction and the Welfare of the Child’ (1993) CLP 46, 53–74, 53; S Golombok,
‘New Families, Old Values: Considerations Regarding the Welfare of the Child’ (1998) 13 Hum Reprod
104, 109; E Jackson, ‘Conception and the Irrelevance of the Welfare Principle’ (2002) 65 MLR 176, 203;
E Jackson, ‘Re-thinking the Pre-conception Welfare Principle’ in K Horsey and H Biggs (eds), Human Fer-
tilisation and Embryology: Reproducing Regulation (Routledge Cavendish, London, New York, 2007), 47, 67.
624 • MEDICAL LAW REVIEW

I I. R IG HT S OF S IN G L E WO M E N I N T H E CO N T E X T O F F E R T I L ITY
TR EATMENT – LE GI SLATI VE FR A M EWO RK
A. The Right to Access Fertility Treatment
The access of single women to fertility treatment is determined by the HFEA 1990, as
amended by the HFEA 2008, which regulates the provision of assisted reproduction ser-
vices in the UK. Despite common misconceptions, empirical and theoretical studies
have often pointed out that the original HFEA 1990 contained no explicit statutory pro-
hibition of fertility treatment of any competent patients.17 Therefore, single, lesbian or
older women were all able to lawfully receive ART services even prior to the 2008

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amendments. At the same time, however, it has been convincingly argued that, until the
reform of 2008, there was a presumption against their treatment. The presumption was
inextricably linked with the ‘welfare of the child’ principle set out in s 13 (5) HFEA
1990, which required fertility clinics to consider the ‘need for a father’ when considering
patients for treatment.18 As demonstrated in early parliamentary debates about the
HFEA 1990, there was a clear expectation that fertility clinics were to discourage
women who did not have a male partner from seeking assisted reproduction services.19
After the adoption of the Act in 1990, the Conservative Government at the time contin-
ued to pursue an agenda based on the promotion of traditional family values, reflecting
widespread beliefs about the correlation between lone parenthood and social and eco-
nomic problems. Initially, the HFEA drew heavily on the government’s emphasis on
parenting competence and the suitability of those seeking assisted conception ser-
vices.20 It was impossible to deny that the original text of s 13(5) invited an interpret-
ation tilted towards a refusal of single motherhood and a desire to link women to men
to form what Martha Fineman called the ‘sexual family’.21 Despite a gradual shift
towards an increasingly liberal interpretation of the HFEA 1990 developed by the
HFEA at the start of the new millennium,22 which meant that fertility clinics rarely
refused treatment of same-sex couples and single women on the ‘welfare of the child’

17 The article provides a comprehensive summary of the recent developments of the Welfare of the Child
principle. See above McCandless and Sheldon (2010), n 7. See also E Blyth, V Burr and A Farrand,
‘Welfare of the Child Assessments in Assisted Conception: A Social Constructionist Perspective’ (2008)
26 J Reprod Infant Psychol 31, 43.
18 Human Fertilisation and Embryology Authority 1990, Ch. 37, 1 November 1990 and Human Fertilisation
and Embryology Authority 2008, Ch. 22, 13 November 2008.
19 Lord Ashbourne, HL Debs, Vol. 515, Col. 767 (6 February 1990), David Wilshire, HC Debs, Vol. 174,
Cols 1024–1025 (20 June 1990). Also, Lord Mackay explicitly stated that ‘there is a likelihood that through
counselling and discussion with those responsible for treatment [women without a male partner] may be
dissuaded from having children once they have fully considered the implications of the environment into
which their child would be born or its future welfare’. See Lord Mackay (Lord Chancellor), Official
Report. House of Lords, 6 March 1990, para. 1098.
20 Paras 3.13–3.16 of the HFEA’s Code of Practice had remained virtually unchanged between 1992 and
2003. HFEA Code of Practice (HFEA: London, 1st–5th edn., 1991, 1993, 1995, 1998, 2001, 2003).
21 M Fineman, The Neutered Mother, the Sexual Family and Other Twentieth Century Tragedies (Routledge:
New York, 1995).
22 The sixth edition of the HFEA Code of Practice, published in 2003, stipulated that in situations when
there is no legal father, clinics were required to assess the prospective mother’s ability, and that of others in
the family or social circle who will share responsibility for the child, to meet the child’s needs. Although
the provision had not specifically stipulated treatment of gay and single women, it had in fact allowed for
such cases to be considered by IVF clinics. See HFEA Code of Practice, London 2003–2006, para. 3.14.
 Access of Single Women to Fertility Treatment • 625

grounds, proponents of changes highlighted the need to remove from the HFEA 1990
any in-built discrimination that placed an additional hurdle before some people because
of their sexual orientation or relationship status.23 According to those supporting the
2008 amendments, the argument was ‘about individuals having the right to be considered
objectively for IVF treatment’.24 There was a clear concern that unjustified distinctions
between gay and heterosexual or married and unmarried couples would constitute a
breach of the right to respect for private life without discrimination [as protected by Arti-
cles 8 and 14 European Convention on Human Rights (ECHR)]. Therefore, the removal
of the gender-specific reference to the ‘need for a father’ was considered a human rights
enhancing measure.25 It is worth noting that at the early stages of the HFE reform

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process, the need to protect single women seeking fertility treatment featured quite
strongly in the debates. The Royal College of Obstetricians and Gynaecologists (RCOG)
argued that the requirement for a father discriminated against single women ‘who may
have the financial and emotional facilities to cope with a child on their own or with other
support systems, who may need to use donor insemination to conceive safely’.26 The
then Labour Government followed this reasoning. Emphasising that patients’ safety could
be compromised if some groups of women were encouraged to seek treatment privately,27
it decided to support changes that, after heated debates,28 replaced the ‘need for a father’
with ‘the need for supporting parenting’ in s 13 (5). The new 2009 Code of Practice
defined supportive parenting as ‘a commitment to the health, well-being and develop-
ment of the child’29 and contained a clear presumption against detailed welfare of the
child assessment. It provided that—‘in the absence of any reasonable cause for concern
that any child who may be born, or any other child, may be at risk of significant harm or
neglect’—all prospective parents should be viewed as supportive parents and that ‘where
centres have concern as to whether this commitment exists, they may wish to take
account of wider family and social networks within which the child will be raised’.30

23 E Blyth, ‘The United Kingdom’s Human Fertilisation and Embryology Act 1990 and the Welfare of the
Child: A Critique’ (1995) 9 Int’l J. Children’s Rts 417, 438. See also Blyth et al. (2008) above, n 17;
Jackson (2007) n 16 above; and L Saffron, ‘Minutes of Evidence Taken Before the House of Commons
Science and Technology Select Committee: Human Reproductive Technologies and the Law’ in Human
Reproductive Technologies and the Law. Vol. II: Oral and Written Evidence (House of Commons Science and
Technology Committee, London, Fifth Report of Session 2004–05, 2005) <http://www.publications.
parliament.uk/pa/cm200405/cmselect/cmsctech/7/7ii.pdf>.
24 Norman Lamb, HC Deb, 12 May 2008, Vol. 475, Col. 1090 <http://services.parliament.uk/bills/2007-08/
humanfertilisationandembryologyhl/stages.html>.
25 ‘Joint House of Lords and House of Commons Committee on Human Rights—fifteenth report, Part 4:
Human fertilisation and embryology bill’ (18 March 2008, para. 4.17) <http://www.publications.
parliament.uk/pa/jt200708/jtselect/jtrights/81/8107.htm#note170>.
26 House of Commons Science and Technology Committee. Human Reproductive Technologies and the Law
(London: HMSO, Vol. I, para. 99, Fifth report of session 2004–2005, HC papers 7-I and 7-II); See also
Joint Committee 2007 House of Lords, House of Commons Joint Committee on the Human Tissue and
Embryos (Draft) Bill, Vol. I: Report (London: HMSO, para. 243, Session 2006–2007, HL paper 169-I,
HC paper 630-II).
27 Department of Health, Review of the Human Fertilisation and Embryology Act: Proposals for Revised
Legislation (Cm 6989) (London: HMSO, 2006). The term ‘private treatment’ meant self-arranged door
insemination, rather than privately funded treatment.
28 Hansard Reports (n 4) above.
29 HFEA, 8th Code of Practice (London: HFEA, 2009), para 8.11
30 Ibid.
626 • MEDICAL LAW REVIEW

Regrettably, the impact of these legislative and regulatory changes on the access of
single women to fertility treatment in general has so far been rather ambivalent. A post-
legislative assessment of the HFEA 2008 published by the Government in March 2014
found compliance with the revised requirement of supportive parenting irrespective of
the sex of the parents.31 These findings have been partly corroborated by the most
recent and relevant study evaluating the implementation of the HFEA 2008 and the
operation of s 13(5) in clinical practice, conducted by Ellie Lee, Jan Macvarish and Sally
Sheldon. Their research confirmed that the changes introduced by the HFEA 2008 had
little impact on the provision of fertility services.32 Before as well as after the reform,
women denied treatment in one clinic were able to access it elsewhere in the country.

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Differences in patient experience and the potential for discrimination have been
reduced due to common procedures for welfare of the child assessments established by
the HFEA (before and after 2008).
At the same time, however, Lee et al.’s analysis identified areas where the operationali-
sation of the principle is still problematic. Although no evidence was found of general
‘group discrimination’ based on sexuality or relationship status, the study found ‘bifurca-
tion’ in attitudes towards lesbian patients, and single female patients. Interviews with fertil-
ity counsellors revealed peculiar prejudice and an interesting hierarchy between different
groups of patients. While lesbian couples are perceived as ‘ideal patients’ and the best
parents, better than heterosexual couples, the treatment of single women was commonly
more contentious. Their ability to access fertility treatment was sometimes perceived as
problematic in regard to their motivations for having a child, their ability to provide for it
and the strength of their support networks.33 Because single women are seen as struggling
individuals emotionally unable to commit to a stable relationship, they, occasionally, seem
to be subject to additional assessment aiming to establish the existence of sufficient family
and friend support systems.34 These attitudes might stem from the fact that, as argued by
McCandless and Sheldon with regard to the HFEA 2008, ‘the sexual family ideal has
retained a significant hold . . . [which] can be seen in: the ongoing significance of the for-
mally recognised adult couple; law’s continued adherence to a two-parent model; what
we describe as ‘parental dimorphism’ (which, within the two-parent model, allows only
for one mother plus one father or female parent); and the notion that the couple must be
(at least potentially) in a sexual relationship’.35 The acceptance of the notion that the
child has two—and only two—‘real’ parents has proved a somewhat unifying article of
faith for the Act 2008. Although not specifically excluded, single parenthood may prove
just as objectionable as more than two-parent parenthood, given the expectations laid out
by the current legal parenthood provisions.36 Therefore, it is fair to conclude that despite
celebrated legislative reforms and considerable changes in medical practice, single women

31 Secretary of State for Health, Post-legislative Assessment of the Human Fertilisation and Embryology Act
2008 (Cm 8823, March 2014), para. 30.
32 Lee et al. (2014), n 9 above; Lee et al. (2012), n 15 above.
33 Lee et al. (2012), n 15.
34 Lee et al. (2014), n 9 above.
35 McCandless and Sheldon (2010), n 15 above, 188.
36 J McCandless, ‘Cinderella and Her Cruel Sisters: Parenthood, Welfare and Gender in the Human Fertilisa-
tion and Embryology Act 2008’ (2013) 32 New Genet Soc 135, 153, 147.
 Access of Single Women to Fertility Treatment • 627

are still denied equal treatment in comparison with other groups of patients seeking
access to ART services and were discrimination to occur, they would enjoy a lower level
of protection. This disparity is exacerbated and particularly visible in the context of publicly
funded fertility treatment.37

B. The Right to Publicly Funded Fertility Treatment

The HFEA 1990 does not distinguish between privately and publicly funded treatments.
In fact, the issue of funding remains entirely beyond the scope of the Act and the regula-
tory powers of the HFEA, leaving open the question of whether single women have a
right to NHS-funded fertility treatment. The answer to this question, which concerns

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resource allocation in healthcare, is determined by the Government, the NHS and its
arms-length bodies, whose decisions are scrutinised by courts. It is well known that the
English judiciary has historically been very reluctant to intervene in decisions that
involve rationing in the NHS. They have confirmed on many occasions that the duty to
provide treatment is not absolute. As noted by Lord Bingham ‘in a perfect world any
treatment which a patient . . . sought would be provided if doctors were willing to give
it, no matter how much it costs’ but that would mean ‘shutting one’s eyes to the real
world’.38 The statutory duty under the NHS Act 2006 is not to provide, but to promote
a comprehensive health service.39 This duty is considered to be very far from a duty to
ensure that the service was comprehensive that may never, for human, financial and
other resource reasons, be achievable.40 Therefore, as long as the Secretary of State for
Health (and bodies with delegated powers) pays ‘due regard’ to this obligation, the
incomprehensiveness of the services provided will not be tantamount to illegality,41
which, along with irrationality and procedural impropriety, could be seen as continuing
Wednesbury grounds for judicial review.42 Additionally, because the NHS Act 2006 does
not foresee any penalty or sanction for breach of duties stipulated in the Act, the courts
have accepted that there is no cause of action for any member of the public affected by
such breach.43 Furthermore, even in most severe cases concerning life-saving treat-
ment,44 cancer treatment45 or artificial nutrition and hydration,46 the courts usually
refrain from interfering with rationing decisions taken by healthcare professionals.
Finally, as the Human Rights Act 1998 had remarkably little impact on the provision of

37 For a detailed discussion see McCandless and Sheldon (2010), n 16 above. See also E Blyth, ‘Conceptions
of Welfare’ in K Horsey and H Biggs (2007), n 16 above; Blyth et al. (2008), n 17 above.
38 R v Cambridge Health Authority, ex p B (a minor) [1995] EWCA Civ 49.
39 According to s 3 of the NHS Act 2006, the Secretary of State for Health has a duty to provide health-care
services to patients to such extent as he considers necessary to meet all reasonable requirements.
40 R v North and East Devon Health Authority, ex p Coughlan [2000] 2 WLR 622.
41 Ibid.
42 K Syrett, Law, Legitimacy and the Rationing of Health Care (Cambridge University Press: Cambridge,
2007), 166, 167.
43 Re HIV Hemophiliac Litigation (1990) 41 BMLR 171.
44 R v Cambridge Health Authority, ex p B (a minor) [1995] EWCA Civ 49, R v Central Birmingham Health
Authority; ex p Collier (unreported, Court of Appeal, 6 January 1988).
45 R v North Derbyshire HA ex p Fisher [1997] 8. Med LR 327.
46 R v General Medical Council & Ors, ex p Burke [2005] EWCA Civ 1003.
628 • MEDICAL LAW REVIEW

health services in the UK, the courts will remain unwilling to bring human rights law
into such cases unless a decision is clearly irrational.47 In short, courts will not intervene
except in the most serious of cases of human rights violations. Consequently, it is gener-
ally accepted that there will always be types of medical care which the NHS will offer
free of charge only in very exceptional circumstances, including counselling, psychother-
apy, dental treatment, optometry and last but not least assisted reproduction, which
used to be seen more as a ‘lifestyle enhancement’ rather than a treatment of a medical
condition.48 Therefore, there is very little support for a justiciable right to publicly
funded fertility treatment in English law.
Similarly, little support will come from the European Court of Human Rights

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(ECtHR), which considers healthcare funding to fall almost entirely within a state’s
margin of appreciation. Admittedly, a broad right to reproductive autonomy derived
from Articles 8 (right to private life), 12 (right to family) and/or 14 (non-
discrimination) of the ECHR is well established in the jurisprudence of the ECtHR.49
Its justification, existence and scope have been discussed extensively in the literature.50
The right entails reproductive freedom as a negative personal right to either have or
avoid having children (free from state’s intervention). For some women, it often
cannot be realised unless they have the necessary means to access all available treat-
ments for infertility.51 Nevertheless, the corresponding state obligation to protect
these rights does not automatically encompass a duty to fund assisted reproduction
services. For, it is one thing to allow and guarantee a safe use of a new technology; it
is another to fund all requested treatment. It seems inevitable that the needs of some
patients will remain unsatisfied. The Strasbourg Court has been particularly wary of
attempts to establish a positive obligation under Article 8 in the area of the provision
of state benefits. It has repeatedly argued that questions about how much money
should be allocated by the state on competing areas of public expenditure, and how

47 L Riley, ‘Access to NHS-Funded IVF Treatment in England and Wales’ in K Horsey (2007), n 16 above,
83–108, 101–104.
48 S Redmayne and R Klein, ‘Rationing in Practice: The Case of In Vitro Fertilisation’ (1993) 3306 BMJ
1521; A Plomer, I Smith and N Martin-Clement, ‘Rationing Policies on Access to In Vitro Fertilisation in
the NHS, UK’ (1999) 7 Reprod. Health Matters 60, 70.
49 Evans v UK [2008], Dickson v UK [2007], Vo v France (Application No. 53924/00) [2004] 40 EHRR 12,
RR v Poland (Application No. 27617/04) [2011] 53 EHRR 31.
50 MA Warren, ‘Does Distributive Justice Require Universal Access to Assisted Reproduction?’ in R Rhodes,
BP Battin and A Silvers (eds), Medicine and Social Justice: Essays on the Distribution of Health Care (Oxford
University Press, New York 2002), 426, 437; J Harris, ‘Rights and Reproductive Choice’ in J Harris and S
Holm (eds), The Future of Human Reproduction: Ethics, Choice, and Regulation (Clarendon Press, Oxford,
1998), 5, 37; MM Peterson, ‘Assisted Reproductive Technologies and Equity of Access Issues’ (2005) 31 J
Med Ethics 280, 285.
51 It might be interesting to note that in Artavia Murillo et al. (‘In Vitro Fertilization’) v Costa Rica [2012]
(IACtHR, IVF Decision, 28 November 2012), the Inter-American Court of Human Rights, relying on the
Convention on the Rights of Persons with Disabilities 2006, concluded that infertility is a disability neces-
sitating access to treatment. The Court held that infertility as a medical condition constitutes a functional
limitation to those suffering from it and is a recognised medical infirmity therefore requiring infertile indi-
viduals to be protected under rights of disabled individuals, including access to techniques that could help
them overcome their condition.
 Access of Single Women to Fertility Treatment • 629

the sums allocated to each area should be applied, are perceived as matters that lie
essentially in the political domain.52

C. The Right Not to Be Discriminated Against in Accessing Publicly Funded

Fertility Treatment
As mentioned earlier, the HRA 1998 has been of little assistance to single women
seeking NHS-funded treatment on the basis of Articles 3, 8 or 12 ECHR. This assertion
extends to the protection offered by Article 14 ECHR, which stipulates the enjoyment
of convention rights without discrimination on any ground. The right cannot be
engaged because it only applies to ‘rights and freedoms set forth in the convention’ and

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no positive right to fertility treatment has been inferred from the ECHR.53 Further-
more, single women seeking assisted reproduction services would be precluded from
claiming discrimination under the Equality Act 2010.54 Although a detailed analysis of
equality legislation exceeds the scope of this article, a couple of comments are due. The
Act is based on the notion of ‘protected characteristics’, which include sex, sexual orien-
tation, marital status, as well as pregnancy and maternity. In order to establish a claim
on the basis of direct discrimination, a single woman who has not been granted fertility
treatment would be required to compare her less favourable treatment with a compara-
tor who is in materially similar circumstances. However, this is where problems occur.
Founding a claim on marital status would not be allowed, because the Act offers protec-
tion only to those married or in civil partnership (not to single persons). The same
obstacles would be encountered if the single woman sought comparison with pregnant
women, as it has been recently demonstrated that the courts perceive IVF and preg-
nancy are two distinct categories.55 It would be equally difficult to claim discrimination
on the basis of sex or sexual orientation, because it is the lack of a partner which is the
issue rather than gender or sexual orientation—it is fair to assume that lesbian single
women or indeed single men56 would encounter similar obstacles. Consequently, it
would also be very difficult indeed for the single woman to claim indirect discrimin-
ation, ie that the policy of insisting on supportive parenting appears neutral but puts
single women at a disadvantaged position and is not objectively justified. For, the diffi-
culties in accessing treatment occur not because of patient’s sex or gender, but because
of her relationship status (other than marriage or civil partnership).57 Moreover, even if
her claim were to be considered admissible in principle, the NHS would be able to
argue that limited access to treatment is objectively justified by the legitimate aim of

52 Pentiacova and Others v Moldova (Application No. 14462/03) [2005], 40 EHRR 23; Scialaqua v Italy
[1998] 26 EHRR 164, Osman v UK [1998] 29 EHRR 245; Taylor and Others v UK [1994] 79 DR 127;
McDonald v UK (Application No. 4241/12) [2014].
53 Balkandali v United Kingdom (1985) 7 EHRR 471.
54 Equality Act 2010, c. 15 <http://www.legislation.gov.uk/ukpga/2010/15/contents>.
55 Court of Justice of the EU, Case C-167/12 C. D. v S. T. and Case C-363/12 Z. v A Government Department
and the Board of Management of a Community School, 18 March 2014.
56 The issue of access of single men to IVF treatment certainly deserves scholarly attention in a separate
paper. Unlike pregnancy—where the courts have accepted there is no need for a male comparator (as
there is no male equivalent) during the protected period—a comparison (albeit irrelevant) would be pos-
sible.
57 See B Hepple, Equality: The Legal Framework (Hart Publishing: Oxford, 2014).
630 • MEDICAL LAW REVIEW

providing efficient and equitable healthcare.58 Finally, the single woman could attempt
to claim a breach of the Public Sector Equality Duty, which requires public bodies to
have ‘due regard’ to equality in the planning and commissioning of healthcare services,
to ensure that patients have equitable access to healthcare services and to ensure equal
treatment when receiving healthcare services.59 However, the fact that the duty is
limited to having only ‘due regard’ and that it again arises only with regard to protected
characteristics suggests that it is highly unlikely that such a claim would be successful.60
In summary, it is fair to conclude that the legal protection of single women against dis-
crimination in fertility treatment is overall weak and insufficient. The above analysis
clearly demonstrates that this is generally true for the statutory provisions and common

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law principles that determine single women’s access to NHS fertility treatment. Statis-
tical data concerning access to fertility treatment in the UK seem to lend credibility to
this interpretation.

D. Data Concerning Access of Single Women to NHS Treatment

The limitations in the protection of single women offered by the legislative framework
seem to correlate with the data retrieved from the HFEA responses to FOI requests and
the HFEA register data, all available on the HFEA website.61 The data show a still rela-
tively small number of single women undergoing fertility treatment in England and
Wales. Admittedly, the analysis of statistical evidence confirms a gradual yet consistent
rise in the number of single women undergoing fertility treatment, ie IVF treatment or
donor insemination (DI). For instance, in 2006, there were 574 registered IVF treat-
ment cycles and 705 DI treatment cycles, bringing the overall number to 1279.62 This
number rose to 1685 of IVF and DI treatment cycles in 2012.63 The number of women
registered as not having a partner at UK licensed clinics between 2011 and 2012 rose
from 702 to 845.64 However, it is important to bear in mind that the above data include
both publicly and privately funded treatment, and that the exact number of single women
provided with NHS treatment is hard to determine.65 In the last 5 years, the HFEA has

58 This would essentially be considered a resource allocation issue, discussed below. See K Syrett ‘Opening
Eyes to the Reality of Scarce Health Care Resources? R v Swindon NHS Primary Care Trust and another, ex
p Rogers [2006] EWCA Civ 392’ (2006) PL 664, 673.
59 S 149 Equality Act 2010 read in conjunction with the Health and Social Care Act 2012.
60 R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), R (Eisai) v National
Institute for Clinical Excellence & Others [2007].
61 Although the details of the requests are not provided, the relevant information extracted from these
responses was used in this analysis.
62 HFEA, ‘A long term analysis of the HFEA Register data 1991–2006’ (11 July 2007) <http://www.hfea.gov.
uk/docs/Latest_long_term_data_analysis_report_91-06.pdf>.
63 HFEA, ‘A reply to a Freedom of Information Act Request F-2013-00276—single women undergoing treat-
ment with donor sperm for the first time’ (22 November 2013) <http://www.hfea.gov.uk/8543.html>.
64 HFEA, ‘A reply to a Freedom of Information Act Request F-2014-00213—numbers of single women regis-
tering with UK clinics and live births’ (19 August 2014) <http://www.hfea.gov.uk/9138.html>. On this basis,
it can be assumed that more single women are offered fertility services respectively in England and Wales.
65 The only available data concern the overall split between privately and publicly funded IVF and DI treatment
cycles. According to the HFEA Reports on fertility treatment between 2011 and 2013, the proportion of pri-
vately and publicly funded cycles was, respectively, and approximately 60% and 40%. These figures do not
distinguish between heterosexual and homosexual couples, and single women. Interestingly, the number of
NHS-funded DI cycles has been declining from 18.9% in 2010 to 16.4% in 2013. These figures refer to the
 Access of Single Women to Fertility Treatment • 631

refused to provide this information under section 22 Freedom of Information Act 2010
(FOIA 2010) on the basis that the requested data were likely to be misleading for the
patients and the general public. It decided that the public interest in ensuring access to
accurate and verified information outweighed the public interest in disclosure. Despite
the HFEA’s promise, these data have not been published yet.66 Nevertheless, the number
of single women seeking NHS treatment could probably be inferred from two facts: (a)
that until 2013, the NICE guidelines precluded women over the age of 38 from NHS
treatment,67 and (b) that the average age for single women seeking treatment is 40
years.68 On this basis, it is fair to assume that most of the treatments reported by the
HFEA have been privately funded.

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Within the NHS, the numbers of single women receiving treatment at different fertil-
ity clinics across England and Wales will inevitably vary substantially, not least because
of the now well-publicised ‘postcode lottery’ in fertility treatment.69 A survey published
by the Department of Health in March 200970 found that 30% of primary care trusts
(PCTs) were adhering fully to NICE guidelines by offering three full cycles of treat-
ment with only 2% not funding IVF. However, by 2014, this trend has been reversing.
In 2013, only 23% of CCGs were still offering three cycles recommended by NICE,71
and by 2014, only 18% of CCGs provide the three cycles nationally recommended.
Worryingly these figures show a notable reduction from the previous year in the

UK as a whole, but it is fair to assume that they will be similar in England and Wales. See <http://www.hfea.
gov.uk/docs/HFEA_Fertility_Trends_and_Figures_2011_-_Annual_Register_Report.pdf and http://www.
hfea.gov.uk/docs/HFEA_Fertility_Trends_and_Figures_2013.pdf>.
66 HFEA, ‘A reply to a Freedom of Information Act Request F-2013-00203—IVF treatment on the NHS for
single women in the last five years’ (24 July 2013) <http://www.hfea.gov.uk/8516.html>.
67 NICE Press Release (19 February 2013) <http://www.nice.org.uk/guidance/cg156/resources/updated-
nice-guidelines-revise-treatment-recommendations-for-people-with-fertility-problems>.
68 HFEA, ‘A reply to a Freedom of Information Act Request F-2014-00105—the average age of single
women being treated with IVF in 2012’ (30 April 2014) <http://www.hfea.gov.uk/8943.html>.
69 NICE Press Release, ‘NICE calls for an end to postcode lottery of IVF treatment’ (23 October 2014)
<https://www.nice.org.uk/news/article/nice-calls-for-an-end-to-postcode-lottery-of-ivf-treatment>; Ch
Cooper, ‘NHS must end IVF “postcode lottery” – watchdog says’, The Independent (23 October 2014)
<http://www.independent.co.uk/life-style/health-and-families/health-news/nhs-must-end-ivf-postcode-
lottery-watchdog-says-9811944.html>; C Jones, ‘The IVF postcode lottery that stopping women from
becoming mums’, The Daily Mirror (29 October 2014) <http://www.mirror.co.uk/lifestyle/health/ivf-
postcode-lottery-that-stopping-4532868>; D Ferguson, ‘IVF and the NHS: the parents navigating fertility’s
postcode lottery’, The Guardian (10 May 2014) <http://www.theguardian.com/money/2014/may/10/
ivf-nhs-fertility-postcode-lottery-cut-costs>.
70 A total of 152 Primary Care Trusts and Health Authorities responded to the survey. See Department of
Health, Primary Care Trust survey – Provision of IVF in England 2008 (DH: London, 2009).
71 Of 198 CCGs offering IVF to patients, 49% funded one cycle of treatment, 24% funded two cycles of treatment
and only 24% funded three cycles. ‘It is now nearly 10 years since the original NICE guideline was published
and yet we are still facing a situation whereby the level of service is determined by postcode. Sutton and
Merton, along with the CCGs covering the former North Yorkshire and York PCT, have all chosen to follow
the policy of their predecessor PCTs and are consequently offering no funding for IVF. One very positive
finding is that three areas identified as non-funders in 2011 (Stockport, Warrington and North Staffordshire),
are now offering funding to eligible couples.’ See Fertility Fairness [(previously) National Infertility Awareness
Campaign (NIAC)], ‘A report into the status of NHS fertility services in England’ (London, 2014)
<http://www.infertilitynetworkuk.com/uploaded/NIAC/Assisted%20Conception%20Needs%20Assisted%
20Implementation.pdf>.
632 • MEDICAL LAW REVIEW

number of CCGs who commission the recommended three cycles.72 Although the
numbers refer to treatment cycles in general, they are symptomatic of a trend that will
inevitably affect single women.
To try to determine whether this decreasing trend has had a deferential impact on
single women, a small pilot study has been undertaken focussing on the practices of
NHS healthcare providers. As part of the study, FOI requests were sent to 14 CCGs
and Health Boards selected based on provision and size (seven CCGs in England73
and seven Health Boards in Wales74). The requests contained three questions, con-
cerning (a) the number of single women who have received fertility treatment (IUI,
IVF, ICSI) each year from 2008 to 2014, (b) the number of single women who

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applied for treatment and (c) the grounds on which any women were the denied
treatment. Responses were received by three CCGs from England and one Health
Board from Wales. These data suggest divergence in medical practices across the
country. Perhaps more importantly, the data reveal a rather ambiguous picture. While
according to data provided by the Welsh Fertility Institute, only four single women
received publicly funded IVF treatment last year,75 responses from service providers
in England revealed that a number of CCGs do not offer NHS fertility treatment to
single women at all. For instance, in Hull CCG, single women fall outside the scope
of policy for assisted reproductive techniques.76 While most CCGs do not hold separ-
ate information about the number of single women receiving treatment,77 Manchester
does not provide treatment to ‘single women who are not in partnership’.78 The latter
suggests that there might still be some definitional confusion about the term ‘single
women’, with some clinics using it to describe (gay or heterosexual) patients who are
in informal relationships (as opposed to those who are married or in civil partner-
ships). This in turn indicates lack of transparency with regard to single women under-
going fertility treatment in England and Wales. Overall, the analysis of empirical data
questions the optimistic picture painted in the post-legislative assessment and the
scope of access to fertility treatment of single women. It also calls for more detailed
investigation of the reasons why one particular group of patients have not benefited

72 Fertility Fairness (2014), Ibid.

73 CCGs include London—Tower Hamlets CCG, East of England—Cambridgeshire CCG, North East—
Hull CCG, North West—Central Manchester CCG, South West—Bristol CCG, East Midlands—Notting-
ham City CCG and West Midlands—Birmingham Central CCG.
74 Health Boards include Abertawe Bro Morgannwg University Health Board, Aneurin Bevan Health Board
(does not provide IVF treatment), Betsi Cadwaladr University Health Board, Cardiff & Vale University
Health Board, Cwm Taf Health Board, Hywel Dda Health Board and Powys Teaching Health Board.
However, as fertility treatment in Wales is governed by the Welsh Health Specialised Services Committee
(WHSSC), which also sets additional local eligibility criteria for access to fertility treatment, most Health
Boards referred the question to the WHSSC.
75 Cardiff and Vale University Health Board (Welsh Fertility Institute), A response to a FOIA request
received on 8 July 2014. It is important to note that the small number refers only to IVF treatments (ie it
is possible that the number of single women receiving IUI has been higher). Cardiff & Vale University
Health Board (Wales Fertility Institute) was the only HB to hold separate data about single women.
76 Hull CCG, A response to FOI request—HU 287 received on 1 August 2014.
77 Cambridge CCG, A response to FOIA request SF/sb/2014—FOI 76 received on 15 July 2014.
78 NHS Manchester (Primary Care Trust), NHS Funded Treatment of Subfertility Eligibility Criteria, June
2011, para. 5.4: ‘NHSM will not fund fertility treatment for single women who are not in a partnership.’
 Access of Single Women to Fertility Treatment • 633

fully from the 2008 reforms. The following part of the article concentrates on the
recommendations stipulated in the NICE guidelines and their interaction with eligi-
bility criteria to fertility treatment set out by CCGs and Health Boards. It suggests
that the differences in CCGs’ and Health Boards’ practices and the restrictions in the
access of single women to NHS fertility treatment have two main causes. First, it is
the ambiguity intrinsic to the NICE guideline even after the recent changes adopted
in 2013.79 Second, it is the incoherency and tension between different values embed-
ded in the regulatory framework of publicly funded ART services.

II I . TH E IM PAC T O F N I CE G UI D E LI NE S O N S IN GL E WO ME N ’S

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REFER RAL FO R A RT TR EATMENT
A. General Eligibility Criteria for Fertility Treatment
The NICE ‘fertility’ guideline offers advice on assisting people of reproductive age who
have problems conceiving. As one of NICE’s major roles is to identify clinically effective
and cost-effective services that should be funded by the NHS, the guideline outlines eli-
gibility criteria for access to fertility treatment for individual patients. Healthcare profes-
sionals in the NHS are expected to take NICE recommendations fully into account
when exercising their professional judgement, although the guidelines do not override
the responsibility of healthcare professionals to make decisions appropriate to the cir-
cumstances of each patient.80 As confirmed by recent case law,81 CCGs hold obligations
in public law to have regard to the NICE guidance and are required to provide clear
reasons for any policy choosing not to follow its recommendations. The same applies to
healthcare professionals. Although formally the NICE instruments are not legally
binding, failing to comply with their recommendations might have far-reaching implica-
tions for healthcare providers and individual healthcare professionals. It has been
recently highlighted by the courts that they might be used to support appeals against
rationing decisions and judicial review claims.82 Furthermore, although NICE powers
do not extend beyond England, clinical guidelines continue to apply in Wales on the
basis of an agreement with the Welsh Assembly Government.83 NICE guidelines are
subsequently implemented or modified by CCGs in England and Health Boards in
Wales according to local needs and available resources.
According to the latest NICE guideline published in February 2013, fertility treat-
ment should be offered to patients who have problems conceiving.84 New provisions
recommend that a woman of reproductive age, who has not conceived after 1 year of
unprotected vaginal sexual intercourse, in the absence of any known cause of infertility,
should be offered clinical assessment and investigation along with her partner.
However, earlier referral for specialist consultation to discuss the options for attempting

79 NICE (2013), n 5 above.

80 NICE, ‘Clinical guidelines’ <https://www.nice.org.uk/About/What-we-do/Our-Programmes/NICE-
guidance/NICE-guidelines/NICE-clinical-guidelines>.
81 R v Thanet Clinical Commissioning Group, ex p. Rose [2014] EWHC 1182 (Admin) (15 April 2014).
82 Ibid.
83 Welsh Assembly Government, ‘The National Institute for Clinical Excellence—new relationship with Wales’
[21 March 2005, WHC (2005) 22] <http://www.wales.nhs.uk/sites3/page.cfm?orgid=465&pid=5396>.
84 NICE (2013), n 5 above.
634 • MEDICAL LAW REVIEW

conception should be offered where (a) the woman is aged 36 years or over and (b)
there is a known clinical cause of infertility or a history of predisposing factors for infer-
tility.85 As far as ART are concerned, paragraph 1.9.1.1 of the guideline provides that
IUI—which is much less demanding than IVF—should be considered as an option for
some groups of patients before they are referred for IVF treatment. These groups
include same-sex couples and people who are unable, or would find it very difficult, to
have vaginal intercourse because of a clinically diagnosed physical disability or psycho-
sexual problem.86 When IUI fails, the number of publicly funded IVF cycles offered to a
woman patient will be determined by her age. In women aged under 40 years who have
not conceived after 2 years of regular unprotected intercourse or 12 cycles of artificial

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insemination (where 6 or more are by IUI), 3 full cycles of IVF will be offered with or
without ICSI.87

B. The Effects of the NICE Regulatory Silence on Single Women

Prima facie, the above recommendations seem quite straightforward and easy to
implement. The main principle on which the guidance is based is that patients unable
to conceive within a certain period of time are eligible for fertility treatment (includ-
ing IUI, IVF and/or ICSI). The adoption of medical criteria as the basis for referral
seems in conformity with the anti-discrimination laws and human rights standards, as
it does not differentiate on the basis of sexual orientation or relationship status and as
such it treats all women equally. One might thus wonder whether, and if so how,
could the NICE guideline contribute to the aforementioned discrepancies between
different CCGs and Health Boards in their policy-making practices, which have the
potential to exclude single women from fertility treatment. Are the reasons intrinsic
to the guideline or, as most studied suggest, external to the regulatory provisions?
First of all, the NICE guideline does not specifically mention single women.
Although a casuistic approach is not necessarily always an effective method of regulating
professional conduct, in this particular case the omission is potentially problematic. The
NICE guideline suggests that fertility treatment is offered only to women with diag-
nosed or suspected infertility issues or those in same-sex relationships. Unlike same-sex
couples, single women are not enumerated among patient groups that should be consid-
ered as potential candidates for the initial treatment of IUI, unless they suffer from spe-
cific medical problems rendering it impossible for them to engage in vaginal sex.88 This
would suggest that they are required to fulfil the condition of having 1-year period of
unprotected sex before they can be referred for fertility treatment. If one were to depict
the rationale behind this principle, it would appear to run as follows: at least theoretic-
ally, single women have the ability to procreate naturally, without the need for assisted
reproduction services. Most ART are very onerous and should not be recommended
unnecessarily. Natural conception will always be the preferred means of reproduction,
as it is far less burdensome and expensive. Therefore, single women will be able to first

85 This guidance is also repeated in the draft NICE Quality Standards published on 23 October 2014 <http://
www.nice.org.uk/guidance/qs73>.
86 NICE (2013), n 5 above, para. 1.9.1.1.
87 Ibid, para.1.11.1.3–8.
88 Ibid.
 Access of Single Women to Fertility Treatment • 635

try to conceive naturally before turning to assisted reproduction. Consequently, they

will also be able to provide evidence of unsuccessful attempts to conceive. This kind of
reasoning would suggest that whenever the regulators intend to include single women
into the equation, they have heterosexual women in mind. This could explain why the
NICE guideline does not mention single women among groups that should be auto-
matically offered IUI.
In the abstract, this conceptualisation of ART services is correct and it is probably
fair to assume that some (or perhaps most) single women will wish and manage to con-
ceive without medical assistance. However, this assumption seems to contain a flaw that
does not take into account important tendencies in contemporary society. The concep-

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tion rate among women aged over 35 years has been rising since 1990, and the concep-
tion rate for women aged over 40 has more than doubled from 6.6 to 14 conceptions
per 1000 women.89 These women have consistently avoided motherhood for some
time, and if they decide to start a family on their own, that choice is most probably a
conscious one. They might choose not to engage in unstable relationships in order to
conceive. The availability of assisted reproduction services has changed the understand-
ing of reproductive decisions, providing additional options to large groups of society,
and enabling a shift from chance to choice.90 Consequently, many single women will
exercise this choice and decide to use DI as a more informed, transparent and safer way
of starting a family. This has been indeed confirmed in interviews conducted by
Susanna Graham, in which getting pregnant through casual sex was dismissed on
health, safety and moral grounds.91 Alternatively, single women might come to an
arrangement to use sperm from a friend.92 This is exactly the reason why they might
not be able to meet the requirement of the 1-year period of unprotected intercourse,
designed to indicate infertility. This latter condition is, by definition, impossible to fulfil,
unless we assume—or indeed require—that single women engage in random sexual
relationships in order to establish their infertility.93 Any expectation to engage in unpro-
tected sex with ‘strangers’ would pose a considerable risk to their health and could
potentially violate human dignity and the right to private life of these women. It is, thus,
highly improbable that NICE, an arms-length body of the NHS, would ever intend to
impose this kind of requirement and pressure on its citizens. However, even if, for the

89 This number excludes teenage mothers in the UK. The UK has still the highest rate of teenage pregnancies
in (western) Europe. See Office for National Statistics, ‘Conceptions in England and Wales 2012’, Statis-
tical Bulletin (25 February 2014) <http://www.ons.gov.uk/ons/dcp171778_353922.pdf>. See also BBC
News, ‘Teen pregnancy rate “lower still”’ (25 February 2014) <http://www.bbc.co.uk/news/health-
26338540>. In 2013, only 2.6% of people under the age of 20 years conceived within marriage or civil part-
nership. Public Health England, ‘Conception Statistics 2013, Census 2001, National report for England
and Wales (C21)’ <http://www.lho.org.uk/viewResource.aspx?id=8453>.
90 J Habermas, The Future of Human Nature (Polity Press, Cambridge, 2003).
91 S Graham, ‘Single Women Negotiating Relatedness’ in T Freeman, S Graham, F Ebtehaj and M Richards
(eds), Relatedness in Assisted Reproduction (Cambridge University Press, Cambridge 2014).
92 At the same time, admittedly, the media have recently reported on ‘dating’ sites, where would-be sperm
donors offer their services to would-be parents. E Jackson, ‘The Internet Is a Dangerous Wild West of
DIY-Assisted Conception’, The Guardian (29 April 2013) <http://www.theguardian.com/commentisfree/
2013/apr/29/internet-wild-west-diy-assisted-conception>. Nevertheless, this reflects the growing accept-
ability of single parenthood, because many of these women decide to raise the children on their own.
93 A more stable relationship would most probably result in a situation where the woman is treated together
with her partner, thus losing her ‘single’ relationship status.
636 • MEDICAL LAW REVIEW

sake of argument, such interpretation were plausible (hypothetically a single woman

could have been in a relationship that dissolved prior to her seeking treatment), the
requirement poses further difficulties, as the guideline does not specify what kind of evi-
dence should be submitted to substantiate her inability to conceive during the 1-year
period.94 There are two possible interpretative approaches to the provision setting the
1-year requirement that could lead to very different outcomes.
A restrictive literal interpretation of the guidelines could result in practices preventing
single women from accessing IVF treatment, as it would be impossible for them to meet
the 1-year-period criterion. There will of course be cases where the patient is diagnosed
with a condition potentially affecting fertility prior to or independently of considerations

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about procreation (eg cancers, infections, hormonal imbalance). However, to limit access
to ART services only to patients already diagnosed with health problems would prevent
all those who suffer from unexplained infertility from receiving treatment. As the number
of patients with unexplained subfertility is constantly rising, such interpretation could
have serious consequences for access to treatment in particular for single women.95 As
the age for making reproductive decisions increases and the number of unexplained infer-
tility cases grows, it is likely that many single women, who have not yet attempted to con-
ceive, will not be aware of any fertility problems. As fertility declines with age, more and
more women will face such difficulties. Therefore, to employ a restrictive interpretation
of NICE guidelines would drastically limit the number of single women eligible for NHS
treatment. In addition, a reading like this would be contra legem as it threatens to thwart
the objectives of the HFEA 2008, which aimed at removing the obstacles encountered
by single women in their access to treatment.
Therefore, a teleological approach focussed on achieving the purpose of the amended
HFEA 1990 seems more appropriate. Such an approach could accommodate two differ-
ent interpretations. One would be to employ a form of legal fiction with regard to the
burden of proof and accept verbal statements from women about their failed attempts to
conceive without the need to obtain any additional evidence. It seems unlikely that local
CCGs and Health Boards would issue policies officially sanctioning referrals based on
such premises. However, evidence suggests that some CCGs are already employing this
method grounding their referral practices solely in patients’ history provided by them.96
Another more transparent way to achieve the aims of the amended HFEA 1990 would
be to explicitly acknowledge that medical reasons do not constitute relevant grounds for
access to treatment of single women, who, like gay women, are ‘socially infertile’. Per ana-
logiam, if single women wish to conceive a child using DI, they should be referred to a
fertility clinic without the need to fulfil the 1-year requirement. This interpretation
would mean that NHS-funded IVF treatment could be open to single women: (a)

94 The evidential difficulties are equally problematic in the case of heterosexual couples, as it is not clear what
evidence would be expected to substantiate claims of a 2-year period of unprotected intercourse.
95 According to the HFEA Annual Register Report 2011, out of 14 551 reasons provided to justify IVF treat-
ment, 4433 have been unexplained. See HFEA, Fertility Treatment in 2011 Trends and Figures—Annual
Register Report (HFEA: London, 2011). This correlates roughly with the data provided by NICE in 2013,
which estimates the number of unexplained infertility to around 25% or all reasons for referral to treatment.
See NICE (2013) n 5 above.
96 Cambridge CCG, A response to FOIA requests SF/sb/2014—FOI 76: ‘A patient’s history is all that is
requested for compliance in the absence of specific tests.’ 15 July 2014.
 Access of Single Women to Fertility Treatment • 637

diagnosed with infertility, (b) unaware of any fertility issues who nevertheless suffer from
lower fertility (established as a result of the initial investigation) and perhaps more
importantly (c) women without any fertility issues (regardless of their sexual orientation)
who have made a reproductive decision to start a family. This outcome seems to fall
squarely within the principles of the HFEA 2008 amendments, which aimed at bringing
the law on assisted reproduction in line with equality legislation and changing human
rights standards and confirming the provision of treatment to both biologically and con-
textually infertile. It seems that the recent quality standards (QS) issued by NICE in
October 2014 and aiming at improvements in clinical practice in the area of fertility treat-
ment follow the broader interpretation proposed above.97 However, the real impact of

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these standards remains to be seen. At the same time, the problem discussed above does
not exhaust the obstacles arising before single women seeking treatment. Although indi-
vidual provisions of the NICE guideline do not expressly discriminate against this group
of patients, the guideline does allow for situations where discrimination might inciden-
tally occur.

C. The Case of Incidental Discrimination of Single Women Resulting from

Regulatory Silence
The HFEA 2008 has been praised for removing in-built discriminatory provisions that
put same-sex couples seeking fertility treatment in a disadvantageous position.
However, it might not have been equally successful in addressing other forms of family
relationships and the fluidity of contemporary relationships.98 If the relationship breaks
up at an early stage of the referral process, both partners can seek treatment individually.
If a similar situation arose, a woman coming out of a relationship would have little diffi-
culties providing evidence of her infertility. Therefore, a break-up could be beneficial
from a referral point of view, because—should a teleological interpretation be employed
—the woman would not have to comply with the 1–2 years waiting period. However, it
is possible to imagine a reverse situation, which has not been anticipated in the
amended HFEA 1990 and which could expose single women to additional complica-
tions. Let us imagine a hypothetical scenario, in which a single woman forms a relation-
ship in the midst of fertility treatment and the new partner is willing to undergo fertility
treatment with her. The scenario might seem less farfetched if one takes into account
the length of fertility treatment from the initial consultation to successful conception,
including long waiting lists. The legal situation of this woman changes dramatically, and
this change gives rise to several questions concerning access to treatment of new part-
ners entering the treatment later in the process. What are the consequences for the
single woman in terms of her eligibility for treatment? Can the new partner enter the
treatment and if so, at which point? If he does, can he be treated as a partner or perhaps
as a known donor?
The attempt to address these questions reveals an interesting regulatory conundrum.
This woman might be doubly disadvantaged in the process of referral to treatment.
First, as established by the studies by Lee et al. mentioned earlier, she might experience
hostility during welfare of the child assessment. Second, once in a relationship, she

97 NICE (2014), n 85 above.

98 McCandless, n 36 above; McCandless and Sheldon, n 9 above.
638 • MEDICAL LAW REVIEW

might be subject to unfavourable rules concerning 1–2 years waiting period imposed on
couples. Admittedly, such situations will occur very rarely, and it therefore might be
understandable that the Act does not contain specific provisions in this respect—it
would be unreasonable to expect the legislator to regulate every eventuality of life.
Nevertheless, this omission will inevitably shift the burden of decision-making on the
medical staff in fertility clinics. They will be looking to professional and regulatory
sources for guidance. However, neither the NICE guideline, nor even the HFEA code
of practice (COP), foresees a situation where the single women willing to undergo fer-
tility treatment begins a relationship amidst the referral process. A lacuna at this level of
the lower regulatory structure might be more problematic, as it creates ambivalence,

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which can have adverse consequences for single women willing to start a relationship.
The question arises whether women in similar situation should be (a) refused treatment
because of her changed relationship status [referred back to her general practitioner
(GP) for a new referral as a couple], (b) ‘put on hold’ for 1–2 years to demonstrate
infertility without the need of a new referral or (c) treated together with her partner,
either as a sperm donor or her partner.
The first and the last options lie on the opposite ends of the spectrum. Bearing in
mind that at least 29% CCGs require couples to spend 3 years attempting to conceive,
rather than the recommended 2 years, and that at least 3% of CCGs—require couples
to wait 1–2 years even when there is a diagnosed cause of infertility,99 the first two
options seem to disadvantage the woman in a new relationship. Taking into consider-
ation these lengthy and complex procedures, the woman could lose several years in the
process and become ineligible for treatment because of her age. Therefore, perhaps the
least controversial solution would be to require the new couple to meet the 1–2 years
requirement for medical reasons, but without the need to seek new referral. Although
unfortunate for the woman seeking treatment, this could be justified in situations where
neither of the partners is aware of any fertility problems, as it allows for the possibility
to conceive naturally.100 However, the same requirement would be unwarranted, if
either of them had been already diagnosed with subfertility. If health problems have
already been established, a waiting period creates unnecessary psychological burden for
the woman, who, although originally admitted for treatment, would be disadvantaged
by the change in her relationship status. It is important to note that the double bias
would not be against the newly formed heterosexual couple, but against the single
woman who has entered a relationship. Although empirical research on single women
in fertility treatment has not yet addressed this particular issue, it is fair to assume that

99 As it is highly improbable, if not impossible, that these couples will conceive naturally, this period seems to
constitute nothing more than an enforced waiting list and a means to limit access to treatment. See Fertility
Fairness (2014), n 71 above.
100 As argued earlier, in contrast to same-sex couples and single women, heterosexual couples who are
unaware of any fertility problems might still be able to conceive within 1–2 years of unprotected inter-
course. Therefore, the argument that the 1–2 years waiting period requirement discriminates against het-
erosexual couples, in comparison with same-sex couples and single women, is unsubstantiated. Such claims
seem even less defensible in the context of NICE provisions that allow for this period to be shortened in
cases where either one or both partners have already been diagnosed with fertility problems. See NICE
(2013), n 5 above.
 Access of Single Women to Fertility Treatment • 639

such women would be forced to leave NHS and seek treatment privately. Those in their
late 30s, who could not afford this option, would risk becoming ineligible for treatment.
The bias would be particularly obvious if the requirement to stay in a relationship for
2 years was to be imposed as part of the welfare of the child assessment aiming to prove
the stability of the relationship. Formally, such assessments should be independent from
rationing decisions, because the HFEA 1990 does not determine funding issues.
However, anecdotal evidence suggests that there are instances where medical staff evalu-
ating patients’ eligibility presents the 2-year waiting period for heterosexual couples as
part of the ‘welfare of the child’ assessment, a period to confirm the stability of the rela-
tionship.101 It is likely that in such cases welfare of the child assessment is used as a

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rationing tool. This is highly problematic in light of the 8th HFEA COP, according to
which (a) such assessment should only be undertaken in exceptional circumstances and
(b) the stability of relationship does not constitute part of the welfare of the child assess-
ment or a condition to access treatment. If this was indeed the case, it would be hard to
justify imposing such conditions on heterosexual couples, but not on gay couples.
However, if one were to apply the requirement consistently to couples, then single
women would be the clear beneficiaries of such regulation (as reported by the media)
unless they were expected to provide evidence of a stable family network during a
period of 2 years. A refusal to access treatment on this ground would be a convoluted
rationing decision raising serious questions about the powers of commissioning bodies.
This scenario illustrates further shortcomings in the regulatory framework of pub-
licly funded fertility treatment so often praised for its sensitivity to changing social
and family structures. It reveals areas where incidental discrimination of single women
can occur due to the fact that (in particular heterosexual) single women have been
too readily subsumed in the NICE guidelines under the wider notion of the ‘context-
ually infertile’ without due regard to the specificities of their situation. This in con-
junction with the existing preconceptions towards single women can lead to further
hurdles experienced by this group of patients. More importantly, however, the situa-
tions discussed above draw attention to much broader tensions between different
rationales and values governing the system of NHS-funded ART services.

IV . S IN G L E WO ME N I N L IG HT O F GE NE R A L P R I NC I P LE S
G OV E R N I N G AC C E S S TO A R T
A. Competing Rationales of the Publicly Funded ART Regulatory Framework
At the centre of the 2008 reforms was the recognition that the reproductive rights of
same-sex couples and single women have the same standing as those of heterosexual
couples. Single women were to be treated similarly to same-sex couples, because both
the groups were seen as ‘socially infertile’ and because their access to treatment
required a modification of the welfare of the child principle. It seems peculiar at first

101 The HFEA does not publish details of the exact assessment procedure that each clinic requires, so the evi-
dence remains anecdotal on this. See Riley, n 82 above. A case illustrating the ambiguities of the eligibility
assessment process occurred at the Cardiff & Vale University Hospital on the 3 July 2013. The couple
decided to seek treatment privately due to women’s age. For ethical reasons (ie couple’s wish to remain
anonymous), the names of the parties involved cannot be disclosed.
640 • MEDICAL LAW REVIEW

that the aim to protect single women—so clearly articulated during Parliamentary
debates—gets completely lost within the NHS context. However, the reasons become
more transparent if one realises the fundamental tension between different values and
objectives governing NICE and local commissioning bodies.
NICE was established to ensure that ‘access to the NHS will be based on need and
need alone’.102 Hence, the NICE guidelines, so far as they affect resource allocation in
the NHS, are based on a premise that treatment should be distributed on the basis of
scientific, clinical and financial efficiency and go to those with the biggest clinical
needs.103 These needs are established on the basis of scientific evidence, risk–benefit
analysis and cost-effectiveness calculations. Finally, CCGs and Health Boards face the

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difficult task to interpret these normative documents in a way that reconciles the two
rationales in face of rising financial pressures in the NHS. The conundrum entails
finding a way to address simultaneously three challenges: (a) to allow publicly funded
treatment for individuals who are fertile, but unable to conceive because of their par-
ticular life circumstances; (b) to retain the basic principle (a myth?) that resource
allocation and rationing decisions concerning fertility treatment are taken on purely
clinical grounds; and (c) to ensure that resource allocation policies and rationing deci-
sions are taken in a non-discriminatory and equitable manner. Two questions arise in
this context: (1) Is there a way to reconcile the tension between different rationales
underlying the regulatory framework of fertility treatment? (2) How much latitude do
CCGs and Health Boards have in diverging from the NICE guidelines in setting
eligibility criteria limiting single women’s access to treatment? (3) How important is
the (mis)understanding of the relationship between welfare of the child assessments
and social eligibility criteria to provide single women with equitable access to fertility
treatment?
Although the regulatory framework of ART rests on the basic assumption that
assisted reproduction services should be offered to those suffering from infertility, it is
also clear that patients in perfect reproductive health might be eligible for treatment. As
noted by Deech and Smajdor, a healthy woman may be eligible for treatment with IVF
as ‘contextually infertile’, because her partner has fertility problems.104 Moreover, unex-
plained infertility is extremely common. One of the ‘diagnoses’ of infertility is simply a
failure to conceive after a certain period of having unprotected sex. Often, there may be
no identifiable medical cause at all, but this does not mean that patients are denied treat-
ment. This reasoning applies to single woman and people in same-sex partnerships.105
The principle of non-discrimination on the basis of sexual orientation and the principle
that rationing decisions should be based on clinical needs are reconciled through the
broad conceptualisation of infertility and the acknowledgment that the inability to have

102 Department of Health, n 70 above.

103 Department of Health, ‘The Government keeps its promise for fairer, faster, treatment for patients, the
new National Institute for Clinical Excellence opens for business’. Press release, 31 March 1999, DoH Ref.
No. 1999/0193. The principle of equitable healthcare based on needs is also engrained in the Health and
Social Care Act 2012 and the NHS Act 2006.
104 Deech and Smajdor, n 8 above, 172.
105 Ibid.
 Access of Single Women to Fertility Treatment • 641

children can have profound psychological (mental health) implications.106 However,

following this line of reasoning, it could be argued that in England and Wales fertility
treatment is/should be open to all those who—for whatever reason—cannot conceive
children naturally. This by no means a controversial statement. However, this widely
accepted conclusion puts enormous financial pressure on the already stretched health-
care resources. Therefore, CCGs and Health Boards set out additional criteria limiting
access to fertility treatment. So far, the task to establish objectively justified and non-
discriminatory conditions has proved very difficult, if not impossible. It is in this area
that the biggest differences between CCGs and Health Boards usually occur. They
interpret differently clinical factors recommended by NICE and set a wide array of non-

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clinical criteria. This is where the question about the margin of appreciation (scope of
authority) of commissioning bodies comes into focus.

B. The CCGs’ Powers to Set Eligibility Criteria

In addition to the statutory obligations of s 13 (5) HFEA 1990, local commissioning
bodies impose their own social criteria for treatment to enable prioritisation in the allo-
cation of fertility treatment. They usually choose between the following non-medical
factors: (a) no children from current or previous relationship (very common) some-
times including foster or adopted children, (b) no children living with couple, (c) non-
smoking, (d) no previous sterilisation in either partner, (e) stable (2-year) relationship,
(f) age restrictions on female and/or male, (g) BMI 20–25 and (h) registration with
local GP for a minimum of 3 years.107 Some of these criteria can be seen as derived
from the NICE guideline, which advises doctors to inform the patients about the poten-
tial negative influence on fertility of factors such as smoking, alcohol consumption,
body weight or occupation. It might be argued that they are used as selection criteria
because the treatment should be offered to those who have the best chance to conceive
and in those cases where the treatment will be most effective.108 However, as the
wording of these provisions is much less prescriptive, it is not clear whether, and if so to
what extent, they should be treated by fertility clinics as eligibility criteria for treatment.
Additionally, these factors should be distinguished from other criteria imposed by the
commissioning bodies that are completely unrelated to fertility or health. These include
length of the relationship, stability/extent/composition of family networks or existing
children of one partner or adopted/foster children living with patients seeking treat-
ment. These factors are not mentioned by NICE at all, and it is not clear how they have
made their way into CCGs’ policies. The most probable explanation would be that the
need for a biologically and/or genetically related child has been confused with psycho-
logical need for a child [and the presence of (any) children in the family is seen as satis-
fying the need for parenthood and thus a factor excluding from treatment]. There is no

106 The conceptualisation of infertility as an illness has been discussed in the context of the medicalisation of
society, eg G Becker and RD Nachtigall, ‘Eager for Medicalisation: The Social Production of Infertility as a
Disease’ (1992) 14 Sociology of Health & Illness 456, 471; R Tong, ‘Ethics, Infertility and Public Health’ in
M Boylan (ed), Medical Ethics (Wiley Blackwell: Malden, 2nd edition 2014), 13, 30. These, albeit fascinat-
ing, discussions fall beyond the scope of this article. At the moment, demonstrating mental health pro-
blems as a result of infertility does not form part of eligibility assessment.
107 Department of Health (2009), n 70 above.
108 Another important criterion falling within this category would be age.
642 • MEDICAL LAW REVIEW

basis for this in the national NICE guideline and yet 81% CCGs deny treatment on
these grounds.109 This is truly astonishing in light of the fact that, from the start, the
primary purpose of reproductive medicine has been to enable patients have biologically
and/or genetically linked offspring. The importance of this need has been not only
recognised through the adoption of the HFEA 1990, but also confirmed in human
rights case law.110
The widespread and divergent use of clinical and non-clinical factors, illustrating
the well-known problem of postcode lottery, has been heavily criticised by Fertility
Fairness and the Infertility Network UK.111 Their report called for a mandatory and
definite list of access criteria produced by NICE and NHS England to remove the

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existing differences. As a response to the widespread criticism, NICE issued QS
aiming at reducing the existing variation between different CCGs and Health Boards
and harmonising clinical practice. This initiative, supported by the main charities
involved in the area of reproductive health, needs to be seen as a vital step in securing
equitable access to healthcare. As such it should also improve the access of single
women to fertility treatment. However, although a step in the right direction, it is
questionable whether it will solve the problems identified in the aforementioned
study by Lee et al., which highlighted the ambivalent relationship between welfare of
the child assessments, NHS funding criteria and individual clinic protocols.112 Fur-
thermore, it is doubtful that the NICE QS will manage to reconcile the competing
rationales and broader lack of coherency between different elements of the regulatory
framework. This lack of coherence is paradigmatic of the tension between resource
allocation and the right to access treatment and as such it exceeds the scope of this
article. However, a few remarks of a general nature are worth noting here.
Despite all the difficulties outlined above, it is still relevant to consider the possibility
of the right of single women to access ART services. For, it would seem incorrect to
suggest that single women lack any legal protection should they seek fertility treatment.
Although it is very difficult to argue the existence of a right to fertility treatment, inter-
preted as an absolute right to demand access to ART services and protected by effective
remedy, a suggestion that there is a right to be considered for treatment without dis-
crimination seems very plausible and should be easily accepted. At the individual level,
it has become apparent that once the condition is recognised as illness, the commission-
ing body must consider individual’s condition before refusing to fund treatment.113 In
this respect, despite ongoing debates about the definition of disease and health needs,

109 Fertility Fairness (2014), n 71 above. See also Fertility Fairness Survey (2014) <http://www.
fertilityfairness.co.uk/nhs-fertility-services/ivf-provision-in-england/>.
110 Evans v. the United Kingdom (Application No. 6339/05) (‘the right to respect the decision to become a
parent in a genetic sense’) [2008] 46 EHRR 34; Dickson v UK (Application No. 44362/04) [2007] All ER
(D) 59 (Dec), S. H. and Others v. Austria (Application No. 57813/00) [2010] 52 EHRR 6.
111 Fertility Fairness (2014), n 71 above.
112 The study found that, in some clinics, there is a porous boundary between the clinic’s role in assessing pro-
spective patients’ compliance with funding criteria established by former PCTs and its role in performing
the welfare of the child assessment. For example, welfare of the child assessment forms sometimes included
questions related to smoking, body mass index (BMI), relationship stability, age and existing children.
However, these tended to be rationalised by staff on medical or rationing grounds. See Lee et al. (2014), n
9 above.
113 R v North West Lancashire Health Authority, ex p A, D, and G [2001] 1 WLR 977.
 Access of Single Women to Fertility Treatment • 643

the status of infertility as an illness has been officially approved both at the international
level by the World Health Organization (in a non-hierarchical list of diseases) and at
the national level by NICE. As illustrated in the statements issued recently by the latter
aiming at harmonising the diverse commissioning practices, a wide consensus is
forming that commissioning bodies should acknowledge that a clear decision has been
made by Parliament, the Government and NICE to fund fertility treatment from public
resources.114 Commissioners in England and Wales have a duty to take this statutory
decision into account when they design their rationing policies. It is also important to
note that the NHS Constitution also emphasises the patient’s right to treatments that
have been recommended by NICE for use in the NHS, if recommended by the doctor

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as clinically appropriate.115 Despite highlighting the sensitive issue of resource alloca-
tion, the use of rights-based language might have modest, yet important consequences.
First, it can help shift the burden of proof from patients to the CCGs so that a restric-
tion of the right needs to be objectively justified by the commissioning body. Therefore,
second, it might gradually help limit the need to argue the existence of exceptional cir-
cumstances in order to receive treatment. The authority of the CCGs and Health
Boards in drafting access to treatment criteria might be broad, but it is not unlimited.
The courts can still intervene in rationing decisions, if they are persuaded: (a) that
the decision-making process is flawed (procedural injustice)116; (b) where a blanket
policy is pursued, without considering each case individually; (c) the real reason behind
a decision is not transparent (financial consideration rather than clinical decision)117;
or (d) the promise to offer particular services is broken.118 It can thus be assumed that
the courts support transparency especially that it is now also required by the NHS Con-
stitution.119 Furthermore, as demonstrated in the case of Condliff, the courts expressed a
clear preference for clinical over social/non-clinical criteria in rationing decisions.120
The claimant argued that the commissioning policy, which led to him being denied
treatment, violated his right to private life, because it did not take into account social
factors. Although the court rejected his claims, it applauded the fact that the resource
allocating policy of the commissioning body was based on the comparative assessment
of clinical needs because it was intentionally non-discriminatory. The circumstances in
Condliff cannot be easily applied to single women seeking access to ART services, who
might not suffer from a clinical condition. However, there are aspects of the decision,
which are relevant to the current discussion. First, the judgment in Condliff showed that
the courts are prepared to accept differences between various commissioning bodies as
long as rationing decisions are based on non-discriminatory and objective criteria. This
certainly brings into question the acceptability of the non-medical criteria used by

114 V Whitehead, ‘Commissioning decisions reveal the trivialisation of infertility’, BioNews 772 (22 September
2014) <http://www.bionews.org.uk/page.asp?obj_id=454560&PPID=454613&sid=813>.
115 Department of Health, The NHS Constitution (DH: London, 26 March 2013).
116 R v West Sussex Primary Care Trust, ex p Ross [2008] EWHC 2252 (Admin).
117 R v Swindon NHS Primary Care Trust and another, ex p Rogers [2006] EWCA Civ 392. Cf.
118 R. v. North and East Devon HA, ex p Coughlan [1999] EWCA Civ 1871.
119 NHS Constitution, n 115 above.
120 A morbidly obese man has lost his appeal against his local primary care trust’ (PCT’)’s refusal to fund his
anti-obesity surgery. See Condliff, R (on the application of ) v North Staffordshire Primary Care Trust [2011]
EWCA Civ 910.
644 • MEDICAL LAW REVIEW

CCGs and Health Boards in drafting policies concerning access to ART services, such
as the stability of a relationship and/or the support family network. Second, at the heart
of Condliff’s claim was an attempt to tackle postcode lottery and more importantly to
introduce human rights to resource allocation considerations. Regardless of the final
outcome of the case, it is becoming clear that as a result of the Human Rights Act 1998
rationing decisions are now expected to be made with regard to due process require-
ments and to claims to equality and proportionality. This expectation seems to coincide
with the obligations imposed by the Health and Social Care Act 2012 on the Secretary
of State to ‘have regard to the need to reduce inequalities between the people of
England with respect to the benefits that they can obtain from the health service’.121

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Despite the fact that establishing a breach of statutory duty has been an ineffective alter-
native to judicial review, the introduction of this duty in addition to existing obligations
should not go unnoticed. Even if the provision does not open a new litigation route for
single women, it requires all the delegated bodies exercising healthcare functions to take
their situation into account when drafting and implementing policies concerning
fertility treatment and delivering ART services.

V. CO NC L US IO N S
The purpose of this article was to provide a preliminary analysis and identify potential
gaps and inconsistencies in the regulatory framework surrounding the access of single
women to publicly funded fertility treatment. In particular, the study focussed on the
rights of single women stipulated in the statutory framework, including the HFEA 1990
(as amended by the HFEA 2008), the Equality Act 2010, and the NHS Act 2006 and
eligibility criteria for fertility treatment set out in the 2013 NICE clinical guidelines.
The analysis revealed that although formally the legal framework has substantially
improved the situation of single women in recent years and removed much of pre-
existing biases against them, they are still exposed to prejudice and potential (acciden-
tal) discrimination. The article drew on recent studies showing that negative attitudes
concerning single women still persist among medical staff, and it has been argued that
these assertions stem from the ambiguity inherent in the welfare of the child assessment
stemming from the amended s 13 (5) HFEA 1990. It also highlighted the inadequacies
of the currently equality legislation, which does not include the state of ‘being single’ in
its protected characteristics.
However, this article has demonstrated that the reasons for potential discrimination
against single women originate in the regulatory framework of assisted reproduction ser-
vices, which fails to provide adequate protection to single women seeking publicly
funded fertility treatment. The article found that the primary reason for remaining
inequalities can be attributed to the ambiguities inherent in the regulatory framework,
which in the context of publicly funded fertility treatment is determined by the NICE
clinical guidelines and CCGs and Health Boards’ resource allocation policies. In particu-
lar, the article revealed ambiguities, inconsistencies and gaps in the NICE guidelines
that might adversely affect single women’s access to treatment. It has been argued that
although as a matter of principle casuistic approaches to regulation should be avoided,

121 S 1(c) of the Health Service Act 2006 as amended by s 4 of the Health and Social Care Act 2010.
 Access of Single Women to Fertility Treatment • 645

in this particular instance addressing single women expressly would improve their legal
standing as fertility patients and send a powerful message to CCGs and Health Boards
responsible for resource allocation and healthcare professionals taking individual ration-
ing decisions. Furthermore, the article has identified an area where neither the amended
HFEA 1990 nor the NICE guideline takes fully into account the fluidity and dynamics
of contemporary relationships.
Finally, the article also exposed surprising serious gaps in the understanding of the
position of single women in fertility treatment. First, the number of single women
undergoing publicly funded treatment remains unknown, not least because of defin-
itional ambiguities that persist in defining ‘single women’. Second, it is not clear why

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the subsequent HFEA Codes of Practice have not been successful in changing profes-
sional attitudes towards single women. Third, despite numerous studies of NICE regula-
tory practices, the implementation of guidelines continues to pose significant obstacles.
This lack of knowledge reveals that, despite their vulnerability in the context of the
NHS fertility treatment, single women remain a silent, excluded and even absent group
of patients.
Therefore, further studies are required to investigate the legal and societal standings
of single women in the context of fertility treatment. Such studies should analyse the
factors taken into account by clinicians when they determine the eligibility of patients
according to clinical guidelines. They should also aim to investigate how healthcare pro-
fessionals view discrimination/non-discrimination of single women seeking access to
ARTs and to what extent the regulatory framework is responsible for their attitudes.
Finally, further research should aim to determine local practices of commissioning
bodies and healthcare professionals, involved in the decision-making process concerning
access to IVF treatment. Only through such a comprehensive analysis of the complex
socio-legal realities can the situation of single women be improved.

Conflict of interest statement. None declared.