Time to level up and stop discrimination against same sex couples

In this two part article we will discuss the issue of discrimination against same sex couples embarking on their parenting journey.

Part 1: Shared Motherhood

Shared motherhood is a wonderful way for two women or trans persons in a loving relationship to share the parenting journey, with one person donating their eggs to their partner who then carries and gives birth to their baby.

It is the perfect symbolisation of the evolution of IVF over the last 4 decades demonstrating there can be one route to parenthood for all that that does not discriminate according to gender or sexual orientation, and helps all who need assisted conception to be able to found a family.

This is something central to the Human Rights Act as well as the Equality Act. Yet, despite the scientific know how, the LGBTQ+ community in the UK does not get an equal share of the fertility cake.

Two fundamental problems exist when it comes to discrimination against same sex couples. Firstly the regulation and secondly the ability to access NHS fertility funding. In this first of two blogs, we explore the regulatory aspects surrounding shared motherhood and the importance of campaigning for change.

In shared motherhood or intra partner IVF, one partner goes through IVF ovarian stimulation to produce eggs (the biological parent) which are collected and then fertilised with donor sperm. One of the created embryos is then transferred to their partner’s womb (the birth parent).

In the UK, all IVF procedures are regulated by the Human Fertilisation and Embryology Act which has undergone a number of revisions since it was first introduced in 1990.

One of the requirements within the regulation is that all undergoing IVF treatment are required to be screened for HIV, Hepatis B and C to reduce any risk of transmitting one of these viral diseases to the partner and future child. However those who are classified as ‘gamete donors’ require a number of additional sexual health screening tests as well as chromosome and cystic fibrosis screening before the donation can take place.

UK law as it currently stands defines “Partner-created embryo’ as ‘embryos created using the gametes of a man and a woman (sperm and eggs) who declare that they have an intimate physical relationship’. This means ‘partner donation’ can only include donation of reproductive cells (sperm or eggs) between a man and a woman and excludes two women or trans persons who are in an equally intimate relationship. As such the law is in breach of the Equality Act.

The legal position that all IVF Clinics must adhere to when offering treatment is this. For heterosexual couples, when a man donates his sperm to create an embryo with his female partner’s eggs, additional screening as a donor is not required but in a same-sex couple, the person donating their eggs to create an embryo with donor sperm to be implanted in their partner’s womb is by law defined as a ‘donor’ and burdened with the additional cost and invasiveness of donor screening, unnecessary because they are in an intimate relationship and therefore at the same very low risk of transmitting disease to their partner as the heterosexual couple.

This legislation dates back to 2008 when the HFE Act incorporated these screening requirements from the Second European Tissues and Cells Directive. When the UK formally left the European Union at the start of 2021, the opportunity arose for the Government, and more specifically the Department of Health and Social Care (DHSC), to revise and modernise the legislation to be inclusive and conform to the Equality Act by redefining the term ‘partner-created embryos’ to include those embryos created by two women or trans persons with eggs and a womb. The HFEA approached the DHSC to make these changes but they refused.

The Agora Clinic and one of our lovely couples Kirsty and Faye who are currently affected by the current legislation spoke to Channel 4 about the failures of UK law in this short news piece which aired on November 22nd. We hope that this will be the start of a very much needed conversation with the Government and DHSC to bring equality to the screening requirements for all IVF treatments.

Please share to make sure the voice of the LGBTQ+ fertility community is heard in Westminster and the necessary changes in law happen.