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UK couple 'too old' for publicly-funded IVF to sue the Health Secretary

10 December 2012
Appeared in BioNews 685

A couple who was refused fertility treatment on the NHS for being 'too old' has said it intends to challenge the decision in the courts, arguing that the decision amounts to age discrimination.

The couple, known as Mr and Mrs K, was refused IVF by NHS Berkshire East PCT on the basis of Mrs K's age - who was 37-years-old - even though their difficulty in conceiving was attributed to Mr K's subfertility. The PCT said it will only treat women aged between 30 and 34-years-old.

The PCT has twice rejected the couple's appeal but has said it will now review its policy in light of new anti-discrimination laws. However, the couple has launched proceedings against the Secretary of State for Health, Jeremy Hunt, saying that NHS restructuring means the commissioning body will be abolished in April and a decision by its successor may be too late for the couple.

New age discrimination laws came into force last October which make age discrimination unlawful. Under the new law, healthcare commissioners are required to justify any decisions that differentiate services according different age groups. Speaking when the new Equality Act came into force, health minister Norman Lamb said the law would also apply to patients who are denied IVF on the NHS because of age.

'If an older woman sought to argue she should have access to treatment on the NHS she can challenge it, but she would have to show that the upper age limit was not objectively justified', he said.

'What I'd say generally is that if people in any condition feel that a judgment can't be justified, and feels arbitrary, then they should challenge it because we should always be making our judgment in the health service on clinical need', he added.

This is one of the first times that age discrimination laws have been evoked to challenge a decision about fertility treatment. It is also believed to be the first attempt to sue the health secretary directly for a decision made about healthcare rationing.

The National Institute for Health and Clinical Excellence (NICE) guideline, which is currently being updated, says that three cycles of IVF should be publicly funded until the woman is 39 but regional trusts retain the autonomy to set their own restrictions. Many PCTs do not meet the NICE guideline and instead offer fewer cycles of treatment or narrow the criteria for treatment.

Clare Lewis-Jones, chief executive of Infertility Network UK, has criticised PCTs for drawing up arbitrary rules which force couples to resort to legal disputes for a chance to receive funding.

'IVF funding should be available where it is most likely to benefit people trying to have a baby – which is precisely why we have the NICE guideline', she said. 'If Berkshire East PCT did what they were meant to do, this couple would not be in this unenviable situation today'.

Mr and Mrs K have reportedly taken out a loan in order to pursue private treatment while they await a decision as to whether they will be able to proceed with the action.

Couple sue for IVF in landmark 'age discrimination' case
Daily Telegraph |  12/12
Couple 'too old' to have IVF to sue NHS
Express |  3 December 2012
Woman, 37, sues health minister after she was told she is 'too old' for IVF
Mail Online |  2 December 2012
15 February 2016 - by Ryan Ross 
A third of general practitioners believe that the NHS should not fund IVF treatment, according to a recent poll...
18 November 2014 - by Siobhan Chan 
By 2050, most women will opt to conceive through IVF using cryopreserved eggs and sperm, meaning that sex will become 'purely recreational', an eminent scientist has claimed...
11 August 2014 - by Ayesha Ahmad 
NHS bosses in York have been accused of backtracking on a promise to restart funding for IVF treatment, disappointing an estimated 110 couples requiring treatment in the area...
11 August 2014 - by Ari Haque 
A fertility clinic in Manchester has launched a new scheme that will give a refund to patients who fail to have a baby after undertaking IVF treatment...
20 January 2014 - by Professor Cathy Warwick 
The pressure on the UK's midwives is at its highest for decades. In England, for example, there were more babies born in 2012 than in any year since 1971...
3 September 2012 - by Cathy Holding 
Around one in three women who are entitled to receive IVF are being denied this right, according to a survey carried out by the National Infertility Awareness Campaign (NIAC)...
2 July 2012 - by Louisa Ghevaert 
The inconsistent and inadequate provision of IVF treatment on the NHS is an unacceptable way to treat the one in seven UK couples (3.5 million people) currently affected by infertility...
28 May 2012 - by Dr Greg Ball 
The National Institute for Health and Clinical Excellence (NICE) has published a draft updated guideline on fertility that would see same-sex couples and women aged up to 42 eligible for fertility treatment on the NHS...
12 March 2012 - by Cathy Holding 
IVF is only miraculous and life-changing if it works, but in some areas of the country you're less likely to be able to try on the NHS. BBC One's 'Postcode Lottery' follows a couple who could attempt treatment if they lived elsewhere...
10 August 2009 - by Ailsa Stevens 
More than eight out of 10 PCTs are still failing to offer the full three cycles of IVFtreatment as recommended by the National Institute for Health and Clinical Excellence (NICE), according to a report published by Tory MP Grant Shapps this week. The report revealed further inconsistencies in the criteria PCTs were using to decide who should get NHS-funded IVF, resulting in some mothers being both too old and too young to access treatment, depending on where they lived....
Comment ( - 11/12/2012)
It is discrimination. Hope that couple gets justice.
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