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High Court rejects fertility clinic challenge to HFEA website

24 April 2017
Appeared in BioNews 897

A claim for judicial review that sought to challenge changes to the way the Human Fertilisation and Embryology Authority (HFEA) presents data about UK fertility clinics on its website has failed.

Following a consultation exercise last year and a recommendation in the McCracken Report in 2013, the HFEA decided in November to make changes to the way it presents data about fertility clinics on the 'Choose a Fertility Clinic' section of its website, which is viewed by around 1500 people every month.

The Assisted Reproduction and Gynaecology Centre (ARGC), a London fertility clinic, argued that the decisions to change the data presentation were unlawful on the grounds that the proposed presentation of the data was 'illogical, potentially misleading and unreasonable' and went against the HFEA's legal obligations to provide information, advice and transparency. It also argued that the decisions were made without proper consultation and that the HFEA failed to take into account the views and preferences of patients given in the consultation.

The changes include basing the new 'headline IVF birth rate' on each clinic profile on all patients under 38 years old (it is currently expressed for patients under 37 years old and then also for patients aged 35-37) and changing the presentation of the IVF success rate from six to three age categories: patients under 38, those over 38 and one for all patients.

The HFEA also decided to use the live birth rate 'per embryo transferred' in the expression of IVF success rate and not the birth rate 'per treatment cycle'. Not all patients will reach the egg collection stage or embryo transfer stage after starting the IVF cycle. The HFEA's consultation indicated that patients preferred success data by 'live birth rate per cycle started', whereas clinicians favoured 'per embryo transfer' as the most meaningful measure of success.

Hearing the application, Ms Justice Finola O'Farrell pointed out that the ARGC has had the highest pregnancy and live birth rate since its establishment, but since it treats a higher proportion of older patients and patients with previously unsuccessful IVF it is more likely to transfer more than one embryo per cycle. As such, she said, 'The decisions by the HFEA will have an adverse impact on the success rates shown on its clinic profile page'.

Nevertheless, the judge held the HFEA was entitled to change the metric it uses: 'There is no single measure of IVF success that has universal support or acceptance ... It is not for this court to decide whether either metric, neither or both should be used as headline figures. This court must consider whether the HFEA's decision was within the range of reasonable decisions open to it in all the circumstances,' she said – and in this case, the decision was not outside this range.

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