The Government wishes to introduce a new version of the HFEA and has proposed, amongst other things, that services be required to take account not of the need for a father, but simply of the need “for supportive parenting”. (Human Fertilisation and Embryology Bill, clause 14(2)(b))
It is believed that one effect of this change would be to establish that women may not be refused fertility treatment solely because they are single or in a same-sex relationship. Parliament itself has said that the ‘need for a father’ requirement “was clearly intended to restrict the provision of IVF to lesbian and single women.” (House of Commons Science and Technology Committee, 2005, Human Reproductive Technologies and the Law, HC 7-I, paragraph 99) (There is, however, evidence that it has not had that effect. See: ibid, paragraph 100.)
But for some women, it is already unlawful to exclude them from fertility treatment (and many other health care services). The belief that it might still be lawful to deny such treatment to a woman solely because she is in a same-sex relationship fails to take account of The Equality Act (Sexual Orientation) Regulations 2007. (SI 2007 No 1263)
As their title suggests, these regulations were made under the Equality Act 2006, and they came into force on 30 April 2007. Amongst other things, they deal with ‘discrimination’, which might be direct - using someone’s sexual orientation as a reason for treating her less favourably than others (regulation 3(1)); or indirect - applying to her a condition that would not be applied to others (regulation 3(3)).
Although one of the regulations prohibits such discrimination in the provision of goods, facilities and services (regulation 4), it does not apply to public bodies (regulation 4(3)(a)) and will not, therefore, cover a NHS clinic or a PCT. Another regulation, however, does extend that far.
Regulation 8 of the Sexual Orientation Regulations is very clear. It says, “It is unlawful for a public authority exercising a function [of a public nature] to do any act which constitutes discrimination.” (Regulation 8(1) & (2)(b)) (It might be that an act will not be required, and that even a policy that excluded lesbians from treatment would be unlawful. See: regulation 9.)
It is likely, therefore, that in the case of a woman in a same-sex relationship, a NHS body that refused her treatment on that ground alone would breach the Sexual Orientation Regulations. Given that not just direct, but also indirect discrimination is unlawful, such might even be the case if, before a final decision were made, a clinic or PCT applied the ‘need for a father test’ (or simply had a policy of doing so).
Single women might still have something to gain from the change the Government proposes to make. As far as lesbians are concerned, however, their liberties have already been secured: there is no longer any place for the need for a father.
Update: subsequent events suggest the argument set above has some merit. See here. (Update added 1 March 2009.)