A LESBIAN couple yesterday won their battle for free fertility treatment on the NHS from their local health authority.
In what is believed to be the first case of its kind in Scotland, Caroline Harris and Julie McMullan said they had suffered discrimination because of their sexuality and wanted £20,000 in damages.
NHS Greater Glasgow and Clyde (GGC) initially refu
sed to offer them help at a specialised conception service as they were not classified as an infertile couple.
The board at first stood by its refusal – but yesterday performed a U-turn and the couple will now be offered the treatment at an assisted conception unit.
A judge at the Court of Session in Edinburgh was told the couple had run out of funds after spending more than £11,000 on private treatment, but the health board would not add them to its waiting list.
The board insisted its decision had nothing to do with sexual orientation, but that Ms Harris and Ms McMullan simply had not met the necessary criteria of being "an infertile couple". It added that more than 700 couples were on the list.
An NHS GGC spokeswoman said yesterday "treatment acceptance criteria" had at first been applied to the couple as they would have been to any other.
She said: "As a couple, these two individuals are biologically incapable of conceiving and the board, therefore, initially took the view that the couple did not meet the necessary criteria to receive NHS-funded treatment.
"The board has, however, reconsidered its position in light of other regulations, including the Human Fertilisation & Embryology Act 2008 and Equality Act (Sexual Orientation) regulations 2007, and has now decided to offer treatment to this couple."
The couple, of Maryhill, Glasgow, said in their petition to the court they had been in a relationship for seven years and approached their doctor in January 2007 to find out about assisted conception services that would allow them to have a child.
The doctor said they would have to pay privately and they were referred to the Nuffield Hospital, Glasgow. Ms Harris underwent six unsuccessful treatments of intrauterine insemination (IUI).
In vitro fertilisation (IVF) was then tried, but Ms Harris miscarried on implantation.
The couple had spent more than £11,000 and could not afford further treatment, and asked their doctor again about being treated on the NHS.
The doctor contacted the assisted conception unit of the NHS Greater Glasgow and Clyde Board, but was told Ms Harris and Ms McMullan did not meet IVF criteria, the petition said.
The consultant's letter had stated: "As they are a same-sex couple, they would not be eligible for NHS-funded treatment."
Under a freedom of information request, Ms Harris and Ms McMullan obtained a copy of the treatment acceptance criteria, which nowhere specified that only an opposite-sex couple could obtain assisted conception services on the NHS.
The petition said: "In October 2008, the Equality and Human Rights Commission wrote to the board inquiring why assistance had been refused."
The document added: "The statement in the letter from the consultant that Ms Harris and Ms McMullan, as a same-sex couple, would not be eligible for NHS-funded treatment constitutes an unlawful act of direct discrimination on grounds of sexual orientation."
Lawyers for Ms Harris and Ms McMullan further contended that the refusal breached their rights under the European Convention on Human Rights.
NHS Greater Glasgow and Clyde Board said it provided IVF services free to couples who were infertile, and for a charge to all other persons.
Infertility could have a medical cause or be unexplained. The board had been advised that both Ms Harris and Ms McMullan could feasibly conceive.
"The decision to refuse NHS-funded services was not made on grounds of sexual orientation.
"The definition of infertility does not proceed on (those] grounds," said the board.
HOW IT WORKS THE Scottish Government's health department published a report on infertility services in 2002 and recommended conditions for health boards to provide free treatment.
The clinical criterion was that a couple in a stable relationship of more than two years' standing must be infertile, with a diagnosed medical cause of any duration, or have unexplained infertility.
Unexplained infertility is: "Failure to conceive after two years during which there has been sexual intercourse and no use of contraception."
Each cycle of in vitro fertilisation (IVF) costs £3,300. The health board in yesterday's case, Glasgow and Clyde, has 460 infertile couples from its area waiting for an appointment and about 250 couples from other areas.
