Jude Bunting acts in same-sex couple judicial review against “discriminatory” IVF policy

Jude Bunting, leading Marlena Valles of Blackstone Chambers and instructed by Anna Dews of Leigh Day, is representing Megan and Whitney in their legal claim against Frimley Clinical Commissioning Group regarding their policy which they say discriminates against same-sex couples.

The couple argue in their legal claim that the policy is directly and indirectly discriminatory on the basis of sexual orientation, contrary to the Equality Act. If they were to compare themselves to an opposite-sex couple who can have unprotected sex but cannot conceive without medical assistance the policy applies differently. Although both couples are unable to conceive as a result of having unprotected sex, the opposite-sex couple are able to prove that they are infertile by failing to conceive after reporting having had “regular” unprotected sex for two years. In Megan and Whitney’s case they must prove they are infertile by self-funding 12 rounds of artificial insemination, including 6 rounds of IUI in a clinical setting, costing many thousands of pounds. They argue that this clearly amounts to less favourable treatment.

If Megan and Whitney attempted 12 cycles of artificial insemination at home with a private sperm donor, or even attempted an insemination every day for two years at home, they would not meet the eligibility criteria and they would still be required to undergo six rounds of IUI in a clinical setting.

As well as causing direct and indirect discrimination contrary to the Equality Act the couple also argue that the Frimley CCG policy is contrary to article 14 in conjunction with article 8 of the European Convention on Human Rights (ECHR) which is the protection from discrimination provision in the Human Rights Act in relation to respect for private and family life.

Leigh Day’s press release can be found here.

Media coverage: BBCThe GuardianITV.