Surrogacy, IVF and equality: JR176(2)’s application for judicial review
28 February 2023
Two men are in a relationship and want to have a child. They approach a female friend who is happy to be their surrogate. She has previously had a voluntary sterilisation procedure, so she would need in-vitro fertilisation (IVF) using a donor egg (a procedure known as gestational surrogacy), to help her friends realise their wishes. This is where they all encounter a problem: voluntary sterilisation makes the woman ineligible for publicly funded IVF.
In JR176(2)’s application for judicial review  NIKB 21, the two men challenged the eligibility criteria for publicly funded IVF on a number of grounds, among which this post will focus on two: a breach of the right to private and family life under Article 8 ECHR and Article 8 taken with the right not to be discriminated against contrary to Article 14 ECHR.
The eligibility criteria
Publicly funded IVF is provided to women with a demonstrated fertility problem or where the woman has not conceived after 2 years of unprotected vaginal intercourse or 8 cycles of artificial insemination. It is important to note that these criteria do not exclude women who have experienced involuntary sterilisation (i.e. as a result of a medical problem).
It is also important to note that the criteria do not reference sexual orientation. In fact, before 2019, the eligibility criteria specified only that women had to have failed to conceive after a year of unprotected vaginal intercourse, meaning that women who were in same-sex couples found themselves excluded at the threshold. Consequent to the change to include a failure to conceive through artificial insemination, the eligibility criteria were widened to include women in same-sex relationships.
Heterosexual couples would have to demonstrate the same fertility problems before being considered eligible for IVF (excluding any voluntary sterilisation of either partner in the couple). Single individuals would also have to demonstrate fertility problems, and in the case of a single man who presents with a surrogate, it would be the surrogate who would have to demonstrate the fertility problems. The latter point applies equally to men in a same-sex relationship. The focus of eligibility for publicly funded IVF, therefore, is on female difficulties in conceiving.
This formed the crux of the challenges in JR146(2).
The Article 8 challenge and Article 14 challenge were determined together on the longstanding basis that an Article 14 challenge is necessarily dependant on the alleged discrimination falling within the ambit (see e.g. Thlimmenos v Greece (2001) 31 EHRR 15, )of a substantive ECHR right (Article 8 in this case), so that if the case did not fall within this ambit, both the Article 8 and Article 14 challenges would fail.
Mr Justice Colton looked to recent Supreme Court jurisprudence on the issue of Article 14 challenges and set out the sequence of matters to be considered. First, whether the alleged discrimination fell within the ambit of Article 8. Second, the status within the ambit of Article 14 which was said to be engaged. Third, whether the treatment experienced by the couple in this case was different from that which someone (or some couple) in a relevantly similar situation would experience. Fourth, whether, in the event that there was any differential treatment, this was justified.
Colton J held that the case fell within the ambit of Article 8, not because there is a positive obligation on the State to fund IVF treatment, but because by doing so in certain circumstances the State has demonstrated “its respect for family life” (). Thus, even though there is no requirement to publicly fund IVF, once it is provided, the provision falls within the ambit of Article 8.
On the issue of status, the argument became more complex. Neither sex, nor sexual discrimination applied neatly. This was because men as a class were not discriminated against (in relation to the provision of IVF) if they were either in a heterosexual relationship or presented with a surrogate where the woman was eligible for IVF treatment. In terms of sexual orientation, two women in a same-sex relationship could be eligible in the same way that a heterosexual couple could be eligible (female difficulties in conceiving). The court, however, was prepared to accept that ‘men in a same-sex relationship’, as the applicant argued, could amount to ‘other status’ within the meaning of Article 14 ().
The challenge fell apart, however, on the question of differential treatment. This was because the comparators presented by the applicants were relevantly different, and thus not analogous to the applicants’ situation. This is not a straightforward point, but it is important. The applicants questioned the fact that a heterosexual couple or two women in a same-sex couple could avail of IVF for a surrogate, without the surrogate having to demonstrate her own eligibility for IVF. This was true, but in order to avail of IVF in these circumstances, either couple would have to demonstrate medical fertility issues. Thus, neither couple was relevantly similar to the couple in JR176(2) and so, there was no differential treatment between analogous couples ().
Colton J considered that even if the applicants had established differential treatment, such treatment was justified. This was because matters relating to the provision of IVF were matters of social policy, in which, consistent with longstanding authority, including the Supreme Court decision in R(SC, CB and others) v Work and Pensions Secretary  UKSC 26, the State should be afforded ‘a very wide margin’ (). This was all the more important because, as the judge pointed out, the change to the eligibility criteria for the provision of IVF was effected in order to include same-sex couples – a matter of “remedy[ing] a historic inequality or in evolving rights where there is no established consensus” ().
Fundamental to the challenges in JR146(2) was the way that the factual matrix was framed by the court: Colton J stated, “the court is dealing with issues of medical fertility and not the provision of publicly funded surrogacy” (). This is an important point: the provision of IVF, as previously set out, addresses the medical problems some women face when trying to conceive. In the court’s eyes, the thrust of the applicants’ challenges aimed at the provision of gestational surrogacy for men in same-sex couples, whether or not the proposed surrogate had any medical fertility problems of her own.
On its face, the framing of the issues by the court makes sense: IVF is considered when medical infertility prevents an individual from having a child. But this is one way to frame the issues and there are others. Consider that if a single woman, or a woman in a heterosexual or same-sex relationship experiences medical infertility, IVF may lead to her giving birth to her child. The situation is different with a single man or two men in a same-sex relationship: regardless of any medical infertility, they would still require a surrogate in order to have a child of their own. Where the former category (a single woman or a woman in a relationship) may need a surrogate, the latter category (a single man or two men in a relationship) always needs a surrogate. If the surrogate need not always satisfy the eligibility criteria for IVF in the former category, but must always do so in the latter category, then there is, at least arguably, a differential treatment in respect of the latter category.
A version of this argument was made by the applicants’ counsel. Colton J referred to the concept of “family formation“, which would compare “the applicants’ situation with other couples seeking to conceive“. The judge rejected this concept, observing:
What is required to open up eligibility for IVF treatment is a demonstration by the female trying to conceive of a medical problem, regardless of their sex or sexual orientation, and in the case of a surrogate, regardless of the sex or sexual orientation of the couple using her as a surrogate ().
But the element missing in this observation is that the woman trying to conceive her child is different from the woman trying to conceive someone else’s child. The effect of the eligibility criteria is to allow the second woman to receive IVF for the first woman’s child without reference to eligibility criteria (if the first woman satisfies these criteria), but exclude her from receiving IVF unless she satisfies the criteria, if she is trying to conceive a child for a single man or two men in a same-sex relationship (regardless of whether the man or men in question present with a medical fertility issue). This is an unavoidable impediment, because biological men are incapable of bearing children. Indeed, the applicant had made a similar argument – stating that the eligibility criteria operated “indirectly to preclude access to treatment for him” (). The judge considered this point as “conflat[ing]” IVF and surrogacy (). But the judge’s reasoning is no answer to the fact that for the applicant, IVF and surrogacy intersected – neither he, nor his husband could become a biological father without IVF for their willing surrogate.
Nor is Colton J’s observation about the impact of the applicant’s argument entirely convincing. The judge says:
If the applicant is correct, then because the State provides limited IVF treatment to women in certain circumstances of demonstrated infertility to assist them in achieving pregnancy it is obliged to offer male same sex couples a gestational surrogacy service whereby IVF is used as the means by which pregnancy of a surrogate might be achieved, irrespective of whether that surrogate has infertility issues that would otherwise entitle her to publicly funded IVF in her own right. The effect of this would be to render the qualifying criteria for publicly funded IVF redundant as all women would be able to lay claim to IVF without having to go through the earlier criteria requirements ().
In the applicant’s case, any requirement to provide IVF to a woman regardless of whether she would satisfy the eligibility criteria would not be predicated on the woman, but on the applicant and his biological inability to conceive. The same would be true of other male same-sex couples or single men. The eligibility criteria would still operate in respect of women who want to conceive their own children (whether single or not).
It is also worth remembering at this point that this case concerned a cisgender man in a same-sex couple. The situation becomes even more complex when considering the fertility issues which may be faced by transgender people who are undergoing hormone therapy or surgery. Here, the exclusion of eligibility from IVF on the basis of voluntary sterilisation ignores the impact of hormone therapy and surgery – which, while in significant ways unnecessary in the eyes of the law (for the purposes of gender reassignment discrimination in Northern Ireland, whether direct or indirect, only an intention to undergo gender reassignment is required), can provide an important measure of dignity to the lives of transgender people.
Even if the court had accepted this argument, however, and held that the operation of the eligibility criteria in this case discriminated against the applicant, such discrimination may have been justified under the ECHR. This is because, as Colton J observed (above), the provision of IVF is a matter of social policy – a rubric which has recently signalled a clearer measure of judicial deference in matters involving alleged discrimination.
However, these issues illustrate the inability of the ECHR framework to exactly address the problems faced by diverse people trying to conceive children of their own. There is, for example, no freestanding right to procreate, even within the ambit of Article 12 ECHR, which guarantees, among other things, the right to ‘found a family’. This lack ensures a formal equality between people regardless or sex, sexual orientation or gender identity: no one possesses such a right, meaning that the scrutiny of how certain groups may face structural barriers which others may not, simply does not arise. It is only where services to address fertility issues are provided by the State does the ECHR allow some scrutiny, as illustrated in JR176(2). Unfortunately for the applicants in this case, however, such scrutiny fell short by some measure.