Comparator Requirement in IVF/Surrogacy Funding Challenges and No Article 8 Duty to Provide “Family-Creation” Services

1. Introduction

In JR176(2), Application for Judicial Review [2026] NICA 27, the Court of Appeal in Northern Ireland (Treacy LJ delivering the judgment, with Horner LJ and Scoffield J concurring) dismissed an appeal from Colton J’s decision [2022] NIKB 21.

The appellant (a man in a same-sex civil partnership) sought publicly funded IVF in the context of a proposed gestational surrogacy arrangement. The proposed surrogate had previously undergone voluntary sterilisation. The appellant argued that refusal of access to publicly funded IVF (and the policy criteria underpinning that refusal) unlawfully discriminated against him, principally within the ambit of Article 14 taken with Article 8 ECHR, and under a range of domestic equality provisions.

A key factual complication—later withdrawal by the identified surrogate—did not render the case academic, as decided in [2024] NICA 31, because the impugned refusal occurred when the surrogate was willing to proceed.

2. Summary of the Judgment

  • The Court held there was no arguable Article 8 “positive obligation” requiring the State to fund the appellant’s preferred route to parenthood (publicly funded gestational surrogacy/egg donation on demand).
  • Any viable case was therefore framed as Article 14 discrimination within the ambit of Article 8, but it failed because the appellant could not establish a valid comparator: he had not demonstrated medical infertility in the manner required by the access criteria.
  • The policy’s focus on the “woman’s situation” was not discriminatory: fertility services are structured around the fact that pregnancy occurs in a woman, while still investigating and treating male-factor infertility where relevant.
  • The Court rejected arguments that the surrogate’s fertility (or sterilisation) was uniquely assessed only for male same-sex couples: voluntary sterilisation is a bar for all women within the relevant criteria.
  • The appeal ground challenging the trial judge’s jurisdictional observation on the Sex Discrimination (Northern Ireland) Order 1976 was treated as academic; the Court noted the point may be open depending on relief sought, but left final determination for a case where it matters.
  • The Court upheld the section 75 conclusion and added that, following Re McMinnis' Application [2024] NICA 77, section 75 issues are generally to be pursued via the Equality Commission rather than by proceedings like this.

3. Analysis

3.1 Precedents Cited and Their Influence

Although the dispute was fact-specific, the Court anchored its reasoning in constitutional and Convention principles about institutional competence, biological realities relevant to service design, and the proper limits of judicial review in resource-allocation contexts.

For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16

The Court cited For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 for a biological proposition relevant to how fertility services are structured: “as a matter of biology, only biological women can become pregnant.” The citation was used not to decide any gender-recognition controversy, but to support the rationality of a clinical framework that necessarily centres on the female conception partner’s capacity to conceive and carry a pregnancy.

R (SC and Others) v Secretary of State for Work and Pensions [2021] UKSC 26

The Court invoked Lord Reed’s caution in R (SC and Others) v Secretary of State for Work and Pensions [2021] UKSC 26 (para [162] cited) to emphasise that courts should not, under the guise of discrimination analysis, effectively determine contested questions of social policy and public expenditure. This underpinned the Court’s view that the appellant’s case, properly understood, was an argument for a publicly funded “family-creation” service rather than for equal access to treatment of medical infertility.

Re McMinnis' Application [2024] NICA 77

In addressing section 75 of the Northern Ireland Act 1998, the Court relied on Re McMinnis' Application [2024] NICA 77 to reinforce that alleged section 75 breaches are ordinarily pursued through the Equality Commission for Northern Ireland’s mechanisms, not through the kind of judicial review mounted here. This was an additional reason why the appellant’s section 75 ground could not advance the case.

3.2 Legal Reasoning

(a) The nature and purpose of the scheme: treatment of medical infertility, not funded surrogacy choice

The Court accepted the respondents’ characterisation of the 2019 reforms: they expanded the ways in which medical infertility can be demonstrated for those who cannot evidence “one year of unprotected vaginal sexual intercourse” (a route that previously excluded many same-sex couples).

The Court preferred the evidence of the Department’s policy witness (the Department being the “owner” of the policy) that the reform was “permissive” by widening access to assessment and investigation pathways, but did not abolish the requirement to evidence medical need. The Court rejected the appellant’s reliance on an isolated assertion suggesting patients “no longer needed a ‘medical cause’ of infertility”, finding it inconsistent with the criteria and unsupported in context.

(b) Comparator failure: the central reason the discrimination claims failed

The Court treated comparator analysis as decisive. Discrimination (direct or indirect) requires that: (i) the claimant is in the same or materially similar circumstances as the comparator group; and (ii) less favourable treatment is because of a protected status.

Here, the protected status pleaded for the appeal was the appellant’s status as a man in a same-sex relationship. But the appellant could not identify a proper comparator because he had not demonstrated medical infertility (the threshold for entry into publicly funded fertility investigations and treatment). By contrast, those he sought to compare himself with (heterosexual couples, female same-sex couples, or others within the fertility pathway) were either required to, or had, met the evidential route into the medical system.

This was not merely formalism: the Court explicitly linked comparator failure to the integrity of a waiting-list and triage system designed around clinical need. Granting the appellant the treatment sought would, in the Court’s view, amount to unjustified “queue-jumping” over others who were awaiting treatment for demonstrated medical fertility problems.

(c) “Female focus” as an inherent feature of fertility services, not discriminatory exclusion of men

The appellant argued that the scheme “concentrates on female fertility” and is therefore discriminatory. The Court held that fertility treatment necessarily focuses on why a woman is not conceiving because conception and pregnancy occur in a woman’s body. That does not exclude male-factor causes from investigation or treatment: where the woman meets access criteria, the male providing sperm may also be investigated because male issues can be the reason she cannot conceive.

The Court thus treated the “woman’s situation” criterion as the gateway through which male infertility issues can be identified and addressed within a system whose ultimate clinical outcome is pregnancy in a woman.

(d) Surrogacy, sterilisation, and the investigative purpose of AI cycles

The Court explained the logic of the 2019 pathway:

  • If conception is not achieved via vaginal intercourse, a fertility problem may be evidenced by four failed cycles of artificial insemination (AI), leading to further investigation and potentially IUI/IVF.
  • AI cycles only serve that investigative function where the female conception partner is using her own eggs.
  • Voluntary sterilisation is a “known cause of infertility” and therefore incompatible with using AI cycles to investigate whether there is an underlying fertility problem amenable to treatment.

On that basis, the Court rejected the proposition that only male same-sex couples have the surrogate’s fertility “taken into account”. A sterilised woman is excluded from the investigative pathway irrespective of who the intended parents are.

(e) Donor sperm vs donor eggs: non-comparability

The Court upheld the conclusion that provision of donor sperm for female same-sex couples is not a like-for-like comparator to the appellant’s demanded access to donor eggs (and associated surrogacy arrangements). It treated differences in process and biological role as material, and it also accepted evidence that donor eggs could be clinically provided to a surrogate if, after proper investigation, there were a medical indication (i.e., within the medical-infertility framework rather than as a first-choice route).

(f) Article 8 and Article 14: ambit without entitlement

The Court agreed with the trial judge that there was not even an arguable case that Article 8 imposed a positive obligation to fund the appellant’s preferred reproductive pathway. The matter could only proceed (if at all) as an Article 14 claim within Article 8’s ambit, which still required a proper comparator and differential treatment “because of” status—both missing here.

(g) Sex Discrimination (Northern Ireland) Order 1976 in judicial review: an open (but academic) point

The Court noted potential merit in the argument that judicial review is not necessarily barred, pointing to the structure of Article 62 (including Article 62(2) preserving prerogative-type relief), while observing that damages claims in tort are directed to the county court (Article 66(2)). However, since no relief was due on the merits, the Court left the jurisdictional question unresolved and suggested it should be treated as a preliminary issue in future cases where determinative.

3.3 Impact

  • Comparator discipline in healthcare discrimination claims: The decision underscores that claimants challenging eligibility criteria must identify comparators who are truly in materially similar circumstances—especially where the scheme is a rationed clinical service predicated on evidencing medical need.
  • Judicial restraint in resource-allocation and “service design” disputes: By characterising the appellant’s case as seeking a different kind of publicly funded service (a “family-creation”/surrogacy service), the Court reinforced the boundary between adjudicating equality within an existing service and compelling the State to create or fund a new category of service.
  • Clarity on the 2019 AI pathway’s purpose: The ruling supports the view that the 2019 criteria broadened access to the infertility investigation/treatment pathway for those previously excluded by the “vaginal intercourse” evidential route, without converting fertility services into on-demand assisted conception.
  • Section 75 litigation posture: The Court’s reliance on Re McMinnis' Application [2024] NICA 77 further signals that section 75 arguments will often be met with an objection that the appropriate route lies via the Equality Commission.

4. Complex Concepts Simplified

IVF (In Vitro Fertilisation)
Fertilisation occurs in a lab. An embryo is then transferred to a uterus. It is resource-intensive and typically reserved for clinically indicated infertility.
Artificial Insemination (AI): ICI and IUI
  • ICI: sperm placed near the cervix (can be done at home).
  • IUI: sperm placed into the uterus in a clinic (more complex, used as part of medical investigation/treatment).
Gestational (host) surrogacy
The surrogate carries a pregnancy but the egg comes from someone else. In this case, the appellant sought to start with gestational surrogacy (donor egg + embryo transfer), rather than using AI with the surrogate’s own eggs to investigate infertility.
Comparator
A person (or group) in the same or materially similar situation used to test whether the claimant was treated less favourably because of a protected status. Without a valid comparator, many discrimination claims fail at the threshold.
Margin of appreciation
The latitude afforded to the State in deciding how to allocate resources and structure public services, particularly in areas involving complex social policy and limited budgets.
Section 75 duty (Northern Ireland Act 1998)
A public authority must have “due regard” to equality of opportunity across protected categories when carrying out its functions. The Court emphasised that challenges commonly proceed through the Equality Commission framework.

5. Conclusion

[2026] NICA 27 confirms that publicly funded fertility services in Northern Ireland are lawfully structured as a medical infertility service rather than an on-demand route to assisted conception, and that discrimination challenges must be built on a proper comparator within that clinical framework. The Court was clear that the appellant’s claim, though understandable in human terms, sought to transform eligibility rules into an entitlement to a different publicly funded service—an issue the Court treated as one for democratic policy-making rather than adjudication under Article 14 within the ambit of Article 8.