Anonymised Summary of Judicial Opinion

Factual and Procedural Background

The Appellant is a male partner in a same-sex civil partnership who sought publicly funded In Vitro Fertilisation (IVF) using a gestational surrogate. He entered a private surrogacy agreement with a female friend who had previously undergone voluntary sterilisation; the plan involved using a donor egg (not the surrogate's) fertilised with sperm from the Appellant or his partner and implanted into the surrogate. The relevant public bodies (the Department, Company A and Company B) refused access to the requested IVF funding. The Appellant brought judicial review proceedings, which were dismissed by Judge Colton ([2022] NIKB 21). The Appellant appealed to the Court of Appeal (Judge Treacy delivering the judgment, with Judge Horner and Judge Scoffield), which heard the appeal and delivered judgment dismissing all grounds of appeal. The court accepted that the Appellant had standing based on his status as a man in a same-sex relationship.

Legal Issues Presented

1. Whether the eligibility criteria for publicly funded fertility treatment directly discriminated against the Appellant on grounds of sex and sexual orientation (including alleged breaches of the Sex Discrimination (Northern Ireland) Order 1976 and regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006).
2. Whether the respondents' policy and its application breached Article 8 ECHR, and Article 8 in conjunction with Article 14 ECHR.
3. Whether the 2019 changes to access criteria were intended to remove the requirement to demonstrate a medical fertility problem or merely to provide routes for demonstrating medical infertility for same-sex couples.
4. Whether any indirect discrimination complained of was pursued for a legitimate aim and was proportionate.
5. Whether the Department and other respondents had due regard to equality obligations under section 75 of the Northern Ireland Act 1998.
6. Procedural/jurisdictional question whether a complaint under the 1976 Order could be brought by judicial review.

Arguments of the Parties

Appellant's Arguments

• The eligibility criteria (as amended in 2019) exclude or disproportionately disadvantage same-sex male couples and single men, amounting to direct and/or indirect discrimination on grounds of sex and sexual orientation.
• The Department's change in 2019 was intended to provide broader assisted-conception access and should not require proof of a medical fertility problem in the surrogate in the way the respondents contend.
• The respondents erred in treating donor sperm and donor egg/donor-egg-plus-surrogacy contexts as non-comparable, creating a direct barrier for same-sex male couples wishing to use gestational surrogacy.
• The respondents failed to give proper effect to equality duties under section 75.

Respondents' Position

• The 2019 criteria were intended to permit same-sex couples to demonstrate a medical fertility problem (e.g. via failed cycles of artificial insemination) so they could access treatment for medical infertility; they were not intended to create a general assisted-conception service for persons without medical need.
• Access to publicly funded IVF is reserved for those who demonstrate a medical fertility problem irrespective of gender or sexual orientation; prior voluntary sterilisation is a known cause of infertility and bars access because it prevents the investigative function of AI.
• The Appellant did not attempt the available investigative route (four cycles of AI) and therefore failed to demonstrate a medical infertility problem; any like treatment would require demonstration of medical need.
• Provision of donor sperm to female same-sex couples is not comparable to provision of donor eggs and state-funded surrogacy for male same-sex couples; the Department applies the criteria consistently and within the State's margin of appreciation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court accepted that the 2019 amendments created a route by which same-sex couples could demonstrate a medical fertility problem (for example, by failing four cycles of artificial insemination) so they could access treatment for medical infertility. The court preferred the Department's witness evidence (Ryan Wilson) on the policy intention over alternative evidence and read the criteria holistically as aimed at proving medical infertility rather than creating a general assisted-conception entitlement.

The court analysed the discrimination claims by reference to comparator logic: unlawful discrimination requires that persons in the same or materially similar circumstances are treated differently because of a protected characteristic. The Appellant had not demonstrated a medical infertility problem and therefore was not in the same or materially similar circumstances as other intending parents who had satisfied the investigative criteria. Because the Appellant had not attempted the available investigative route, there was no like-for-like comparator and no proven discrimination.

The court explained that voluntary sterilisation is a known cause of infertility and precludes the investigative purpose of artificial insemination; that rule applies to all women and is reflected in the access criteria for IUI/IVF. The focus of fertility services on the woman's situation is inherent to the medical purpose of diagnosing and treating infertility and does not amount to unlawful exclusion of men. The court also found that donor sperm provision to female same-sex couples is not materially comparable to donor-egg plus gestational surrogacy for male same-sex couples and endorsed the trial judge's conclusions on that point.

The court further held that granting the Appellant's claim would allow priority-skipping of the waiting list for persons with demonstrable medical fertility problems and would, in effect, convert the medical-fertility service into an unfettered assisted-conception service—an allocation of public resources properly within the State's margin of appreciation and political domain.

On procedural points, the court observed that the jurisdictional question whether sexual discrimination under the 1976 Order can be pursued by judicial review depends on the relief sought and left a concluded view for another case; it nonetheless heard and determined the substantive merits here. The court accepted the trial judge's conclusion that the Department had due regard to equality obligations under section 75 and indicated that any section 75 complaint is properly pursued with the Regulatory Body.

Holding and Implications

ALL GROUNDS OF APPEAL DISMISSED.

Implications:

• The court concluded the respondents did not unlawfully discriminate against the Appellant; no relief was awarded to the Appellant.
• The 2019 criteria were interpreted as facilitating proof of medical infertility for same-sex couples, not as creating a general entitlement to state-funded assisted-conception or surrogacy without medical need.
• The absence of a publicly funded surrogacy/assisted-conception service of the kind sought by the Appellant is a policy decision for elected authorities rather than a violation of Article 14 in conjunction with Article 8.
• The court left open the precise jurisdictional boundary for claims under the Sex Discrimination (Northern Ireland) Order 1976 to be determined in a future appropriate case and noted section 75 claims should be pursued with the Regulatory Body where applicable.

Note: All personal names and institutional identifiers in this summary have been anonymised and replaced with consistent generic placeholders in accordance with the summary instructions.