The IVF postcode lottery and law reform

10 August 2020

Latest statistics from the Human Fertilisation and Embryology Authority (HFEA) show that funding for fertility treatment on the NHS still varies significantly across the UK and falls far short of the three cycles set out in NICE Guidance. In 2018, 60% of fertility treatment cycles were funded by the NHS in Scotland, 45% in Northern Ireland, 41% in Wales and just 35% in England.

Articles in the Sunday Times and Daily Mail yesterday (9 August 2020) report that fertility treatment policies on the NHS differ from region to region creating an IVF postcode lottery based on relationship status. They report that in some areas of England IVF patients are prevented from obtaining fertility treatment on the NHS unless they can prove they are in a ‘stable’ relationship. To make matters worse, CCGs define stability differently and this is creating confusion, frustration and distress. In Cornwall, a patient must have a partner of two years and be in a ‘financially interdependent’ relationship to be eligible. In Dorset, couples must have been in a stable relationship for three years. Additionally, 24 Clinical Commissioning Groups (CCGs) require relationship stability to ‘ensure the welfare of the child’. and in Devon, single women are eligible for fertility treatment on the NHS.

Scale of infertility in the UK

The World Health Organization recognises infertility as a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.  As such, one in every seven heterosexual couples will experience difficulties conceiving a child.

Given the sheer scale of infertility across the UK and the growing fertility problem, there needs to be greater acceptance of fertility treatment as a legitimate clinical need and better funding and access on the NHS. The current NHS IVF postcode lottery creates inequality, discrimination, unfairness and misery for many and this needs to change.

Demand for fertility treatment in the UK

Latest data from the Office for National Statistics (ONS) shows that the number of women over 40 giving birth has risen to record levels in England and Wales. In 2019, 29,618 women aged over 40 had a child in England and Wales. In contrast, fewer than one in 10 women aged between 25 and 30 had a baby last year. Women are increasingly delaying having a child in their twenties and thirties and are instead focusing their time and energy on their jobs, getting on the property ladder and trying to reach a more stable economic position. In delaying parenthood, women are increasingly turning to fertility treatment and assisted conception to conceive.

As such, demand for fertility treatment remains strong in the UK. Around 54,000 patients underwent 68,724 fresh and frozen IVF cycles as well as 5,651 donor insemination cycles in the UK in 2018.  Since 2013 the number of egg and embryo storage cycles has also increased fivefold to just under 9000 cycles in the UK in 2018.

However, the Covid-19 pandemic is putting immense economic strain on the state, NHS, private fertility clinics, individuals and families. It raises serious questions about the future sustainability of NHS funding for IVF treatment. The continued pandemic is also making it harder for people to afford the cost of private fertility treatment and assisted conception.

Covid-19 is also likely to change attitudes and approaches to fertility treatment and family building. This is likely to result in greater demand for egg, sperm and embryo freezing as people grapple with uncertainty and increased risks associated with fertility treatment and create breathing space to see how this pandemic will impact their jobs and livelihoods, health, wellbeing and futures. As such, the disruption and loss caused by Covid-19 could cause more people to delay having a child and lead to a further rise in the age of first-time parents in the UK.

Declining fertility levels

New research published last month (July 2020) by the University of Washington’s Institute for Health Metrics and Evaluation shows global falls in the number of children being born, with 23 nations’ populations expected to halve by 2100. 183 out of 195 countries are expected to have a fertility rate below the population replacement level by 2100. Global fertility rates halved to 2.4 children in 2017 compared with women having on average 4.7 children in 1950. This has come about as more women enter education and work and have greater access to contraception.

The UK population is predicted to peak at 75 million in 2063 and then fall to 71 million by 2100. Like the rest of the world, we will continue to develop an ageing population and inverted age societal structure. This will result in increasingly serious issues at a law and policy level. How do we replace our population and protect our families, family building and fertility? How do we as a nation structure tax payments, retirement and pay for healthcare and social care for the elderly? How do we ensure we have a workforce with the necessary skills and knowledge to grow and sustain our economy and wealth? Brexit will also bring these issues into closer focus as the UK looks to create a more independent future.

Fertility and wider law reform

Covid-19 continues to have a profound impact on our way of life, changing our previously well-established social norms, activities and behaviours. This devastating and-threatening virus has caused us to re-evaluate policy and prioritise personal health over short term economic well-being. It shines a light on the rapid uptake and interconnection between genomics, science, digital and AI technology and domestic healthcare and fertility, economic and security issues. It is also intensifying the need for intelligent and integrated law, policy and infrastructure to help us manage the constantly shifting environment around us.

If we are to successfully manage declining fertility levels, economic fallout from the Covid-19 global pandemic, the growing pressure on the NHS to deliver population wide healthcare and fertility treatment services, changing geopolitics and increased uptake of genomic, digital and AI technology it is critical that we implement a new approach. The UK would be well served by a top level multi-disciplinary strategy group to drive change and innovation, as well as identify and mitigate risk with joined up thinking between the technology, science, healthcare, fertility, education, economic and other sectors. It would operate on a continuous basis in the UK and not just during emergencies. It would comprise strategic thinkers who sit outside the elected political elite. They would shift paradigms and deliver forward-looking assessments to inform law and policy-makers and shape the future more quickly and effectively. This top level strategy group’s remit would extend beyond that of the government’s Scientific Advisory Group for Emergencies (Sage). It would help us respond effectively to the rapidly evolving inter-connected digital, artificial intelligence, genomic, epigenetic, healthcare and reproductive technological advances. It would also help address ‘silo mentality’ and short-term decisions and responses to the many challenges we face. In doing so, it would help create new legal frameworks and infrastructure to keep pace with the massive changes that are happening around us.

We would also benefit from a Ministry for Fertility and Genomics, with a dedicated Minister for Fertility, to provide unified future direction for the fertility sector. This would help develop new integrated national genomic and fertility policy and political strategy to combat our growing fertility problem in the UK. It would bring greater cohesion and promote and prioritise the fertility space. It would help create an all-inclusive policy and strategy that encompasses fertility issues from pre-conception through to pregnancy and birth, as well as individual fertility and genetic legacy in the UK. In doing so, it would require us to address our growing fertility problem, the increasing age of first-time mothers in the UK, our ageing population, the continued demand for fertility treatment, the inequality of the IVF postcode lottery on the NHS and increasing concerns about commercial pressures on the UK fertility sector and affordability of fertility treatment.

For too long, we have seen a fragmented approach to the fertility space and a laissez faire attitude towards individual fertility. As we continue through this global pandemic, it presents an opportunity to bring about meaningful change and improvements to national healthcare delivery and fertility treatment services. To maximise this will require a step change in our thinking and a new centralised strategy that works in partnership with advances in artificial intelligence, digital technology, genomic science and medicine and our changing social, political and economic landscape.

Need a fertility lawyer or a family lawyer? If you would like to discuss your situation or you require specialist fertility and family law advice and assistance please contact Louisa by email  or by telephone +44 (0)20 7965 8399.


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