Northern Ireland's Court of Appeal has dismissed a challenge brought by a man in a same-sex civil partnership who sought publicly funded IVF treatment connected to a gestational surrogacy arrangement. The court found that the Department of Health, the Belfast Health and Social Care Trust, and the Health and Social Care Board had not acted unlawfully in refusing access to the treatment.

The appellant and his partner had sought to have a child through IVF using a donor egg implanted in a gestational surrogate. The identified surrogate had undergone voluntary sterilisation, making conception through artificial insemination impossible. Although the surrogate later withdrew from the arrangement, the court accepted the case was not academic because the refusal had taken place while she was still willing to participate.

Publicly funded fertility services in Northern Ireland are not available as a general assisted conception route. Access is contingent on demonstrating a medical fertility problem and is governed by Department of Health policy informed by NICE guidance. Since 2019, same-sex couples have been able to demonstrate such a problem through four unsuccessful cycles of artificial insemination. However, the criteria exclude cases where either partner has undergone voluntary sterilisation, a condition that also applies to opposite-sex couples.

The court, comprising Treacy LJ, Sir Mark Horner, and Scoffield J, with Treacy LJ delivering the judgment, rejected all grounds of appeal. These included claims of direct and indirect discrimination, alleged errors in applying the 2019 criteria, and breaches of Articles 8 and 14 of the European Convention on Human Rights. The court held that establishing discrimination requires a valid comparator in materially similar circumstances, and the appellant had not demonstrated a medical fertility problem as required by the criteria.

The court also rejected the argument that the system's focus on the female conception partner was discriminatory, finding this to be inherent in the biological nature of conception. It further rejected a comparison between the provision of donor sperm and donor eggs, finding the two not to be analogous due to material biological and procedural differences. The court upheld the respondents' compliance with equality obligations under Section 75 of the Northern Ireland Act 1998.

On the question of gestational surrogacy more broadly, the court noted that such arrangements are only considered after a medical fertility problem has been established - a threshold the appellant had not attempted to meet. The court affirmed that publicly funded fertility services are designed to treat medical infertility and do not provide an elective or preference-based pathway to parenthood.

While the court expressed sympathy for the appellant and his partner and acknowledged their desire to become parents with a biological connection to their child, it concluded that the respondents had not acted unlawfully. The court stated that the provision of a publicly funded surrogacy service of the kind sought is a matter for political decision-making, and that its absence does not represent unlawful discrimination. The appeal was dismissed in full.