Section 6 - Human Rights Act
6.1 The Human Rights Act 1998 is an Act of the Westminster Parliament and
came into force on 2 October 2000. The Act has the effect of incorporating the
European Convention on Human Rights (ECHR) into domestic law.
6.2 The Human Rights Act:
• makes it unlawful for a public authority to act incompatibly with the
Convention rights and allows for a case to be brought in a UK court or
tribunal against the authority where it does so. However, a public authority
will not have acted unlawfully under the Act if as the result of a provision
of primary legislation it could not have acted differently.
• requires that all legislation be interpreted and given effect as far as
possible compatibly with the Convention rights. Where it is not possible to
do so, a court may:
o quash or disapply subordinate legislation or
o if it is a higher court, give a declaration of incompatibility for
primary legislation thereby triggering a new power allowing a
Minister to make a remedial order to amend the legislation to
bring it into line with the Convention rights.
o requires UK courts and tribunals to take account of the case-law
of the Court and the Commission in Strasbourg and also the
Committee of Ministers. They will also be bound to develop the
common law compatibly with the Convention rights.
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6.3 The European Convention on Human Rights is a treaty of the Council of
Europe. The Council of Europe is an organisation of governments created in
1949 with the general aim of enhancing the cultural, social and political life of
Europe. It pre-dates and is quite separate from the European Union and the
Convention is distinct from the general code of European Union law.
6.4 The Convention was adopted in 1950 and ratified by the Westminster
Parliament in 1951.
6.5 The Convention guarantees the following rights and freedoms:
• The right to life
• The right to freedom from torture and inhuman or degrading treatment or
• The right to freedom from slavery, servitude and forced or compulsory
• The right to liberty and security of person
• The right to a fair and public trial within a reasonable time
• The right to freedom from retrospective criminal law and no punishment
• The right to respect for private and family life, home and correspondence
• The right to freedom of thought, conscience and religion
• The right to freedom of expression
• The right to freedom of assembly and association
• The right to marry and found a family
• The prohibition of discrimination in the enjoyment of the convention
• The right to access to education
• The right to free elections
• The right not to be subjected to the death penalty
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6.6 All public authorities have a positive obligation to ensure that respect for
human rights is at the core of their day to day work. The Human Rights Act
underpins this by making it unlawful for a public authority to act (or fail to act)
in a way which is incompatible with a Convention right.
6.7 In order to fulfil this obligation and ensure that fertility policy is compatible
with the Convention rights, the Department has also considered the access
criteria and the possible impact they may have on the Convention rights and
freedoms outlined above.
6.8 It may be concluded that the provision of publicly funded Assisted
Reproduction Treatments is compatible with the Convention rights and in
particular enhances the right to found a family. The Department is committed
to the provision of publicly funded fertility services. However, there are
limited resources available across the entire HPSS. It is necessary, therefore, to
consider not only what fertility services are publicly funded, but also to
consider how access to these services can be managed in an effective, efficient
and fair manner. In light of this, the Department has concluded that the
implementation of access criteria is compatible with the convention rights.
6.9 However, the Department also recognises that two criteria - dependant
children, and age of the female partner - may not be entirely compatible with
the Convention Rights, in particular the right to marry and found a family and
the prohibition of discrimination in the enjoyment of the convention rights.
6.10 The age based criterion applies to the female partner only. It’s implementation
could, therefore, be regarded as discriminating in the enjoyment of the
convention rights, namely the right to marry and found a family, on the basis of
age and gender. However, the evidence previously outlined demonstrates that
there is a clear and significant decline in female fertility potential with age.
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While male fertility rates also decline with age, the decline is much less
dramatic and only becomes significant in the late forties and early fifties.
However, there is a clear line between anti-convention discrimination and
legitimate differentiation. Ideally, any policy which limits spending on fertility
treatment (or indeed any other care) should do so the grounds of clinical
effectiveness. As such the implementation of the age-based criterion may be
justified on clinical evidence and is, therefore, not deemed to be incompatible
with the Convention Rights. However, recognising that the decline in fertility
potential is associated with the age of the eggs and not the uterus,
implementation of the age based criterion with regard to donor egg IVF will
only remain compatible with the Convention Rights where it is applied to the
donor rather than the recipient.
6.11 The present interim service does not entitle couples to fertility treatment if they
have dependant children living with them. The criterion was developed in light
of the fact that the interim publicly-funded fertility service was to be delivered
within limited resources. As such, the criterion was determined by the resource
implications of providing a publicly-funded service and was not driven by
clinical evidence or need. Therefore the criterion is not based on the grounds of
clinical effectiveness. In light of this, the Department recognises that restricting
access to exclude couples who have dependant children living with them may
not be entirely compatible with the Convention rights and in particular the right
to marry and found a family. However, it may also be argued that this
particular criterion does not in fact inhibit the freedom to marry and found a
family as currently the Article does not relate to the provision of fertility
treatment but only to natural means of conception.
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Section 7 - Conclusion
7.1 This equality impact assessment (EIA) has addressed the Department's
proposals for taking forward the future development of fertility services.
7.2 The EIA foresees the current Dependants’ criterion as having an adverse
impact on a number of the Section 75 equality groups. It considers that is not
possible to justify the implementation of this criterion in its current format on
the basis of clinical evidence or need. Furthermore, it considers that is not
possible to identify any actions which could be taken to address this adverse
impact while providing for the continued implementation of the dependants’
criterion as a means of restricting access to the service. The continued
implementation of the dependants’ criterion may also be incompatible with the
Human Rights Act 1998.
7.3 This EIA recognises that all areas of the health and social services are
currently under considerable pressure with demand often outstripping supply
and resources are limited. The funding and provision of fertility services
therefore needs to be considered in the context of many competing priorities.
This EIA also recognises that if access to IVF and related treatments was
expanded to include couples whether or not they have existing children, this
will have a significant impact on waiting lists and waiting times for this
service. It may also mean that couples with children could receive treatment
ahead of those without children. In these circumstances, while a dependants’
criterion which restricts access to the service is not justified, in order to deliver
an effective, equitable and sustainable fertility service there are sufficient
grounds for the implementation of a dependants’ criterion to prioritise rather
than restrict access to the service.
7.4 This EIA, therefore, recommends that, subject to the outcome of the
consultation process and in light of the findings of this EIA, the Department
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should revisit the dependants’ criterion in the subsequent development of
proposals for the future provision of sub-fertility services.
7.5 It will be necessary for equality aspects to be kept under review. In this regard,
the Department will monitor access to fertility services for adverse impact in
the future and will publish the results of such monitoring. The Department will
also undertake an EIA on proposals for the future provision of sub-fertility
services which may emerge from the consultation exercise.
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TREATMENTS FOR FERTILITY
i. Ovulation induction involves stimulating the ovaries with hormones, so that
more eggs will ovulate. There are several different methods of ovulation
induction, all of which have shown benefits for particular groups of women
suffering fertility. If a woman is not producing eggs regularly, she may be
given drugs to stimulate her ovaries.
ii. The most common drug used for this purpose in clomiphene. Injections of
follicle-stimulating hormones may also be given for the same purpose.
iii. Surgical intervention may be undertaken to repair damage to the fallopian
tubes or to reverse tubal ligation. Surgery may also be undertaken to restore
fertility to a male who has had a vasectomy. Recourse to surgery has become
less frequent in recent years because of the growing availability of Assisted
Reproductive Technology (ART) as an alternative treatment.
iv. Surgical treatments may be used in women to treat polycystic ovaries. For
women with mild endometriosis, ablation improves fertility - but the benefits
are less clear in patients with moderate or severe endometriosis. [translate]
v. Artificial insemination is a potential solution for some couples where the
cause of fertility cannot be found or is not amenable to treatment. The term
artificial applies to the procedures involved, because they do not depend for
their effect on sexual intercourse between the partners. Artificial insemination
involves the fertilisation by artificial means of the ovum in its natural
environment. There are three main varieties of this approach:
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Artificial insemination (AI). This involves the injection of sperm into a
woman’s vagina, so that conception can take place in the fallopian tube in the
Intrauterine insemination (IUI). This is essentially the same as AI, but it
includes ovulation induction and special preparatory treatment of the sperm;
Gamete intrafallopian tube transfer (GIFT). This involves the collection
and mixing of eggs and sperm outside the body and their transfer to the
fallopian tube before fertilisation takes place. This procedure has been mainly
superseded by IVF treatment.
vi. A still more radical approach is embryo transfer. This involves the creation of
human embryos (fertilised eggs) outside the human body for subsequent
transfer to the womb. The main forms of this approach to the treatment of
• In vitro fertilisation (IVF) – this uses the couple’s own sperm and eggs
and is an effective treatment for fertility resulting from tubal problems, or
for unexplained causes. In IVF, the woman’s ovaries are stimulated by drug
treatments and the eggs ‘harvested’. They are mixed with the male’s sperm
in the laboratory, where fertilisation of some eggs should occur. After an
interval of some days, embryos which develop and are considered viable are
then implanted into the woman’s uterus. Usually 1 or 2 embryos are
• Intra-cytoplasmic Sperm Injection (ICSI) – This is a useful treatment in
couples with deficient sperm. The technique is similar to IVF, except that
the fertilisation is undertaken by injecting a sperm into an egg with an
extremely fine needle.
• IVF using donated eggs - Egg donation allows women who have ovarian
failure to use eggs from another woman. Egg donation has proved
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successful, but remains limited - chiefly because of a shortage of egg
donors. Egg sharing has been used recently where a woman undergoing
IVF treatment may donate some of her harvested eggs to another patient.
• Zygote intrafallopian tube transfer (ZIFT). This procedure is similar to
GIFT, but fertilisation takes place before transfer to the fallopian tube. The
distinction between ZIFT and IVF is that in ZIFT the fertilised egg is
transferred as soon as fertilisation takes place, rather than after an interval of
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