Access of single women to fertility treatment: a case of incidental discrimination?

The purpose of this article is to evaluate the extent to which single women have access to publicly funded fertility treatment. It claims that, despite the fact that great progress has been made in removing gender inequalities in the area of assisted reproduction in England and Wales in recent years, there are points in the regulatory framework that still allow for discrimination against single women. The article builds on recent studies concerning the reforms brought about by the Human Fertilisation and Embryology Act 2008 (HFEA 2008). However, it focusses on publicly funded treatment, thus directing scholarly attention away from the controversies over the amended s 13(5) HFEA 1990. It argues that the primary reason for remaining inequalities can be traced back to (a) the limitations of the current legislative framework; (b) the ambiguities inherent in the regulatory framework, which in the context of publicly funded fertility treatment is determined by the National Institute for Health and Care Excellence clinical guidelines and Clinical Commissioning Groups and Health Boards’ resource allocation policies; and (c) the remaining confusion about the relationship between ‘welfare of the child’ assessments and eligibility criteria in National Health Service rationing decisions. The article argues that the current regulation does not go far enough in acknowledging the inability of single women to conceive naturally, but at the same time that it struggles to address the fluidity of contemporary familial relationships. The analysis presents an opportunity to contribute to debates about the role of law in shaping the scope of reproductive autonomy, gender equality and social justice.