Access to Assisted Reproduction

By: Tiyash Banerjee, The City Law School, City, University of London

On 2nd May 2022, the initial draft majority opinion written by Justice Alito in Dobbs v Jackson Women’s Health Organization was published by POLITICO revealing a vote to strike down Roe v Wade in the United States. This attack on reproductive control exemplifies the ongoing paternalism that surrounds reproductive health more generally. Such paternalism can be seen globally, and EU member states are no exception, on matters ranging from abortion to assisted reproduction.

In Europe, the approach to assisted reproductive technologies (ART) varies by state. In December 2021, Fertility Europe in conjunction with the European Parliamentary Forum for Sexual and Reproductive Rights launched the European Atlas of Fertility Treatment Policies.

This Atlas ranks countries based on nine criteria:

●      Dedicated ART legislation providing stability of access

●      National registers of treatments and donors

●      Access to treatments for all who need them

●      Access to genetic testing for serious diseases

●      Non-anonymous donation

●      Full funding of treatment, to include six IUIs and six IVF/ICSIs

●      Psychological support

●      Patients consulted before any regulatory changes

●      Fertility education in schools

Reflecting on this study, one of the most striking observations is that “As for treatment however, the most notable trend appears to be a clear bias towards heterosexual couples at the expense of single people and LGBT couples.” This bias is evidenced by the  41 countries that provide insemination with donor sperm to straight couples, as opposed to the 19 countries which provide this to female couples, as of December 2021.

One of the most common barriers to accessing ART is requiring proof of infertility. Requiring a diagnosis of infertility often prevents single women, or couples with two women, from accessing ART treatment. Whilst certain European countries allow single women access to ART, like Norway as of 2020, these are relatively new freedoms.

These issues are often compounded when trans and intersex people attempt to access ART. This has been explored by Civio who show how trans and intersex people face “the double barrier” as certain countries still require sterilisation to change their gender. Certain countries categorically limit access to ART for individuals who have obtained gender recognition, whilst others require them to complete the transition first.

Assisted reproduction raises issues of discrimination and the right to a private and family life. The differing approaches of states is a known issue, and in February 2022, the European Parliament drew attention to the need to ensure “equality of access to services for all persons of reproductive age, and to make medically assisted reproduction available and accessible in Europe.” This non-binding Resolution has yet to translate to substantive legal shifts.

The overarching theme in issues ranging from assisted reproduction, abortion rights and access to contraception is reproductive control. Given the controversial nature of these issues, state approaches vary significantly. ART is expensive, and state approaches may differ because of this. Adopting a universal approach to ART within Europe, or even the EU, may therefore be difficult, yet ensuring that the national services are available to all would be the bare minimum in terms of protection of human rights.