A married lesbian couple who launched a landmark legal test case against the NHS have claimed a “victory for equality” after their local health service group agreed to change its fertility treatment rules for same-sex couples.
Megan Bacon-Evans, 36, and Whitney Bacon-Evans, 35, have formally withdrawn their case at the high court after NHS Frimley Integrated Care Board (ICB) volunteered to give same-sex female couples the same access to fertility treatment as heterosexual couples, following a two-year review. Their case sparked national debate and led to a significant policy U-turn by the government last year.
The influencers, from Windsor, Berkshire, who are known on YouTube as Wegan, met online in 2008 and have more than 500,000 followers on social media. They told the Guardian that the NHS’s decision was “a great step to achieving fertility equality” and it made them “very hopeful for the future of LGBTQ+ families” in Britain.
They added: “When we started out, we didn’t think we would achieve equality overnight and the fact that in 2.5 years we went from feeling like this issue was completely ignored, to taking the ICB to the high court, to the government promising to offer equal access to IVF, is beyond what we could have hoped for.”
Frimley ICB, previously called Frimley CCG, is due to hold a public consultation on the issue in November. Minutes from a meeting in September last year suggest the group may abolish the requirement for same-sex female couples to pay for private treatment and instead allow them to “self-declare” home insemination attempts to their GP, like heterosexual couples, but using “unregulated donor sperm”.
A draft proposal is expected in the next few months, with the rules set to be changed by early 2024. Frimley ICB said: “We are reviewing our position on assisted conception and will be sharing information as this process continues.”
Megan and Whitney launched their groundbreaking fertility equality campaign in 2020 after learning of the financial burden placed by many NHS groups in England, Wales and Northern Ireland on same-sex female couples and single women trying to start families.
They were “horrified” to learn that their local NHS required them to pay for 12 rounds of fertility treatment, including six intrauterine inseminations (IUIs) in a private clinic, to “prove” infertility before becoming eligible for NHS help. The private treatment, which costs about £25,000-30,000, has been called a “gay tax” by campaigners.
Despite a well-documented “postcode lottery” when it comes to accessing NHS fertility treatment, many heterosexual couples can access some form of help, including in vitro fertilisation (IVF), for free.
The couple attracted the attention of campaigning law firm Leigh Day. In November 2021, they filed an application for judicial review claiming discrimination under the Equality Act 2010 and articles eight and 14 of the European convention on human rights, in what could have been a major test of the NHS’s treatment of LGBTQ+ couples.
But the judge’s decision was delayed because the ICB, which denied discrimination, requested time to consider its policy.
Beatrice Morgan, who represented the couple at Leigh Day, praised their “tireless campaigning and perseverance”. She said that even with the lengthy delays the case had an unexpectedly explosive impact on the UK debate, bringing the long-running issue to wider public attention for the first time.
The couple featured in news stories around the world, gave evidence at the government’s LGBT+ commission’s first inquiry session and their case was discussed in the House of Lords. They inspired hundreds of others to come forward with similar allegations of discrimination going back decades, which could potentially lead to legal action against other NHS groups.
Morgan said: “They opened up a space for discussion about this issue [which] … resulted in notable progress towards removing discriminatory barriers.” She claimed that the publicity around the case played a “major role” in the government’s decision in July last year to expand access to NHS fertility treatment for same-sex couples and single women.
In May, Maria Caulfield MP, the undersecretary for health and social care, said the new rules should “take effect during 2023.”
Robbie de Santos, the director of external affairs at Stonewall UK, called the couple’s victory “absolutely fantastic”. But he warned that with just six months left of the year “some 90% of local integrated care boards have not removed these costs” and urged the government to follow through.
Katherine O’Brien, a spokesperson for the British Pregnancy Advisory Service , praised Megan and Whitney’s “tenacity”. She added: “Individuals shouldn’t be required to mount legal challenges in order to access equitable healthcare. The impact of these policies can be truly devastating. The need for reform across the country is urgent and overdue.”
It is unknown whether ICBs will receive extra funding to cover the cost of fertility treatment for same-sex couples. And there are questions about the enforceability and safety of Frimley ICB’s proposed changes, as home insemination using donor sperm from a clinic has been banned in the UK since 2005, in order to maintain a child’s right to know the identity of their donor when they reach age 18.
Megan and Whitney said the case “took a toll” as they put their baby plans on hold for two years, as well as risking £100,000 in legal costs. Delaying their plans to deal with the court case meant that they both passed the age cutoff to receive NHS fertility treatment in their area. They eventually had two rounds of IUI in a private clinic, a process they shared with their followers on social media.
Whitney, a US-born British citizen, said: “For the last two years we have focused so much on creating change for others that we have put our own family journey on hold. As we all know with fertility, we can’t wait around. A lot of families have had to give up hope, which is really sad. So the government needs to stick to their promise and make those changes now.”
Megan added: “It certainly feels like a weight has started to lift. This is not the end of our campaigning. We will continue to ensure that fertility equality is achieved, and we hope to have a baby Wegan by our side while still fighting the good fight.”
A spokesperson for the Department for Health and Social Care said they hoped to implement the changes by the end of 2023 but that it was up to ICBs when they did it.
They added: “We know it can be incredibly difficult for anyone struggling to have children and we want everyone to have fair and equal access to NHS fertility treatment.
“A priority area within the Women’s Health Strategy focuses on improving access further to IVF for female same-sex couples, specifically removing the financial burdens of self-funding artificial insemination.”
NHS England has been contacted for comment.
