Pride 2024: A year of legal matters impacting the LGBTQ+ community

Improving access to fertility treatment for those with HIV

The Government has recently announced a change in the law that will improve access to fertility services for same-sex couples where one or both partners have non-transmissable HIV.

Under current rules on in vitro fertilisation (IVF), a male partner with HIV can donate their sperm to their female partner only and no-one else. Women living with HIV are prohibited from having their eggs implanted in a female partner.

Once the new law is in place, those with non-transmissable HIV (meaning their viral load is low enough that they cannot pass on HIV) can donate eggs or sperm to family, friends and known recipients, provided certain conditions are met. This will benefit a large number of people in the UK, including same-sex male couples where one or both partners have HIV and they wish to have a child through a surrogacy arrangement and female same-sex couples who wish to receive known sperm donation from a friend or relative who has HIV.

Certain measures will be put in place to ensure all parties are protected, including the following:

• the donor has an undetectable viral load, meaning that their HIV cannot be transmitted;
• the known recipient has provided informed consent based on an awareness that the donor has HIV; and
• the donor has been receiving antiretroviral treatment for at least six months prior to the donation.

The changes to the law will also remove the requirement for female same-sex couples who wish to conceive via reciprocal IVF to go through costly screening procedures. Heterosexual couples do not have to undergo this process.

The new laws have been welcomed as a move towards reducing stigma around HIV and greater equality for those living with the virus, as well as improving access to reciprocal IVF for female same-sex couples.

This will be welcome news to those same-sex couples who are considering having a child through a surrogacy arrangement where one or both partners have HIV. The changes also benefit those individuals who wish to receive a sperm or egg donation from a known donor who has HIV. The law surrounding the surrogacy process and sperm donation can be complicated, and this extra layer of complexity can leave couples and individuals feeling confused about how to ensure all parties are protected legally. The surrogacy process is awaiting reform (more on that below), but it is hoped that these new changes will open up the opportunity to have a child through surrogacy or IVF to many more couples in the future.

Surrogacy Reforms – mothballed?

Although the Law Commission of England and Wales and the Law Commission of Scotland published their report into surrogacy law reforms over a year ago on 28 March 2023, this topic has been thrown back into sharp relief following the announcement of a general election to be held on 4 July this year.

The report, entitled ‘Building Families through Surrogacy: a New Law’, was a response to the outdated surrogacy laws within the UK. The recommended reforms would put in place a new system for governing surrogacy agreements, aimed at providing improved clarity, safeguards and support for all parties involved.

Despite this promising start, the Government provided their interim response to the report on 8 November 2023, indicating that parliamentary time did not allow for the recommended changes to be taken forward at that time. The Government was, however, reviewing the report’s recommendations and would publish a full response in due course. This was a disappointing result for many at the time, but with a full response still outstanding and the possibility of a new government on the horizon, the future of the proposed reforms looks even more uncertain.

For those with a stake in surrogacy reform, this is a frustrating setback. Couples and individuals who were hoping for the process to be reformed prior to starting their own surrogacy journey, as well as those who have experienced the surrogacy process and are campaigning for change, have been left in a state of limbo. Simplifying the laws surrounding surrogacy and improving safeguards for all involved would hugely benefit these stakeholders, but the future of the reforms remains unclear.

Transgender health services and the Cass Review

This was a key event within the last 12 months that has had a significant impact on the transgender community. You can find a more in-depth piece on the Cass Review here, but to summarise, the Cass Review of Gender Identity Services was commissioned by NHS England to make recommendations as to how to ensure children and young people are best served by the NHS and their welfare is protected.

The Review was carried out by Dr Hilary Cass and her final report and recommendations were published on 10 April 2024. The report begins with a forward by Dr Cass in which she states ‘The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress’. This sense of uncertainty pervades the remainder of the report, which makes several key findings and recommendations.

Key findings include that experts are far from agreed over a clinical approach, with little reliable evidence as to long-term outcomes for those referred to the NHS. The fact that the treatment and care of gender-questioning children and young people is a controversial topic, with deeply held opinions on all sides of the debate, has not been helpful in ensuring the focus remains on these young people and what their care needs to achieve. The recommendations reflect these findings and seek to recentre the children and young people at the heart of this report.

It remains to be seen what the long-term impact of the report will be, but NHS England has since stated that it intends to carry out a major review of its adult gender services and use of hormones. The hope is that the findings of the report will be used to improve the services and support provided by the NHS to children and young people who are experiencing gender incongruence. This will include developing a greater understanding of the long-term impact of hormone interventions.

For our clients, particularly, the Government ban on any new prescriptions of puberty blockers to minors written by private prescribers in the UK, EEA or Switzerland has raised complications. This may lead children and young people to seek to obtain these treatments online through unofficial channels, and safeguarding concerns could be raised of parents who allow or assist in the obtaining and ingesting of these drugs. Further, where parents disagree about how to parent a gender-questioning child, an application to the court for a decision may be required if agreement cannot be reached.

Conclusion

There have been some significant developments over the past twelve months for those in the LGBTQ+ community, especially those seeking to start a family and finding the legal framework around doing so to be an unwelcome complication. Most of the developments are in the form of promises and recommendations, but what is required in the next 12 months is action. Changes to the law to improve equality in accessing fertility treatment need to be brought into force. The Government needs to respond to recommendations for surrogacy reform, and any changes to come from the Cass Review must ensure the welfare of young people and children is protected. With the inevitable upheaval that a general election will bring, it’s difficult to predict whether or not this action will materialise.