The COVID-19 pandemic has caused significant delay and disruption across all walks of life. However, for individuals, the disruption has impacted upon decisions to begin and grow families. Whether families choose to have children by surrogacy, adoption or with the assistance of fertility treatment, there has been an impact. For pregnant people and those contemplating pregnancy, the pandemic has produced something of a minefield of information, guidance and fake news.
With Scottish Government guidance on fertility treatment changing once again, what are the current rules on NHS-funded fertility treatment in Scotland?
Many pregnant people and those contemplating pregnancy were, and continue to be, concerned about the effects of the COVID-19 vaccine on their fertility and pregnancies. When the COVID-19 vaccine was first developed and offered to the public in December 2020, the Joint Committee on Vaccination and Immunisation (JCVI) advised that there was no data on the safety of the vaccines in pregnancy, in either human or animal studies. The JCVI did not recommend vaccination during pregnancy at that point. Furthermore, those considering a pregnancy within three months of a planned first dose of the vaccine were advised not to come forward for the vaccine at that time. However, in January 2021, it was recommended by the NHS and The Royal College of Obstetrics and Gynaecologists that those who were pregnant and those contemplating a pregnancy, should be offered the vaccine.
Despite the change in advice, many of those who are pregnant and/or contemplating a pregnancy now, have still chosen not to be vaccinated. A recent Scottish study found that in Scotland, 32.3% of women who gave birth in October 2021 had two doses of the vaccine compared to 77.4% of all women in Scotland.
Scottish Government Guidance Fertility Treatment – January 2022
On 7 Jan 2022, Scotland’s Chief Medical Officer recommended that fertility treatment for unvaccinated women would be temporarily deferred. The recommendation came following increased concern surrounding the Omicron Variant and evidence of increased morbidity and risk of severe illness from COVID-19 amongst unvaccinated, pregnant women. The term ‘fully vaccinated’ refers to those who have had their first and second COVID-19 vaccination and booster. Individuals are considered fully vaccinated if it has been fewer than 12 weeks since they received their second dose. However, if more than twelve weeks have passed, they would have required to have their booster as soon as possible to be able to continue fertility treatment.
The Scottish Government has confirmed that if an individual has or had their fertility treatment temporarily deferred, they will be entitled to have the deferred time added back to their treatment journey, to ensure that these individuals are not disadvantaged. The Scottish Government has recognised that this is of particular importance for those who are approaching the upper age limit of 40, for IVF treatment.
Latest Scottish Government Guidance – March 2022
However, on 5 March 2022, the Chief Medical Officer announced that women who are not fully vaccinated against COVID-19 will be entitled to resume NHS fertility treatment following the emergence of new evidence. Sir Gregor Smith concluded:
“Data from Public Health Scotland demonstrates that both COVID-19 cases and hospitalisations are stabilising, and a reduced proportion of cases are resulting in hospitalisations, following the emergence of Omicron as the dominant variant”.
Women will be asked to sign an informed consent form acknowledging awareness of the risks of pregnancy while remaining unvaccinated.
General guidance for NHS-funded fertility treatment
The access criteria for NHS-funded IVF and ICSI treatment in all NHS health boards in Scotland can be found here. Scottish local health boards decide on a case-by-case basis, whether a patient is eligible for fertility treatment. It is not unlawful for the NHS to restrict free fertility treatment using a prescribed set of rules. But the rules must not be based on prejudice or assumptions about certain groups of people - for example, an individual's ability to care for children if they are disabled. This is likely to be considered unlawful discrimination. However, if an individual is refused fertility treatment for medical reasons, for example, if they had a condition which would get worse if pregnant, it is not likely to be considered unlawful discrimination.
The most recent Scottish Government guidance now means that those who chose not to be vaccinated will be entitled to resume NHS-funded fertility treatment, having any time deferred added back on to their treatment time. The Scottish Government and NHS Scotland recommend that pregnant people and those contemplating a pregnancy should have the COVID-19 vaccine as soon as possible
If you would like to learn more about the legal implications and considerations of building or adding to your family via surrogacy, adoption or with the assistance of fertility treatment you can contact one of our Family Law Specialists below.