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Government challenged over ‘cruel’ ban on people living with HIV using fertility treatment

Sunday, August 7, 2022

HIV rights charity National AIDS Trust is calling on the government to end the ban on people living with HIV accessing fertility treatment to start a family. 
Despite science showing that there is no risk of HIV transmission, existing laws mean many people living with HIV are not allowed to use their eggs or sperm for fertility treatments. People in mixed-sex couples where one or both partners is living with HIV are allowed to undergo fertility treatment such as IVF, as they are viewed as consenting adults in an intimate relationship. 

But whenever an egg is transferred from one woman to another, and whenever a man gives sperm to someone who is not their partner, they are legally seen as a donor and different rules apply. Under UK law adopted from the EU following Brexit, there is an outright ban on anyone living with HIV being able to donate eggs or sperm. [1] 

Because the law is different for people having children using donated eggs or sperm than it is for mixed-sex couples having a child, it currently discriminates against LGBTQ+ people living with HIV who want to start a family. For example, the law treats a woman living with HIV who wishes to implant her egg in her female partner as a donor rather than a partner and currently prohibits her from doing so. 

These restrictions also apply to heterosexual couples with different HIV statuses in cases where they require fertility treatment and whenever a donor is involved. For example, National AIDS Trust has learned of a woman living with HIV who has undergone cancer treatment and cannot carry a child. She wants to give her egg to a surrogate to have a child but is banned under current laws.  

This law also means that no-one living with HIV can help a friend or family member get pregnant by donating their eggs or sperm.   

National AIDS Trust is calling on the government to overturn the law on the grounds that it is discriminatory towards people living with HIV, which is classed as a disability under the Equality Act. It also discriminates against same-sex couples because they can’t make the same consensual choice as those in mixed-sex couples. National AIDS Trust argues that if all parties provide informed consent, there is no scientific or ethical basis to justify these rules, and they must be changed as a matter of urgency so all couples are treated equally. [2] 

Deborah Gold, Chief Executive of National AIDS Trust, said: “This law is cruel and unacceptable. It prevents so many people living with HIV from having a family with the help of fertility treatment. There is no place for stigma and outdated science in our laws. 

“This law completely overlooks the fact that most mixed-sex couples living with HIV are freely able to start a family using fertility treatment and denies others on the basis of their HIV status and sexuality.  

“Not only is this law homophobic, but it also fuels HIV stigma by incorrectly reinforcing the idea that people living with HIV can’t safely have a child when the science says they can.  

“This is about equal access to fertility options, but also about challenging discrimination towards LGBT people, getting the government to listen to the science, and stamping out HIV stigma which has existed for decades.” 

Andrew, who is living with HIV and last year started looking into using a surrogate with his husband, said: “When I found out from a surrogacy agency that I can’t have a child using my own sperm I couldn’t believe it, I was in shock. The current law practically forces infertility onto LGBT+ people living with HIV. Why are we being told we can’t have our own biological children when there’s no medical reason for it? I should be allowed to start a family just like anyone else can. 

“It’s upsetting that stigma still exists today in old laws. The only way to break down stigma is to challenge it. Modern medicine has transformed HIV, so it’s incredibly frustrating we have to get the law changed to be able to make normal life choices like this.” [3] 

Around 97% of people diagnosed with HIV in the UK are on effective treatment and cannot pass the virus on as they have such low levels of HIV in their body that it is undetectable. Even for men with detectable levels of HIV sperm washing is available which safely separates sperm, which does not carry HIV, from semen, which can carry viruses. Therefore, there is zero risk of HIV being transferred to the person receiving the egg or sperm. 

Dr Tristan Barber, Consultant in HIV Medicine at the Royal Free Hospital, London, and Honorary Associate Professor at University College London, said: “Starting a family through fertility treatment is completely safe for people living with HIV. HIV medication is now so effective that people on treatment cannot pass the virus on, and have babies born without HIV.  

“There is no medical reason for this discriminatory law to exist. National AIDS Trust’s challenge is crucial to bring justice to people who simply want to start a family like everyone else can.” [4] 

National AIDS Trust are asking people to sign their petition demanding that the government overturn this law now.   

[1] The following scenarios are currently all unlawful:  
- Surrogacy: A couple (either with different HIV status or both living with HIV) who wish to use a surrogate. This applies to gay men and mixed-sex couples who require a surrogate e.g. women living with HIV who cannot carry a child due to medical reasons.  
- Co-maternity: A lesbian couple where one is living with HIV and wishes to have her egg implanted in her partner. 
- Known donation: A person wishes to receive a gamete donation from a friend or relative living with HIV. 
[2] The decision to change this law lies with the Department of Health and Social Care, who are advised by The Advisory Committee on the Safety of Blood, Tissues and Organs (SaBTO). Based on the current profile of SaBTO members, none are HIV specialists.  

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