Can fertility service providers justify discrimination against lesbians?

Abstract

In Britain, for the last 25 years, lesbians have been seeking access to fertility services to achieve pregnancy. The problem for this particular group of clients is that often they are refused access to fertility services because of their sexuality. The reasons for treating lesbians less favourably than heterosexual clients are twofold: (1) donor insemination is defined as a treatment for infertility; and (2) service providers have a legal requirement to take into account the child's need for a father, according to Section 13(5) of the Human Fertilisation and Embryology Act 1990. The question addressed in this paper is whether these explanation constitute objective and reasonable justifications for discriminating against lesbians. As long as donor insemination is defined and perceived as a medical treatment for infertility, the social grounds for offering this procedure are obscured and there is apparent justification for treating lesbians less favourably. Once donor insemination is taken out of its medical context and understood in its social context, then it is no longer possible to justify discrimination. The ‘need for a father’ is the most common justification for discriminating against lesbians. Yet this phrase is ambiguous to the point of meaninglessness. Clearly, every child needs a father for conception to occur. None of the assisted conception techniques currently in use tamper with that basic need. This paper argues that commonly held beliefs about what a child needs from a father do not stand up to close examination. There is no evidence that a child needs a father for any of the following reasons: normal development, another parent, male role model, development of heterosexuality or social acceptance. If discrimination against lesbians were considered acceptable in other fields of family policy, it might legitimate discrimination in the field of reproductive medicine. However, the opposite is the case. In the fields of psychology, social work, adoption and family law, the evidence about the influence of parental sexuality on the welfare of the child is well known and frequently informs policy and practice. This paper defends the position that there are no objective and reasonable grounds to deny fertility services to lesbians.