Two lesbians denied fertility treatment by their regional health authority are threatening legal action, claiming that they are being discriminated against on the grounds of their sexual orientation. The health authorities in the northern region of Asturias argue that the 2006 law outlining fertility treatment available under the national health service, and passed by the current Socialist Party administration, applies only to heterosexual couples, and specifically refers to cases where the male partner is sterile.
"A lesbian couple is by definition sterile, because they cannot reproduce without the aid of a third party, so therefore, even if the regional government doesn't say so explicitly, what it is effectively saying is that we find a man," says Silvia García, one of the women who say they have been discriminated against in Asturias.
"A lesbian couple is by definition sterile, because they cannot reproduce without the aid of a third party"
"The national health service is there to solve health problems; not to guarantee the right to motherhood"
At least two other regional governments, Catalonia and Murcia, also refuse to provide assisted reproduction to lesbians. But other regions, among them Valencia, Andalusia and the Basque Country, do offer such services to lesbians. So far, Spain's other regional governments have yet to publicly state their position. Indeed, policy regarding free treatment seems less about party politics, and more about saving money. Asturias is controlled by the Socialist Party, while Valencia's regional government is run by the conservative Popular Party (PP).
Health Minister Leire Pajín admitted last week that the law was open to interpretation. "The law on assisted human reproduction does not discriminate against any type of woman, but neither does it establish whether treatment should be free."
A spokeswoman for the ministry was unequivocal however: "The national health service is there to solve health problems; not to guarantee the right to motherhood, which is a much wider remit." The spokeswoman said she saw no contradiction between the current legislation on assisted reproduction - which stipulates against discrimination on the grounds of sexual orientation or marital status - and the wider law on health services, which makes it clear that only heterosexual couples are eligible for free treatment through its reference to sterility.
The head of the health service in Asturias, Ramón Quirós, denies discriminating against Silvia García and another woman, Andrea Muñiz, saying that the hospital report said neither was sterile, and therefore were not eligible for treatment. "The health service in Asturias is not interested in people's sexual orientation: we offer the same service to everybody," he added.
Quirós referred to legislation from 2006 outlining free medical care, allowing for "human assisted reproduction when there is a diagnosis of sterility or an established clinical status." He added: "When somebody is healthy or the medical report says that they are not infertile, the system does not finance them." But legislation from the same year on human assisted reproduction states: "The woman may receive the techniques outlined in this law independent of her marital status and sexual orientation."
Gay and lesbian organizations in Catalonia say the health authorities there discriminate against lesbians. "The law is being misinterpreted. At the moment we know of three cases of discrimination," says María José Ariza, deputy head of the Catalan Association of Lesbian and Gay Families. She accuses the health authorities in the northeastern region of "not giving priority to lesbians," and that most couples give up in the face of long waiting lists and use the private sector. But she adds that a working group has been set up to find ways to widen access to fertility treatment. Private treatment costs between 6,000 and 12,000 euros. Each year some 30,000 couples, of which around 1,500 are single women or lesbians, take this path.
In Murcia, a health authority spokeswoman said that its assisted reproduction facilities "are directed exclusively at heterosexual couples with sterility issues." Manuel Lucas, head of the Spanish Society for Intervention in Sexology, says that interpretation of the law "needs to adapt to the times we live in." He suggests replacing the criteria of sterile with "impossibility to reproduce."
"Now it's my turn," says Silvia García. The 30-year-old, who lives in the town of Mieres, is the second lesbian to report the regional health authority of Asturias for refusing to give her fertility treatment. Her case follows that of Andrea Muñiz, also a lesbian, last month.
"The head of the regional health authority, Ramón Quirós, has stripped me of my right to access the Mieres Assisted Reproduction Unit, arguing that there is no infertile male, the same excuse given to Andrea earlier," said García last week.
"They are telling me indirectly that I must reproduce with a man. This is emotional violation of my person. I am indignant - not as a lesbian, but as a healthy, single woman," says García, a spokeswoman for regional gay rights association Xega. "Nothing like this has happened since the law was passed, so I don't see why this has happened now."
Mané Fernández, the president of Xega, says it is "inconceivable that a lesbian be obliged to have sexual relations with a man, especially when there is the risk of transmitting diseases."
García says that she was told verbally by the head of the assisted reproduction unit on April 18 that the regional health authority had looked into her case for a second time and decided that it would not offer treatment to "lesbians or single women."
The regional health authority declined to comment, saying that it does not discuss individual cases. It cites the 2006 legislation on free health care in general, which refers to one partner in a couple being sterile.
García claims that the regional government is refusing to take into account a law from the same year on assisted reproduction which says such services are open to women regardless of their sexual orientation or marital status.
Garcia and Muñiz say that they are considering legal action. "We intend to find out if these are isolated cases of discrimination, or whether they constitute a violation of the rights of lesbians to access this treatment on equal terms."