Case 445/2009

STSJCM 12-3-2009
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The appellant, a beneficiary of defendant public health institution Health Service of Castilla-La Mancha (“SESCAM”), received three fertility treatment cycles (two in a private institution and one in a public health institution) with negative results. The appellant then sought new fertility treatments from SESCAM, arguing that she was entitled to funding for three treatments of in vitro fecundation from a public health institution. SESCAM, however, refused to fund the additional fertility treatments,

Appellant brought case before Court n. 2 of Ciudad Real, which overturned SESCAM’s decision, holding that the appellant had the right to receive new fertility treatment. SESCAM appealed this ruling

The Superior Court held that the SESCAM’s refusal to provide the additional fertility treatments was in accordance with the relevant law and overturned the lower court’s ruling.

The Superior Court first noted that, in accordance with the relevant regulation, assisted reproduction techniques could only be adopted when there was a reasonable chance of success. Further, the Superior Court mentioned that there were several reasons justifying a limit on the number of fertility treatments, including concerns of Inefficiency (i.e., scientific data showed the ineffectiveness of fertility treatments after three cycles); and economics (i.e., fertility treatments were expensive).

The Superior Court also noted that, as set forth by the in Vitro Fertilization and Related Techniques Regional Commission, in vitro fecundation should not be done more than three times, and previous cycles conducted in private institutions were counted towards this three treatment total. As the appellant had previously received three fertility cycles in private and public health institutions, the Superior Court held that the appellant was not entitled to new fertility treatments funded by SESCAM.

“The appellant has already undergone three fertility cycles (ICSI), two previously in a private institution and a third funded by the Health Service of Castilla-La Mancha. Therefore, in accordance to the aforementioned regulations of the Regional Commission, she does not have the right to request new fertility treatments funded by public health.” Page 3.

“There is a reason for which a fertility treatments limit has been established. There is scientific data that clearly shows the ineffectiveness of the treatment after three cycles have been undergone with no positive results. It is also justified from an economical point of view, since the treatment is extremely expensive. Therefore, with limited resources, expending money on an inefficient treatment cannot be accepted.” Page 4.

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