Julie Seale, 37, asked for leave to seek a test case declaration that Sheffield Health Authority had 'illegally, improperly and irrationally' denied her the treatment. But Mr Justice Auld ruled that the authority had been legally entitled to use the age criterion because of budgetary restrictions.
He said that although the authority had undertaken since April to carry out in-vitro fertility treatment (IVF) for patients in its area, it was not bound to provide the service on demand 'regardless of the financial and other concerns of the authority'.
The authority refused treatment to Mrs Seale, of Woodhouse Mill, Sheffield, saying that its IVF budget was restricted to pounds 200,000.
In order to make the best use of its resources, it had limited treatment 'to those for whom there would be the greatest benefit'.
The medical advice it had received, contested by Mrs Seale, was that such treatment was 'generally less effective' in women over 35.
The judge said that Sheffield Health Authority had not acted irrationally.
It was not for the courts to decide what was an appropriate cut- off point for IVF - even though, if Mrs Seale had gone private, she could have applied for treatment up to the age of 42 in the same area.
Mrs Seale wept as she left court after the judgment. For seven years, she and her husband, Michael, 37, a postman, have unsuccessfully undergone other treatment in the hope of having a child. The court was told that Mrs Seale had endometriosis, a painful condition affecting the reproductive system, which made her infertile. In April, her gynaecologist referred Mrs Seale, then 36, for IVF on the basis that pregnancy would not only lead to a much-wanted child but possibly cure the medical problem.
Sheffield Health Authority told her that the treatment was only available to women aged 25 to 35.
After the judge blocked the challenge, Mrs Seale said it was contrary to a pledge given by the junior health minister, Tom Sackville, that no one would be refused NHS treatment on the grounds of age. She felt she had let down other couples in a similar situation who had pinned their hopes on her winning.
Her husband said that they were considering an appeal.Reuse content