The Ombudsman for Equality examines the right of transgender people to fertility treatment (TAS 297/2013, issued on 22 August 2013)
According to reports received by the Ombudsman for Equality, a couple, where one of the partners was a transgender person, were not given fertility treatment using the transgender person's own gametes or those of an external donor. It was also somewhat unclear as to whether it was private or public providers of health services that were to administer the treatment.
The view of the Ombudsman for Equality is that refusing a couple fertility treatment because one of the partners is a transgender person accords them an unequal status on the basis of gender in a way that is prohibited in the Equality Act.
The Act on Assisted Fertility Treatments does not state that being a transgender person would be a barrier to the provision of treatment. Whether the balanced development of a child can be guaranteed in the manner prescribed in the Act must be assessed following the same principles for transgender people and their partners as for others who want to become parents through assisted fertility treatment.
It is the view of the Ombudsman that the provision on infertility in the Trans Act only relates to the requirements for confirming legal gender when that gender is being reassigned, and cannot be interpreted as having any further impact. It therefore cannot justify failure to provide a couple with fertility treatment, where one partner is a transgender person. Nor can the provision be interpreted in a broader sense because that could be seen as being inconsistent with the provisions of the Constitution of Finland, as is the case, for example, with the principle of personal integrity.
Among the grounds for non-urgent treatment is the recommendation not to administer fertility treatment in public health care in situations where the reason for childlessness is sterilisation. The Ombudsman stated that the recommendation would not apply if sterilisation were linked to the status of being a transgender person.
Following the clarification procedure, the Ombudsman sent its statement to the providers of fertility treatments that did not administer the treatment to transgender persons according to the reports that came in. The statement was also sent for information purposes to the Ministry of Social Affairs and Health and to the National Supervisory Authority for Welfare and Health (Valvira).