Women have criticized the situation saying only a 'quirk of nature' means they cannot carry their own child and if they were suffering from a different fertility problem the NHS would fund treatment.
Guidance on NHS funding for fertility treatment has been interpreted differently around the country meaning that in some places women who cannot carry their own child are funded but in others places they are not.
In many areas primary care trusts refuse to fund IVF because the resulting embryo would be implanted in the womb of a surrogate, even though the patients are willing to fund the surrogacy costs themselves.
The guidance from the National Institute for health and Clinical Excellence states that where the reason for infertility is known patients should be fast-tracked for NHS funded treatment but it goes on to say surrogacy lies outside the remit of the guidance.
This is what primary care trusts are using to justify refusing to fund IVF treatment for women who would require the services of a surrogate.
Sabreena Mahroof, of Surrogacy UK, said in around 80 per cent of cases IVF treatment must be pad for privately because primary care trusts have refused NHS funding. But some areas will fund the IVF part of the process leaving patients to pay the surrogacy fees.
She said: "It all depends on the primary care trust. There is a real postcode lottery here. We had hoped the new Human Fertilization and Embryology Act would clarify this situation but it has not.
"It is a real nonsense. These women are being discriminated against because they do not have a womb. Cost-wise it is no different to funding an IVF cycle where the embryo is implanted back into the same woman.
"No one is asking the NHS to fund the pregnancy expenses of the surrogate, that would be unfair.
"It is not fair that only the wealthy who can afford private IVF who can use a surrogate."
Tracey Davey, 40, from Fareham in Hampshire, has been trying to have a baby with her husband Terry, 48, for the last 12 years. She was born without a womb but produces eggs normally.
The couple have repeated been turned down for NHS funding for IVF treatment, been through appeals and have even attempted to adopt.
Eventually the couple remortgaged their home, spending £18,000 on private treatment, undergoing two cycles of IVF treatment.
Last year an embryo was implanted in a surrogate mother only for the pregnancy to fail.
The couple cannot afford to fund another cycle of treatment themselves and time is running out as a woman's age is a significant factor in IVF success.
Mrs Davey, a bank cashier, said: "I have been fighting this for the last 12 years and am angry at the way I have been treated. I did not ask to be born this way and is there was something else wrong with me my treatment would be funded.
"There are dozens of young girls in my situation and I hate to think that they will face the same thing as us.
"I feel they have put my life on hold. I was told that I could not have children when I was 16 but then in 1989 a woman became the first surrogate mother in the UK and that gave me hope. I cannot give up."
Clare Lewis, of Jones of Infertility Network UK said: “Surrogacy is a necessary treatment for those whose only chance of having a family is by this method.
"We are aware that many primary care trusts don’t fund surrogacy, probably because of concerns of legal ramifications and we would suggest that national guidance on this issue would be welcomed by the PCTs to eliminate such concerns and allow patients to access the treatment they need to have the family they so badly want.”
Dr Stuart Ward, clinical director of NHS Hampshire said: “We will fund one cycle of IVF for patients who meet the eligibility criteria. However, due to the complex legal and ethical complications that can arise with surrogacy we are unable to support fertility treatment through this route.
“If a consultant or GP feels that their patient has exceptional circumstances and should be considered for IVF treatment, even though they don’t meet the criteria, they can ask for the case to be considered through the PCT’s special referrals process.”
Current rules mean surrogate mothers can decide legally to keep the child, meaning many people still see the issue as fraught with controversy.
Around 50 successful surrogacies occur each year in Britain.
