Alternative Law Journal
Kristen L. Walker[*]
For many years, access to assisted reproductive services in Victoria was limited to married heterosexual couples. In 1997, three unmarried heterosexual couples challenged this limitation in the Human Rights and Equal Opportunity Commission and succeeded in obtaining damages for their exclusion from such services. As a result of that case, the Victorian Infertility Treatment Act 1995 (the Victorian Act) was amended to allow heterosexual couples in a de facto relationship access to assisted reproductive services. However, single women and lesbian couples continued to be excluded. Dr John McBain, a prominent Melbourne infertility practitioner, challenged the validity of this exclusion in a recent Federal Court case, McBain v Victoria.
Section 8(1) of the Victorian Act, as amended in 1997, provided that a ‘treatment procedure’ could only be provided to a woman who was married or in a de facto relationship. A ‘treatment procedure’ was defined to include both in vitro fertilization (IVF) and donor insemination (DI). Dr McBain wished to provide IVF services to Leesa Meldrum, a single woman. Ms Meldrum had been undergoing treatment interstate for many years, but this was inconvenient and in fact lessened her chances of conception. Dr McBain was prohibited by the Victorian legislation from treating Ms Meldrum. Yet he was also potentially exposed to a discrimination claim by Ms Meldrum under the Commonwealth Sex Discrimination Act 1984 (SDA), which prohibited discrimination on the basis of marital status. He thus took action in the Federal Court seeking a declaration that s.8(1) of the Victorian Act was invalid because it was inconsistent with the SDA. He succeeded and on 28 July 2000, Justice Sundberg declared that s.8(1) of the Victorian Act was invalid, as were various other sections of the Act to the extent that they were dependent on what he termed the ‘marriage requirement’ in s.8(1). That is, in so far as the Victorian Act required a woman to be married or in a de facto relationship to receive assisted reproductive services, the Act was invalid under s.109 of the Constitution and inoperative so long as the inconsistency remained in place.
At the Victorian level there has been some uncertainty as to the effect of Sundberg J’s order on the operation of the Victorian legislation. While it is clear that s.8(1) no longer has any operation, there are various other sections of the Act that refer to a woman’s husband in the context of treatment, for example requiring the husband’s consent or requiring that he undergo counselling. Of particular relevance is s.8(3)(a) of the Act:
Before a woman undergoes a treatment procedure—
(a) a doctor must be satisfied, on reasonable grounds, from an examination or from treatment he or she has carried out that the woman is unlikely to become pregnant from an oocyte produced by her and sperm produced by her husband other than by a treatment procedure.
To the extent that this section requires that a woman have a male partner in order to be eligible for a treatment procedure, it is clearly invalid. The question, however, is precisely how s.8(3)(a) is to be interpreted in light of Sundberg J’s judgment.
The Infertility Treatment Authority (ITA), which monitors compliance with the terms of the Victorian Act, obtained legal advice from Gavan Griffith QC on this question. Griffith concluded that s.8(3)(a), read in light of the Federal Court decision, continues to apply to a married woman so that either she or her husband must be ‘clinically’ infertile in order to receive treatment. In relation to single women or lesbian couples, he took the view that the words ‘with the sperm of her husband’ were simply to be excised from the Act, so that a doctor needed to be satisfied that the woman in question was unlikely to become pregnant with her own oocyte without the assistance of a treatment procedure. In Griffith’s view, this imposed a requirement that a woman seeking either IVF or DI be ‘clinically’ infertile.
The primary flaw in Griffith’s reasoning is that this interpretation simply continues, or reimposes, the discrimination on the basis of marital status that Sundberg J has ruled invalid. Under Griffith’s interpretation, a married woman or a woman in a de facto relationship who is not ‘clinically’ infertile may obtain assisted reproductive services, but an unmarried woman who is not ‘clinically’ infertile cannot obtain such services. As an illustration, let us imagine a heterosexual couple who are not married and do not cohabit (and thus are not a de facto couple under the Victorian Act). If the woman is fertile and the man is infertile, they cannot obtain treatment. But if they married, they would immediately be eligible for treatment. Similarly, ‘clinically’ fertile lesbian couples and single women are denied treatment whereas a ‘clinically’ fertile married woman would be able to receive treatment. This is direct discrimination on the basis of marital status. It is therefore inconsistent with the requirements of the SDA and thus invalid to the extent of the inconsistency.
Griffith essentially draws a distinction between single women or lesbians who are ‘clinically’ infertile and those who are ‘socially’ infertile, though he does not use the latter term. This is a distinction that is difficult to draw in many cases. Is a woman who has chosen to have a tubal ligation ‘clinically’ infertile or socially infertile? In addition, we might note that a ‘clinically’ fertile married woman seeking assisted reproductive services because of her husband’s infertility is in fact socially infertile. She is able to become pregnant if she finds an alternative, fertile sexual partner. We do not, as a society, expect her to take this step; rather, she will be provided with the appropriate medical assistance. To this extent, the Victorian legislation never intended to deny assisted reproductive services to women who are ‘socially’ infertile. Yet a single woman or lesbian who is not ‘clinically’ infertile is expected to find a male sexual partner if she wishes to become pregnant.
Furthermore, the Victorian legislation nowhere uses the term ‘clinical’ infertility. Nor, in the sections dealing with eligibility for assisted reproductive services, does it use the term ‘infertile’. Rather, it places a decision in the hands of the doctor: he or she must be satisfied, after examination or treatment, that the woman is unlikely to become pregnant other than through a treatment procedure. This wording can quite satisfactorily be applied to a married woman, a single woman or woman in a lesbian relationship. A married woman is ‘unlikely to become pregnant’ if her husband is infertile and if she is not engaging in unprotected sexual intercourse with any other men. A single woman is ‘unlikely to become pregnant’ without a treatment procedure if she is abstaining from sexual intercourse or if she is engaging in only safe sexual practices. A woman in a lesbian relationship is ‘unlikely to become pregnant’ if she is only having sexual relations with her female partner. A medical examination, including a patient history, would reveal these circumstances and allow a doctor to reach a conclusion as to whether to provide services to a particular woman. This interpretation of the Victorian Act applies equally to married or unmarried women and thus does not conflict with the SDA. This is the only interpretation that would survive under s.109 of the Constitution as consistent with the SDA.
To date, however, the ITA has written to all licensed clinics in Victoria indicating that it accepts Griffith’s advice and considers that s.8(3) of the Act permits only treatment of ‘clinically’ infertile single or lesbian women. The requirements of s.8(3) are incorporated into the licences the ITA issues to all clinics, thus it is most unlikely that any clinic will act in contravention of the ITA’s advice, with the attendant risk of losing its licence. This means that, unless the ITA is persuaded by a contrary legal opinion, its view of the law will prevail until tested again in court.
It should be noted that, so far as IVF is concerned, the requirement of infertility is not a major issue. IVF is an invasive procedure that involves significant hardship for the woman involved; it is thus exceedingly unlikely that a ‘clinically’ fertile single or lesbian woman would in fact seek IVF. The real issue for most single heterosexual women and lesbians (whether in a relationship or not) is access to medically assisted DI. Medically assisted DI permits access to sperm from men who have been tested for a variety of diseases, including the various hepatitis strains, HIV and possibly genetic diseases. It also allows women access to assistance in the insemination process, which may improve the chances of conception. For women who do not have a known donor available to provide sperm, DI is the only way to become pregnant apart from a potentially unsafe casual sexual encounter. The Victorian Act as presently interpreted denies these women access to safe sperm, requiring them to travel interstate or engage in potentially risky conduct that may place them or their future child at risk. Furthermore, if a woman uses medically assisted DI to become pregnant in Victoria, any child born as a result will be able to find out the identity of their father upon reaching adulthood. This is not the case if the woman travels to NSW, for example, where anonymous donors may remain anonymous.
There are also lesbian couples who wish to use a known donor to become pregnant who intend that the donor will be known to the child and be involved in the child’s life. Such women are denied the opportunity for medical assistance in becoming pregnant and are potentially committing a criminal offence, punishable with up to four years in prison, if they engage in home insemination (under s.7 of the Victorian Act, only a licensed medical practitioner may carry out a treatment procedure).
The political reaction to the McBain decision was intense. Archbishop Pell asserted that this would create a whole new generation of ‘stolen children’. Senator Harradine wept on national television. Within days, the Prime Minister announced that the government would introduce legislation to amend the SDA to allow the States to discriminate against single women and lesbian couples in the provision of assisted reproductive services. Such legislation was introduced into the Commonwealth parliament on 18 August 2000, although the legislation as introduced would have allowed the States to discriminate not only against single women and lesbian couples but also against de facto couples. The government has since announced that the legislation would be amended to ensure that some de facto couples continued to be protected.
If this legislation is passed by the Commonwealth Parliament, it will in effect overturn the Federal Court decision in the McBain case. The Victorian Act’s discriminatory provisions will become operative again once the inconsistency with Commonwealth law is removed. However, it is unclear whether the Senate will pass the legislation. The government does not have the numbers in the upper house so, in order for the legislation to pass, some members of the ALP, the Democrats or the Greens will need to cross the floor. Each of these parties has announced that it will oppose the government’s amendment.
The arguments made in the McBain case by the Catholic Church and those made after the case by the federal government in its attempt to overturn the decision have centered largely on one claim: that children have a right to be born into a family consisting of a mother and a father. This right, it has been asserted, is violated when single women and lesbian couples have access to assisted reproductive services. The counter-argument, put forward by some, is that women have a right to choose to have a child (or not to have a child), or that women have a right (as do we all) not to be discriminated against on the basis of their marital status or their sexuality. Thus at one level this case may be seen as raising a conflict between rights.
It is my argument, however, that there is no conflict between rights in this case, as there is no right of an as yet unconceived child to be born into a family consisting of a mother and a father. First, it is clear that domestic law does not recognise a right to be born into a family with a mother and father living together as parents. As a society we provide financial support to single mothers (and fathers); we do not assert that they have violated their children’s legal rights.
An alternative source of the right to be born into a family consisting of a mother and a father was said to be international law, in particular the Convention on the Rights of the Child (CROC). There are two problems with this argument. First, the CROC nowhere mentions such a right; nor does any other international human rights instrument. The most relevant provision in the CROC is Article 7, which provides that a child shall have the right ‘as far as possible, to know and be cared for by his or her parents’ (emphasis added). This statement does not require that a child be born into a family consisting of a mother and a father. It provides no definition of who constitute a child’s parents; it is silent about the gender of a child’s parents and it does not preclude recognition of a lesbian couple as a child’s parents. Further, this right is to be respected ‘as far as possible’ — it is not an absolute right and may be departed from where necessary. Thus where it is not feasible for a child to be cared for by both (or all) his parents, then that outcome is not required. Finally, Art 2 of the CROC provides that the rights enumerated in the treaty are to be ensured without any discrimination, including discrimination on the basis of the child’s or his parent’s sex or other status. This would include sexual orientation and marital status.
Second, even if one were to imply into the CROC a right to be born into a family consisting of a mother and a father, international treaty provisions have no direct legal effect in Australian law until they have been transformed into domestic law by legislation. That has happened in relation to the Convention on the Elimination of All Forms of Discrimination Against Women, which is implemented in the SDA; it has not happened in relation to the CROC.
Even if there is no legal right to be born into a family consisting of a mother and a father, it may be argued that there is a moral right. This assertion depends on a view that single women and lesbians are unable to adequately perform the role of parent. While this view may tap into a vein of prejudice in society, it is simply not borne out by the research in this area. Research on children’s welfare demonstrates that what is important in a child’s life is not the family structure or the sexuality of her parents, but the provision of love, affection and caring. A truly moral position on the best interests of the child would focus not on a stereotyped view of who makes good or bad parents, but on an actual consideration of the lives of the individuals concerned.
Finally, even if one were to accept that it is in a child’s best interests to be born into a family consisting of a father and mother, it must be noted that permitting single women and lesbian couples to have access to DI does not necessarily preclude that result. There are situations, noted above, in which a lesbian couple (or, perhaps less commonly, a single woman) wants to have a known donor involved in the child’s life, even though she does not want to engage in a sexual relationship with him. Thus to impose a blanket ban on all single women or lesbian couples from accessing assisted reproductive services is too broad a mechanism to achieve the end sought by those who assert a child’s right to be born into a family consisting of a mother and a father.
All in all, the Victorian Act is a draconian piece of legislation that fails to further the best interests of children or of women who wish to become pregnant. It criminalises doctors who inseminate ‘clinically’ fertile single or lesbian women and it potentially criminalises women who inseminate at home on the basis of protecting the children who might thereby be conceived. Yet it fails to require any inquiry into the suitability of married or de facto couples who seek assisted reproductive services. The Victorian Act and the federal government’s response to the McBain case are based on inaccurate stereotypical notions that single women and lesbians will not make good parents. This is an assumption based on prejudice — the stereotyping of people because of some generic feature of their lives, rather than a consideration of their particular circumstances. To assert that the Victorian Act and the federal government’s position are motivated by the best interests of the children concerned fails to recognise the connection between prejudice and the assumption that it is not in the best interests of a child to be born into a single-parent or lesbian family. There are good and bad lesbian and gay parents, just as there are good and bad single parents and good and bad married heterosexual parents. Rather than a knee-jerk reaction designed to permit discrimination, a full examination of the complex questions raised by IVF and DI, no matter what the marital status of the woman involved, would be the appropriate governmental response.
[*] Kristen Walker teaches law at the University of Melbourne.
I would like to thank Miranda Stewart, Jenny Morgan, Peter Hanks and Kristie Dunn for their insights into these issues in our many discussions. All aerros remain, of course, my own.
 MW, DD, TA and AB v Royal Women’s Hospital  HREOCA 6 (5 March 1997).
 Infertility Treatment (Amendment) Act 1997 (Vic.).
 A single woman successfully sued the Royal Women’s Hospital under the SDA for discrimination on the basis of marital status and received damages in the sum of $8551: see W v D and Royal Women’s Hospital, unreported, Human Rights and Equal Opportunity Commission, No H97/221, 24 December 1999. However, it was beyond the power of HREOC to determine whether the exclusion of single women from access to treatment was constitutionally invalid.
  FCA 1009 (28 July 2000).
 Section 3, Infertility Treatment Act 1995 (Vic.).
 Section 22 of the SDA provides that:
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
Sundberg J accepted that ‘services’ included infertility treatment as defined by the Victorian Act: see McBain, above, ref 4, at 13.
 McBain, above, ref 4, paras 19 and 20.
 Infertility Treatment Act 1995 (Vic.), ss.8(2) (consent) and 11 (counselling).
 Opinion of Gavan Griffith QC for the Infertility Treatment Authority, 4 August 2000; available from the ITA; copy on file with the author.
 Opinion of Gavan Griffith QC, above.
 ITA Newsletter, August 2000, < <http://www.ita.org.au/new-aug0.htm> >.
 See Infertility Treatment Authority, Conditions for Licence: Application for Licences by Hospitals and Day Procedures Centres, March 1999, p.28, < <http://www.ita.org.au/aplichos.pdf> >.
 Infertility Treatment Act 1995 (Vic.), ss.79, 80.
 Sex Discrimination Amendment (No 1) Bill 2000 (Cth).
 However, the Attorney-General indicated that the government intended to allow Western Australia and South Australia to continue to discriminate against some de facto couples: Margot Kingston, ‘De factos to wait five years for fertility treatment’, Sydney Morning Herald, 22 August 2000. Legislation in WA and SA requires a de facto couple to cohabit for five years in order to be eligible for treatment, whereas a married couple may access IVF and associated services no matter how long they have been married and whether or not they cohabit. See Reproductive Technology Act 1988 (SA), s.13; Human Reproductive Technology Act 1991 (WA), s.23. This legislation would be invalid under the SDA as it presently stands. The South Australian restrictions have been inoperative since they were declared invalid by the South Australian Supreme Court in Pearce v South Australian Health Commission  SASC 5801; (1996) 66 SASR 486. However, they would be re-activated if the federal government’s amendment to the SDA were to pass.
 McBain, above ref 4, para 11.
 Social Security Act 1991 (Cth).
 For a general discussion of the Convention on the Rights of the Child in the Australian context see Otlowski, M. and Tsamenyi, M., An Australian Perspective on the Convention on the Rights of the Child, Unitas Law Press, 1992.
 See CROC, art 2(1).
 See Toonen v Australia, Comm. No 488/1992, UN GAOR Hum Rts Comm, 50th Sess, UN Doc CCPR/C/50/D/488/1992 (1994), para 8.7.
 See, for example, Minister for Immigration and Ethnic Affairs v Teoh  HCA 20; (1995) 128 ALR 353, 362; Dietrich v R  HCA 57; (1992) 177 CLR 292, 305.
 The SDA transforms Australia’s obligations under the Convention on the Elimination of All Forms of Discrimination against Women into Australian law.
 See, for example, Golombok, S., Parenting: What Really Counts (2000); Ball, C. and Pea, J., ‘Warring With Wardle: Morality, Social Science, and Gay and Lesbian Parents’,  University of Illinois Law Review 253; Patterson, C., ‘Children of Lesbian and Gay Parents’, (1992) 63 Child Development 1025. These references examine American and British social science research, but there is little reason to think that their conclusions would not apply in Australia.