Bills Digest No. 24  2000-01 Sex Discrimination Amendment Bill (No. 1) 2000


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Sex Discrimination Amendment Bill (No. 1) 2000

Date Introduced: 17 August 2000

House: House of Representatives

Portfolio: Attorney-General

Commencement: On Royal Assent

Purpose

To amend the Sex Discrimination Act 1984 to revive or preserve State and Territory laws which deny access to assisted reproductive technology to a person on the basis of that person's marital status.

Background

Assisted reproductive techniques

In vitro fertilisation (IVF) is a relatively new technology. It involves the fertilisation of an egg (either from the woman or a donor) outside the woman's body, incubation of the fertilised egg to the blastocyst(1) stage, and then implantation of the embryo in the woman's uterus. Human pregnancies using IVF technology were pioneered in the 1970s, and Australia's first 'test-tube' baby was born in 1980.(2) The two other main forms of assisted reproductive technology currently used are gamete intrafallopian transfer (GIFT)(3) and artificial insemination.(4)

Since its inception, more than 30,000 Australian babies have been born through the IVF program. There were 3,993 children born as a result of IVF treatment in 1997, 1.4 per cent of all Australian births in that year.(5) In 1999-2000 there were 14,630 Medicare payments for one treatment cycle of assisted reproductive services such as IVF or GIFT.(6) However, given that the majority of women require several treatment cycles to conceive, this number is significantly greater than the number of women involved. The total Medicare bill for assisted reproductive services for that financial year was close to $40 million. These figures do not include the many more children born as a result of artificial insemination.

Legislation restricting access to assisted reproductive technology

Victoria

Victoria was the first jurisdiction in Australia to legislatively restrict access to IVF and other assisted reproductive services.(7) The Infertility (Medical Procedures) Act 1984 (Vic) restricted access to fertility services to legally married couples. It was succeeded in 1995 by the Infertility Treatment Act 1995 (Vic). Section 8 of that Act currently provides:

(1) A woman who undergoes a treatment procedure must-

(a) be married and living with her husband on a genuine domestic basis; or

(b) be living with a man in a de facto relationship.

(2) Before a woman undergoes a treatment procedure she and her husband must consent to the carrying out of the kind of procedure to be carried out.

(3) 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; or

(b) a doctor, who has specialist qualifications in human genetics, must be satisfied, from an examination he or she has carried out, that if the woman became pregnant from an oocyte produced by her and sperm produced by her husband, a genetic abnormality or a disease might be transmitted to a person born as a result of the pregnancy.

Thus, under Victorian law, three eligibility criteria must be satisfied for a 'treatment procedure' (this includes IVF and artificial insemination)(8): marital status; consent of the woman and her husband or de facto husband; and infertility or risk of genetic abnormality or disease. Parts of this section have been declared to be invalid in the recent Federal Court decision in McBain v State of Victoria.(9) The decision is discussed in more detail on p. 3 of this Digest.

Other jurisdictions

Two other States, South Australia and Western Australia, also have legislation regulating access to assisted reproductive treatment. Both statutes restrict access to women who are in a marriage or de facto relationship of a certain length.

In South Australia, assisted reproductive services, including artificial insemination and IVF, are restricted to women who are married or have been in a heterosexual de facto relationship for the immediately preceding five years or for five of the previous six years.(10) Other eligibility criteria must also be satisfied, including infertility or risk of transmitting a 'genetic defect' to a child,(11) and a number of criteria related broadly to one's ability to raise a child, and lack of a relevant criminal history.(12)

In Western Australia, eligibility for assisted reproductive services such as IVF and GIFT, but not artificial insemination,(13) is confined to women who are married or have been in a heterosexual de facto relationship for the immediately preceding five years or for five of the previous six years.(14) Other conditions are infertility (but not by reason of age) or genetic risk, and consideration of the welfare and interests of the participants and any child likely to be born as a result of the procedure.(15)

No other States or Territories have legislation regulating the provision of assisted reproductive services. However, administrative practices (whether instigated by government or at the initiative of individual hospitals or clinics) may also require women to be married or in a de facto relationship before treatment is provided.(16)

Challenges to the restrictions on access

This Bill has arisen as a direct result of the recent Federal Court challenge to the Victorian Infertility Treatment Act 1995.(17) However, this is not the first occasion on which State legislation restricting access to assisted reproductive services has been challenged. In September 1996, the Full Court of the South Australian Supreme Court unanimously declared that the South Australian legislation discriminated on the ground of marital status, and thus was in breach of the Sex Discrimination Act.(18)

In March 1997, the Commonwealth Human Rights and Equal Opportunity Commission awarded damages to three Victorian women in long term de facto heterosexual relationships who had been refused access to IVF treatment solely on the basis of their marital status.(19) Two of the women married solely in order to have access to the treatment, and the third sought treatment in Sydney at considerable expense. The Commission considered that the hospitals' conduct, although consistent with Victorian legislation, was in breach of the Sex Discrimination Act and thus discriminatory. However, because the Commission is not a court, it did not have the power to make a declaration of inconsistency,(20) and hence the Victorian legislation remained operative. As a result of this case, however, in 1997 the Victorian legislation was amended to permit both legally married and de facto heterosexual couples to access fertility services.(21)

Unlike the Victorian and South Australian laws, the Western Australian legislation has not yet been challenged on the ground that the marital status requirement is inconsistent with the Sex Discrimination Act.

The McBain case

Because of the media and public attention devoted to this issue in recent weeks, the facts of the McBain case are well-known.(22) However, it is worth noting that the proceedings were actually brought by the medical practitioner, not by the woman who wished to receive IVF treatment. Dr John McBain, a Melbourne gynaecologist specialising in reproductive technology, was consulted by Ms Lisa Meldrum, a single woman wishing to conceive through IVF using donor sperm. Dr McBain was prohibited by Victorian law from administering IVF treatment to her, as she was single, not married or in a de facto relationship. In fact, if Dr McBain provided IVF treatment to her, he risked being charged with a criminal offence punishable by up to 4 years imprisonment.(23) He commenced proceedings in the Federal Court seeking a declaration that the Victorian legislation was inconsistent with the Sex Discrimination Act, and hence inoperative by virtue of section 109 of the Constitution,(24) so that he could lawfully provide treatment to Ms Meldrum.

Section 22 of the Sex Discrimination Act prohibits discrimination in the provision of goods and services on the grounds of sex or marital status. 'Marital status' is defined to mean the status of being single, married, separated, divorced, widowed or in a de facto relationship.(25)

In the McBain case, Justice Sundberg held that fertility treatments such as IVF were 'services' provided by medical practitioners, within the meaning of section 22 of the Sex Discrimination Act. He also rejected an argument that assisted reproductive services were exempt from the Sex Discrimination Act by virtue of section 32. That section states that the prohibition on discrimination does not apply to the provision of services 'the nature of which is such that they can only be provided to members of one sex.' Justice Sundberg concluded that fertility treatments were not services that can only be provided to women. He characterised them as 'treatments aimed at overcoming obstacles to pregnancy', whether the obstacle stemmed from the infertility or 'some physical feature of a man or a woman'. He went on to state that:

Whether the primary beneficiary of the treatment is a man or a woman, in the typical case the service is directed to achieving the desire of the couple to have a child. The fact that for biological reasons the embryo is placed into the body of the woman is but the ultimate aspect of the procedure.(26)

Justice Sundberg concluded that the Infertility Treatment Act, in making eligibility for IVF contingent on a woman's marital status, infringed the prohibition on discrimination found in section 22 of the Sex Discrimination Act. He thus declared a number of provisions of the Victorian legislation to be inoperative to the extent of the inconsistency.

The Bill proposes to amend the Sex Discrimination Act to allow States and Territories to legislate to restrict access to assisted reproductive services based on marital status.

Main Provisions

Schedule 1 inserts proposed subsections 22(1A) to (1D) into the Sex Discrimination Act.

Proposed subsection 22(1A) qualifies subsection 22(1) of the Sex Discrimination Act. Subsection 22(1) is the provision that prohibits discrimination in the provision of goods and services on the grounds of sex or marital status.

Proposed subsection 22(1A) permits State and Territory laws to discriminate on the basis of marital status in the provision of 'assisted reproductive technology services' (ART services). It confers an exemption from section 22 of the Sex Discrimination Act on:

  • State and Territory laws which refuse a person access to, or restrict a person's access to, ART services because of the person's marital status, and
  • State and Territory anti-discrimination laws(27) which expressly exclude provision of all or some ART services from their operation (proposed subsection 22(1B)).(28)

The exemption applies both to existing State and Territory laws, and to any laws which might be passed after the subsection commences.

ART services are defined in proposed subsection 22(1D) to mean in vitro fertilisation, artificial insemination, gamete, zygote or embryo transfer or 'any other services provided for the purpose of assisting in non-coital fertilisation'. This catch-all phrase would cover any new developments in assisted reproductive technology.

Effect of the amendments

The Bill, if passed, will have the effect that 'any provisions of the Victorian and South Australian Acts that have previously been ruled inconsistent with the Sex Discrimination Act will revive.'(29) Additionally, the Western Australian legislation will be immune from challenge on the ground of inconsistency with the Sex Discrimination Act.

Administrative practices in States or Territories which expressly exempt all or some ART services from their anti-discrimination laws will also be immune from challenge. Currently, only the Northern Territory has such an exemption. Discrimination on the grounds of sexuality and/or marital status in the provision of goods and services is prohibited in all States and Territories.(30) However, the Northern Territory expressly excludes 'artificial fertilisation procedures' (defined to include artificial insemination and IVF) from the definition of 'services'.(31) Thus, in the Northern Territory, it is not unlawful to discriminate on the grounds of marital status or sexuality in restricting access to assisted reproductive services.

In Tasmania, Queensland, New South Wales and the Australian Capital Territory there is no legislation governing ART services or exempting ART services from anti-discrimination law. In those jurisdictions, individual clinics will continue to be prohibited from discriminating on the ground of marital status in providing ART services. As the Attorney-General stated, '[i]f a State or Territory chooses not to legislate in this area, the Sex Discrimination Act will continue to apply.'(32) If hospitals or clinics in those jurisdictions impose a marital status requirement as a precondition to eligibility for ART, they may be subject to challenge for being in breach of the Sex Discrimination Act. This situation may compel these four jurisdictions to legislate, whether to restrict access to assisted reproductive services, or to insert an exemption into their anti-discrimination legislation. The latter course of action will permit variations in eligibility to be determined by individual hospitals and clinics.

Although the laws in Victoria, Western Australia and South Australia currently permit married and de facto heterosexual couples to access ART services, there is nothing in the proposed amendment prohibiting States from excluding de facto couples, or for that matter married couples, from obtaining such services.(33) This is contrary to the Government's stated reason for introducing the amendment, namely, to ensure children, where possible, have access to the care and affection of both a mother and a father.(34)

Concluding Comments

The proposed amendments raise difficult issues which have polarised the nation, as well as the political parties, over the last few weeks. The following comments summarise some of the main arguments which have surfaced during this debate.

Interests of the child

The Attorney-General claims, repeating the Prime Minister's formula, that the issue raised by the proposed amendment 'primarily involves the right of a child within our society to have the reasonable expectation, other things being equal, of the care and affection of both a mother and a father.'(35) Family and parenting groups, among others, have echoed this sentiment and supported the proposed amendment. Patty Smith of the Australian Family Association is reported as saying:(36)

For a woman to make a conscious choice before conception to deny a child two parents was tantamount to moral and ethical bankruptcy.

Another, more extreme reaction was:(37)

It is nothing less than child abuse intentionally to create another human being with the express purpose of denying it a father.

The postulated 'right' of a child to grow up with a mother and a father has generated two distinct types of response. Many have questioned the premise that it is always in a child's interests to grow up with a mother and a father. Some critics of the proposed amendment claim that single women and lesbian couples are no less competent or loving parents, and may indeed be more loving and committed because of their strong desire to have children, evidenced in the conscious decision to undergo IVF or other treatment.(38) Others cite evidence that children from two-parent families have fewer mental health and behavioural problems.(39) In this context, the debate may have broader significance for the large numbers of single parents and blended families in Australian society, as well as implications for other laws involving children, such as adoption laws.

Others, accepting the premise, have criticised the extent of the government's commitment to children. They have pointed out that the proposed amendment is designed to remedy a 'problem' which is statistically insignificant, while showing no real concern for the very real problems faced by large numbers of children.(40) While perhaps 150 single women across the whole of Australia may be interested in access to IVF or donor insemination,(41) approximately one million Australian children currently live in single-parent families.(42)

Erosion of human rights

Another recurring theme in the debate has been resort to the language of rights. Sex Discrimination Commissioner, Susan Halliday, considers that the Sex Discrimination Act is currently effective to prevent discrimination on the ground of marital status and the proposed amendment is a major 'eroding of our human rights framework'.(43) President of the Human Rights and Equal Opportunity Commission, Professor Alice Tay, echoes these sentiments, commenting:(44)

This legislation undermines the sex discrimination regime that has been in place for 16 years to ensure equality of access to services irrespective of people's marital status.

Former Attorney-General, Michael Lavarch, also contends that the Government's proposed amendment to the Sex Discrimination Act 'starkly reveals the weakness of Australia's human rights regime'.(45) Legal academics are also concerned the proposed amendments may breach Australia's international human rights obligations.(46)

The rights of women relevant to this debate include the right to freedom from discrimination, including on the basis of marital status,(47) the right to equal access to health care services,(48) and the right of 'men and women of marriageable age to marry and to found a family'.(49)

Some have questioned whether the right of women to bear children without being discriminated against is absolute or whether it may be legitimate to assess entitlement to services on the basis of the best interests of the child.(50) International human rights instruments recognise, in addition to freedom from discrimination, the paramountcy of the welfare or best interests of the child in matters involving children.(51) Ultimately, it is a matter for Parliament to resolve the balance to be struck between the rights and interests of children and the rights of women. However, one commentator has questioned whether resort to the pre-emptive language of rights and discrimination is effective to resolve the complex issues at stake, given that rights can conflict.(52)

State autonomy

A third theme of the debate has been State autonomy and federal interference in spheres of State legislative power. The Attorney-General claims that:(53)

The Commonwealth has limited constitutional power to legislate in this field. It is consistent with the States' responsibilities in relation to the regulation of the provision of medical care and treatment that they be permitted to legislate in the area of [assisted reproductive services] as they consider appropriate.

It is true that medical care and treatment are generally matters of State concern, apart from the provision of benefits such as Medicare.(54) However, the Sex Discrimination Act is not an Act legislating in the field of medical treatment. It ranges across matters as diverse as employment, education, the provision of accommodation, access to clubs and to other goods and services, all matters of predominantly State responsibility. The Sex Discrimination Act is a law in the field of human rights, a matter in regard to which the Commonwealth does have constitutional power to legislate.(55) Constitutionally, the Commonwealth has power to prohibit States and Territories discriminating on the ground of marital status, while not interfering with other aspects of State regulation of assisted reproductive services.(56)

It has been claimed that 'invoking State rights to amend Federal anti-discrimination legislation' is inconsistent with previous interventions relating to State and Territory autonomy, in areas such as euthanasia, Internet gambling, and privacy in relation to sexual conduct.(57) Whether or not a consistent approach to the federal-State division of legislative powers is desirable, or even achievable, it is clear that the decision to exempt assisted reproductive technology from the operation of the Sex Discrimination Act is a policy choice for Parliament to make, not a constitutional inevitability.

Health concerns

One important issue that has received surprisingly little attention in the public debate is the issue of women's health. The Victorian AIDS Council has claimed that the proposed exemption would force single and lesbian women to turn to other methods of self-insemination, increasing the risk of exposure to HIV, hepatitis B and other sexually transmitted diseases.(58) Whether there is any empirical evidence to support this claim has yet to be demonstrated, but nevertheless the safety, both of women and potentially also their affected children, is an issue worthy of consideration.

Access to identity

A final issue which has arisen is whether children born as a result of assisted reproductive technology should have access to information about the identity and genetic characteristics of the donor of the sperm or ovum. Under international law, children have a right to preserve their identity,(59) and their biological heritage may also be relevant for the diagnosis of genetically inherited health risks.(60)

The Australian Health Ethics Committee in 1996 strongly recommended the passage of comprehensive and complementary legislation in all States and Territories dealing with this issue.(61) The National Health and Medical Research Council's Ethical guidelines on assisted reproductive technology state that children born from the use of assisted reproductive services should have access to information, including identifying information, about their biological parents.(62) This recommendation has not been followed up. In fact, legislation in some States prevents disclosure of identifying information about donors,(63) although access may be permitted to non-identifying genetic information about the donor, for example for health reasons.

The identity of a child born as a result of treatment is conceptually distinct from the issue addressed in the Bill, namely, the eligibility of women for such treatment. It is, however, relevant to the broader public policy debate about IVF and assisted reproductive techniques.

Further consideration

The various arguments raised in the debate surrounding this issue are complex, and public opinion on them is divided. Further complexity has been added with the discovery that the proposed amendment as presently drafted would permit States and Territories to legislatively exclude de facto couples from access to assisted reproductive technology altogether, although no States or Territories currently exclude de facto couples. The Prime Minister has stated that 'it is not the desire of the Government to say that these procedures should be unavailable to people living in a de facto relationship.'(64) The Government has announced it will introduce further amendments to the proposed amendment, to ensure that de facto couples cannot be denied access to assisted reproductive services.(65) However, it appears these further amendments will permit the continued operation of Western Australia's and South Australia's laws requiring de facto couples to have cohabited for five years, a move which has been criticised as perpetuating discrimination against de facto couples.(66) In this context, the Human Rights and Equal Opportunity Commission has called on the Government to withdraw the Bill 'pending a thorough public debate on access to fertility treatment'(67) and others have echoed the call for a broader public debate.(68)

Endnotes

  1. A blastocyst is an early embryo, consisting of a sphere of cells enclosing an inner mass of cells and a central fluid-filled cavity.
  2. H Szoke, 'Regulation of Assisted Reproductive Technology' in I Freckelton and K Petersen, Controversies in Health Law, Federation Press (1999), p. 241.
  3. GIFT involves the removal of a woman's egg, mixing it with her partner's or a donor's sperm and reintroducing it into one of the Fallopian tubes, where it is fertilised and subsequently becomes implanted in the uterus.
  4. Artificial insemination involves the introduction of sperm into the vagina or uterus by means other than sexual intercourse.
  5. M Toy and C Saltau 'To this family, IVF is a miracle. But should miracles belong to everyone?', The Age, 5 August 2000.
  6. Commonwealth Department of Health and Aged Care Statistics, Medicare: IVF Services. Number of services and benefits paid (1999-2000).
  7. L Waller, 'Australia: The Law and Infertility - the Victorian Experience' in S McLean (ed), Law Reform and Human Reproduction, Dartmouth Publishing, Aldershot (1992), p. 17.
  8. Subsection 3(1) of the Infertility Treatment Act 1995 (Vic).
  9. [2000] FCA 1009 (28 July 2000).
  10. Paragraph 13(3)(b) and subsection 13(4) of the Reproductive Technology Act 1988 (SA). One minor exception is that women can obtain artificial insemination in South Australia without meeting any criteria, if the practitioner does not charge a fee for the service, paragraph 13(7)(b).
  11. Paragraph 13(3)(b) of the Reproductive Technology Act 1988 (SA).
  12. The latter criteria are contained in the Code of Ethical Practice referred to in paragraph 13(3)(c) and are set out in the Reproductive Technology (Code of Ethical Clinical Practice) Regulations 1995 (SA). Clause 11 stipulates that each spouse must:
  • not be suffering from any illness, disease or disability that would interfere with his or her capacity to care for a child throughout childhood,
  • not be subject to a term of imprisonment or outstanding criminal charges,
  • never have been found guilty of a sexual offence involving a child,
  • declare any convictions for offences involving violence, and
  • declare if he or she has ever had a child permanently removed from his or her guardianship.
  1. There are no eligibility requirements for artificial insemination under the Act, so any women, irrespective of their marital status, are eligible to receive this treatment.
  2. Subsection 23(c) of the Human Reproductive Technology Act 1991 (WA).
  3. Subsections 23(a), (d) and (e) of the Human Reproductive Technology Act 1991 (WA).
  4. In Queensland, the Department of Health required practitioners to follow the guidelines for treatment set out in the Demack Report, which restricted access to 'married couples or heterosexual couples in a stable de facto relationship'. A lesbian woman, JM, challenged those guidelines, alleging they constituted discrimination against her based on her lawful sexual activity, in contravention of the Anti-Discrimination Act 1991 (Qld). Although initially successful before the Anti-Discrimination Tribunal, this result was overturned by the Queensland Supreme Court which held that the real basis for her exclusion was because she had not demonstrated infertility, not because of her lawful sexual activity: JM v QFG & GK [1998] QCA 228; (2000) EOC 93-047 (18 August 1998).
  5. McBain v State of Victoria [2000] FCA 1009 (28 July 2000).
  6. Pearce v South Australian Health Commission (1996) 66 SASR 486. In that case, a woman was denied access to the IVF program because, although married, she was separated from her husband.
  7. MW, DD, TA & AB v Royal Women's Hospital, Freemasons Hospital and State of Victoria (1997) EOC 92-886 (5 March 1997).
  8. See Australian Apple v Pear Marketing Board v Tonking (1942) 66 CLR 77 at 104 per Rich J; Re Adams and the Tax Agents Board (1976) 12 ALR 239 at 241 per Brennan J.
  9. Infertility Treatment (Amendment) Act 1997.
  10. They have been set out in Research Note No 3 of 2000-2001 'McBain v State of Victoria: Access to IVF for all women?'
  11. Section 6 of the Infertility Treatment Act 1995 (Vic).
  12. Section 109 provides that 'When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.'
  13. Subsection 4(1) of the Sex Discrimination Act 1984.
  14. [2000] FCA 1009 at [15].
  15. 'Anti-discrimination law' is defined in proposed subsection 22(1D) by reference to subsection 10(3) of the Sex Discrimination Act 1984. The latter defines it as a law that deals with discrimination on the ground of sex, marital status, pregnancy or potential pregnancy. All States and Territories have an anti-discrimination law that fits this description, see below note 27.
  16. So long as there is no other law in that State or Territory that prohibits discrimination on the ground of marital status in the provision of ART services (proposed paragraph 22(1B)(b)).
  17. Attorney-General, the Hon. Daryl Williams, QC, MP, Second reading speech on the Sex Discrimination Amendment Bill (No 1) 2000, House of Representatives Hansard, p. 17538, 17 August 2000.
  18. Sections 7 and 20 of the Discrimination Act 1991 (ACT), sections 39, 47, 49ZG and 49ZP of the Anti-Discrimination Act 1977 (NSW), sections 19 and 41 of the Anti-Discrimination Act 1992 (NT), sections 7 and 46 of the Anti-Discrimination Act 1991 (Qld), sections 29(1) and 39 of the Equal Opportunity Act 1984 (SA), sections 6 and 42 of the Equal Opportunity Act 1995 (Vic), sections 9 and 20 of the Equal Opportunity Act 1984 (WA), sections 16 and 22 of the Anti-Discrimination Act 1998 (Tas). State and Territory anti-discrimination laws are broader in their scope than the Sex Discrimination Act, which does not protect either 'sexuality' or same sex couples, but is limited to discrimination on the grounds of sex, marital status, pregnancy or potential pregnancy.
  19. Subsection 4(8) of the Anti-Discrimination Act 1992 (NT).
  20. Attorney-General, the Hon. Daryl Williams, QC, MP, Second reading speech on the Sex Discrimination Amendment Bill (No 1) 2000, House of Representatives Hansard, p. 17538, 17 August 2000.
  21. See M Kingston and J Whelan, 'IVF: now States may ban de factos', Sydney Morning Herald, 18 August 2000.
  22. Attorney-General, the Hon. Daryl Williams, QC, MP, Second reading speech on the Sex Discrimination Amendment Bill (No 1) 2000, House of Representatives Hansard, p. 17538, 17 August 2000.
  23. Attorney-General, the Hon. Daryl Williams, QC, MP, Second reading speech on the Sex Discrimination Amendment Bill (No 1) 2000, House of Representatives Hansard, p. 17538, 17 August 2000. See also 'Motherhood politics', Sydney Morning Herald, 3 August 2000. This right is recognised in Article 7 of the UN Convention on the Rights of the Child 1989. The common responsibilities of both parents for the upbringing and development of children are recognised in Article 18 of the Convention on the Rights of the Child and Article 5 of the UN Convention on the Elimination of All Forms of Discrimination Against Women, 1979. The full text of the Convention on the Rights of the Child is at: http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html. The full text of the Convention on the Elimination of All Forms of Discrimination Against Women may be found at: http://www.austlii.edu.au/au/other/dfat/treaties/1983/9.html.
  24. C Overington and D Farrant, 'PM's family view challenged', The Age, 3 August 2000.
  25. D Oderberg, 'Any child has a right to a father', The Australian, 3 August 2000. See also, for more moderate expressions of a similar sentiment, comments of Dr Michael Wooldridge, Minister for Health and Aged Care, Tim Fischer and Senator Jocelyn Newman, Minister for Community Services in 'The IVF debate: What the politicians think', The Age, 3 August 2000; comments of Rev Dr John Henley in M Toy and C Saltau 'To this family, IVF is a miracle. But should miracles belong to everyone?', The Age, 5 August 2000; comments of Catholic Bishop Pat Power and Anglican Bishop George Browning in G Downie, 'Churches' mixed views on IVF plan', Canberra Times, 6 August 2000.
  26. See 'Motherhood politics', Sydney Morning Herald, 3 August 2000.
  27. See B Arndt, 'Father of all debates is about child's right', Sydney Morning Herald, 5 August 2000, M Gliksman 'IVF spat conceived in haste', The Australian, 7 August 2000.
  28. See M Coleman, 'Honesty missing in IVF debate', Canberra Times, 5 August 2000; D Farrant, 'The IVF debate: The story so far, issue by issue', The Age, 3 August 2000.
  29. M Stafford-Bell, 'IVF debate goes beyond politics', Canberra Times, 7 August 2000.
  30. H Mackay, 'Message in a test tube', The Age, 12 August 2000.
  31. See M Kingston and J Whelan, 'IVF: now States may ban de factos', Sydney Morning Herald, 18 August 2000; and C Overington and D Farrant, 'PM's family view challenged', The Age, 3 August 2000.
  32. Human Rights and Equal Opportunity Commission 'Commission warns against dilution of human rights', Media Release, 18 August 2000.
  33. M Lavarch, 'Fractured rights regime leads to discrimination', The Australian, 2 August 2000.
  34. See D Farrant, 'The IVF debate: The story so far, issue by issue', The Age, 3 August 2000, B Haslem, S Marris, A Crosweller, 'PM ignites family row', The Australian, 2 August 2000, A Stavro and C Niesche, 'Singles IVF ban could breach world treaty', The Australian, 2 August 2000.
  35. Article 2 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 confers on women a right to freedom from discrimination, and Article 26 of the International Covenant on Civil and Political Rights, 1966 prohibits discrimination on any ground, including sex or 'other status'. 'Sex' has been held to include homosexuality, Toonen v Australia: Communication No 488/1992, and presumably 'other status' would include marital status. The full text of the International Covenant on Civil and Political Rights is located at: http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html.
  36. Article 12 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979, although this right is qualified by the phrase 'on a basis of equality of men and women'.
  37. Article 23 of the International Covenant on Civil and Political Rights, 1966.
  38. See C Sherry 'A question of rights - for mother and child', Sydney Morning Herald, 4 August 2000, Bishop Pat Power in G Downie, 'Churches' mixed views on IVF plan', Canberra Times, 6 August 2000.
  39. Article 3.1 of the Convention on the Rights of the Child and Articles 5 and 16.1.(d) of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979.
  40. B Uren, 'IVF: the heart of the matter', The Age, 4 August 2000.
  41. Attorney-General, the Hon. Daryl Williams, QC, MP, Second reading speech on the Sex Discrimination Amendment Bill (No 1) 2000, House of Representatives Hansard, p. 17538, 17 August 2000.
  42. See Health Insurance Act 1973 (Cth).
  43. In the implementation of international treaties imposing obligations on Australia to respect human rights, using the external affairs power, section 51(xxix) of the Constitution.
  44. Indeed, the Commonwealth has plenary power to legislate for the self-governing Territories, by reason of section 122 of the Constitution.
  45. See 'Motherhood politics', Sydney Morning Herald, 3 August 2000, C Hull, 'PM juggles to justify stand', Canberra Times, 3 August 2000.
  46. 'The IVF Debate: Denial risks health, says activist', The Age, 3 August 2000.
  47. Article 8 of the Convention on the Rights of the Child.
  48. See B Arndt, 'Father of all debates is about child's right', Sydney Morning Herald, 5 August 2000, M Gliksman, 'IVF spat conceived in haste', The Australian, 7 August 2000, M Coleman, 'Honesty missing in IVF debate', Canberra Times, 5 August 2000.
  49. Background to the National Health and Medical Research Council, Ethical guidelines on assisted reproductive technology, (1996), p. v.
  50. Guideline 3.1.5 of the National Health and Medical Research Council, Ethical guidelines on assisted reproductive technology, (1996).
  51. See sections 70 and 71 of the Infertility Treatment Act 1995 (Vic), section 18 of the Reproductive Technology Act 1988 (SA), sections 46 and 49 of the Human Reproductive Technology Act 1991 (WA).
  52. Quoted in M Kingston, 'De factos to wait five years for fertility treatment', Sydney Morning Herald, 22 August 2000.
  53. Attorney-General, the Hon. Daryl Williams QC, MP, 'Access to assisted reproductive technology by de facto couples assured', News Release, 18 August 2000.
  54. Quoted in M Kingston, 'De factos to wait five years for fertility treatment', Sydney Morning Herald, 22 August 2000.
  55. Human Rights and Equal Opportunity Commission 'Commission warns against dilution of human rights', Media Release, 18 August 2000.
  56. See comments of Louis Waller in M Toy and C Saltau 'To this family, IVF is a miracle. But should miracles belong to everyone?', The Age, 5 August 2000; J Warhurst, 'IVF debate a closed-door debacle', Canberra Times, 11 August 2000; Anglican Archbishop of Melbourne, Peter Watson in D Farrant, 'The IVF debate: The story so far, issue by issue', The Age, 3 August 2000.

Contact Officer and Copyright Details

Katrine Del Villar
23 August 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 2000

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2000.

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