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McBain v State of Victoria: Implications Beyond IVF
Katrine Del Villar
Law & Bills Digest Group
15 August 2000
Introduction
The Federal Court's decision in the McBain case(1)
is analysed in the Research Note McBain
v State of Victoria: Access to IVF for all Women. Justice Sundberg
struck down certain provisions of the Victorian Infertility
Treatment Act 1995 which restricted access to fertility treatments
to women who are married or in a heterosexual de facto relationship. He
held that those requirements unlawfully discriminated against women on
the basis of their marital status, in breach of the Sex
Discrimination Act 1984 (Cwlth).
Implications for adoption
Who may adopt a child, as well as who may have access to fertilisation
procedures, is regulated by the States and Territories. Adoption rules
are complicated and restrictions on access to adoption for prospective
parents are based on age, good character, and, in some jurisdictions,
criteria such as the wishes of the birth parents or proof of infertility,
as well as on marital status.
All jurisdictions permit adoption by married couples, although most require
the couple to have been married for a minimum of two, three or even five
years. The majority of jurisdictions(2) also permit adoption
by de facto heterosexual couples who have been in that relationship for
the same minimum period. An adoption order can generally only
be made in favour of a single person in 'special' or 'exceptional' circumstances,
including in some States if the child has a disability or special needs.
(3)
By analogy with the McBain decision, restricting access to adoption
to married couples, or to married and heterosexual de facto couples, may
constitute discrimination on the basis of marital status. This depends
on whether adoption can be characterised as the 'provision of a service'
within meaning of section
22 of the Sex Discrimination Act. 'Services' is defined in
subsection
4(1) of the Sex Discrimination Act to include services provided
by a government, and thus may include adoption 'services' provided by
State governments, although this is an open question.
Commonwealth response
The Government has recently announced its intention to amend the Sex
Discrimination Act to exempt State laws restricting access to IVF and
other fertility treatments.(4) This will permit States
to discriminate on the basis of marital status in regulating access to
fertility treatment services. It will be interesting to see whether an
exemption is also included for State and Territory adoption laws.
The Minister for Health and Aged Care has also announced that Medicare
benefits will continue to be payable only in cases of medical infertility.
Currently, Medicare benefits are payable for IVF and other assisted reproductive
services only where such services are 'clinically relevant services',(5)
and not if they are not 'medically necessary'.(6) Although
the unavailability of Medicare does not of itself restrict access only
to infertile couples or infertile single or lesbian women, with the cost
of artificial insemination around $170 per treatment and of IVF around
$3000 per treatment, this may remain a significant obstacle for poorer
single or lesbian women.(7)
International obligations
The proposed exemption from the Sex Discrimination Act has been criticised
by some, on the ground that it would be in breach of Australia's international
obligations under the UN Convention
on the Elimination of All Forms of Discrimination Against Women, 1979
(CEDAW) and the International
Covenant on Civil and Political Rights, 1966 (ICCPR).(8)
Other commentators have been promoting the fundamental right of a child
'as far as possible, to know and be cared for by his or her parents' contained
in Article 7 of the UN Convention
on the Rights of the Child, 1989 (CROC).
It is commonly stated, both in international treaties and in domestic
law, that the welfare or best interests of the child shall be 'paramount',
or 'a primary consideration', both in relation to governmental decision-making(9)
and in defining the responsibilities of parents.(10)
However, as Justice Kirby has recognised, this 'is not the same as the
'sole' or 'only' consideration'.(11) CROC itself acknowledges
that the rights of parents are relevant even when meeting a child's needs
for protection and care (Article 3.2), and that a child's parents will
not always live together (Article 10.2).
Counterbalancing the right of a child to be born into a family is the
right to freedom from discrimination. Article 2 of CEDAW commits Australia
to eliminating discrimination against women. Although Articles 1 and 16(1)(d)
of CEDAW refer to marital status as an irrelevant factor, discrimination
against women on the ground of their marital status is not expressly prohibited.
The aim of CEDAW is to preclude discrimination between men and women,
not between married and unmarried women. The majority of articles in CEDAW
impose obligations on countries to provide access to services (including
health care services, Article 12) 'on a basis of equality of men and women'.
Article 26 of the ICCPR proclaims a right to equal protection of the
law and freedom from discrimination on any ground, including race, sex
or 'other status'. 'Sex' has been held to include homosexuality,(12)
and presumably 'other status' would include marital status. It could be
argued that this right to freedom from discrimination guarantees all women,
irrespective of their marital status, the right to bear children.
Alternatively, it could be argued that this right cannot be read in isolation,
but should be read in the context of the rest of the ICCPR. Article 23
of the ICCPR proclaims the right of 'men and women of marriageable age
to marry and to found a family', and declares the family to be 'the fundamental
group unit of society'. This may suggest that a heterosexual couple is
the paradigm for the upbringing of children in international law. The
notion of the traditional family is reinforced by Article 5 of CEDAW and
Article 18.1 of CROC, both of which refer to the 'common responsibility
of men and women in the upbringing and development of their children'.
In this context, it is unclear whether the freedom from discrimination
would guarantee women a right to bear children independent of the traditional
family.
The existence of these international obligations, which appear to be
in tension with one another, highlights the limits on the useful contribution
international law can make to the debate on this topic. International
instruments are often 'aspirational rather than normative'(13)
and may express the 'conflicting principles which are already reflected
in Australian law and court decisions'(14) without resolving
them.
Challenging the Commonwealth response
It is not possible to constitutionally challenge the Commonwealth's proposed
exemption from the Sex Discrimination Act. The Commonwealth has constitutional
power to pass both that Act and the Medicare legislation, and the power
to make laws extends to the power to repeal or exempt certain things from
the operation of those laws.(15) Further, nothing in
the Constitution restricts federal law-making powers only to beneficial
laws, and there is no constitutionally entrenched prohibition on discrimination.
A woman denied access to fertility services could choose to bring a communication
to the UN Human Rights Committee, alleging Australia is in breach of its
international obligations.(16) This would only apply
to breaches of the ICCPR (such as Article 26), as no provision is made
for individual complaints to be brought under either CROC or CEDAW.
Conclusion
The decision in McBain potentially has far-reaching implications,
not only for fertility treatment services, but also for State and Territory
adoption laws. Resort to international instruments only reinforces the
competing considerations that are present in the debate, and does not
provide clear or conclusive guidance on what are ultimately complex policy
questions.
Endnotes
- [2000]
FCA 1009.
- Except Queensland, the Northern Territory and Western
Australia: Adoption of Children Act 1964 (Qld) section
12; Adoption
of Children Act (NT), section 13, Adoption Act 1994 (WA),
section
39.
- Adoption of Children Act 1965 (NSW), paragraph
19(1)(b); Adoption of Children Act 1964 (Qld), paragraph
12(3)(B).
- Emma MacDonald and Ross Peake 'PM
under fire over IVF stand', Canberra Times, 2 August 2000.
- Subsection
10(1) of the Health Insurance Act 1984.
- Medicare
Benefit Arrangements, clause 1.1.5. It is interesting to note
that no benefit is payable for assisted reproductive techniques used
in conjunction with a surrogacy agreement.
- See also the Prime Minister's comments, 'The
IVF debate', The Age, 3 August 2000.
- 'Singles
IVF ban could breach world treaty', The Australian, 2 August
2000.
- Art 3.1 of CROC.
- Articles 5 and 16.1(d) of CEDAW.
- AMS
v AIF (1999) 163 ALR 501 at 537.
- Toonen
v Australia: Communication No 488/1992.
- AMS v AIF (1999) 163 ALR 501 at 515 per Gleeson
CJ, McHugh and Gummow JJ.
- AMS v AIF (1999) 163 ALR 501 at 545 per Kirby
J. See also at 515.
- Kartinyeri
v Commonwealth (1998) 195 CLR 377.
- This approach was adopted by Nicholas Toonen in challenging
Tasmania's laws criminalising homosexual conduct: Toonen
v Australia: Communication No 488/1992.
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