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McBain v State of Victoria: Access to IVF for all Women
Katrine Del Villar
Law & Bills Digest Group
15 August 2000
Introduction
On Friday, 28 July 2000, Justice Sundberg of the
Federal Court of Australia handed down his decision in McBain v State
of Victoria.(1) The decision is the latest in a number
of challenges to restrictions on obtaining IVF services in Victoria, South
Australia and Queensland. His ruling, that provisions of the Victorian
Infertility Treatment Act 1995 were inconsistent with section 22
of the Commonwealth Sex Discrimination Act 1984, has sparked nationwide
controversy.
Facts
Dr John McBain, a Melbourne gynaecologist specialising in reproductive
technology, was consulted by Ms Lisa Meldrum, a single woman wishing to
conceive through in vitro fertilisation (IVF) using donor sperm. Dr McBain
told Ms Meldrum he was prohibited by Victorian law from administering
IVF treatment to her, as she was single. He thereupon commenced proceedings
seeking a declaration that provisions of the Victorian legislation were
inconsistent with the Sex Discrimination Act, and hence inoperative to
the extent of the inconsistency.
Decision
The Infertility Treatment Act provides that artificial insemination
or fertilisation by a procedure such as IVF may only be carried out on
a woman who is married or 'living with a man in a de facto relationship'.(2)
Thus, married women who are separated from their husbands are excluded
from treatment, as are single and lesbian women.
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 include the status of being single, married,
separated, divorced, or in a de facto relationship.
Justice Sundberg held that fertility treatments, including IVF, were
'services' provided by medical practitioners, within the meaning of section
22 of the Sex Discrimination Act. He dismissed an argument that the word
'services' should be read consistently with the rights of the child under
international instruments to know and be brought up by both parents. It
is accepted that resort may be made to international human rights law
in interpreting domestic law only where there is ambiguity in the statute,
(3) and Justice Sundberg considered that the definition
of the word 'services' was unambiguous.
He also rejected an argument that fertility treatment 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 which can, of their very nature, only be provided to members
of one sex. Justice Sundberg concluded that fertility treatments were
not services which 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.
Because the Infertility Treatment Act makes provision of IVF treatment
contingent on a woman's marital status (as well as her medical state),
Justice Sundberg concluded that the Victorian legislation infringed the
prohibition on discrimination found in section 22 of the Sex Discrimination
Act and was thus inoperative because of section 109 of the Constitution.
Other States
The case has implications for legislation regulating reproductive technology
in States other than Victoria. South Australia and Western Australia also
restrict access to fertility services to couples who are either infertile
or at risk of genetic defects, and are married or in a de facto heterosexual
relationship of at least 5 years' standing. (4) Administrative
guidelines in other jurisdictions may also restrict access to such services
on the basis of marital status.
Both the Victorian and South Australian statutes have previously been
declared to be inconsistent with the Sex Discrimination Act.
In Pearce v South Australian Health Commission,(5)
a woman was denied access to the IVF program because she was separated
from her husband. 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.
Three Victorian women in long-term de facto relationships were awarded
damages on the basis that hospitals had discriminated against them by
refusing them access to IVF treatment solely on the basis of their marital
status, in breach of the Sex Discrimination Act.(6)
Two other cases, one in South Australia and one in Queensland, considered
whether the refusal of fertility services contravened the relevant State's
anti-discrimination laws.(7)
Analysis
It is important to note that access to fertility services in Victoria
is restricted by two conceptually distinct criteria: marital status and
medical need. Medical need may be demonstrated if either the woman or
her husband is infertile ('unlikely to become pregnant') or at risk of
transmitting a genetic abnormality or disease to the child. The Sex Discrimination
Act prohibits discrimination on the ground of marital status, but not
on the basis of medical need.
Justice Sundberg held that the marital status criterion is wholly inoperative,
and the medical need criterion is inoperative to the extent that it is
'dependent upon the marriage requirement'. Whether this makes the medical
need criterion wholly inoperative or not is unclear, although it is critical
to the result of the case.
The Victorian Government has accepted legal advice that 'nothing in Justice
Sundberg's...ruling excluded the requirement for IVF treatment recipients
to be medically infertile.'(8) The legal advice considers
that all that needs to be done to avoid breaching the Sex Discrimination
Act is to remove the references in the medical need criterion to 'the
husband's sperm'. Thus, Ms Meldrum and other single or lesbian women will
only be able to obtain IVF treatment if they can demonstrate they are
infertile or at risk of genetic abnormality or disease.
It is to be expected that the Victorian Government's legal advice will
eventually be tested in court, whether by Ms Meldrum or another woman
who is unable to satisfy the medical need criterion. Contrary to that
advice, it may be that the medical need criterion makes no sense if the
references to 'the husband's sperm' are excised. If that is so, then the
medical need criterion will be inoperative because it depends in part
on a woman's marital status.(9) This reading of the provision
would allow single and lesbian women to obtain fertility treatment services
without having to demonstrate any medical need.
Arguably, the public and media response to the case conflates two distinct
issues, medical need and social need. Justice Sundberg's reasoning focussed
exclusively on marital status, and considered the medical need criterion
only to the extent to which it referred to marital status. After concluding
that discrimination on the ground of marital status was established, he
did not need to consider the issue which has captured the public imagination-whether
'unlikely to become pregnant' refers not only to medical infertility,
but also encompasses purely social obstacles to pregnancy.
Other implications of the McBain case, including in relation to
State and Territory adoption laws, are canvassed in the forthcoming Research
Note, McBain
v State of Victoria: Implications Beyond IVF.
Endnotes
- [2000]
FCA 1009.
- Section 8(1) of the Infertility
Treatment Act 1995.
- See Polites v Commonwealth (1945) 70 CLR 60;
Kartinyeri
v Commonwealth (1998) 195 CLR 337 at 385-386 per Gummow and
Hayne JJ, at 417-419 per Kirby J.
- Section
23 of the Human Reproductive Technology Act 1991 (WA); section
13 of the Reproductive Technology Act 1988 (SA).
- (1996)
66 SASR 486.
- MW,
DD, TA & AB v Royal Women's Hospital, Freemasons Hospital and State
of Victoria (1997) EOC p92-886 (5 March 1997).
- Yfantidis
v Jones (1993) 61 SASR 458; and JM v QFG & Ors (1997)
EOC 92-876 (31 January 1997); (1997) EOC 92-902 (24
Oct 1997); and [1998] QCA 228; (2000) EOC 93-047 (18
August 1998).
- Opinion of Dr Gavan Griffith QC, In the Matter
of the Infertility Treatment Act 1995 and the Sex Discrimination Act
1984, section 22.; 'Bracks
government accepts legal advice on IVF ruling', Media Release,
7 August 2000.
- See, as to reading down and severance, Bootmakers'
Case (1910) 11 CLR 1.
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