Fertility Access - The Victorian Situation

Until recently, 'fertility access' for single women and lesbians in Victoria was prohibited under the State Infertility Treatment Act (1995).

In 1998 a single woman took a case against the Royal Women's Hospital (RWH) to the Human Rights and Equal Opportunity Commission claiming that the RWH had discriminated against her by failing to allow her access to an insemination program on the basis of her single status. Judgment passed on the 24/12/99 was in the woman's favour, stipulating that the Federal Law overrode the State Infertility Treatment Act.

In 2000, Dr.John McBain, a doctor, took his case to the Federal Court seeking a declaration that the Victorian law was inoperative due to its inconsistency with the Sex Discrimination Act.

In July 2000, Justice Sundberg of the Federal Court of Australia handed down his decision in McBain v State of Victoria ruling that provisions of the Victorian Infertility Act 1995, in so far as they required marriage or de facto heterosexual relationships, were inconsistent with the Commonwealth Sex Discrimination Act.

The Commonwealth Parliamentary Library has published research notes. The research notes are titled McBain v State of Victoria: Access to IVF for all women and Implications beyond IVF

The Victorian Government's response accepted that the marriage requirement under the Infertility Treatment Act (1995) was invalid and inoperative but went on to advise all IVF clinics that clinical infertility remained a requirement for access to treatment. Infertility treatment would be available to Victorian women who were deemed clinically infertile regardless of their marital or de facto status but women who were medically fertile and single would be denied treatment.

In August 2000, Prime Minister John Howard announced his bid to block access to IVF treatment for single women and lesbians by introducing legislation to amend the Federal Sex Discrimination Act (1984). The Commonwealth also reiterated that Medicare benefits would continue to be payable only in cases of medical infertility. The Labor Party and the Democrats opposed the Government's proposal to alter the Sex Discrimination Act. The Bill was passed by the House of Representatives but was never put to a vote in the Senate after the recommendation was not supported by a cross party committee.

In the meantime, the Federal Court decision ruling that Victoria's infertility laws breached federal sex discrimination laws was challenged in the High Court by the Commonwealth Attorney General and Australian Catholic Bishops Conference. The Human Rights and Equal Opportunity Commission with the Women's Electoral Lobby (WEL) intervened to defend the Sex Discrimination Act and support the Federal Court decision. The case was heard in September 2001.

In April 2002, the High Court dismissed the challenge and upheld the right of single and lesbian women to have access to IVF treatments. Following the High Court's decision, Prime Minister John Howard proceeded to reintroduce amendments to the Sex Discrimination Act 1984, which would allow States to specify who may receive infertility treatment.

In Victoria, the Attorney General Rob Hulls finally referred the issue of ‘Assisted Reproduction and Adoption’ to the Victorian Law Reform Commission in October 2002. The Commission was to enquire and report on the desirability and feasibility of changes to the Infertility Treatment Act 1995 and the Adoption Act 1984.

The Terms of Reference defined the scope of the inquiry which included directing the Commission to:

• take into account the social, ethical and legal issues with regard to the rights and best interests of children and
• consider the public interest and interests of, parents, single people and people in same sex relationships, infertile people and donors of gametes

The Commission published a Consultation Paper, which raised important questions and invited response from individuals and organisations. By the end of 2004 the Commission had received over 200 submissions with a broad spectrum of views ranging from those who advocated the laws stay the same, those who supported changes to increase access and those who favoured restricting access even further.

In the second half of 2005 the Commission published position papers on three topics:

• eligibility for ART
• parenting and adoption and
• surrogacy

Each paper contains interim recommendations and called for responses in relation to these recommendations. The deadline for submissions has passed but the final report is yet to be released. The full Terms of Reference, Consultation Paper and Position Papers are available on the Victorian Law Reform Commission's web site.

Victorians, whilst awaiting the final report from the Victorian Law Reform Commission, are left with the current status quo i.e. lesbians and single women who are medically infertile can access reproductive technologies while fertile lesbians/single women still cannot.

However, there has been one small gain for lesbians and single women in this area. Guidelines developed by the Infertility Treatment Authority for the 'Storage of Sperm by Women using Known Donors for the Purpose of Self-Insemination' were passed in November 2003 thereby allowing IVF clinics to screen, store and return sperm to women for self-insemination. Some conditions include counseling for both the woman and sperm donor and listing of donor details on a register. These are interim guidelines and while it is anticipated that some women and their donors will utilise this opportunity permanent access via this channel is not yet guaranteed.

You can view the Infertility Treatment Act 1999, read the legal opinion following the Federal Court case on Access to Fertility Treatment and download the guidelines for the Storage of Sperm by Women using Known Donors for the Purpose of Self-Insemination at the web site of the Infertility Treatment Authority.

Go to Fertility access introductory page.