THE IVF DILEMMA
September 2000 |
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What's
it about?
Perhaps you've heard the saying, 'from little acorns great oaks grow' (or something
like that, we're sure you get the idea). There is a parallel in the law. Oft times we see
a meagre legal confrontation blossom into a national controversy, or a seemingly
insignificant issue attain a greater stature than anyone imagined. And more often than not
politics will be the spur that propels the issue onto the front pages.
In retrospect it probably shouldn't have come as any surprise
that a recent ruling of the Federal Court would bring out the troops. It began with an
application to the Court by an in-vitro fertilisation (IVF) specialist, John McBain, to
have a State IVF law struck down on the ground that it contravened the federal Sex
Discrimination Act. The Court agreed with him. That's the bare bones, now let's
unpack it a little more.
What it all means
Let's start with a basic premise: we live in a Federal system, with both Federal laws
and State laws. It is also relevant that many of these laws deal with the same issues, or
have an overlap. That shouldn't be surprising if you look at the number of State and
Federal Ministers who handle similar portfolios (Education, Treasury etc) and administer
similar areas of law.
It is also possible that a federal law can impinge on the
operation of a State law, but not the other way around. That's because a federal law has
precedence over a State law where they conflict. So although a State can
legislate on anything within its powers under the Constitution, it cannot maintain a law
that is in opposition to legislation passed by the Commonwealth Parliament.
In this case the Victorian Parliament passed a law that restricts
access to assisted conception and in-vitro fertilisation (IVF) to married or genuine de
facto heterosexual couples. Clearly this doesn't leave much room for lesbians or women
without partners. Now this is where it gets interesting, because riding into Court, on
behalf of those disenfranchised women, were lawyers armed with a copy of the federal Sex
Discrimination Act. Now, you may think that this law has something to do with sex,
but in fact the Sex Discrimination Act is concerned with gender discrimination.
That is, it stands for the principle that citizens cannot be discriminated against on the
basis of their gender or marital status. So, for instance, you cannot restrict a job
opportunity to one sex unless there are compelling reasons to do so.
The Court decided that the State law breached the federal Sex
Discrimination Act because it discriminated against people on the basis of their
marital status. Therefore the Court rules that the offending part of the Act should be
struck out. At the end of the day the Court's decision means that single women and those
in lesbian relationships have the same access to IVF technology as married or de facto
couples.
Why do we care?
There were certainly many raised eyebrows at the Court's intervention. The Catholic
Church attacked the ruling, the Prime Minister signalled his intentions to alter the
federal Sex Discrimination Act to return the State Act to its initial intention,
and talkback radio lines ran red hot with competing views.
The Prime Minister was certainly right in one respect - the Victorian legislation was
always intended to restrict the use of the technology to heterosexual married and de facto
couples. In fact, it could be fairly said that the law imposed on doctors a regime by
which they were forced to discriminate against women who were not in a heterosexual
defacto or married relationship. This was precisely what persuaded Dr McBain to launch his
court action.
Who's right?
Like so many legal issues, questions of law and questions of justice do not always
coincide. We would argue that a single woman or a woman in a lesbian relationship is
entitled to have a child. Although the Prime Minister has argued that " it is the
right of children in our society to have the reasonable expectation, other things being
equal, of the affection and care of both a mother and a father", statistically this
is far less often the case. And let's be honest, there are plenty of abusive partners in
heterosexual relationships who would nevertheless qualify for access to IVF - on the other
hand many entirely honourable and caring potential parents are denied access because of
their sexual preference or their single status. And clearly there have not been dire
consequences in NSW and Queensland, where the technology has been available for all women.
This dilemma also raises a continuing problem in a federal system. In an age where
people can board a plane and be in another State jurisdiction within hours, it is plainly
ridiculous that different States deal with social issues in different ways. This
encourages people to take advantage of these discrepancies by crossing borders. Are we to
believe that a lesbian or single woman in NSW is more capable of raising a child than her
Victorian counterpart?
What we think
The problem with a blanket ban on IVF technology for some segments of the female
population is that it is too broad. When we couch a social debate in legalese we ignore
the very real heartbreak occasioned to women who are denied the right to bear a child.
This is not a question of women's rights, but rather an appeal to the law to empathise
with the plight of women who hope to be parents. Of course there should be appropriate
counselling to potential users of IVF technology, but it is unfair to deny women rights of
access when heterosexuality is no guarantee of stability or longevity in a relationship -
the 40% divorce rate speaks for itself. What makes a "family" in the 21st
century? Perhaps, as far as legal definition is concerned, it's a term that has had its
day.
We do, however, agree that there is a basic flaw to any argument that deals only with
the rights of the woman, and is also common to any "rights" debate. It cannot
take account of the equally important "right" of the unborn child. So although
the Court's decision focused on "rights" and "discrimination", it is
ultimately unhelpful to the real question before us. Let's not swallow the idea that the
law can solve all our social dilemmas - there are no rights or wrongs in this argument. At
best we can only seek to make a value judgement and minimise the interference from the
political process. We shouldn't seek refuge in the law or the Courts but in a mature
national discourse.
Read this: The legal information contained
above is intended to be general information about the law. It is not a substitute for
legal and other professional advice. Lawscape Communications P/L does not accept
responsibility for loss to any person, who either acts or does not act because of this
information.
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