Victorian Bill To Remove Restrictions On IVF For Separated Women

Tuesday 11 June 2019 @ 11.59 a.m. | Legal Research

On 4 June 2019, the Minister for Mental Health, Martin Foley, introduced the Assisted Reproductive Treatment Amendment (Consent) Bill 2019 (VIC) (‘the Bill’) to the Victorian Legislative Assembly.

The Bill amends the Assisted Reproductive Treatment Act 2008 (VIC) (‘the Act’) to remove a requirement for women to seek approval from their former partner in order to access IVF using their own eggs and donor sperm. These amendments have been made following the decision in EHT18 v Melbourne IVF [2018] FCA 1421 (‘the Case’) and the release of the Interim Report of Victoria’s independent Review of Assisted Reproductive Treatment Services (‘the Independent Review’).

The Federal Court Case

On 21 September 2018, Justice Griffiths found that current legislation discriminated against women on the basis of their marital status and found that section 10(1)(a) of the current Act to therefore be invalid and inoperative.

Under the current section 10(1)(a), a woman may only undergo an assisted reproductive treatment procedure where her partner has given written consent. 'Partner' is defined under section 3 as the spouse or the first person they have lived with as a couple on a genuine domestic basis. However, section 22 of the Sex Discrimination Act 1984 (CTH) states that it is unlawful to refuse to provide services on the grounds of another individual’s marital or relationship status.

The Applicant in the case is a married woman who had been separated from her husband since late 2017, and who wished to obtain IVF treatment from Melbourne IVF (the Respondent). Under Victorian legislation, a couple can only divorce once the requisite 12 month period for living separately and apart has elapsed. The Applicant has medical reasons why she wishes to have the IVF treatment before then, and notes that her husband would have no role or responsibility in raising the child.

Griffiths J elaborated at [108] of the judgment:

“The discrimination is both stark and direct. Because the applicant has a spouse, she must obtain the consent of her husband under s 10(1)(a) notwithstanding that they are living separately and apart and have done so for almost a year. If instead of being married, the applicant had been in a de facto relationship with the same man who is now her spouse but she then separated from him for such a period that it could no longer be said that she was living with him as a couple on a genuine domestic basis, she would not be required to obtain his consent under s 10(1)(a).”

Accordingly, Griffiths J held that the State Act was inconsistent with section 22 of the Sex Discrimination Act 1984 (CTH) and hence, was invalid and inoperative.

The Independent Review

On 6 April 2018, the Victorian Government announced that the State’s assisted reproductive services would undergo a review for the first time in a decade. The review was scheduled to be completed by April 2019, but the final report has not yet been released.

The review focuses on:

  • The safeguards and adequacy of these safeguards to those using or intending to use these services
  • The relevancy of the current regulatory framework within an evolving market for assisted reproductive treatments
  • Whether the changing market and regulatory framework then has implications for access and affordability for these services

In October 2018, the Independent Review released its Interim Report which noted the discrimination faced by separated married women, as highlighted by Griffiths J in the case.

The report notes on page 45:

“The Review heard that conflicting legal opinions about the effect of these provisions, and whether or not a woman who is separated can be treated, has resulted in different practices among clinics. Nonetheless, it is known that married women who are separated but not divorced have been prevented from accessing [Assisted Reproductive Treatment] using donor sperm, without the consent of their former partner.”

In light of these concerns, the Independent Review put forth its recommendation:

“It is recommended that the Act be amended to remove any discrimination against married women who wish to access assisted reproductive treatment following separation. The Act should ensure that where a married couple have separated, the consent of a person who would otherwise meet the definition of a partner is not required to undertake treatment, provided that their gametes are not used without specific consent.”

Proposed Amendments

Under the proposed amendments of the Bill, a woman who has separated from her former partner, but not yet divorced, will no longer need to seek the consent of her former partner to access IVF treatment. The Bill amends section 3 of the Act to add that the definition of partner is to exclude a spouse from whom the individual has separated from.

Furthermore, the Bill amends the Status of Children Act 1974 (VIC) to clarify that the former spouse will not be regarded as the parent of the resulting child. For the purposes of the Status of Children Act 1974 (VIC), a woman will be considered to not have a partner if she is married, but separated from her spouse.

The Minister for Health Jenny Mikakos said in the media release:

“These amendments are an important step towards ensuring Victoria’s assisted reproductive treatment laws are fair, up to date and reflect the expectations of our modern community.”

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