Infertility and surrogacy

In Victoria, under the previous law Infertility Treatment Act 1995 Section 8(1), a woman who undergoes a treatment procedure must be married and living with her husband on a genuine domestic basis or is living with a man in a de facto relationship.

The aforementioned are the requirements before a woman in Victoria is allowed to undergo treatment with respect to infertility and surrogacy, thus excluding single and lesbian women from accessing treatment.

In the case of McBain v Victoria [2000] FCA 1009 a single woman was refused treatment by Dr. McBain because she did not meet the criteria under the Infertility Treatment Act 1995 Section 8(1). The doctor then commenced proceedings in the Federal Court seeking a declaration that Section 8(1) from said law is inconsistent with Section 22 of the Sex Discrimination Act 1984 which prohibits discrimination in the provision of goods and services on the grounds of sex or marital status.

The contention of the doctor is that Section 8(1) being inconsistent with Section 22 of the Sex Discrimination Act 1984 is rendered inoperative by virtue of the Constitution. The High Court affirmed the conclusions of Justice Sundberg of the Federal Court of Australia:

1. A woman must either be married or living in a de facto relationship to be eligible for a treatment procedure.
2. The Infertility Treatment Act 1995 (Vic), in making eligibility for IVF contingent on a woman's marital status, infringed the prohibition on discrimination found in the Sex Discrimination Act 1984 (Cth), s 22.
3. Such provisions are therefore invalid and inoperative to the extent of the inconsistency, and thus Dr McBain could lawfully carry out the treatment.

As single infertile women can avail of the treatment, the debate then shifted to social infertility or women who are not medically infertile but are socially infertile. Many lesbians are socially infertile, that is, they are unable to conceive without a donor sperm. Victoria’s Section 7 of the Infertility Treatment Act 1995 provides that only personnel approved by the Act can provide donor-insemination procedure which would prevent single or lesbian from self-inseminating or making arrangements themselves. The following two cases tackle the social infertility issue.

JM v QFG [1997] QSC 206: The Queensland Supreme Court rejected the concept of social infertility, concluding that as long as a single or lesbian woman is medically fertile then she cannot avail of the IVF treatment. A woman will only be considered medically infertile if she has not conceived within the 12 month period after engaging in a heterosexual intercourse.

Morgan v GK (2001) EOC 93-154: Ms. Morgan, an exclusive lesbian, was refused fertility treatment by Dr. GK for failing to obtain written consent to the treatment by her male partner. Ms. Morgan alleged that she was discriminated for being in a lesbian relationship. She further questions whether the condition of obtaining a written consent was reasonable. It was concluded that Dr. GK acted in accordance with the policy imposed by Queensland Health.

The following are relevant legislation and developments with respect to infertility and surrogacy:
Parentage Act 2004 – effective since 2004 in Australian Capital Territory which regulates surrogacy treatments. Under Section 41 of this law commercial surrogacy arrangements are prohibited.

Assisted Reproductive Treatment Act 2008 – commenced in Victoria on January 1, 2010 which allowed single women and women in both heterosexual and lesbian relationship to access ART.
Assisted Reproductive Technology Act 2007 – with this law in New South Wales there are no restrictions for women seeking ART.

• In 2010 New South Wales introduced surrogacy legislation which was not regulated previously.
• Human Reproductive Technology Act 1991 – in Western Australia there are no restrictions for women seeking ART.
• Surrogacy Act 2008 – regulates surrogacy in Western Australia.
• Statutes Amendment (Surrogacy) Act 2009 – commenced in South Australia on November 17, 2009 which amended the Family Relationship Act 1975, thereby allowing altruistic surrogacy but excluding single women and same-sex couples.
• Queensland introduced legislation in 1010 that made altruistic surrogacy legal.
• Amendments to State and Territory legislation now recognize both women in a same-sex relationship as both parents of a child conceived through artificial conception.