LAW: by Peter WestmoreNews Weekly
AFA joins High Court action over IVF
, August 25, 2001
The High Court has given the Australian Family Association (AFA) leave to appear as an amicus curiae
("friend of the court") in an application by the Catholic Church in the High Court, to strike down the Federal Court judgment which gave single women and lesbians access to In Vitro Fertilisation (IVF) treatment programs.
The Federal Court case was taken on behalf of a single woman, Leesa Meldrum, by her doctor, John McBain, a gynaecologist specialising in reproductive technology and in vitro fertilisation (IVF) techniques.
Dr McBain sought a Federal Court ruling that the Victorian Infertility Act was inconsistent with the Federal Sex Discrimination Act, to the extent that it restricted access to IVF to women who were married or in a de facto relationship.
In July 2000, the Federal Court ruled in favour of Dr McBain, permitting him to provide the treatment to Ms Meldrum.
This judgment led to the opening up of IVF services, which are publicly-funded, to single women. Just as importantly, it potentially opens the door to access to IVF for anyone, including lesbians, and challenges the principle that children should be brought into the world in a family.
In its submission to the High Court, the Australian Family Association argued, on both technical and substantive grounds, that the Federal Sex Discrimination Act did not override the Victorian Infertility Treatment Act.
Counsel for the AFA argued that Section 7B of the Sex Discrimination Act permitted the Victorian Infertility Treatment Act to discriminate in favour of married couples, as it was "reasonable in the circumstances".
He argued that the prohibition in Section 8 of the Infertility Treatment Act can be seen in the "guiding principles" set out in Section 5 of the Act, namely that:
- the welfare and interests of any person born or to be born as a result of a treatment procedure are paramount;
- the interests of the family should be considered; and
- infertile couples should be assisted in fulfilling their desire to have children.
He further argued that it was "impossible to consider the subject matter of the Infertility Treatment Act without considering the interests of the person to be born.
Justice Gummow of the High Court observed that it appeared that the AFA had arguments that could be put to the Court which were different from those which were being raised by other parties.
"The decision by Justice Sundberg must be challenged and overturned," said Danny Casey, NSW President of the AFA. "The McBain case gives effect to a major shift in the concept of family - a shift that runs contrary to the concepts and widely accepted notion of family that has been entrenched in legislation to date. This concept should not be overturned by a single judge and needs to be more widely debated."
While some would like to see this debate restricted to one of individual rights, the AFA is concerned to ensure that the broader issue of the impact of the decision on children is fully considered.
"The desire to have children is understandable and at times all consuming - it is not surprising that this debate has raised the passions from some sectors in our community. Satisfying this desire must be matched by a thorough consideration of what is in the best interests of a child."
"The fact that we can now manufacture children in laboratories does not mean that we necessarily should. Nobody has a right to a child - they are not commodities. In a society so concerned about individual rights, the rights of and claims of children seem to be strangely silent," Mr Casey said.
"While it is important to recognise the outstanding results achieved by many single parents - we cannot ignore the weighty evidence that suggests the ideal environment for children is where they have a mother and a father.
"This debate is not about judging those parents who, often for circumstances beyond their control find themselves raising their children alone. It is about whether Government policy should sanction a conscious choice to bring children into this world where they will, from the start, have no relationship with their father.
"We intend to do everything we can to make sure the interests of children are put before the High Court when it considers the McBain matter." Mr Casey said.
In another important move, the Federal Government - which had declined to intervene in the original case in the Federal Court, has announced that it will intervene to support the argument that the Sex Discrimination Act is not inconsistent with Victoria’s Infertility Treatment Act.
Additionally, Women’s Electoral Lobby (WEL) has also been granted leave to intervene in the proceedings - principally because neither the Federal nor State Governments had intervened at an earlier directions hearing.
WEL argued that the Catholic Bishops had no standing to bring the proceedings.