May 19th 2001


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Canberra Observed - Private opinions politicise High Court

AFA intervenes in IVF test case in High Court

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AFA
intervenes in IVF test case in High Court


by Peter Westmore

News Weekly, May 19, 2001
The Australian Family Association has sought leave to intervene in the High Court case taken by the Catholic Bishops of Australia, seeking to reverse a Federal Court judgement last July which permitted a single woman access to IVF treatment.

Victoria's Infertility Act was the result of lengthy deliberations by a government-appointed committee chaired by Professor Louis Waller. It was supported by all parties in the Victorian Parliament, strictly regulated the medical institutions which could provide IVF services, and limited access to IVF to infertile married couples, or those in stable de facto relationships.

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. He is licensed to perform fertilisation procedures under the Victorian Infertility Act.

Dr McBain sought a Federal Court ruling that the Victorian Infertility Act was invalid, to the extent that it restricted access to IVF to women who were married or in a de facto relationship. He argued that discrimination on the grounds of marital status is not permitted under the Federal Sex Discrimination Act, and therefore, the Victorian law was invalid to the extent that it conflicted with Federal law.

The case was significant in that neither the Victorian Government, whose legislation was under challenge, nor the Federal Liberal Government, whose legislation was being used to undermine the Victorian law, nor any other government (including the WA Government, which has somewhat similar legislation to that in Victoria) joined the case as parties.

The Federal Court's Justice Sundberg described this as follows:

"Counsel for the State and the Minister took a 'neutral' position on the alleged inconsistency between [State and Federal Acts], that is to say they neither asserted there is no inconsistency nor conceded an inconsistency. In view of their 'neutrality' I acceded to an application by counsel on behalf of the Australian Catholic Bishops Conference and the Australian Episcopal Conference of the Roman Catholic Church that they be heard as amici curiae ['friends of the court']."

He added, "Notices were given to the [State] Attorneys-General under Section 78B of the Judiciary Act 1902. None of them desired to intervene in the proceeding."

The Catholic Church's argument was that the Sex Discrimination Act was consistent with the Victorian Infertility Act, given:

* the obvious public interest in a child knowing its parents and having a parent of either sex;

* the public policy manifest in provisions such as Section 60B of the Family Law Act 1975, which provides that children have the right to know and be cared for by both parents; and

* the rights conferred by international treaties, including the Declaration of the Rights of the Child, and International Covenant on Civil and Political Rights, for children to be born into a family, and be raised by their mother and father, and to know their parents.

The church further submitted that the Court should conclude that, if there is any discrimination in the State Act in its requirement that treatment procedures be made available only to women who are married or living with a man in a de facto relationship, that requirement is reasonable in the circumstances.

Last July, 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.

As a result, the Catholic Church commenced action to overturn the Federal Court judgment in the High Court.

Once again, the Federal Government and the State Governments - all of which have a direct interest in this case - declined to intervene in the High Court action.

Predictably, the Women's Electoral Lobby denounced the Church's action as an attack on women. Lisa Solomon, Victorian Co-ordinator of WEL, accused the Church of trying to "enshrine their [sic] own moral position" over women. She said the case was one of national significance, not just for women, but for all Australians.

The Australian Family Association has sought leave to become a party to the High Court action, to put the case that children have the right to be born into families.

Because neither the Federal nor any State Government, nor Mr Justice Sundberg, sought leave to appear before the High Court, Justice Gummow gave the Women's Electoral Lobby leave to intervene.

In relation to the Australian Family Association, he held over consideration of the matter until August 6.




























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