Cover Story: In Vitro Fertilisation on demand?by News WeeklyNews Weekly
, August 12, 2000
Prime Minister John Howard has announced that his Government will move to amend the Sex Discrimination Act following its use to strike down Victoria’s restrictions on access to In Vitro Fertilisation. Such an amendment may have a difficult passage through the Senate given that the Federal ALP has indicated that a woman’s right to such technology — be she married, single or lesbian — always trumps a child’s right to a mother and a father.
The Democrats response is predictable.
The Federal Government will try to reverse a ruling in the Federal Court to open up the Victorian IVF program to single women and lesbians and extend IVF availability in other states.
Mr Justice Ross Sundberg of the Federal Court ruled that the Federal Sex Discrimination Act rendered “inoperative” Victoria’s Infertility Treatment Act, which has restricted IVF to married couples and de facto heterosexual couples.
The ruling will affect Western Australia, which has similar clauses restricting IVF’s availability. NSW, the ACT and Tasmania have no restrictions on IVF, while a recent test case in Queensland has opened up IVF to lesbian couples.Victorian law
The Victorian law was challenged by a Melbourne IVF specialist, Dr John McBain, on behalf of one of his patients, Lisa Meldrum.
A single woman in her mid-thirties, Meldrum has spent eight years attempting to become pregnant through IVF programs interstate and overseas.
Although the case involved both State and Federal law, both the Federal and the Victorian governments chose to stay neutral in the case and did not contest the claim.
Consequently, the Australian Catholic Bishops Conference (ACBC) successfully applied to become a “friend of the court” in order to plead in the interest of the child.
Following Judge Sundberg’s ruling, Melbourne’s Archbishop George Pell said that the “Federal Sex Discrimination Act was originally intended to stop unjust discrimination against people when, for example, they are applying for a job, housing, a bank loan or to buy a car.
“But because it was drawn in such wide terms and without clear consideration for other important values such as the paramount interests of children, that same law now has an effect the Commonwealth never intended: it creates a right for single people.”
Archbishop Pell disputed whether such a right existed ethically or in the international law on which the federal act is based. “Indeed a very good case can be made that even if the Commonwealth Government wanted to create such a right — which it clearly did not — it would have no moral or constitutional power to do so.”
The granting to any female adult the right to a child is one more example of the growing trend to treat children as commodities.
A person may have the right to own property but not the right to own another person.
Just as a man does not have the right to a woman, an adult does not have the right to a child. Parents are custodians of children, not the owners of children.
A child also has rights, including the right to know his/her biological heritage.
The Victorian law had protected the interest of the child by ensuring that IVF was restricted to married couples or long-term de facto heterosexual couples.
Such IVF children grow up knowing their biological parents. Their biological heritage is preserved. Anonymous fathers
The Federal Court ruling denies children this right as the donor sperm for single women and lesbian couples will most often be anonymous.
Some Victorian women have ordered sperm across the internet from American sperm banks and then travelled to NSW for their IVF treatment.
Justice Sundberg’s decision sees the law abandon its protective interest in the child in favour of an adult’s right to have a child by IVF.
It means that children can be denied half of their identity and knowledge about their genetic and medical heritage.
In recent decades, the right of people who were adopted out as children to know their biological parents has come to be recognised.
Their need to know their biological roots often causes great anguish in their lives and considerable help is given to helping them find their biological parents.