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Why singles should not have access to IVF
The recent judgment of the Federal Court, giving an unmarried single woman, Lisa Meldrum, in Victoria access to IVF treatment - to enable her to conceive a child without her being married - raises important questions about the rights of children to have a father and mother, and to be raised in a stable and loving family.
As frequently happens in legal proceedings, the issue to be determined was not the nature of IVF technology itself (which has been subject to widespread criticism on moral and practical grounds), nor whether a single woman should have access to the IVF program, but a technical question of whether Victoria's Infertility Treatment Act was inconsistent with the Federal Sex Discrimination Act, and should therefore be declared invalid to the extent of that inconsistency.
The Australian Catholic Bishops Conference intervened in the case, and was heard as friends of the court.
The Church's argument was that, given the obvious public interest in a child knowing its parents, the public policy consideration that children have the right to know and be cared for by mother and father, and international treaty obligations on the rights of the child, the Court should conclude that even if there is any discrimination against single people participating in the IVF program, it is reasonable in all the circumstances.
Victoria's Infertility Treatment Act provides that a woman's marital status is an essential requirement for the availability of the IVF procedure, whereas the Federal Sex Discrimination Act outlaws discrimination on the grounds of marital status.
In the event, the Federal Court ruled that the Federal Sex Discrimination Act overrode the Victorian Act.
Few legal cases have aroused such passionate public dissent. A phone-in survey conducted by the TV current affairs program, A Current Affair, resulted in almost 80 per cent of people expressing opposition to the principle that single people should have access to IVF. Another survey conducted by the Melbourne Herald Sun revealed that over 90 per cent of people were opposed.
The issue is about to return to Federal Parliament, following an announcement by the Prime Minister, Mr Howard, that he would introduce legislation to amend the Sex Discrimination Act.
Whether his attempt to legislate on this matter is successful in the short term, there can be no doubt that both the State and Federal Governments will have to deal with the broader questions raised by this judgment.
One immediate consequence is that the Sex Discrimination Act now appears to override state laws on adoption and surrogate parenthood, as well as IVF. It is possible that the court would hold that single people have the same right as married couples to adopt children, or to enter into surrogacy arrangements, where these are sanctioned by law.
This overrides the rights of children to be brought into the world knowing their parents, and to be raised in a stable and loving family environment.
The effect of the Federal Court judgment is that many of the protections built into Victoria's Infertility Treatment Act have now disappeared.
* Under the Act, a couple had to give consent to being involved in an IVF procedure. Now, a woman - married or single - can have access to IVF regardless of what her husband or partner wanted.
* Until now, the law has recognised that every IVF child is entitled to know his or her parents. The law on adoption reflects this principle. But by leaving men out of the IVF equation, a child born under IVF has no right to know the identity of his or her father.
* One unintended consequence of the judgment - which has been widely interpreted as giving single women access to IVF treatment - is that it may actually restrict women's access to IVF. Up to the present time, access to IVF has been available to couples where either the man or woman is infertile. But under the terms of the judgment, it will only be available if the woman is infertile. The prominent bioethicist, Nick Ton-Filippini, has commented that "access to IVF and A (artificial insemination) has become much more restricted, in that it is now available only to infertile women" (The Age, 2 August 2000).
* The Federal Court judgment may leave women open to exploitation by IVF's "Dr. Strangles," who previously had to obtain the consent of couples before initiating reproductive technologies.
* It removes the requirement for record-keeping about fathers or husbands, and appears to leave women with the sole responsibility - financial and social - for rearing their child.
The Australian community is now trying to come to terms with the fact that some Aboriginal children were wrongly removed from their families, and grew up without knowing the love of their parents or their culture. As Archbishop George Pell said in commenting on the Federal Court judgment, we are now in process of creating a new generation of children in the same situation.
One child conceived by IVF procedures 28 years ago in England was recently interviewed on the ABC program, Latrine. Joann Rose spoke of her burning need to know who her biological father is. Children like her are, as they put it themselves, genealogically bewildered.
But in Australia, Victoria is the only State that requires all donors to be identified on a central register, which children can access at 18. Western Australia and South Australia keep records, but children have no legal rights to know the identity of the donor. NSW and the other States have no regulations at all.
This is an issue which cannot be ignored.
Reprinted from AD2000 Vol 13 No 8 (September 2000), p. 7
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