Author:	Deborah Porter Health Department of Western Australia
Subjects:	Reproductive technology - discrimination - law and legislation
Issue:	Volume 4, Number 3 (September 1997)
Category:	Current Developments

Introduction

1. Medical technology, in an effort to overcome the consequences of infertility, has developed various methods which aim to facilitate conception. One of these methods is in-vitro fertilisation [IVF].

2. IVF requires the fertilisation of gametes extra corporeal followed by the transfer or replacement of the resulting embryo into the womb. That is, an egg is removed from the body of a woman, fertilised outside the body, and then introduced into the uterus of a woman with the aim of facilitating pregnancy.

3. The possibility of the exploitation of those seeking such services, or of treatment being rendered by unqualified persons, makes regulation of reproductive technology necessary.[1]

4. Regulation has tended to focus on the issue of 'access' to IVF. Generally regulation is achieved by the establishment of criteria which an applicant must meet in order to secure access to IVF. It is suggested that, in Western Australia, there are two significant problems with the criteria currently used.

5. Firstly, the criteria is based on social norms, resulting in the enforcement of those norms on a person seeking access to IVF. Where those social norms are not met, access to IVF will be denied. Secondly, the criteria is discriminatory. While it may be necessary to regulate IVF,[2] it is inappropriate for regulation to be based on social norms or to be discriminatory.

6. It is suggested that a new approach must be adopted, and would be more appropriately based on considerations regarding the welfare of the child potentially born as a result of IVF.

   Enforcement of Social Norms

7. Attempts to regulate IVF inevitably meet the inherent 'difficulty of balancing the respect for the autonomous decision-making of individual participants with the need for regulation of the scientific [reproductive technology] industry.'[3]

8. It has been suggested that infertility is not considered a medical issue, but rather a 'social fact based on marital and maternity norms in our society.'[4] In the context of access to IVF, we see the reinforcement of -

   restrictive gender norms, specifically that the reproductive role is intrinsic to (married) women's personality and psychological well-being. The medical profession assumes motherhood and the maternal instinct to be central to women's lives, making it normal (healthy) for women to give birth and mother and deviant (sick) for them not to do so.[5]

   Succinctly stated '[g]ender norms specify that women should marry and that married women should have children'.[6] In addition social norms maintain that only married women should have children. Accordingly, single women and lesbian couples should not have children.

9. In 1991 the Western Australian legislature enacted the Human Reproductive Technology Act 1991 (WA) [ HRTA]. In doing so it incorporated these social norms as an integral element in the regulation of access to IVF.

10. Section 23 of the HRTA states:

    An in vitro fertilisation procedure may be carried out where -

    (a) it would be likely to benefit -

    (i) persons who, as a couple, are infertile; or

    (ii) a couple whose child would otherwise be likely to be affected by a genetic abnormality or disease;

    ......

    (c) the persons seeking to be treated as members of a couple are -

    (i) married to each other; or

    (ii) are co-habiting in a heterosexual relationship as husband and wife and have done so for periods aggregating at least 5 years, during the immediately preceding 6 years;

    ......

11. Section 23 clearly contemplates only 'couples' accessing IVF technology. It expressly limits access to IVF to couples that are either married or are, and have been for the specified period, in a heterosexual de facto relationship. Those not meeting this criteria, including single women and lesbian couples, are clearly precluded from accessing IVF.

    Discrimination

12. The HRTA also discriminates against women on the ground of marital status. This can be demonstrated by consideration of the Sex Discrimination Act 1984 (Cth)[7] [SDA].

13. The Objects of the SDA, found in section 3, state that the SDA was enacted to, inter alia, 'eliminate, so far as is possible, discrimination against persons on the grounds of sex, marital status...'.

14. Section 22(1) provides:

    It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status ........

    (a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

15. Section 6(1)(a) of the SDA specifies, inter alia, that a person discriminates against another person on the ground of the marital status of the aggrieved person if, by reason of the marital status of the aggrieved person the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.

16. Section 4 defines marital status to include the status or condition or being single, married or a de facto spouse. IVF is clearly a 'service' within the meaning of section 22(1)(a) SDA.

17. As previously discussed, section 23(c) HRTA restricts access to IVF treatment to a woman who is married or in a de facto relationship (for the specified period of time). The effect of this restriction is to provide less favourable treatment to a single woman or a woman co-habiting in a lesbian relationship than to a married woman or a woman in the requisite heterosexual de facto relationship. Therefore, section 23(c) HRTA, by virtue of s6(1)(a) SDA, is discriminatory on the ground of marital status.

18. This contention is supported by the case of Pearce v South Australia Health Commission and Others.[8] Pearce was a single woman who desired to participate in a South Australian IVF program. Section 13 of the Reproductive Technology Act 1988 (SA) [RTA] specifies, similarly to the HRTA, that IVF procedures are only available for the benefit of married couples (married couples defined to include those co-habiting as husband and wife for a specified period). The administrator of the relevant IVF program declined to treat Pearce on the basis of section 13 RTA.

19. Pearce sought a declaration that to the extent section 13 RTA restricted the application of artificial fertilisation procedures except for the benefit of 'married couples', section 13 was inconsistent with the provisions of the SDA and therefore invalid by virtue of the operation of section 109 of the Constitution Act 1901 (Cth).

20. A written statement of the facts was agreed by the parties, and the case was heard by the Full Court of the Supreme Court of South Australia with the consent of the parties.

21. Williams J examined section 13 RTA in light of section 22 SDA and concluded that 'a person in the position of the plaintiff is treated less favourably under the Reproductive Technology Act than "a person of a different marital status". This is the very situation which is prohibited by s22(1) [SDA] ....'.[9]

22. By virtue of section 109 of the Commonwealth Constitution section 13 of the RTA was rendered invalid. The Court unanimously made the declaration requested by Pearce.

23. Similarly in Victoria the Human Rights and Equal Opportunity Commission [the Commission] recently heard a case involving three women in de facto relationships who alleged they were treated less favourably than married persons when they were refused IVF treatment because they were not married.[10]

24. The relevant Victorian legislation, the Infertility (Medical Procedures) Act 1984, restricted access to IVF treatment to married women (in this case not inclusive of a woman co-habiting in a heterosexual de facto relationship).

25. The jurisdiction of the Commission, being an administrative body, was limited to inquiring into the existence of discriminatory conduct rendered unlawful by the SDA.

26. In the reasons for the decision of the Inquiry Commissioner, Ms Kohl stated:

    Having regard to the objects of the Act (see s.3(b)) and a women's (sic) right to control her own body, a woman's marital status should not determine when and if she is able to receive the medical treatment she seeks. Marital status has no relevance to the type of medical treatment which should be available to women and it should not be a bar to obtaining the medical services which are readily available.[11]

27. The Commission found that in each instance of refusal to allow the complainant's access to IVF, the respondent's had discriminated on the ground of marital status and were consequently liable for damages.

28. It is therefore clear that regulation restricting access to IVF to married women or women in a de facto heterosexual relationship is discriminatory on the ground of marital status.

    A New Approach

29. A new approach to the regulation of access to IVF could be based on considerations of the welfare of the child potentially born as a result of the IVF.

30. The concept of the welfare of the child was espoused by the Reproductive Technology Working Party of Western Australia [the Working Party].[12] The Working Party stated that IVF 'procedures will not be administered unless appropriate conditions exist for ensuring as far as possible the welfare of children born of such procedures.'[13] The majority of the Working Party went on to state '[t]he right to access to identifying information about biological origins is the absolute basis of this principle'.[14]

31. An alternative approach to the requirements of the welfare of the child can be found in the method adopted by the South Australian Council on Reproductive Technology [the Council].[15]

32. The Council require that the basic safety of the child born of reproductive technology is not compromised. The Council require those seeking access to reproductive technology to swear a statutory declaration in order for their eligibility to be determined.

33. The statutory declaration, briefly stated, must reveal whether the applicant has an outstanding term of imprisonment, a prior conviction for a sexual offence involving a child or involving violence or has had a child permanently removed from their guardianship other than by adoption. If the latter is the case, the applicant must undergo an assessment regarding their parenting skills.[16]

34. The Council claims that the statutory declaration is -

    not in the nature of a "character test" or an assessment of parenting ability, but rather a method of assuring that the basic safety of children born of reproductive technology is not compromised.[17]

35. The adoption of either of these approaches to the regulation of access to IVF would result in any woman, regardless of marital status, being potentially able to meet the criteria for access to IVF.

36. However, the considerations relevant to the issue of the welfare of the child must be clearly specified. Failing this there is a danger of construction otherwise than as intended.

37. For example, it has been argued that a child needs a couple, more specifically, a mother and a father for the welfare of that child. This view was supported by the Warnock Committee which stated:

    as a general rule it is better for children to be born into a two-parent family, with both a father and mother...[18]

38. Again support was given to this view by the addition of section 13(5) to the Human Fertilisation and Embryology Act 1991 (UK), which states:

    a woman shall not be provided with treatment services unless account has been taken of the welfare of any child who may be born as a result of the treatment (including the need of that child for a father)...[19]

39. If regulation of access to IVF were to require consideration of the welfare of the child in light of these latter interpretations, the effect would be the same as that which exists. That is, it would result in the enforcement of social norms and discriminate against women on the ground of marital status.

40. The consideration of the welfare of the child is best achieved by either limited regulation which acknowledges the right of the child to know of his or her biological origin, or the assurance of the basic safety of the child potentially born as a result of the IVF, or both.

    Conclusion

41. The current status of regulation of access to IVF is inappropriate because it results in the enforcement of social norms and discrimination against women on the ground of marital status.

42. It is time for a new approach, and this could focus on considerations of the welfare of the child. However, such an approach could be used as a tool to control a woman's reproductive potential in the context of social norms and discrimination. Therefore a new regulatory approach must be carefully considered and adopted, with clarity as to the considerations to be made pursuant to that regulation.

43. Most importantly, new regulation must promote equal access to IVF to all women, or at least those otherwise unable to reproduce, who are desirous of having a child.

Notes

[1] Knoppers, B and Sloss E 'Recent Developments: Legislative Reforms in Reproductive Technology' (1986)18 Ottawa LR, @ 667.

[2] It is questionable whether there needs to be regulation on access to HRT at all. However, this issue is outside the scope of this paper.

[3] Supra n1, @ 666.

[4] Roach, Sharon, New Reproductive Technology - Women as Guinea Pigs?, Legal Service Bulletin, Vol 13, No.4 August 1988 @ 164.

[5] Ibid, @ 164.

[6] Schur, Edwin M, Labelling Women Deviant: Gender, Stigma and Social Control (New York: Random House, 1984).

[7] The Equal Opportunity Act 1984 (WA) has equivalent provisions.

[8] Pearce v South Australian Health Commission and Others (1966). SA SC (Full Court). Unreported BC9604243, judgement delivered 10 September 1996.

[9] Ibid, @4.

[10] MW, DD, TA and AB v The Royal Women's Hospital, Freemasons Hospital and the State of Victoria (5 March 1997) Human Rights and Equal Opportunity Commission (Ms Antonia Kohl). No.H96/26, 96/33, 96/48.

[11] Ibid, @27.

[12] Report to the Minister for Health for Western Australia from the Reproductive Technology Working Party (Perth: Health Department of Western Australia, August, 1988).

[13] Ibid.

[14] Ibid.

[15] SA Council on Reproductive Technology Press Release (per Rev Dr Andrew Dutney - Chairman) 'Requirement for Statutory Declarations for Eligibility for Reproductive Technology' dated February 1997.

[16] Ibid.

[17] Ibid.

[18] Douglas G, Hebenton B and Thomas T. 'The Right to Found a Family' (1992) NJL 488, quoting DHSS (UK) (1984) 'Report of the Committee of Inquiry into Human Fertilisation and Embryology' Cmnd 9314.

[19] Ibid, @ 488.