EHT18 v Melbourne IVF
[2018] FCA 1421
Griffiths J
SUMMARY OF REASONS FOR JUDGMENT
In matters of public interest before the Court, it is customary to provide an explanatory statement to assist the public in understanding the proceeding to which the judgment relates and the reasons for that judgment. This summary is not intended to take the place of the published reasons for judgment.
The proceeding relates to the Victorian Assisted Reproductive Treatment Act 2008 and the Commonwealth Sex Discrimination Act 1984. Section 10(1)(a) of the Victorian Act provides that a woman may undergo an assisted reproductive treatment procedure (which includes IVF) only if the woman and her partner (if any) have given written consent to the carrying out of a procedure of that kind. In s 3 of the Victorian Act, “partner”, in relation to a person, is defined to mean:
(a) the person’s spouse; or
(b) a person who lives with the first person as a couple on a genuine domestic basis, irrespective of gender.
Section 22 of the Commonwealth Act makes it unlawful for a person to refuse to provide services to another person on the ground of the other person’s marital or relationship status.
The applicant, who is a married woman but has lived separately and apart from her husband since late last year, wishes to obtain IVF treatment from the respondent using donor semen. She also proposes to divorce her husband as soon as she can but that cannot occur until the requisite 12 month period for living separately and apart has passed. There are medical reasons why she wishes to have IVF treatment before then. She proposes that her husband have no role or responsibility in raising the child.
The applicant seeks a declaration that, on the proper construction of the relevant provisions in the Victorian Act, she is not required to obtain her husband’s consent in circumstances where he will have no involvement in the proposed treatment. Alternatively, she seeks a declaration that if his consent is required, the requirements of the Victorian Act are inconsistent with those of the Commonwealth Act, with the consequence that under s 109 of the Commonwealth Constitution the State Act is inoperative to the extent of the inconsistency.
The Court has found that, on its proper construction, the Victorian Act requires the applicant to obtain her estranged husband’s consent under s 10(1)(a). This is principally because of the clear terms of the definition of “partner” in s 3 of the Victorian Act. The Court has rejected the applicant’s arguments that:
(a) s 10(1)(a) should be read as though it provided that consent of a woman’s partner is only required if that partner is also involved with the woman in seeking treatment; or
(b) alternatively, that the term “spouse” in the first limb of the definition of “partner” in s 3 of the ART Act should be read as if it referred to spouses who were living together.
The Court has found that acceptance of both those arguments would involve the Court rewriting the legislation, which is clear in its terms. It is a matter for the Victorian Parliament, and not the Court, to amend the Victorian Act if it considers that the current provisions operate unfairly.
The Court has also found, however, that because, on its proper construction, s 10(1)(a) operates to require the estranged husband’s consent and the respondent is precluded by the State Act from providing IVF treatment to the applicant without that consent, there is discrimination against the applicant because of her marital or relationship status. Section 22 of the Commonwealth Act prohibits discrimination on the ground of marital or relationship status in the provision of services. By requiring the applicant to obtain her estranged husband’s consent, the applicant is treated less favourably than, for example, a woman who has been in a de facto relationship but is now living separately from her de facto partner. That is because such a woman is not required by s 10(1)(a) to obtain such consent for her to obtain IVF treatment. Accordingly, the State Act is inconsistent with the Commonwealth Act.
For these reasons, the Court made the following declaratory orders to give effect to its judgment:
1. The applicant may undergo a “treatment procedure” as defined in the Assisted Reproductive Treatment Act 2008 (Vic) without the consent of her husband.
2. Section 10(1)(a) of the Assisted Reproductive Treatment Act 2008 (Vic) is invalid and inoperative to the extent that it requires the applicant to obtain her estranged husband’s consent to the applicant undergoing a “treatment procedure” as defined in that Act.
The applicant has given undertakings to the Court that she will not seek to register her estranged husband as the parent of the child or assert that he is the father. As noted above, she proposes to use donor sperm.
A full text of the Court’s judgment can be found at the Federal Court’s homepage at www.fedcourt.gov.au.
21 September 2018
