By Briana Kotzapavlidis

25 September 2018

A woman who is nearing her 46th birthday and wants to undergo IVF treatment, using her own eggs and donor sperm, has successfully challenged s.10(1)(a) of the Victorian Assisted Reproductive Treatment Act 2008 (“ART Act”).

The ART Act required the consent of her partner, in this case her husband, from whom she has been separated for less than twelve months and lives separately and apart. A partner who consents to a woman’s IVF treatment is presumed at law to be a parent of the child. The applicant’s estranged husband was not a party and he was not joined to the proceedings. Should his consent be required?

Who is the “Partner” referred to in s.10(1)(a)?

The applicant argued that the requirement for the consent of her “partner” should mean the “partner” (defined as spouse) with whom she sought to undertake IVF treatment. “This would necessarily involve implying words of limitation.” The Court did not accept the applicant’s argument after consideration of the ‘clear and unambiguous language’ (the ordinary meaning of the word partner) and the ‘purpose and context’ of the ART Act (where the legislature has turned its mind, in other provisions, to “current or former partners”). The Federal Court confirmed that it is not desirable for a Court to assume the role of the legislature, “all the more so when dealing with a difficult and complex subject matter, such as assisted reproduction treatments, which raises a broad range of more and other public policy issues.”

Discrimination by Marital Status

However, there was a further issue of discrimination. The Federal Court was satisfied that the requirement that the applicant’s estranged husband consent (under s.10(1)(a) of the ART Act) results in the applicant being directly discriminated against by the service provider (Melbourne IVF). This was by way of her marital status, being that she is married but living separately and apart from her spouse. Discrimination on ground of a person’s marital or relationship status is prohibited under s.22 of the Commonwealth Sex Discrimination Act 1984 (“SD Act”).

The Court noted that a woman who is separated from and no longer living in a genuine domestic basis with her de facto partner, need not obtain their consent before undergoing IVF treatment. Noting that this, “discrimination is both stark and direct”, the Federal Court confirmed that there is:

“(N)o basis for differentiating between the features of a married couple’s relationship and those of a couple in a de facto relationship… not to mention the wide range of other genuine domestic relationships between partners.”

Finding s 10(1)(a) Inoperable

Section 109 of the Constitution states that Commonwealth law prevails where there is any inconsistency with State legislation. By the operation of s.109 of the Constitution, s.10(1)(a) of ART Act was found to be invalid and inoperable to the extent that it requires the applicant to obtain her estranged husband’s consent to IVF treatment (and therefore constitutes discrimination under s.22 of the SD Act). The Federal Court made it clear its decision applied only in the individual circumstances of this case.

The Court held that the woman may undergo IVF treatment without the consent of her estranged husband. This ruling relies on the applicant’s undertaking that, in respect of any child born of the IVF treatment, the application will not seek to register her estranged husband as the parent of the child on any birth certificate or seek to assert that her estranged husband is the father of the children for any purpose, including under the Family Law Act 1975.

For the full transcript please click here: EHT18 v Melbourne IVF [2018] FCA 1421 (21 September 2018)

 

For more information please contact Briana Kotzapavlidis or a member of the Family Law team.

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