Fertility treatment and parenthood in Victoria

Australians wanting to use ART are subject to different regulations depending on which state they live in. In the second biggest state, Victoria, the Victorian Law Reform Commission is reviewing the law that regulates access to ART and legal parentage of children born through ART. The Commission is an independent statutory authority that reports to the state government on options for law reform. It has recently released its interim recommendations for the reform of various aspects of ART and recognition of legal parentage.

The Victorian law that governs access to ART and the status of children born through ART continues to be founded on the assumption that children should have both a mother and a father, and are disadvantaged if they do not.

The Commission published a literature review that examined 18 substantial studies of children born through ART, which showed that the psychosocial development and academic achievement of children born in lesbian families is no different from that of children born in heterosexual families. Although children of lesbian parents do sometimes experience discrimination, they exhibit 'remarkable resilience' and are likely to understand the values of diversity and tolerance. The Commission has argued it is in the best interests of children for the law to recognise the reality that children are being born to single women and women in same-sex relationships as the result of ART provided in clinics and privately arranged self-insemination.

The Infertility Treatment Act 1995 (Vic) requires women to be married or in a marriage-like relationship with a man to undergo treatment in a clinic. In 2000, this requirement was found by the Federal Court of Australia to be inconsistent with federal sex discrimination laws, and therefore invalid (McBain v the State of Victoria). However, the legislation has not been amended in light of the decision. It continues to be interpreted restrictively so that a woman without a male partner can only undergo treatment if a doctor is satisfied she is clinically infertile.

Status of children legislation fails to recognise the reality of many children's families. Where a child is born through ART to a woman in a same-sex relationship, the non-birth mother is not recognised as a legal parent of the child and consequently cannot assume the full range of parental obligations or powers in respect of the child. This has important implications for children: it affects their rights to child support and inheritance.

Under Victorian law a sperm donor's legal status differs according to the marital or relationship status of the woman who uses the sperm to become pregnant. If the woman has a male partner, the donor is presumed not to be the father. If the woman does not have a male partner, the donor has no rights or liabilities in respect of the child, but his parental status is not necessarily extinguished. This is the case even if the donor has never met the woman who uses his sperm to become pregnant.

The law is further complicated because both the federal and state governments have power to legislate in respect of children. There have been two conflicting cases in the Family Court of Australia (a federal court) about the status of a donor. In one case, Re Patrick, the court found that the donor whose sperm was used by a lesbian woman was not the legal parent of the child for the purposes of the Family Law Act, although he was entitled to contact with the child in any event. The other case, Re Mark, found that the donor, whose sperm was used by a surrogate mother in the USA, was the legal parent of the child. The decisions turn on an interpretation of section 60H of the Family Law Act.

The Commission's interim recommendations recognise that diverse families exist in our community. The current failure of the law to do this exposes children to unnecessary risks, and deprives them of legal protections afforded to all other children.

The Commission has recommended that:

1. The requirement that a person seeking treatment should be married or living with a man in a marriage-like relationship be removed from the Infertility Treatment Act;

2. The fact that a person does not have a male partner should be sufficient reason for requiring ART to become pregnant;

3. The female partner of the birth mother of a child born through ART be recognised as a legal parent of the child if she has consented to the treatment procedure and has received counselling and relevant legal information;

4. The parental status of the donor be extinguished regardless of the relationship status of the woman who uses the donor's gametes to become pregnant,

5. A donor should be able to opt-in to become the child's legal parent if that is the shared intention of the donor, the birth mother and her partner (if she has one).

The Commission is aiming to submit its final report to the Victorian Attorney-General early in 2006. It will then be up to the government to decide whether to implement the recommendations. As always, the topic remains a sensitive political issue.

The publications are available at Commission website.