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McBain v State of Victoria: implications beyond IVF.

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Research Note 04 2000-01

McBain v State of Victoria: Implications Beyond IVF

Katrine Del Villar Law & Bills Digest Group 15 August 2000


The Federal Court's decision in the McBain case(1) is analysed in the Research Note McBain v State of Victoria: Access to IVF for all Women? Justice Sundberg struck down certain provisions of the Victorian Infertility Treatment Act 1995 which restricted access to fertility treatments to women who are married or in a heterosexual de facto relationship. He held that those requirements unlawfully discriminated against women on the basis of their marital status, in breach of the Sex Discrimination Act 1984 (Cwlth).

Implications for adoption

Who may adopt a child, as well as who may have access to fertilisation procedures, is regulated by the States and Territories. Adoption rules are complicated and restrictions on access to adoption for prospective parents are based on age, good character, and, in some jurisdictions, criteria such as the wishes of the birth parents or proof of infertility, as well as on marital status.

All jurisdictions permit adoption by married couples, although most require the couple to have been married for a minimum of two, three or even five years. The majority of jurisdictions(2) also permit adoption by de facto heterosexual couples who have been in that relationship for the same minimum period. An adoption order can generally only be made in favour of a single person in 'special' or 'exceptional' circumstances, including in some States if the child has a disability or special needs.(3)

By analogy with the McBain decision, restricting access to adoption to married couples, or to married and heterosexual de facto couples, may constitute discrimination on the basis of marital status. This depends on whether adoption can be characterised as the 'provision of a service' within meaning of section 22 of the Sex Discrimination Act. 'Services' is defined in subsection 4(1) of the Sex Discrimination Act to include services provided by a government, and thus may include adoption 'services' provided by State governments, although this is an open question.

Commonwealth response

The Government has recently announced its intention to amend the Sex Discrimination Act to exempt State laws restricting access to IVF and other fertility treatments.(4) This will permit States to discriminate on the basis of marital status in regulating access to fertility treatment services. It will be interesting to see whether an exemption is also included

for State and Territory adoption laws.

The Minister for Health and Aged Care has also announced that Medicare benefits will continue to be payable only in cases of medical infertility. Currently, Medicare benefits are payable for IVF and other assisted reproductive services only where such services are 'clinically relevant services',(5) and not if they are not 'medically necessary'.(6) Although the unavailability of Medicare does not of itself restrict access only to infertile couples or infertile single or lesbian women, with the cost of artificial insemination around $170 per treatment and of IVF around $3000 per treatment, this may remain a significant obstacle for poorer single or lesbian women.(7)

International obligations

The proposed exemption from the Sex Discrimination Act has been criticised by some, on the ground that it would be in breach of Australia's international obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) and the International Covenant on Civil and Political Rights, 1966 (ICCPR).(8)

Other commentators have been promoting the fundamental right of a child 'as far as possible, to know and be cared for by his or her parents' contained in Article 7 of the UN Convention on the Rights of the Child, 1989 (CROC).

It is commonly stated, both in international treaties and in domestic law, that the welfare or best interests of the child shall be 'paramount', or 'a primary consideration', both in relation to governmental decision-making(9) and in defining the responsibilities of parents. (10)However, as Justice Kirby has recognised, this 'is not the same as the 'sole' or 'only' consideration'.(11) CROC itself acknowledges that the rights of parents are relevant even when meeting a child's needs for protection and care (Article 3.2), and that a child's parents will not always live together (Article 10.2).

Counterbalancing the right of a child to be born into a family is the right to freedom from discrimination. Article 2 of CEDAW commits Australia to eliminating discrimination against women. Although Articles 1 and 16(1)(d) of CEDAW refer to marital status as an irrelevant factor, discrimination against women on the ground of their marital status is not expressly prohibited. The aim of CEDAW is to preclude discrimination between men and women, not between married and unmarried women. The majority of articles in CEDAW impose obligations on countries to provide access to services (including health care services, Article 12) 'on a basis of equality of men and women'.

Article 26 of the ICCPR proclaims a right to equal protection of the law and freedom from discrimination on any ground, including race, sex or 'other status'. 'Sex' has been held to include homosexuality,(12) and presumably 'other status' would include marital status. It could be argued that this right to freedom from discrimination guarantees all women, irrespective of their marital status, the right to bear children.

Alternatively, it could be argued that this right cannot be read in isolation, but should be read in the context of the rest of the ICCPR. Article 23 of the ICCPR proclaims the right of 'men and women of marriageable age to marry and to found a family', and declares the family to be 'the fundamental group unit of society'. This may suggest that a heterosexual couple is the paradigm for the upbringing of children in international law. The notion of the traditional family is reinforced by Article 5 of CEDAW and Article 18.1 of CROC, both of which refer to the 'common responsibility of men and women in the upbringing and development of their children'. In this context, it is unclear whether the freedom from discrimination would guarantee women a right to bear children independent of the traditional family.

The existence of these international obligations, which appear to be in tension with one another, highlights the limits on the useful contribution international law can make to the debate on this topic. International instruments are often 'aspirational rather than normative'(13) and may express the 'conflicting principles which are already reflected in Australian law and court decisions'(14) without resolving them.

Challenging the Commonwealth response

It is not possible to constitutionally challenge the Commonwealth's proposed exemption from the Sex Discrimination Act. The Commonwealth has constitutional power to pass both that Act and the Medicare legislation, and the power to make laws extends to the power to repeal or exempt certain things from the operation of those laws.(15) Further, nothing in the Constitution restricts federal law-making powers only to beneficial laws, and there is no constitutionally entrenched prohibition on discrimination.

A woman denied access to fertility services could choose to bring a communication to the UN Human Rights Committee, alleging Australia is in breach of its international obligations.(16) This would only apply to breaches of the ICCPR (such as Article 26), as no provision is made for individual complaints to be brought under either CROC or CEDAW.


The decision in McBain potentially has far-reaching implications, not only for fertility treatment services, but also for State and Territory adoption laws. Resort to international instruments only reinforces the competing considerations that are present in the debate, and does not provide clear or conclusive guidance on what are ultimately complex policy questions.

 Endnotes [2000] FCA 1009. 1.

Except Queensland, the Northern Territory and Western Australia: Adoption of Children Act 1964 (Qld) section 12; Adoption of Children Act (NT), section 13, Adoption Act 1994 (WA), section 39. 2.

Adoption of Children Act 1965 (NSW), paragraph 19(1)(b); Adoption of Children Act 1964 (Qld), paragraph 12(3)(B). 3.

Emma MacDonald and Ross Peake 'PM under fire over IVF stand', Canberra Times, 2 August 2000. 4.

Subsection 10(1) of the Health Insurance Act 1984. 5.

Medicare Benefit Arrangements , clause 1.1.5. It is interesting to note that no benefit is payable for assisted reproductive techniques used in conjunction with a surrogacy agreement. 6.

See also the Prime Minister's comments, 'The IVF debate', The Age, 3 August 2000. 7.

'Singles IVF ban could breach world treaty', The Australian, 2 August 2000. 8.

Art 3.1 of CROC. 9.

Articles 5 and 16.1(d) of CEDAW. 10.

AMS v AIF (1999) 163 ALR 501 at 537. 11.

Toonen v Australia: Communication No 488/1992. 12.

AMS v AIF (1999) 163 ALR 501 at 515 per Gleeson CJ, McHugh and Gummow JJ. 13.

AMS v AIF (1999) 163 ALR 501 at 545 per Kirby J. See also at 515. 14.

Kartinyeri v Commonwealth (1998) 195 CLR 377. 15.

This approach was adopted by Nicholas Toonen in challenging Tasmania's laws criminalising homosexual conduct: Toonen v Australia: Communication No 488/1992. 16.

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