Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
McBain v State of Victoria: access to IVF for all women.

Download PDFDownload PDF

Research Note 03 2000/2001

McBain v State of Victoria: Access to IVF for all Women

Katrine Del Villar Law & Bills Digest Group 15 August 2000


On Friday, 28 July 2000, Justice Sundberg of the Federal Court of Australia handed down his decision in McBain v State of Victoria.(1) The decision is the latest in a number of challenges to restrictions on obtaining IVF services in Victoria, South Australia and Queensland. His ruling, that provisions of the Victorian Infertility Treatment Act 1995 were inconsistent with section 22 of the Commonwealth Sex Discrimination Act 1984, has sparked nationwide controversy.


Dr John McBain, a Melbourne gynaecologist specialising in reproductive technology, was consulted by Ms Lisa Meldrum, a single woman wishing to conceive through in vitro fertilisation (IVF) using donor sperm. Dr McBain told Ms Meldrum he was prohibited by Victorian law from administering IVF treatment to her, as she was single. He thereupon commenced proceedings seeking a declaration that provisions of the Victorian legislation were inconsistent with the Sex Discrimination Act, and hence inoperative to the extent of the inconsistency.


The Infertility Treatment Act provides that artificial insemination or fertilisation by a procedure such as IVF may only be carried out on a woman who is married or 'living with a man in a de facto relationship'.(2) Thus, married women who are separated from their husbands are excluded from treatment, as are single and lesbian women.

Section 22 of the Sex Discrimination Act prohibits discrimination in the provision of goods and services on the grounds of sex or marital status. 'Marital status' is defined to include the status of being single, married, separated, divorced, or in a de facto relationship.

Justice Sundberg held that fertility treatments, including IVF, were 'services' provided by medical practitioners, within the meaning of section 22 of the Sex Discrimination Act. He dismissed an argument that the word 'services' should be read consistently with the rights of the child under international instruments to know and be brought up by both parents. It is accepted that resort may be made to international human rights law in interpreting domestic law only where there is ambiguity in the statute,(3) and Justice Sundberg considered that the definition of the word 'services' was unambiguous.

He also rejected an argument that fertility treatment services were exempt from the Sex Discrimination Act by virtue of section 32. That section states that the prohibition on discrimination does not apply to the provision of services which can, of their very nature, only be provided to members of one sex. Justice Sundberg concluded that fertility treatments were not services which can only be provided to women. He characterised them as 'treatments aimed at overcoming obstacles to pregnancy', whether the obstacle stemmed from the infertility or 'some physical feature of a man or a woman'. He went on to state that:

Whether the primary beneficiary of the treatment is a man or a woman, in the typical case the service is directed to achieving the desire of the couple to have a child. The fact that for biological reasons the embryo is placed into the body of the woman is but the ultimate aspect of the procedure.

Because the Infertility Treatment Act makes provision of IVF treatment contingent on a woman's marital status (as well as her medical state), Justice Sundberg concluded that the Victorian legislation infringed the prohibition on discrimination found in section 22 of the Sex Discrimination Act and was thus inoperative because of section 109 of the Constitution.

Other States

The case has implications for legislation regulating reproductive technology in States other than Victoria. South Australia and Western Australia also restrict access to fertility services to couples who are either infertile or at risk of genetic defects, and are married or in a de facto heterosexual relationship of at least 5 years' standing.(4) Administrative guidelines in other jurisdictions may also restrict access to such services on the basis of marital status.

Both the Victorian and South Australian statutes have previously been declared to be inconsistent with the Sex Discrimination Act.

In Pearce v South Australian Health Commission ,(5) a woman was denied access to the IVF program because she was separated from her husband. The Full Court of the South Australian Supreme Court unanimously declared that the South Australian legislation discriminated on the ground of marital status, and thus was in breach of the Sex Discrimination Act.

Three Victorian women in long-term de facto relationships were awarded damages on the basis that hospitals had discriminated against them by refusing them access to IVF treatment solely on the basis of their marital status, in breach of the Sex Discrimination Act.(6)

Two other cases, one in South Australia and one in Queensland, considered whether the refusal of fertility services contravened the relevant State's anti-discrimination laws.(7)


It is important to note that access to fertility services in Victoria is restricted by two conceptually distinct criteria: marital status and medical need. Medical need may be demonstrated if either the woman or her husband is infertile ('unlikely to become pregnant') or at risk of transmitting a genetic abnormality or disease to the child. The Sex Discrimination Act prohibits discrimination on the ground of marital status, but not on the basis of medical need.

Justice Sundberg held that the marital status criterion is wholly inoperative, and the medical need criterion is inoperative to the extent that it is 'dependent upon the marriage requirement'. Whether this makes the medical need criterion wholly inoperative or not is unclear, although it is critical to the result of the case.

The Victorian Government has accepted legal advice that 'nothing in Justice Sundberg's...ruling excluded the requirement for IVF treatment recipients to be medically infertile.'(8) The legal advice considers that all that needs to be done to avoid breaching the Sex Discrimination Act is to remove the references in the medical need criterion to 'the husband's sperm'. Thus, Ms Meldrum and other single or lesbian women will only be able to obtain IVF treatment if they can demonstrate they are infertile or at risk of genetic abnormality or disease.

It is to be expected that the Victorian Government's legal advice will eventually be tested in court, whether by Ms Meldrum or another woman who is unable to satisfy the medical need criterion. Contrary to that advice, it may be that the medical need criterion makes no sense if the references to 'the husband's sperm' are excised. If that is so, then the medical need criterion will be inoperative because it depends in part on a woman's marital status.(9) This reading of the provision would allow single and lesbian women to obtain fertility treatment services without having to demonstrate any medical


Arguably, the public and media response to the case conflates two distinct issues, medical need and social need. Justice Sundberg's reasoning focussed exclusively on marital status, and considered the medical need criterion only to the extent to which it referred to marital status. After concluding that discrimination on the ground of marital status was established, he did not need to consider the issue which has captured the public imagination-whether 'unlikely to become pregnant' refers not only to medical infertility, but also encompasses purely social obstacles to pregnancy.

Other implications of the McBain case, including in relation to State and Territory adoption laws, are canvassed in the forthcoming Research Note, McBain v State of Victoria: Implications Beyond IVF.

Endnotes [2000] FCA 1009. 1. Section 8(1) of the Infertility Treatment Act 1995. 2. See Polites v Commonwealth (1945) 70 CLR 60; Kartinyeri v Commonwealth (1998) 195 CLR 377 at 385-386 per

Gummow and Hayne JJ, at 417-419 per Kirby J. 3.

Section 23 of the Human Reproductive Technology Act 1991 (WA); section 13 of the Reproductive Technology Act 1988 (SA). 4.

(1996) 66 SASR 486. 5. MW, DD, TA & AB v Royal Women's Hospital, Freemasons Hospital and State of Victoria (1997) EOC p92-886 (5 March 1997). 6.

Yfantidis v Jones (1993) 61 SASR 458; and JM v QFG & Ors (1997) EOC ¶92-876 (31 January 1997); (1997) EOC ¶92-902 (24 Oct 1997); and [1998] QCA 228; (2000) EOC ¶93-047 (18 August 1998). 7.

Opinion of Dr Gavan Griffith QC, In the Matter of the Infertility treatment Act 1995 and the Sex Discrimination Act1984, section 22.; 'Bracks government accepts legal advice on IVF ruling', Media Release, 7 August 2000. 8.

See, as to reading down and severance, Bootmakers' Case (1910) 11 CLR 1. 9.

© Commonwealth of Australia