CASE
LAW: Sexual and Reproductive Rights – McBain v State of
Victoria & Ors
Restriction
on fertility treatment unjustified
Federal Court of Australia, 28 Jul 2000
Sundberg J
[2000] FCA 1009; (2000) 3 CHRLD 153
The applicant,
a gynaecologist specialising in reproductive technology, sought
a declaration that section 8 of the Infertility Treatment Act,
1995 (Vic) (the State Act) was inoperative on the grounds that
it was inconsistent with s 22 of the Sex Discrimination Act
1984 (Cth) (SDA). Section 8(1) provides that women who undergoes
treatment must either be married and living with their husband
on a genuine domestic basis or living with a man in a de facto
relationship. Section 22 prohibits, inter alia, discrimination
on grounds of marital status in the provision of services (subject
to the exclusion under s 32 of treatment that that can only
apply to members of one sex). The applicant approached the court
after M, an unmarried single woman, requested in vitro fertilisation.
In granting
the declaration, it was held that:
1. The word
‘services’ should be given a liberal meaning within
the meaning of ss 4 and 22 of the SDA (IW v City of Perth (1997)
191 CLR 1 applied). In this context ‘services’ include
fertility treatment administered by a medical practitioner.
Further given that different treatments are covered by the same
legislative scheme, the State Act, subject to the same eligibility
requirements and capable of being provided to both sexes they
are not exempted by s 32 SDA.
2. However,
section 8 of the State Act provides that a woman’s marital
status, namely her status as a married woman or living in a
de facto relationship, is an essential requirement for the availability
of treatment. In this regard s 8 treats unmarried women not
living in such a de facto relationship less favourably by refusing
them fertility treatment contrary to s 22 of the SDA which makes
it unlawful for a person to refuse to provide a service to another
on the ground of the latter’s marital status. As the two
sections are directly inconsistent, s 8 is inoperative by reason
of s 109 of the Constitution. Moreover, any provisions in the
State Act that are, in part, dependent upon the operation of
s 8 are also inoperative to the same extent.
3. Nor is
s 8 saved by s 7B of the SDA on the grounds that to deny an
unmarried woman such treatment amounts to direct and not indirect
discrimination.
Observations
:
1. The SDA
primarily gives effect to the Convention on the Elimination
of Discrimination Against Women (CEDAW) as opposed to other
ratified international human rights treaties. Therefore when
interpreting the SDA CEDAW’s provisions should take precedence
over competing human rights claims.
2. s 8(1)
is not the only State Act provision affected by inconsistency
between it and the SDA since a number of sections proceed on
the basis that a woman will have a “husband”, and
require conduct by both of them or by others towards them. In
this regard where such sections are in at least part dependent
upon the operation of s 8(1) then they are also inoperative
to that extent.
Lawyers
For the
Applicant: A C Archibald QC and S Moloney; instructed by John
W Ball & Sons
For the First and Second Respondents: P Tate; instructed by
Victorian Government Solicitor
For the Fourth Respondent: D F R Beach; instructed by Phillips
Fox
For the Australian Catholic Bishops Conference and the Australian
Episcopal Conference of the Roman Catholic Church as Amicus
Curiae: J G Santamaria QC; instructed by Best Hooper
Notes
The
State has announced that it will not appeal against the decision.
However, the Prime Minister has said that he will be seeking
to amend the Commonwealth Legislation to remove the impediment
to the States restricting access to in-vitro fertilisation only
to women in long-term heterosexual relationships.
