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Should single women and lesbians be able to use IVF technology to have children?


The issue
What they said ...
'This issue involves ... the right of children to have the reasonable expectation of the affection and care of both a mother and a father'
Mr John Howard, Australia's Prime Minister

'... any day my rights as a women may be taken away'
Ms Lisa Meldrum, a single woman on whose behalf a successful Federal Court challenge was brought to allow her to have a child using IVF

On July 28, 2000, the Federal Court ruled that section 8 of the Victorian Infertility Treatment Act 1995, which prevented single women and those in lesbian relationships from using IVF technology was invalid. This was seen as a victory for lesbians and single women within Victoria as they would no longer have to travel interstate if they wanted to try for a child via IVF.
Four days later, on August 1, the Prime Minister, Mr John Howard, announced that his government intended to amend the Commonwealth Sex Discrimination Act 1984 so that state governments, including Victoria's, would be able to restrict access to IVF single women and those in lesbian relationships.
The issue has generated much heated debate.

Echo Issue Outline 2000 / 27 - 28
Copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.

Issue outline by J M McInerney

Background
The Federal Court ruling
The Federal Court challenge to Victoria's Infertility Treatment Act was brought by Dr John McBain on behalf of Ms Lisa Meldrum.
Ms Meldrum is a single woman, who had come to Dr McBain wanting to use IVF to become pregnant. Dr McBain had had to deny her treatment because the Victorian Infertility Treatment Act only allowed him to make IVF available to married women and those in established defacto relationships.
Dr McBain believed that the Victorian law was in conflict with the Commonwealth Sex Discrimination Act 1984. Section 6 of the Sex Discrimination Act makes it illegal to deny someone a service on the basis of their marital status.
Justice Ross Sundberg accepted Dr McBain's argument and ruled that the Victorian law was directly in conflict with the Commonwealth law. When this occurs, the Commonwealth law takes precedence.

The proposed amendment to the Commonwealth Sex Discrimination Act 1984
The amendment proposed by the Prime Minister would alter section 6 of the Commonwealth Sex Discrimination Act to make a specific exception for IVF services. This would allow the Victorian law to continue denying IVF to women on the basis of their marital status.

Victoria's previous position on gay and lesbian rights to adoption and fertility treatment
In June 2000 Victorian premier, Steve Bracks, indicated that his government was in no hurry to allow gay and lesbian couples adoption and fertility rights.
Mr Bracks suggested that the community was not yet ready to accept such an alteration to current laws. He stated, 'I don't think it's something the community is ready for at this stage.' Mr Bracks suggested treating the issue with caution and said his government would consider it if elected to a second term.

The position in other states
In South Australia, New South Wales and Tasmania there are no laws restricting single women or those in lesbian relationships using IVF technology in order to become pregnant.

Internet links
An official summary of the July 28 2000 Federal Court ruling, McBain v State of Victoria can be found at http://www.austlii.edu.au/au/cases/cth/federal_ct/2000/1009.html
This clearly outlines the basis on which Justice Ross Sundberg ruled that section 8 of the Victorian Infertility Treatment Act was invalid.

The relevant section of the Commonwealth Anti Discrimination Act 1984 (Section 6) can be found at
http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s6.html
An index to the whole Act can be found at http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/

Section 8 of the Victorian Infertility Treatment Act 1995 can be found at http://www.austlii.edu.au/au/legis/vic/consol_act/ita1995264/s8.html
This indicates that both artificial insemination and IVF procedures are limited to women who are either married or living in defacto relationships.
The index to the Infertility Treatment Act 1995 can be found at http://www.austlii.edu.au/au/legis/vic/consol_act/ita1995264/

The Family Court of Australia has commissioned a detailed report titled, 'Same sex couples and family law' It was written by Jenni Millbank, lecturer in Law, Sydney University.
This is a lengthy report but it repays careful reading. It outlines the legal situation of same sex couples in Australia as regards adoption, custody of children after a divorce and access to IVF. It analyses the negative presuppositions about single sex couples which underlie many legal rulings. It also surveys the sociological studies done in both the United States and the United Kingdom, all of which seem to suggest that children raised in such families are at no additional risk of maladjustment. The report can be found at http://www.familycourt.gov.au/papers/html/millbank.html

Professor Susan Golombok, Director of the Family and Child Psychology Research Centre at City University, London, has conducted a 12 year study attempting to ascertain what impact, if any, non-conventional family units had on children.
Some of the main findings are:
IVF children have good relations with their parents
IVF children are not at risk for emotional or behavioural problems
Very few donor insemination children have been told about their genetic origins.
Professor Golombok's findings were released in March, 2000. It is titled Assisted Reproduction families: new research findings on children. An abstract of the findings can be found at http://www.city.ac.uk/er/media/assisted.htm

The On-line magazine Self_Help has a detailed account of Professor Susan Golombok's research findings. The article is titled Sexual Orientation of Parents Found Not to Influence Sexual Orientation of Children. It can be found at http://www.shpm.com/articles/glb/orientat.html

The United States adoption site Faces of Adoption, America's Waiting Children has a report on its site giving the findings of an earlier study investigating the impact of single sex parents on children. The article is titled Study Shows Lesbian Couples Raise Psychologically Healthy Children. It reports on the findings of a 1994 study conducted by Ilda Ficher and David Flaks. The article can be found at

Ontario Consultants on Religious Tolerance has a section of its site dealing with single sex parenting. The section is titled 'Same-sex parenting'. It presents material from an actual court debate on the question of same sex parenting. It also outlines fundamentalist Christian objections to same sex marriage and the rearing of children by same sex parents. It concludes with a summary of the two sets of arguments which seems intended to show the weaknesses of the fundamentalist Christian position.
This material can be found at http://www.religioustolerance.org/hom_pare.htm

GayLaw News has a subsection of its site dealing with news reports of the law in different parts of the world as it relates to lesbians, homosexuals and children. The section gives synopses of articles supplying information on the adoption and IVF access available to gay people. This is an Australian-produced site and a majority of the articles deal with laws that operate federally and within individual Australian states. The most recent set of articles appears to date from 1997. These can be found at http://www.labyrinth.net.au/~dba/ch1997.html

The GayLaw News 1996 set of articles on the same topics can be found at http://www.labyrinth.net.au/~dba/ch1996.html#top

Arguments against single women and lesbians being able to use IVF technology to have children
There are five major arguments against single women and lesbians being allowed access to IVF technology and other forms of medical assistance so that they can have children

1. It is unjust to children to have them born into 'families' that are incomplete.
According to this line of argument, a single woman having a child denies that child access to a father. It is claimed that ideally a child needs a father for full emotional security and role-modelling. The Catholic archbishop of Melbourne, Dr George Pell, and Independent Tasmanian Senator Brian Harradine have claimed that such children will constitute another 'stolen generation', children who, in this instance, have been denied their father before they have even been born.
The same point was made by the Prime Minister, Mr Howard, who has argued, 'This issue involves ... the right of children to have the reasonable expectation of the affection and care of both a mother and a father'
It has been suggested that children born to single parents and those in lesbian partnerships are being denied access to a normally functioning heterosexual parental relationship on which they can model later adult behaviour. Those who claim this argue that fathers have an important role to play in helping to establish the emotional security of their children.
The further suggestion is made that children born into homosexual households are likely to be homosexual themselves as adults due to limited modelling.
It is also suggested that children born into single parent households may receive inadequate attention and support because the mother does not have a partner to assist her with child-rearing.
On the other hand it is sometimes claimed that children born into single parent or lesbian households may have excessive expectations placed upon them. According to this line of argument, such children may receive too much parental attention and may be pressured to meet their parents' expectations in ways that are damaging to them..
Dr Pell has claimed. 'The Federal Court decision ... opens the door to a massive social experiment on children.'

2. Children are not a commodity and women, including single women and lesbians, do not have an unrestricted right to experience parenthood.
According to this line of argument, women who insist on having children irrespective of their personal circumstances are putting their own wishes ahead of the well-being of any child they might bear.
It is claimed that ideally children are the natural consequence of a loving and stable relationship between a man and a woman and that this relationship provides a suitable environment in which to raise children.
Those who argue this position stress the rights of the child rather than the rights of the potential parent. They tend to be sceptical about all uses of IVF technology, but especially those which involve the establishing of unconventional child-rearing arrangements. Thus they would oppose women beyond child-bearing age using IVF procedures to conceive as well as single women and lesbian couples using these procedures.
Dr Pell has also complained that the recent Federal Court ruling appears to establish a 'legal right to buy a child'. Dr Pell argues that morally such a 'right' does not exist.

3. IVF procedures are expensive and a drain on medical resources. Their results are problematic. IVF procedures should, therefore, be made available only to those women most likely to achieve a successful result on all levels.
According to this argument an expensive and fairly difficult technology should be employed only when it is likely to produce effective results. Critics of allowing single parents to use IVF technology argue that it should be made available first to those couples in stable relationships who are most able to establish a viable family for any child they have. It is argued that it would be a misuse of the technology to make it equally available to single parents who would be less able to offer a secure future to any child they conceived.
It has further been noted that sperm donors are scarce and that there are limited stocks of sperm available for IVF procedures. The argument would appear to be that women in stable heterosexual relationships who need sperm donors should receive preference.
It has also been noted that many of the informal arrangements lesbians currently make with male homosexual friends to donate sperm would not be acceptable to medical authorities as homosexual males are not officially accepted as sperm donors because there is a fear they may be HIV positive or carrying another sexually transmitted disease.

4. The community at large does not approve of IVF technology being made available to single women and lesbian couples. The public would also not support Medicare funding being directed toward IVF recipients who were not in a heterosexual union.
The Victorian premier, Mr Steve Bracks, has claimed that there is a lack of support within the Victorian community for IVF being made available to lesbian couples.
The same point has been made by Mr Bill Muehlenberg, the national secretary of the Australian Family Association. Mr Muehlenberg has claimed, 'Whenever a survey or poll is done on granting IVF access or [adoption] rights to children or marriage rights to homosexuals, it's almost always something like 90 to 95 per cent of Victorians who are quite against it.'
Archbishop Pell has also claimed, 'Ordinary Australians do not want their Medicare dollars spent on giving IVF to single women when people are going without much more important forms of health care in our cash-strapped hospital system.'

5. Allowing IVF technology to lesbians and single women is an attack on the conventional family structure and is potentially creating an additional class of welfare recipients.
According to this line of argument allowing single couples and those in lesbian relationships to use IVF is deliberately engineering non-conventional families. It has been argued, especially in the case of single women without parents, that this is putting an unnecessary strain on welfare services.
Critics claim that the growth in supporting parent payments to one parent families is a necessary rather than a desirable development. They argue that these payments should be made to divorced women and those whose defacto relationships have broken down. However, they do not believe that the Victorian or the federal government should allow women to establish families where there has never been a male partner.
It has also been claimed that encouraging these unconventional child-rearing arrangements casts doubt on the value of the traditional family unit. Critics fear that the greater the number of different 'family' units there are, the greater the threat to conventional families.

Arguments in favour of single women and lesbians being able to use IVF technology to have children
There are five main arguments offered in favour of single women and lesbians being given access to IVF technology .

1. Single parents and those in lesbian relationships rear children who are as well-adjusted as those in more conventional families.
There have been a number of studies, including a long-term study conducted in the Great Britain, which indicate that children reared in unconventional families suffer no apparent ill effects compared to children reared in conventional families. It has been noted that where children are reared within homosexual households they are no more likely to develop a homosexual orientation than those reared by heterosexual parents. This accords with the body of research that suggests that homosexuality is a genetic predisposition rather than a socially acquired preference.
(Some defenders of making IVF available to single sex couples argue that even if such parenting arrangements did give rise to a higher proportion of homosexual children this would not be an undesirable thing.)
It has also been noted that children conceived via IVF tend to do somewhat better on a number of measures than do children conceived naturally. It has been speculated that children conceived via IVF are clearly wanted and are likely to receive particular support and attention from their parents, irrespective of whether they are in a conventional or non-conventional union. This additional support, it has been suggested, is likely to be of benefit to the children.

2. Current Victorian law re IVF is sexually discriminatory and is at odds with IVF law in some other Australian states.
Dr McBain who brought the case on behalf of his patient, Ms Meldrum, has noted, 'It was a bizarre situation, because quite clearly the Victorian law stopped me offering this perfectly reasonable treatment to single women, yet I was being fined for being in breach of the federal anti-discrimination laws.
The federal Court ruled that section 8 of Victoria's 1995 Infertility Treatment Act, restricting IVF to married women or those in long-term defacto relationships was inconsistent with sections 6 and 22 of the federal 1984 Sex Discrimination Act which forbids discrimination on the basis of marital status.
Ms Meldrum, on whose behalf the cation was brought has claimed, 'I'm just over the moon. It's a chance for women to be taken at face value, whether they're single, whether they're lesbian or whether they're married.'
It has also been noted that IVF law in Victoria is at odds with IVF law in South Australia, Tasmania and New South Wales. In the last named states single women are able to take advantage of IVF procedures. Mr Mark Riley, the president of the Victorian AIDS Council has argued that Victoria needs to catch up with the other states. 'Does ... [Victoria's IVF law] mean that Victoria's community's not ready and South Australia, Tasmania and New South Wales' communities are?' Mr Riley has asked.

3. Women who are not married or in long-term heterosexual relationships can have the same urge to have children as those in such relationships.
Ms Meldrum has claimed of those who oppose the new legislation, 'They don't know what it is like to want children as much as I do. I would go to any length to have a baby. I guess I have gone to every length.'
According to this line of argument, if, as has claimed to be the case, single parents or lesbian parents do no demonstrable harm to children it is unjust to deny the strong desire of many unmarried women to have children. Forcing them into informal arrangements using unscreened donor sperm supplied by friends and acquaintances could put them at risk of contracting sexually transmitted diseases.

4. Popular disapproval of IVF for single women and lesbian women should not be the key factor determining whether the procedure is made available.
According to this line of argument one of the roles of government is to led popular opinion. Those who argue this claim governments sometimes have to promote worthwhile and just policies that are in advance of community attitudes.
This point has been made about the Bracks Government's attitude to IVF for lesbian couples. Kenton Miller, the co-convenor of the Victorian Gay and Lesbian Rights Lobby has claimed that governments need to show leadership on issues of human rights.
It has further been claimed that popular unease about homosexual and lesbian couples acting as parents is excessive as it is already occurring with no apparent ill consequences. It has been noted that a significant number of women formerly in heterosexual relationships are now in lesbian relationships and have taken their children with them. It has also been noted that a significant number of women in lesbian relationships have made informal arrangements with male friends to donate sperm so that they may artificially inseminate themselves.
In addition it has been claimed that popular concern is likely to be exaggerated because the number of single and lesbian women able to successfully use IVF technology will be small. It has been claimed that this is the case because the procedure is onerous and, despite Medicare rebates, quite expensive. Further, donor sperm is in relatively short supply and the procedure's success rate is quite low.

5. Supposedly unconventional family units are becoming increasingly common.
According to this line argument there are already many unconventional family units in Victoria. It is claimed that the supposed norm of a heterosexual couple and their children is no longer the automatically accepted model for family life.
Those who claim this point to the increasing number of single parent family created as a result of divorce or child birth outside marriage or a stable defacto relationship. It is also noted that remarriage after divorce is creating a growing number of blended families characterised by step-mother, step-fathers and step-brothers and sisters.

Further implications
It seems unlikely that the Prime Minister will be able to get his proposed amendment to the Commonwealth Anti Discrimination Act through the Senate. The Government controls the House of Representatives and so will be able to have its amendment pass the lower house. However, the Australian Democrats have indicated that they will oppose the Prime Minister's amendment and the Labor Party appears likely to do the same. The Democrats and the Labor Party together have sufficient numbers in the Senate to block the amendment.
It remains to be seen whether the probable failure of the Federal Government's amendment will mean that Dr McBain's challenge to Victoria's Infertility Treatment Act will have an effect. The Victorian premier, Mr Bracks, has indicated that if the July 28, 2000, Federal Court ruling holds and section 8 of the Infertility Treatment Act is invalid, the Victorian Government will still refuse to allow access to women who want invitro-fertilisation for what he terms 'social reasons'.
According to the argument put by Mr Bracks the purpose of IVF is to treat women who are physiologically unable to have children without medical assistance because of their own or their partners' infertility. Women who cannot have children because they have no partner are not, Mr Bracks argues, technically infertile and so would not qualify for treatment under the Infertility Treatment Act.


Newspaper items used in the preparation of this outline
The Age
27/6/00 page 8 news item by Meaghan Shaw, 'Bracks says no to gay adoptions'
28/7/00 page 2 news item by Melissa Marino, 'Harradine warns on IVF court ruling'
29/7/00 page 1 news item by Darrin Farrant, 'IVF victory sparks bliss and disquiet'
29/7/00 page 6 comment by Mary-Anne Toy, 'IVF law toppled in just five minutes'
29/7/00 page 11 (News Extra) comment by Steve Dow, 'IFV win sweet, but law still oppresses'
2/8/00 page 1 news item by Michael Gordon and Darrin Farrant, 'Howard sparks IVF storm'
2/8/00 page 13 comment by Nicholas Tonti-Filippini, 'Why IVF will be much harder now'
4/8/00 page 15 comment by Bill Uren, 'IVF: the heart of the matter'
4/8/00 page 15 comment by Leslie Cannold, 'The disappearing father'
4/8/00 page 15 comment by Michael Grose, 'Dads make a difference'

The Australian
27/6/00 page 7 news item by M Schubert, 'Bracks to review parenting by gays'
29/7/00 page 6 news item by Alison Crosweller, 'Single-minded woman wins mother of a fight'
29/7/00 page 6 news item by Alison Crosweller, 'Court rules state IVF ban invalid'
29/7/00 page 6 news item by Alison Crosweller and Louise Milligan, 'Costly cycle of time, money'
29/7/00 page 7 news item by Louise Milligan, 'Decision steadies tick of biological clock'
2/8/00 page 13 comment by Michael Lavarch, 'Fractured rights regime leads to discrimination'
3/8/00 page 1 news item, 'Family row splits nation'

The Herald Sun
29/7/00 page 3 news item by Norrie Ross and Greta McMahon, 'IVF rights victory'
29/7/00 page 3 news item by Norrie Ross, 'Hopeful end to long fight'
2/8/00 page 1 news item by Andrew Probyn and tanya Taylor, 'Singles bar'
2//8/00 page 4 comment by John Howard, 'Children must be put first'
2/8/00 page 5 news item by Tanya Taylor, 'How dare he ruin my dream?'
2/8/00 page 5 news item by Andrew Probyn, 'Amendment must run the gauntlet'
3/8/00 page 7 comment, 'Happy baby loved by two mothers'