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2002/04: Should a new category of infertility, 'psychological infertility' allowing single women and lesbians in Victoria access to IFV treatment?
What they said ... 'In the most important ways ... what matters is a loving family, whatever form that takes' Karina Roberts, a PhD student at La Trobe University who is working on a critique of traditional family values
'It is in children's best interests to know and have a relationship with [both] their biological parents ...' Age editorial, November 16, 2001
The issue at a glance In November 2001, it was announced that the Victorian Infertility Treatment Authority was soon to issue guidelines recognising a new form of infertility, 'psychological infertility'. Those diagnosed with this condition would be able to access IVF. Some lesbians and single women could be included in this group. This announcement was welcomed by gay rights groups but was opposed by the State Opposition, a number religious spokespeople and others. The Herald Sun conducted a number of polls, which, the newspaper claims, indicate substantial opposition to single women and lesbians being able to access such treatment. The situation was further complicated by the opposition of two of the three independents upon whom the Victorian Government relies to have its legislation passed in the Legislative Assembly. Premier Bracks had announced in 2000 that his government would not make IVF technology available to women who could not have children as a result of 'their own choice in lifestyle'. This was seen as precluding lesbians and single women. Critics claimed that if the Government allowed the new 'psychological infertility' category then it would be going back on the Premier's previous undertaking. Before the end of November 2001, the Infertility Treatment Authority decided to postpone a review of its guidelines, including the possible inclusion of the 'psychologically infertile' category. The Authority claimed it was awaiting the result of a challenge brought by the Catholic Church in the High Court against the July 2000 Federal Court ruling which had allowed single women and lesbians in Victoria access to IVF. The debate surrounding the issue continues.
Background 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. It was said to be invalid under the terms of the federal Sex Discrimination Act. 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. In 2001 the Federal Attorney General, Daryl Williams, granted the Catholic Church's Australian Episcopal Conference a fiat or sanction allowing it to challenge the Federal Court ruling of July, 2000, which had overturned the Victorian Infertility Treatment Act's exclusion of single women and lesbians. The Victorian Government claims that in allowing the Victorian Infertility Treatment Authority was revise its guidelines to recognise a new form of infertilityit was merely accepting the consequences of the July, 2000, Federal Court ruling.
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.
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.
The terms under which a women might be judged 'psychologically infertile' Professor Gab Kovacs, from Monash IVF has claimed that the 'psychologically infertile' category would be most likely to apply 'to lesbian women who say there is no way they could cope going to bed with a man. If a psychiatrist says that is genuine psychological infertility, I would be happy to treat them and claim that on Medicare.'
Internet information 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 Infertility Treatment Authority is the statutory body established by the Victorian Parliament to administer the regulation of infertility services and research into infertility within the State of Victoria, Australia. It has been established under the provisions of the Infertility Treatment Act 1995. The Infertility Treatment Authority's Internet site can be found at http://www.ita.org.au/ This includes a statement of the guiding principles under which the Authority operates. These include, 'Infertile couples should be assisted in fulfilling their desire to have children'. It is presumably this guideline that would have been clarified and perhaps extended had the review continued.
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. 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 http://www.pridelines.org/leschildren.htm
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 that seems intended to show the weaknesses of the fundamentalist Christian position. This material can be found at http://www.religioustolerance.org/hom_pare.htm
Arguments in favour of single and lesbian women being able to access IVF 1. A happy, functional family can take many forms It is claimed that there are many forms for a family to take. According to this line of argument, what is crucial is that children within a family are supplied with love and stability. The gender or even the number of a child's parents is not the factor that is of most importance in shaping his or her development. This point has been made by Karina Roberts, a PhD student at La Trobe University who is working on a critique of traditional family values. Ms Roberts has claimed, 'In the most important ways ... what matters is a loving family, whatever form that takes.' Ms Roberts has further claimed, 'Allowing lesbians and single mothers access to assisted reproduction sends the message ... that we recognise that all happy families are not alike. While they may share some common features - love, communication, a sense of security - there are many different ways to make a happy family.'
2. Most single parents raise happy, healthy children This point has been made by Karina Roberts, a PhD student at La Trobe University who is working on a critique of traditional family values. Ms Roberts has stated, 'Single parents do face serious problems in raising their children, but most overcome these problems to raise happy healthy children. Conversely it has been claimed that many children raised in heterosexual families do not have stability and may be mistreated by their parents. Catherine Hardie has made this point in a letter published in The Age on November 16, 2001. Ms Hardie has stated, 'Given the often-cited statistics regarding marital failures, combined with constant reportings of domestic violence, and sexual and psychological abuse of women and children within the nuclear family, this assumption [that heterosexual families are more likely to be effective] would appear questionable.'
3. Single and lesbian women seeking IVF have considered the decision very carefully This point has been made by Karina Roberts, a PhD student at La Trobe University who is working on a critique of traditional family values. Ms Roberts has claimed, 'There is no reason to think women who choose to be single parents - and who have probably put much thought into how to overcome the obstacles they will face - will not succeed ... ' It has been noted that single women and lesbians seeking children via IVF are usually older women with a good level of education and a degree of financial security. Such women obviously show a high motivation to have children and are thus likely to make committed and loving parents. Jacqueline Tomlins in an article published in The Age detailed some of the difficulties she had faced in an attempt, as a single woman, to become pregnant via IVF. '... monthly three- or four-day trips to Sydney ...; predawn flights and post-surgery taxi rides across town to recover in a hotel room; long waits at the airport hoping for a flight before the painkillers wore off; no access to counselling or support groups ...' It is suggested that a willingness to undergo such difficulties shows a very strong desire to have children.
4. Children raised by lesbians face no disadvantage This point has been made by Jacqueline Tomlins, a Melbourne writer, in an article published in The Age. Ms Tomlins states, 'Many lesbian couples out there are raising happy, healthy children with great self-esteem ... There is no evidence to suggest that children are suffering in any way as a result of being parented by two women, especially when those children are surrounded by doting uncles, grandparents, cousins and family friends, as I see so many are.' This point has also been made by Karina Roberts, a PhD student at La Trobe University who is working on a critique of traditional family values. Ms Roberts has claimed, 'The American Psychological Association has reviewed all the research on children raised by lesbians and found that such children are not disadvantaged. Lesbian mothers tend to be conscientious about providing their children with male role models amd providing a rich, stable family life.'
5. Many women currently able to access IVF are not infertile This point has been made by Katrina Roberts in an article published in The Age. Ms Roberts claims that even without the 'psychologically infertile' category, there are many women who are themselves fertile who are currently able to access IVF. These are women whose partners are infertile or whose body cvhemistry makes them incompatible with their partners and so unable to produce children with them. Roberts notes, 'These women could go out and have sex with a strange man to get pregnant, just as a lesbian coulkd. Sure, they might find it unpleasant, and their partener might object, but the problems are social and psychological not medical.' Roberts argues that it is ubnjust that women who are unable to produce children with their current partner but could with another man are given access to IVF when single women and lesbians are not. She asks, 'We should we treat lesbian couples and single women any differently?'
6. Denying lesbian and single women access to IVF treatments is discriminatory Jacqueline Tomlins notes in an article published in The Age that the only category of people of child-bearing age to whom we deny the possibility of having children are single women and lesbians. Ms Tomlins states, 'Should mixed-race couples have children? Should people with a disability have children? Should poor people, or black people, or people with a criminal record have children? Or should we acknowledge that all people in ouyr society - including lesbians - have the right to bear and raise children, and if other people have access to medical assistance to so so, then so should [lesbians].'
Arguments against single and lesbian women being able to access IVF 1. Children need a male and female parent to develop fully both socially and emotionally It is claimed that ideally children need two parents of different genders. It is claimed that this helps in the full socialisation of the child and also helps to ensure the child's emotional stability. Critics of same sex partners or single parents raising children claim that they may distort the social, emotional and gender development of their children. It is argued that ideally children should have a close and loving relationship with parents of both sexes. The Age has made this point in an editorial published on November 16, 2001. The editorial states, 'It is in children's best interests to know and have a relationship with their biological parents ...'
2. Making IVF technology available to women without male partners suggests that men are not required for parenting According to this argument there are two main concerns. Allowing partnerless and lesbian women to have children via IVF denies those children knowledge of or access to their fathers. It also encourages the view within society in general and among men in particular, that it is reasonable to father children and then take no on-going interest in those children. In a society where divorced many women are having great difficulty having their former partners accept responsibility for the children of their marriage, this is a dangerous message to be promoting. The Age has made these points in an editorial published on November 16, 2001. The editorial states, 'It is true that throughout history many children have grown up without knowing their fathers, but this does not mean that as a society we should set out to create such situations ... It is in children's best interests to know and have a relationship with their biological parents ... There are also valid concerns about men donating sperm ... with no intention of taking any responsibility for the child that is created. Donating sperm is not the equivalent of donating blood.'
3. For most women 'psychological infertility' is not a genuine condition It has been argued that only a very small number of women are unable to have intercourse with men because they would find the interaction too psychologically traumatising. This point has been made by Melbourne writer, Jacqueline Tomlins, who argues that the idea of "psychological infertility" came from a number of clinics which wanted to be able to assist 'women who had experienced some form of sexual abuse or violence that had left them psychologically unable to have sex with men.' It is claimed that very few women are truly "psychologically infertile" and that these women should not be confused with lesbians who do not have male sexual partners only because they have a preference for sexual relations with women. Catherine Hardie has also made this point in a letter published in The Age on November 16, 2001. Ms Hardie claims, 'Women who do not wish to have sex with men are not necessarily psychologically damaged, rather they are exercising ... freedom of sexual choice.' Herald Sun commentator, Steve Price, criticises those whose sexual preference leads them to reject male partners. Mr Price states, 'Isn't it simple: If you want children and you are a woman, then you should find a man you want to be the father of your children.' According to this line of argument, the only true form of infertility is that with a physical origin. Lesbians and others claiming to be 'psychologically infertile' could, if they chose, have heterosexual intercourse and produce children.
4. Single or lesbian mothers may desire children for self-serving reasons It has been suggested that single or lesbian women seeking to have children are being selfish. This argument is put because it is claimed these women are seeking children without being willing to supply their children with a balanced family unit. It has further been suggested that for some single women having a child is merely a means of self-perpetuation or a means of filling a social or emotional void in their lives. It is claimed that these are self-serving reasons for having children and that children conceived for such reasons will not have parents who put the best interests of the children before their own. Steve Price, a Herald Sun commentator, has stated, 'Children as a trendy accessory to be taken to the market on a Saturday, all dressed up and fawned on by the local lesbian support group, is not on Steve Brack's agenda.' The Victorian Shadow Health Minister, Mr Robert Doyle, has also been quoted as claiming, 'This is appalling, ludicrous and smacks of self-indulgence at the highest level.'
5. Having children is not a right It has been claimed that while having children is a life event many people desire it is no one's right. Therefore, it is claimed, expensive medical technology should not be made available, in part at taxpayers' expense, to allow people who merely desire children to do so. This case is argued with particular force with regard to single women and lesbians. It is claimed that for these two groups, their reproductive fate is really in their own hands and does not even require medical intervention, whether that is a right or not. Herald Sun commentator, Steve Price, has put this position. Mr Price argues, 'People don't have a right to children at all. That's like saying we all have a right to live in a big house on a nice street. We'd all like that, but it's not a right, and if you're a lesbian, your sexual preferences preclude you from having children ... If you can't bring yourself to sleep with a man ... or use the old turkey baster, then that's it. You've made the choice.'
6. The community does not support IVF treatment for single women and lesbians. The point was made in a Herald Sun editorial published on November 21, 2001. The editorial claims that making IVF technology available to single women and lesbians would mean 'science is outstripping community mores.' Mr Joe de Bruyn, the head of the Shop, Distributive and Allied Employees Association, has stated, '... the community ... believes children should be raised by a mother and a father.' A similar point was made by the Victorian premier, Mr Steve Brachs, who stated, 'Let's pause and wait because of legal and community concerns.' The Herald Sun also conducted a poll of prominent Victorians on November 15, 2001, which apparently resulted in a significant majority of respondents indicating that they were opposed to IVF technology being made available to single women and lesbians.
Further implications Had the Victorian Infertility Treatment Authority gone ahead with a review of its guidelines and recognised 'psychological infertility' this may have gone some way toward further clarifying the situation in Victoria in the wake of the July 2000 High Court ruling which appeared to allow single women and lesbians living in Victoria access to IVF treatment. However, the issue was always going to be problematic. Before the results of any guidelines review were even announced there was already a dispute as to whether the supposed condition of 'psychological infertility' could be meaningfully applied to lesbians and many single women. In this climate it seems that the position of lesbians and single women may not have been made sufficiently transparent even if the review had continued. In the event, the Victorian Government may have feared that it would have had to pay too high a political price had the review appeared to be endorsing the claims of single and lesbian women that they be allowed to produce children. Such a development may have placed in doubt the support of two of the three independents upon whom the Government relies in the lower house. However, the issue will clearly not go away. The results of the Catholic Church's challenge to the July 2000 Federal Court ruling will be announced in February 2002. Whatever the judgement made in this case, it will serve to reignite this issue.
Sources The Age 5/9/01 page 3 news item by Annabel Crabb, 'Church appeal on IVF laws criticised' 7/9/01 page 4 news item by Annabel Crabb, 'Seven to judge the right of a singlr woman' 15/11/01 page 3 news item by Gabrielle Costa and Misha Ketchell, 'Door opens to baby help for lesbians' 16/11/01 page 14 editorial, 'The right to know your father' 16/11/01 page 14 letter to the editor by Catherine Hardie, '"Psychological infertility" is an offensive myth' 16/11/01 page 15 comment by Katrina Roberts, 'For a happy family all you need is love' 17/11/01 page 7 (News Extra 21/11/01) comment by Jacqueline Tomlins, 'Psychologically infertile? No, I'm simply gay.' 21/11/01 page 3 news item by Gabrielle Costa, 'Backdown on "psychological infertility"' 21/12/01 page 9 analysis by Steve Dow, 'Two men and a baby: an interesting concept' 25/11/01 page 14 cartoon by Wright.
The Australian 5/1/01 page 14 (Australian Magazine insert), analysis by Jill Rowbotham, 'Single, 40, seeks baby' 5/9/01 page 4 news item by Benjamin Haslem, 'Williams under fire for IVF stance' 6/9/01 page 4 news item by Benjamin Haslem, 'William's tactics on IVF challenge odd: predecessor'
The Herald Sun 14/11/01 page 2 news item by Felicity Dargan, 'New IVF rules to include lesbians: more women will be eligible' 14/11/01 page 2 news item by Felicity Dargan, 'Baby battle is won' 16/11/01 page 25 news item by Felicity Dargan, 'Union hits lesbian changes' 16/11/01 page 25 news item by Fiona Hudson, 'Would-be mum barred' 17/11/01 page 7 news item by John Ferguson and Ashley Gardiner, 'Tougher line on IVF laws' 21/11/01 page 9 news item by Felicity Dargan, 'Bracks drops secret plan for lesbian IVF' 21/11/01 page 18 editorial, 'A community win' 21/11/01 page 19 comment by Steve Price, 'Toy kids not on'
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