The presumptions against treatment mean that a woman and her partner (if any) must undergo police checks and child protection order checks before accessing treatment in Victoria.
Note: The requirement for registration (and therefore to adhere to the conditions for registration) does not apply to assisted insemination provided by a health professional or assisted insemination provided other than for fee or reward. The current legislation, however, requires those health professionals wishing to provide assisted insemination to be ‘approved’ by the Minister, who may place conditions upon them.
In Australia, some clinics and or laws previously restricted access to ART to women who are married or in heterosexual de facto relationships. In two separate challenges in South Australia and Victoria, laws that restricted access in such a way, were held to contravene section 22 of the Sex Discrimination Act 1984 (Cth). The state laws were declared invalid as s 109 of the Australian Constitution provides that ‘when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. This meant that single women, for example, could access treatment.
In states or territories without legislation, it is still likely to be unlawful to deny treatment based upon a woman’s marital status or sexuality pursuant to Commonwealth and state anti-discrimination laws,. However, a state/territory may exclude ART from their anti-discrimination laws–for example, the Northern Territory Anti-Discrimination Act 1992 prevents discrimination in relation to services but states that such provisions do not apply to the carrying out of an ‘artificial fertilisation procedure’ (which includes both AI and IVF procedures.
References [ + ]
|1.||↑||Assisted Reproductive Treatment Act 2008 (Vic), sections 10-15.|
|2.||↑||See Assisted Reproductive Treatment Act 2008 (Vic), section 14 regarding the presumptions against treatment, and sections 82-98 re patient review panel and appeals process.|
|3.||↑||Human Reproductive Technology Act 1991 (WA), s 4|
|4.||↑||Human Reproductive Technology Act 1991 (WA), s 23|
|5.||↑||Assisted Reproductive Treatment Act 1988 (SA), s 9|
|6.||↑||Assisted Reproductive Treatment Regulations 2010 (SA), Cl 8|
|7.||↑||Assisted Reproductive Treatment Act 1988 (SA) s9(1)(c)|
|8.||↑||For further discussion of this point see Sonia Allan ‘Gate-keeping Parenthood: The Law and Access to Assisted Reproductive Treatment’ (2012) 2(3) Family Law Review 149.|
|9.||↑||New South Wales Department of Health, Consultation Draft Assisted Reproductive Technology Bill 2003 Information Guide New South Wales (2003) at [4.3].|
|10.||↑||Pearce v South Australian Health Commission (1996) 66 SASR 486|
|11.||↑||McBain v State of Victoria  FCA 1009, (2000) EOC 93-102.|
|12.||↑||For example see Anti-Discrimination Act 1977 (NSW), s 47; QFG v JM (1997) EOC 92-902; BC9705768; JM v QFG  QCA 228;  1 Qd R 373; (2000) EOC 93-047|
|13.||↑||Anti-Discrimination Act 1992 (NT), s 4(8).|