In 2000, a Federal Court found, in the case of McBain v State of Victoria, that it was inconsistent with Commonwealth anti-discrimination law to allow only married women or de facto heterosexual couples to access reproductive treatments like IVF and artificial insemination. That finding implied that women who are single or in a non-heterosexual relationship cannot be automatically excluded from accessing medical treatments to help them have a child.
The Victorian Law Reform Commission has recently reviewed Victoria’s Infertility Treatment Act 1995, and released its recommendations on who should be considered legally eligible for medically assisted reproduction. Controversial as the initial McBain decision was, the Commission’s recommendations are perhaps even more so. While the Federal Court upheld the view that it is clinical infertility, and not marital status, that is the relevant factor in deciding eligibility for assisted reproduction, the Victorian Commission’s view is that not even infertility should be a deciding factor.
Any woman, whether married, single, or in a non-heterosexual relationship, would be eligible for medically assisted reproductive treatment, as long as the doctor is satisfied that without treatment she is 'unlikely to become pregnant in the circumstances in which she finds herself'. Those circumstances can include her being medically infertile, but also her being medically fertile but not likely to conceive with a male.
In the context of calls for uniformity between the states and territories on fertility laws, the importance of these recommendations extends beyond Victoria, to other states and territories.
A far-reaching social reform such as this needs to be inclusively debated and soundly justified. Despite the Commission having consulted widely, it has left some significant gaps in its case for extending legal access to medically fertile women. Some of those gaps relate to the logic and clarity of the arguments it puts forward. But the most problematic gap resides in the Commission’s failure to address an issue that is critical and fundamental to the whole question of access to medical techniques, and pivotal to all the other arguments the Commission discusses.
Both non-discrimination and children's interests are certainly important in deciding who should have access to medically assisted reproductive procedures. But these considerations become academic if it is simply not within the proper purposes of medicine to provide medical treatments or apply medical techniques to people who do not have medical or clinical conditions. Not every use of medical procedures is a justifiable use