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Whose Consent Is Required for IVF When a Marriage Breaks Down?: Case Note on EHT18 v. Melbourne IVF

Whose Consent Is Required for IVF When a Marriage Breaks Down?: Case Note on EHT18 v. Melbourne IVF

Andrew Lu

Andrew Lu

April 20, 2020 11:56 AM

In the recent case of EHT18 v Melbourne IVF,[1] the Federal Court made declaratory orders to allow the applicant, EHT18, to undergo in vitro fertilisation (IVF) without the consent of her husband following the breakdown of her marriage.

The facts

The applicant sought orders from the court in order to permit her to undergo IVF using her own eggs and donor sperm without the consent of her husband. The applicant, a married woman in her mid-40s, had been separated and living apart from her husband since late 2017. The applicant wished to have a child and raise the child on her own. She did not want her estranged husband to have any parental responsibilities for the child. The applicant informed the court that she intended to file for divorce as soon as the required 12-month separation period had passed.

The respondent clinic refused to provide IVF treatment to the applicant without her husband’s consent. Due to the applicant’s age there was some urgency in the woman undergoing the IVF procedure and she sought relief from the court.

The law

The respondent relied on s 10(1)(a) of the Assisted Reproductive Treatment Act 2008 (Vic) (the Act) to refuse to provide IVF to the applicant without her husband’s consent. Under s 10 of the Act:

(1) A woman may undergo a treatment procedure only if—

(a) the woman and her partner, if any, have consented, in the prescribed form, to the carrying out of a procedure of that kind …

Under the Act “partner” is defined to mean “the person’s spouse” or “a person who lives with the first person on a genuine domestic basis, irrespective of gender”.[2] It is a criminal offence for a person to provide assisted reproductive treatment unless they are satisfied that all the requirements in Pt 2 Divs 2 (including s 10(1)(a)), 3 and 4 of the Act have been met.[3]

Also relevant to this matter is s 22 of the Sex Discrimination Act 1984 (Cth) (SD Act) which makes it unlawful for a person who provides goods or services to discriminate against another person inter alia on the ground of the person’s marital or relationship status. Section 6(1) and (2) of the SD Act set out the concepts of direct and indirect discrimination on the ground of marital or relationship status.

The main issues to be decided by the court were:

• the meaning of “partner” in s 10(1)(a) of the Act
• whether, if the respondent’s construction of the word partner was accepted, this was inconsistent with s 22 of the SD Act and invalid pursuant to s 109 of the Commonwealth of Australia Constitution Act (the Constitution)

The meaning of “partner” in s 10(1)(a) of the Act

The applicant submitted that the Act should be interpreted “so as to not require a married woman who is separated from and living apart from her husband to obtain his consent to her undergoing IVF treatment”.[4] The applicant submitted that the appropriate construction of s 10(1)(a) of the Act is that consent is required from a partner with whom the woman is seeking treatment.[5] Amongst other things, the applicant argued that it was parliament’s intention in requiring consent, to require the consent of a person living with the person on a domestic basis with whom the woman is seeking treatment.[6] She argued that to require consent of a former partner in circumstances where a woman is married but separated infringes upon a woman’s right to have a child and is inconsistent with the Charter of Human Rights and Responsibilities Act 2006 (Vic).[7]

The applicant submitted that the presumptions of paternity under the Act in relation to there being a legal marriage are rebuttable.[8] The applicant also raised the argument that consent should not be required where the former partner would not be involved in, or responsible for, the child. In fact, if consent were obtained from her estranged husband this would raise the presumption that her husband was the father of the child pursuant to the Act.

The respondent played a limited role in the proceeding, and this was largely confined to the issue of the construction of s 10(1)(a) of the Act. The respondent referred to the definition of “spouse” in s 2CA of the Acts Interpretation Act 1901 (Cth) which provides that “a person is the spouse of another person (whether of the same sex or a different sex) if the person is legally married to the other person”. The respondent’s legal representative accepted during the hearing that it was difficult to see how a definition in Commonwealth legislation could have any relevance to the construction of a term in state legislation.

Amici curiae were requested to assist the court in the role of contradictor and they supported the respondent’s construction of the term “partner”. They submitted that the term “partner” is used throughout the Act and to change its meaning would have ramifications that would sit uncomfortably with the other provisions.

Griffiths J rejected the applicant’s submissions for the following reasons:
• There is no uncertainty or ambiguity in the meaning of the term “partner” in the Act.
• The term “spouse”, defined in s 3 of the Act, should be given its ordinary meaning which is a person who is married to another person (whether living together or not).
• To adopt the construction that s 10(1)(a) of the Act required the consent of a partner with whom the woman is seeking treatment involves reading in words of qualification or limitation which would not sit comfortably with the language that has been used elsewhere in the Act.

• The term “partner” is used throughout the Act in various contexts, and the applicant’s arguments as to interpretation would create difficulty as to what extent the applicant’s construction of s 10(1)(a) should be read into other provisions of the Act.

• Although the Act encroaches upon human rights and freedoms which are set out in the Charter, the legislation reflects the parliament’s choice as to how competing human rights and freedoms should be balanced.

Section 109 of the Constitution

The applicant submitted that in the event that her construction of the meaning of s 10(1)(a) of the Act was not accepted, then s 10(1)(a) of the Act discriminates against her on the basis of her marital status and offends s 6(1) and (2) of the SD Act. If the respondent’s construction was to be accepted, she would be treated less favourably than a single woman or a woman who is the de facto partner of another person but is living separately and apart.[9]

The question that the court considered here was whether, in applying the respondent’s construction of s 10(1)(a), this was inconsistent with s 22 of the SD Act. This attracts the operation of s 109 of the Constitution and would render s 10(1)(a) of the Act inoperative to the extent of the inconsistency with s 22 of the SD Act.

Griffiths J held that the requirement in s 10(1)(a) of the Act that the applicant obtain the consent of her husband from whom she is separated amounted to discrimination on the ground of marital or relationship status within the meaning of s 22 of the SD Act. Griffiths J compared the operation of s 10(1)(a) of the Act to a woman who is separated and living separately from her de facto partner with the applicant’s situation, ie, a married woman separated and living separately from her husband to demonstrate that s 10(1)(a) treats the applicant less favourably. As the applicant has a spouse she must obtain the consent of her husband notwithstanding that they are living separately and apart and have done so for almost a year. If instead of being married, the applicant had been in a de facto relationship with the same man, and she then separated from him for such a period, it could no longer be said that she was living with him as a couple on a genuine domestic basis and she would not be required to obtain his consent. Griffiths J described the discrimination as both “stark and direct”.[10]

Griffiths J made the following declaratory orders:

• The applicant may undergo a “treatment procedure” as defined in the Act without the consent of her husband.
• Section 10(1)(a) of the Act is invalid and inoperative to the extent that it requires the applicant to obtain her estranged husband’s consent to the applicant undergoing a “treatment procedure” as defined in that Act.

Discussion

This decision addresses the discrimination that arose under the Act in relation to the applicant who was living separately and apart from her husband but had not yet commenced divorce proceedings even though she intended to do so once the minimum separation period had been served. If the applicant’s marital and relationship status had been different, she would not have required the consent of her husband in order to undergo IVF.

Consent is an important element of theAct, as theAct in many circumstances seeks to create presumptions of paternity that are reliant upon a person’s relationship status rather than biology. Griffiths J limited his decision to the applicant’s circumstances and did not make provision for broader relief to all women who may be living separately and apart from their husbands. This constrains the potential application of this decision to future situations where married women in analogous circumstances may be faced with similar restrictions to their obtaining consent to undergo assisted reproductive treatment procedures. It was important that in this case the applicant gave undertakings to the court that she would not seek to register her estranged husband as the parent of the child.

Footnotes

1. EHT18 v Melbourne IVF [2018] FCA 1421; BC201808729.

2. Assisted Reproductive Treatment Act 2008 (Vic), s 3.

3. Above, s 7.

4. Above n 1, at [37].

5. Above n 1, at [41].

6. Above n 1, at [45].

7. Above n 1, at [46].

8. Above n 1, at [43].

9. Above n 1, at [50].

10. Above n 1, at [108].


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