Judge declares parts of state legislation on donor sperm use ‘invalid and outdated’

The Victorian government is introducing draft laws to parliament on Tuesday to remove a requirement that women seek approval from former partners if they want to undergo IVF with donor sperm.

“The choices that a woman makes about her body should not be determined by a former spouse,” said the state health minister, Jenny Mikakos, in a statement.

The legal change is in response to a case last year in which a Melbourne reproductive clinic told a woman that under Victoria’s Assisted Reproductive Treatment Act, she first needed her estranged husband’s consent.

The 45-year-old woman, who cannot be named for legal reasons, had been separated and living apart from her husband since late 2017.

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The matter was urgent because patients were generally able to use their own eggs in an IVF procedure only when they are younger than 46.

The woman took her case to the federal court and the judge ruled in her favour.

Lawyers from Maurice Blackburn, who represented the woman, relied on Victoria’s Charter of Human Rights and Responsibilities Act to argue she had a right not to be discriminated against based on her marital status.

During the court case, the clinic, Melbourne IVF, said it had no objection to offering the treatment to the woman without her husband’s consent if the court found it was legal to do so.

Justice John Griffiths ordered that the woman could undergo IVF without consent and declared parts of the Victorian laws were “invalid and inoperable”.

Victorian Assisted Reproductive Treatment Authority chief executive Louise Johnson said divorce proceedings could take a long period of time, which some women trying to conceive did not have.

“I recently had a phone call from a clinic telling me that a single woman, who was going through a divorce and separated, was considering travelling interstate for treatment,” Johnson said.

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“When it comes to fertility treatment, time matters. A year can make a difference to the quality of eggs if you’re a women in your late 30s, early 40s. This can impact on their chance of success.”

Jennifer Kanis, a spokeswoman for Maurice Blackburn, praised moves to modernise the outdated law.

“Victorian women should not have their former partner control their reproductive choices,” she said.

If the laws are passed, IVF clinics will have to make changes to paperwork.

In April last year, the Victorian government announced a review of the state’s IVF laws.