Federal court finds Victorian law discriminated against the woman on the basis of her marital status

A Victorian woman will not need her estranged husband’s permission to undergo IVF using donor sperm following a ruling by the federal court in Melbourne.

The court heard that the woman, who cannot be named, has been separated and living apart from her husband since late 2017. The woman wanted to try to conceive through IVF using donor sperm, but was told by a Melbourne reproductive clinic that under Victoria’s Assisted Reproductive Treatment Act she first needed her husband’s consent.

The matter was urgent because the woman is 45 and patients are generally only able to use their own eggs in an IVF procedure when they are younger than 46. The woman said she recently underwent a procedure to collect her eggs and freeze them for later use after she was divorced, but was told the prospect of a successful pregnancy using frozen eggs was lower than IVF using fresh eggs. The clinic told her that with her husband’s consent, she could begin a round of treatment later in September.

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

The woman was represented by law firm Maurice Blackburn, who relied on Victoria’s Charter of Human Rights and Responsibilities Act to argue she had a right to equality. The charter states the right of every person “to enjoy his or her human rights without discrimination”. Her lawyers also argued that requiring her husband’s consent was invalid as it was inconsistent with federal sex discrimination laws.

Under the Assisted Reproductive Treatment Act, there is a guiding principle that “the welfare and interests of persons born or to be born as a result of treatment procedures are paramount”. But the court heard that this should not justify requiring the consent of a former partner who, without such consent, would have no responsibility for the child anyway.

Federal court Justice John Griffiths ordered that the woman could undergo IVF without consent and that the Assisted Reproductive Treatment Act discriminated against her on the basis of her marital status. He declared that part of the law “invalid and inoperable”.

In his judgment published on Friday, Griffiths said nothing in his ruling was intended to harm the reputation of the woman’s estranged husband and that the decision would not directly affect his legal rights, and that he would not be imputed with any parental rights, obligations or responsibilities.

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The Maurice Blackburn social justice manager, Jennifer Kanis, said the woman’s case had exposed a flaw in the state’s regulations around IVF treatment.

“A separated woman should be able to make her own decisions about IVF treatment. It’s absurd to require her to seek the permission of her estranged husband when a sperm donor will be used,” Kanis said.

“Our client is very pleased with today’s outcome, which will mean that she can undergo IVF to try and have a baby, just like any other single woman in Victoria. This decision also paves the way for other Victorian women in similar circumstances to not have their former partner control their reproductive choices.”

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