The tangled web of sex, rights and IVF

Oh what tangled webs we weave when we decide to roll back human rights.

This story is complicated but bear with it because it will assist in understanding further developments in the IVF debate.

On Thursday, the Attorney-General Daryl Williams produced the legislation the Government claimed would allow States to discriminate against single women in IVF and artificial insemination treatment.

The Current Law:

* Section 22 of the Sex Discrimination Act (SDA) bans marital status discrimination in the provision of services.

* The SDA defines ”marital status” as ”the status or condition of being single, married, married but living separate and apart from one’s spouse, divorced, widowed or the de facto spouse of another person”

* The SDA defines de facto as two people of the opposite sex who live together ”on a ‘bona fide’ domestic basis although not legally married”.

Williams’ First Take:

Easy. His amendment simply said that nothing in section 22 (the ban on marital status discrimination) made it unlawful to ”refuse a person access to or restrict a person’s access to assisted reproductive technology services (ARTs) if that refusal or restriction is on the ground of the person’s marital status” and is authorised by a State or territory law.

Williams was simply vacating all Commonwealth protection in the area of marital status discrimination for ART. What that meant, of course, is that a State could ban de facto couples or ban de facto couples who hadn’t been living together for 5, 10 or even 20 years (at least one State has tried to limit access only to married couples and been frustrated because of the SDA). A State could also ban married couples for that matter or even provide that only lesbians could access ART.

There are two extraordinary aspects to Williams’ actions.

First, he did not tell his Coalition colleagues that he planned to remove protection against all forms of marital status discrimination, not just discrimination against single women. At no time did he or the Government generally disclose to the public that this was the plan – instead, Howard made it explicit that the action was motivated by the ”right” of a child to a mother and father.

Second, how on earth did Williams think he’d get away with it? The outcry when yours truly broke the story in the Herald on Friday saw Howard act that day to make Williams back down. (To be fair to Williams, he was alone in raising doubts about Howard’s plan in the Cabinet meeting that decided on it.)

Why Did Williams Do It?

Neither Mr Williams nor the Attorney-General’s department are stupid. Removing the protection from de factos was not an ”unintended consequence” or a drafting error. Indeed, Williams made that very clear in his comments to me the day before Howard made him back down.

He said then that his amendment was designed to hand back the power to restrict or deny access to IVF and artificial insemination to the States. It was ”consistent with the States’ responsibilities in relation to the regulation of the provision of medical care and treatment – that they be permitted to legislate in the area of ARTs as they consider appropriate and in a manner which reflects the views of the community”.

I believe that the REASON he took so stark an approach, which removed de factos as well as singles from the protection of Federal discrimination law is for the very reason that two States CURRENTLY discriminate against de factos.

South Australia and Western Australia restrict access to de factos who have lived together for 5 years. The SDA, in contrast, merely requires that they live together on a bona fide domestic basis. Neither SA or WA require that married couples have lived together for five years.

Thus, a couple might have never lived together, been married for a day and get access. De factos who have lived together for less than five years are out, as are de factos who, say, separated after five years then got back together two years later.

If Williams had followed the Government’s public rationale for amending the SDA, he would have granted an exemption from section 22 to States who discriminated only against single women.

He didn’t because then he would have to define what a de facto relationship is and either override the SA and WA laws or allow all States to require a five-years living together period. The WA and SA regimes are considered certain to be overridden when and if a challenge is mounted. So far no-one has challenged it, preferring instead to get married under protest or go interstate for treatment.

Messy, hey? As Labor’s shadow Attorney-General Robert McClelland told me yesterday, ”Williams is in a double bind. If he relies on the Federal definition of de facto, he’ll override the SA and WA laws. If he defines de facto as living together for five years, he is discriminating against de factos.”


Where that does leave the claim of Williams and the Prime Minister on Friday that NO State or Territory currently discriminates against defactos? Pretty sick, I’d say. Williams, in his backdown press release, was careful enough to admit that some States defined de factos differently but claimed that they did not do so ”in unreasonably restrictive ways”. Note he was careful not to claim that all State laws complied with the SDA on de factos. No wonder everyone is waiting with bated breath for Williams next attempt. Believe me, Liberal women won’t give his legislation a tick sight unseen as they so foolishly did last time. And perhaps, just perhaps, the penny will finally drop on all those supporters of Howard on this one that he’s not on about the rights of the child at all but the right of the States to discriminate as they wish, regardless of whether the child will get a father or not.

I wrote to Williams today with some questions:

August 21, 2000

Daryl Williams QC,



Dear Sir,


I refer to your press release of August 18 in which you state that no State currently discriminates against de facto couples in the provision of Assisted Reproductive Technology.

Were you aware when making this statement that both the South Australian and Western Australian laws and/or codes of practice restrict access to de facto couples who have lived together for five years and place no such condition on married couples?

Is it your opinion that such restrictions do not amount to a breach of the SDA and, if so, what is the basis of that opinion?

Given that you have now decided to propose an amendment to your proposed amendment to the SDA ”to give effect to its commitment in relation to ART services for women in a defacto relationship with a man”, do you propose to define ”de facto” for the purpose of the SDA exemption?

If so, do you intend to specify the length of time in which a defacto couple need to live together to qualify for non-discrimination protection?

If so, what time will be nominated and do you intend to impose a similar condition for married couples – ie that they must have lived together for at least five years?





Late today, Williams’ office replied that the Government’s position was that even under his fresh amendment, the WA and SA restrictions should stand. Therefore, it seems, all States will be able to discriminate against de facto couples by requiring of them, not of married couples, to have lived together for five years. After all the denials, the fact remains that de factos have now been drawn into the discrimination net.

REPLY TO NAME WITHHELD (Friday’s diary):

DELL HOREY: I have to respond to ”Name Withheld” in case no one else does. I wouldn’t like to see her arguments unchallenged.

As I see it Name Withheld makes major assumptions when she asks why on earth do you [lesbians] want to biologically have your own child?

It seems that she believes that lesbian women are fundamentally different to heterosexual women and not only in regard to their sexuality. This must follow if she believes that the desire (or urge) of lesbians to be mothers is not the same as that which drives heterosexual women.

I am not sure that there is any evidence that would support this belief, nor does it seems rational that such a desire is solely related to sexuality. If it were to hold true, it would suggest that the stronger your sex drive the greater would be your desire to have children. Is there any proof of this? I dont think so.

Advice to lesbians to foster or adopt should hold equally true for infertile heterosexual couples and was certainly the only option prior to IVF when there was no possibility of biological children.

But like the introduction of a lot of new technologies, along with all the problems, we now have new choices. We no longer have to walk everywhere, we can drive (or go by train or plane). Medicines have saved a lot of lives and improved the quality of many others. We can adopt these new technologies and learn how to use them wisely, though admittedly that can take some time.

However, I can’t see how discrimination, based on the direct involvement of a male partner actually helps anyone. I don’t see how men are made redundant by IVF – surely the sperm donors have made a choice too!

The test of our commitment to human rights must be our willingness to see that they apply to all people not only those like ourselves or those that we like.

I am heterosexual, fertile and married and I dont believe that I would ever (access) use IVF services. However, I will never need to test my belief because I will never be in the situation to need to. But how I possibly think it is OK for me to veto the choices of others.

Most of the lesbian parents that I know were married and only after some struggle came to terms with their sexuality. I think that it is a vast improvement in our society that gradually homosexual people are able to live without the horrors troubled previous generations.

I don’t believe that homosexuals’ whole identity and their rights as citizens be determined by a small part of them.

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