Tuesday, 25 September 2007

Lesbian couple sue doctor for extra baby

A lesbian couple, who have three year old twin daughters, are suing Canberra obstetrician, Dr Robert Armellin, for wrongful birth after he supervised the implantation of two embryos instead of one into the birth mother during an IVF procedure.

The women are suing the doctor for the cost of raising the mistakenly implanted second child. The sum includes funds for private school, medical expenses and lost wages.

The mother claimed that certain aspects of pregnancy were extremely stressful to her - for instance, buying a stroller - due to the fact that she was carrying twins.

The mother's partner claimed in court that the couple became so overwhelmed with every day childcare issues that they lost their ability to function as a couple.


Dr Amellin has admitted that a mistake was made in implanting two rather one embryos. There is an issue about whether the mother changed her mind about one instead of two at the last moment before the procedure.

There has been some criticism that the mainstream media has focussed on the couple because they are a lesbian couple rather than a married, heterosexual couple.

The last time a couple sued when a child was wrongly born (due to the failure of clips for a tubal ligation) the case was ultimately thrown out of court by the High Court on the basis that it was a joy to have a child and the positive impact their child had on their lives.

Howard refuses to remove discrimination

At the most recent joint partyroom meeting while Parliament was sitting, MP Warren Entsch called on John Howard to make a quick decision about same sex law reform. Howard refused and said that he would not be making the proposed changes, saying that he was opposed to them.

To recap- The Human Rights and Equal Opportunity Commission stated in a recent report that there were many Federal laws that discriminated against same sex people. The ALP, Greens and democrats all backed the HREOC report. Attorney-General Phillip Ruddock took a submission to Cabinet some weeks ago saying that there should be changes to reflect the report. Some Ministers were reportedly against the changes, including Tony Abbot and Kevin Andrews. With no consensus at Cabinet, it was left to John Howard to decide on behalf of Cabinet...

And now he has refused...

Warren Entsch retires

The "100% heterosexual" MP from Far North Queensland, Warren Entsch, has delivered his valedictory speech in Federal parliament. Warren Entsch recently led a push by backbench coalition MP's to ensure that same sex couples had the same rights as married and heterosexual couples under Commonwealth laws, for example with tax, superannuation and Medicare.

Unfortunately he has been unsuccessful. Describing himself as "I could have done more", Mr Entsch described the push as being one of fundamental human rights.

I do not know what he could have done to persuade John Howard to allow the legislative change to occur.

Mr Entsch was able to build broadbased support for the changes within the partyroom, showing how to achieve practical change.

Vale Warren Entsch. You will be missed.

Tuesday, 18 September 2007

Transgender unsuccessful in getting birth certificate changed

In AB v Registrar of Births, Deaths and Marriages,the applicant who was born male, but had had gender reassignment surgery to female, sought to have the birth certificate details changed from "male" to female".

She had already successfully applied to have her changed name recognised on the birth certificate.

The Registrar refused to allow the change of gender on the certificate, because the Victorian Act required the applicant to be married. The applicant was married but separated.

The applicant applied to the Federal Court on the basis that the Victorian legislation was discriminatory on the basis of her marital status within the meaning of the Commonwealth Sex Discrimination Act. She was unsuccessful.

Justice Heery held that the provision of the Sex Discrimination Act was legislation:



"and not some other form of governmental activity (such as, for example, public education or governmental employment practices) is part of Australia’s discharge of its obligation to legislate as required by the Convention. It is therefore to be construed as prohibiting discrimination against women – treating them less favourably than men – because they are married. The action of the Registrar in the present case had nothing to do with the applicant’s being a woman. Had the applicant been a man, the result of the application would have been the same. "



Comment

One questions why this legislation requires the applicant not to be married.

Given that it takes only one year to pass to be eligible to be divorced, all the applicant had to do to avoid the effects of the legislation was to wait for the year to expire, divorce and then apply- and it should have gone through smoothly.

In Queensland, former Attorney-General Rod Welford ruled that in a case in which I acted, the act of marriage applied to those marrying in Australia only. As my client married outside Australia, she could still obtain the change of gender on the certificate.

Thursday, 6 September 2007

Gay Lebanese man declared refugee

A Lebanese man was recently granted refugee status by the Refugee Review Tribunal because he was gay goes to show that some of the criticism of that tribunal is unwarranted.

The man gave evidence that:
"he came from a very conservative [religious] family who resided in [location], a region renowned for its conservative views. He fears persecution on the ground of belonging to a Particular Social Group, that is being homosexual."

"He has constantly tried to conceal his sexual orientation for fear of retribution by his family and other people, as homosexuality is still not accepted in Lebanon. Those who are accused of being homosexuals are persecuted and considered outcasts. The mere discussion of homosexuality is considered taboo."

"Some people suspect that he is homosexual because of his placid nature. During his military service [for a period of years], he was fearful for his safety and was constantly forced to deny that he was homosexual. Other conscripts used to abuse him mentally and physically but he feared complaining to his superiors."

"At the age of [teen years] he started to feel that he was attracted to other males. But he was denied the opportunity of maintaining a relationship with other males because of fear that he would be discovered."

"At his age as the family expected him to get married he was constantly under pressure to meet girls but he never maintained a serious relationship, hoping that he would have an opportunity to leave Lebanon."

"His adult life was characterised by fear. He was constantly under threat of physical harassment. On a number of occasions he suffered from physical violence by people who suspected that he was homosexual. He was forced to conceal his homosexuality in order to avoid harm."

"He cannot rely on the authorities for protection because in Lebanon homosexuality is not accepted. The police conduct a campaign of rounding up suspected homosexuals."

"He did not come from a privileged social class who has the capacity to enjoy more freedom in Lebanon. He fears being killed by his immediate family and relatives."

"He has told his [family member] in Australia that he is gay . His [family member] has advised him to keep this aspect of his life secret because he is concerned about guarding the family honour. He does not want him to tell his wife and children because they will not allow him to remain living with them."

The Tribunal sought out independent evidence from websites, which talked about how gays are persecuted in Lebanon. Aside from the criminalisation of homosexual acts, gay men in Lebanon were afraid of police. Police used their power against gay men: “It has been reported that a gay man paid a bribe to have any mention of his sexual orientation erased from his criminal record. Extortion of gay men by security agents has also occurred, especially in cruising areas.”

After all this evidence, it was perhaps no surprise when the Tribunal decided that the man was a refugee and was entitled to a protection visa.

This decision is not an isolated one, but it is clear that some cases are rejected, and that it is essential if applying to be a refugee on the grounds of being LGBT, it is essential to be properly prepared, with a good migration agent. The success rate of matters in the Refugee Review Tribunal is currently only 30%.

Howard to decide?

It's been about two weeks now, but still there has been no news as to what the Federal Government is going to do to respond to the Human Rights and Equal Opportunity Commission report about how Commonwealth law discriminates against same sex couples on financial and personal affairs.

About two weeks ago, Federal Cabinet (which was reportedly split on the issue) decided that the PM could decide whether or not the Government would make changes.

Attorney-General Phillip Ruddock apparently came to Cabinet supporting a comprehensive change, but others, such as Tony Abbott and Kevin Andrews opposed it, on the grounds that the time was not right.

The day after the Cabinet meeting, Howard went to meet members of the anti-gay sect the Exclusive Brethren, one of whom was a prominent donor to the PM's election campaign.

In the meantime, Labor and the minor parties support the changes.