When the exemptions to the Sex Discrimination Act ended on 1 August 2016, Jay Weatherill had a problem. This is because it is an offence in South Australia for an IVF doctor to help single people and gay and lesbian couples undertake surrogacy, and in some cases lesbian couples, some single women and all single men undertake IVF: but if doctors continued to refuse to do so they were acting unlawfully under the federal Sex Discrimination Act.
In simple constitutional terms, if there are conflicting federal and state laws, the federal laws overrule the state laws to the extent of the inconsistency. A recent example was seen in the High Court in the equal marriage case.
Something had to give. The obvious thing was to change South Australian law to get rid of discrimination on IVF and surrogacy so that singles and LGBTI couples could access both. And this is what the Weatherill government sought to do. First up it held an inquiry, well in advance of the end of the exemption, run by the law reform institute seeking to identify how the law discriminated against LGBTI couples- and how to change the law.
I took part in that inquiry and submitted that discrimination in IVF and surrogacy should end for LGBTI couples and single people.
The inquiry recommended an end to discrimination.
Then the government introduced an omnibus bill to get rid of the discrimination.
Then things did not go exactly according to plan.
The first thing the government did was to blink. It decided to split the first bill, so that the changes to IVF law and surrogacy were dealt with in a separate, later bill.
The second thing that happened was that it got to the Upper House - the Legislative Council- where the government does not have the numbers. Amendments made at the behest of Families First made major changes to the legislation, and provide a forerunner to what might happen with marriage law reform:
I have acted for single women who have become mums through surrogacy. My clients have included cancer survivors and women who were born with a uterus.
It is expected that the laws will pass the Lower House- the House of Assembly- any day.
It is likely that the laws continue to fail the test under the Sex Discrimination Act and therefore:
In a similar case, Dr McBain, a Victorian IVF doctor, took the Victorian government to court when he found that he was not allowed to provide treatment to a single woman, because Victoria's IVF laws prevented him from doing so. He said that the Sex Discrimination Act overrode the Victorian law. He also won.
Do we really need to have a repeat?
In simple constitutional terms, if there are conflicting federal and state laws, the federal laws overrule the state laws to the extent of the inconsistency. A recent example was seen in the High Court in the equal marriage case.
Something had to give. The obvious thing was to change South Australian law to get rid of discrimination on IVF and surrogacy so that singles and LGBTI couples could access both. And this is what the Weatherill government sought to do. First up it held an inquiry, well in advance of the end of the exemption, run by the law reform institute seeking to identify how the law discriminated against LGBTI couples- and how to change the law.
I took part in that inquiry and submitted that discrimination in IVF and surrogacy should end for LGBTI couples and single people.
The inquiry recommended an end to discrimination.
Then the government introduced an omnibus bill to get rid of the discrimination.
Then things did not go exactly according to plan.
The first thing the government did was to blink. It decided to split the first bill, so that the changes to IVF law and surrogacy were dealt with in a separate, later bill.
The second thing that happened was that it got to the Upper House - the Legislative Council- where the government does not have the numbers. Amendments made at the behest of Families First made major changes to the legislation, and provide a forerunner to what might happen with marriage law reform:
- IVF doctors could object to providing ART or surrogacy to singles or LGBTI couples- but if they did so they would have to refer the patients on to someone else, and the doctors would have to be on a public register. My view is that very few doctors will want to be on that public register, named and shamed, as it is likely to be the death knell of their practice- but time will tell.
- while single people could access IVF, as well as LGBTI couples, this meant in effect only single women. This is because the surrogacy laws would be extended only to LGBTI couples. Single men and women need not apply. Therefore single women could receive ART assistance (assuming the doctor did not object) but single men (assuming they were not transmen seeking to become pregnant) , who of necessity needed to rely on surrogacy- could not.
I have acted for single women who have become mums through surrogacy. My clients have included cancer survivors and women who were born with a uterus.
It is expected that the laws will pass the Lower House- the House of Assembly- any day.
It is likely that the laws continue to fail the test under the Sex Discrimination Act and therefore:
- any doctor who refuses to provide treatment, becoming a registered objector, is in fact acting unlawfully under the Sex Discrimination Act;
- and doctor who refuses to assist a single man or a single woman undertake surrogacy is again acting unlawfully under the Sex Discrimination Act.
In a similar case, Dr McBain, a Victorian IVF doctor, took the Victorian government to court when he found that he was not allowed to provide treatment to a single woman, because Victoria's IVF laws prevented him from doing so. He said that the Sex Discrimination Act overrode the Victorian law. He also won.
Do we really need to have a repeat?
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