Written by Julia Day

In LAW342 (Medico-Legal Issues) which I coordinated last year, the class spent a lot of time discussing legal issues relating to Assisted Reproductive Technology (ART). For those of you who are unfamiliar with ART, it relates to human reproduction which requires medical intervention or assistance. Some types of ART include IVF treatments, artificial insemination and surrogacy. ART was originally designed to help heterosexual married couples create families. The use of ART quickly expanded though to include people who did not fit into this traditional category.

Julia’s youngest son

For many people conception of children is emotionally and physically taxing. When people need to seek out ART these difficulties may also be coupled with significant financial strain in terms of the costs associated with treatments. When children are born as a result of ART therapies there are also significant issues relating to parentage, identity and access to information.

Some of the issues we discussed in LAW342 included should ART be used to achieve sex selection or to help prevent the passing on of genetic conditions? We also discussed whether or not there should be any restrictions on when ART can be used. For example, if one partner dies- should their spouse be able to retrieve their gametes in order to conceive a child?

Very recently the Victorian parliament introduced a series of recommended amendments to the Assisted Reproductive Treatment Act (Vic). These amendments are many and varied but one of the amendments seeks to prevent women being discriminated on the basis of their marital status. This relates to allowing separated (but not yet divorced) women from seeking IVF without their former partner’s permission. In other words if a separated (but not yet divorced) woman decides they want to seek IVF treatment they should be able to do so without their husband’s consent. This situation of course is different if the gametes are donated by the husband. In that case consent would still be required.

The rationale for the original provisions in the Assisted Reproductive Treatment Act (Vic and in other jurisdictions) are the parentage, legal and financial implications relating to the conception of children. As a general rule when a married couple conceive a child using ART procedures it is presumed the legal husband is the father of the child/ren. This is notwithstanding the fact that there may be an anonymous or a known sperm donation involved. This principle is used in order to protect both the legal husbands’ rights as a father and to protect a known or anonymous sperm donor from possible legal and financial liability associated with the birth of the child.  So the proposed amendments to the Assisted Reproductive Treatment Act (Vic) would clarify that if a separated woman used donated sperm to conceive a child, the legal husband would not be classified as the father.

In my opinion these are fundamentally sensible and practical amendments. They will hopefully take pressure off women who for biological or other reasons do not want to wait until  their divorce is finalised to start ART.