Since Victoria passed the first Australian statute regulating assisted reproductive technologies (ART) in 1984 the law in this state has been regarded as more prescriptive than in other jurisdictions. The current statute excludes many women from parenthood and breaches federal discrimination law. Recently, the Brumby Government introduced the Assisted Reproductive Treatment Bill 2008 into the Parliament to provide a new regulatory framework controlling the ART services. This initiative is well overdue as the law is inflexible and lags behind the fast moving developments in reproductive technology. Furthermore, the failure of the Victorian law to address the needs and challenges of a pluralistic society has led to a growth in reproductive tourism and those who don't qualify for treatment can evade the law by travelling interstate or overseas. Reproductive tourism maximises reproductive choice but only for those who can afford to travel to more liberal jurisdictions.
The Bill expands reproductive choice by dismantling discriminatory eligibility rules and introducing new altruistic surrogacy laws. However, in order to protect the interests of children born through ART, the Bill also limits reproductive choice with the introduction of a 'presumption against treatment' condition. These changes are likely to provoke vigorous public debate.
The Bill enables more women to have access to ART who for various reasons need these procedures to create a family. This reform endorses recommendations made by the Victorian Law Reform Commission who found, after a review of the research, that parents' sexuality and marital status are not key determinants of children's best interests; but that the quality of relationships and processes within families play a more significant role in promoting the best interests of children. If the Bill is passed, lesbian and single women will have access to legal, safe and affordable infertility treatment in Victoria for the first time.
The Bill also adds a 'presumption against treatment' condition to the eligibility conditions for ART treatment. A counsellor must verify that a criminal records check in relation to both the woman and her partner has been sighted and considered during the mandatory counselling sessions. As well, permission for a child protection check must be given by those seeking treatment. If a criminal records check reveals that the woman or her partner have been proved for a sexual office; or convicted for a violent offence; or if a child protection order has been made removing a child from the care of the woman or her partner, it will be a criminal offence for an ART clinic to treat the woman. If a woman is refused treatment because of the 'presumption against treatment' or because the doctor or counsellor have reason to believe a child born through ART would be at risk of abuse or neglect, an application may be made to the newly created Patient Review Panel.
The primary role of the new Patient Review Panel is to determine ART applications including 'presumption against treatment' cases and applications for altruistic surrogacy arrangements. The proceedings are not open to the public and are to be conducted with minimum formality. Applicants will not have a right to be legally represented without leave from the Panel. Within 14 days after the hearing, the Panel must give the applicant written reasons for its decision and all decisions are reviewable by the Victorian Council and Administrative Tribunal (VCAT).
Currently, altruistic surrogacy (where the surrogate mother receives no payment or only reimbursement for reasonable and relevant expenses) is not expressly prohibited in Victoria but a surrogacy contract is legally unenforceable. In reality it is virtually impossible to make lawful surrogacy arrangements in Victoria and no clinic offers these services today. The Bill outlaws commercial surrogacy, but provides a new pathway for altruistic surrogacy arrangements. All parties in the process including the surrogate mother must comply with the standard access to treatment rules and other requirements The Bill recognises the importance of the surrogate mother's role during the pregnancy and the possibility that she may have some parenting role after the child is born. All applications for surrogacy arrangement must be approved by the Patient Review Panel.
The Patient Review Panel provides a new system for dealing with complex sensitive issues which is independent of clinicians and ART clinics. At this stage, it is not clear how much weight will be given to an applicant woman or couple's views about their capacities to parent a child? Nor is it clear if a clinician could refuse to provide a disabled patient with infertility treatment on the ground of potential child neglect? These issues will be debated. Some will express concerns about transparency with the proceedings taking place behind closed doors. However, it could be said that people may be unfairly deterred from seeking infertility treatment if their past history would be subjected to public exposure. Most importantly, the avenue for independent administrative review will include a new accountability element into this complex and difficult decision making process.
The question of whether or not a right to reproduce exists under Australian law is debateable. However, it is generally agreed that the nature of the reproductive interest is more accurately described as a freedom or liberty rather than a right and that this freedom constrains society from interfering with the exercise of reproductive choice without sufficient justification. Traditionally, the freedom to establish a family is regarded as being in the private domain and the hurdle for justifying state interference is high. However, when reproductive technologies are needed to establish a family it may be easier to justify state intrusion if the welfare of a child to be born is at risk on the grounds of public interest. It could even be argued that the state has a special responsibility to protect a potential child's welfare in these cases because it has facilitated the existence of that child? However, if we accept that the state is justified in imposing 'fitness for parenting' conditions on people seeking ART treatment, it may be harder to argue against involuntary sterilisation or compulsory contraception for various fertile individuals. For example, should people who are known child abusers be allowed to have more children? The issue of treating infertile people differently from fertile people needs to be addressed in this debate.