The ART of Legislating Against Parenthood

This is a cheat’s way of blogging: posting a post that was not written for a blog.

I had to write a formal piece about IVF so did this about our Assisted Reproductive Treatment Act. It is written for an audience who is not familiar with ART. Still, I thought it useful those in other states and internationally should see what some governments are capable of doing. Note: Bernie Finn is about as close to what we have to a Palin-esque, Christian fundamental on our parliament. His four children suggest he and his wife have not experienced infertility.

Feel free to comment.

***

Imagine that you needed government and police permission to become a parent in Victoria. This is now the case for thousands of people every year.

In an act of discrimination against those suffering from a medical condition, people need to prove they are neither violent or have a history of child abuse. The new Assisted Reproductive Treatment Act with one simple requirement has highlighted a lack of understanding about infertility and its requirements among Victorian members of parliament. It also recalls past instances of where government has legislated over who is fit to parent. Now all women and their partners who attempt to conceive a child in Victoria with Assisted Reproductive Technology (ART) are required to submit to mandatory child protection and police checks.

ART in its various forms including in vitro fertilization (IVF) has been available since 1978.

Assisted reproduction is a reality for an increasing number of Victorians. It is their only means to become parents. This situation has led to the indignity of infertile people being mentioned in the same breath as paedophiles. These unsavoury links were made by the very politicians who shaped the legislation.

Today, reproductive rights mean more than education, prevention and termination of fertility. For many, they now encompass the individual’s right to become parents. By mandating child protection and police checks, legislation denies that all women and couples have the intellectual and moral capacity to make decisions about their own fertility.

Section 14 of the Act originated with Victorian Law Reform Commission recommendations to bar certain people from access to ART treatment. This prohibition applies to any woman, or her partner, who have proven charges (rather than convictions) of a sexual offence and to those convicted of a violent offence. It also includes those with child protection orders made against them.

The Commission decided statutory declarations would suffice for fertility clinics to decide where exclusion from treatment was necessary. The Victorian Parliament voted to go one-step further. Mandatory Australian Federal Police and Department of Human Services checks for ART patients were included in legislation. It is illegal for fertility clinics to treat potential clients who fail to provide these documents.

Victoria is the only Australian state or territory to have a built in exclusion from treatment clause as part of its legislation on assisted reproduction. Infertility is the only medical condition in Australia, which is subject to character assessment in order to access treatment.

Underpinning this requirement in the Act is the protection of children who may be born to ART patients, setting up what the Victorian legislation terms a ‘presumption against treatment.’ This justification is essential to the avoidance of discrimination against those who need to hand their hopes, bodies, and life savings over to fertility clinics.

In parliament, Liberal MP Bernie Finn supported the introduction of Section 14 due to his “great concern that we could have a situation where two male paedophiles commission a child.” Without police checks, he argued, “there would be nothing anyone could do to stop them.” The logic was flawed. If such a scenario were possible in the smaller, sub-fertile population of Victoria, surely it would be more easily achieved and far more likely and in the wider fertile population. It also ignores the fact that commercial surrogacy is legal in India, and altruistic or non-commercial surrogacy is available throughout the world.

Finn’s argument whilst absurd suggests that society’s criminal element is far more likely to be secreted within the ranks of the infertile.

Claims of baby farming notwithstanding, anyone fearing what might be revealed through Section 14 only need to travel interstate or overseas to escape these checks. The ‘presumption against treatment’ clause is not infallible. Nor is it evidence based. No one, including Finn has come forward with data or statistical analysis demonstrating a trend suggesting paedophilic or any other child abuse behaviour amongst ART patients.

In deciding who is suitable to be considered for parenthood, the new Act hearkens back to an earlier time in our history.

It recalls Federation-era eugenic theories about the quality of the Australian population. Then measures to control the ‘fertility of the unfit’ found solutions in marriage restrictions, and legislation for their control, care and sterilization. These preoccupations inspired and led to the denial of rights of parenthood to aboriginal people, the Stolen Generation and to the White Australia Policy.

Early twentieth century Australia had developed in ways unimagined by the first white settlers. Anxiety about race created a society where authorities made decisions about the fitness of some members to reproduce and to parent.

This part of our history, much like Section 14 today, contrasts with welfare legislation of the time. Early twentieth century Australia earned a reputation for progressive social reforms through the introduction of a baby bonus, labour laws and women’s right to vote.

Reproductive technology has advanced far more rapidly than the legislation that controls it. Victoria set trends with the introduction of the Infertility (Medical Procedures) Act 1984, which was the first of its kind for the entire world.

In a breakthrough for equality, the new legislation recognises that parents’ sexuality and marital status is not the key to determining the future well being of any child conceived via the many forms of ART. The new Assisted Reproductive Treatment Act means for the first time, single women and lesbian women have equal access to fertility treatment in Victoria. Yet just as in turn of the twentieth century Australia, this advance is undermined by an extension of discrimination against many in the community.

Basic reproductive rights allow that all people have the right to decide to have children or not, and to determine their number, timing and spacing. It is time that the rights of infertile people and ART patients are protected in a more modern interpretation of reproductive justice. Politicians should support the reproductive rights of all their constituents, without discrimination.

While advances in human reproduction continue at a rapid pace it is up to those who make our laws to ensure that legislation provides for change. Real understanding of developments is necessary for this to happen.

There is no certainty about ART. Submitting to fertility treatments is not for the faint-hearted. It is a difficult process that is highly emotive, time-consuming and expensive undertaking. It will not necessarily result in what veterans of multiple IVF cycles refer to as that longed for “take home baby.” There are no guarantees to becoming parents, except that for Victorians; there is now the certainty that the State has control over who has the right to be considered for parenthood. It is too soon to tell if history will record Victorian ART patients, as this generation’s ‘unfit.’