EHT18 v Melbourne IVF

Case [2018] FCA 1421

EHT18 v Melbourne IVF
[2018] FCA 1421
Griffiths J

SUMMARY OF REASONS FOR JUDGMENT

In matters of public interest before the Court, it is customary to provide an explanatory statement to assist the public in understanding the proceeding to which the judgment relates and the reasons for that judgment.  This summary is not intended to take the place of the published reasons for judgment. 

The proceeding relates to the Victorian Assisted Reproductive Treatment Act 2008 and the Commonwealth Sex Discrimination Act 1984. Section 10(1)(a) of the Victorian Act provides that a woman may undergo an assisted reproductive treatment procedure (which includes IVF) only if the woman and her partner (if any) have given written consent to the carrying out of a procedure of that kind. In s 3 of the Victorian Act, “partner”, in relation to a person, is defined to mean:

(a)       the person’s spouse; or

(b)a person who lives with the first person as a couple on a genuine domestic basis, irrespective of gender. 

Section 22 of the Commonwealth Act makes it unlawful for a person to refuse to provide services to another person on the ground of the other person’s marital or relationship status.

The applicant, who is a married woman but has lived separately and apart from her husband since late last year, wishes to obtain IVF treatment from the respondent using donor semen.  She also proposes to divorce her husband as soon as she can but that cannot occur until the requisite 12 month period for living separately and apart has passed.  There are medical reasons why she wishes to have IVF treatment before then.  She proposes that her husband have no role or responsibility in raising the child. 

The applicant seeks a declaration that, on the proper construction of the relevant provisions in the Victorian Act, she is not required to obtain her husband’s consent in circumstances where he will have no involvement in the proposed treatment. Alternatively, she seeks a declaration that if his consent is required, the requirements of the Victorian Act are inconsistent with those of the Commonwealth Act, with the consequence that under s 109 of the Commonwealth Constitution the State Act is inoperative to the extent of the inconsistency. 

The Court has found that, on its proper construction, the Victorian Act requires the applicant to obtain her estranged husband’s consent under s 10(1)(a). This is principally because of the clear terms of the definition of “partner” in s 3 of the Victorian Act. The Court has rejected the applicant’s arguments that:

(a)s 10(1)(a) should be read as though it provided that consent of a woman’s partner is only required if that partner is also involved with the woman in seeking treatment; or

(b)alternatively, that the term “spouse” in the first limb of the definition of “partner” in s 3 of the ART Act should be read as if it referred to spouses who were living together.

The Court has found that acceptance of both those arguments would involve…

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AGLC
EHT18 v Melbourne IVF [2018] FCA 1421
Case
[2018] FCA 1421
Decision Date

CaseChat Overview and Summary

EHT18, a woman in her mid-40s separated from her estranged husband, sought to undergo in vitro fertilisation (IVF) treatment using donor sperm without her estranged husband's consent. The matter was brought before the Federal Court of Australia, where the primary issue was whether the term "partner" in section 10(1)(a) of the Assisted Reproductive Treatment Act 2008 (Vic) required the consent of the partner with whom a person is seeking IVF treatment and not otherwise. A secondary issue was whether the term "spouse" within the definition of "partner" in section 3 of the Act refers only to spouses who live together on a genuine domestic basis. The court also considered whether requiring EHT18 to obtain her estranged husband's consent to undergo IVF treatment would give rise to direct or indirect discrimination on the ground of marital or relationship status contrary to section 22 of the Sex Discrimination Act 1984 (Cth).

The court held that the term "partner" in section 10(1)(a) of the ART Act should be construed as requiring the consent of the partner with whom a person is seeking IVF treatment and not otherwise. The court also found that the term "spouse" within the definition of "partner" in section 3 of the Act refers to spouses who live together on a genuine domestic basis. Since EHT18's estranged husband was living separately and apart from her, he was not her "spouse" for the purposes of section 10(1)(a), and EHT18 was not required to obtain his consent to undergo IVF treatment. The court further found that requiring EHT18 to obtain her estranged husband's consent to undergo IVF treatment would not give rise to direct or indirect discrimination on the ground of marital or relationship status contrary to section 22 of the Sex Discrimination Act 1984 (Cth).

In light of the above findings, the court made orders in favour of EHT18, allowing her to undergo IVF treatment using donor sperm without her estranged husband's consent. The court also noted that EHT18 had given undertakings that she would not seek to register her estranged husband as the parent of any child born as a result of the treatment or assert that he is the father of the child for any purpose. The court expressed its gratitude to the amici curiae who assisted in the proceeding and enabled a prompt judgment in recognition of the urgency of the matter.

Orders

Orders of the court

1. There be no order as to costs.

THE COURT NOTES THAT:

The applicant has given undertakings to the Court that in respect of any child born as a result of a treatment procedure undergone in reliance upon an order made by this Court, she will not:

(a) seek to register her estranged husband as the parent of the child on any birth certificate; or

(b) seek to assert that her estranged husband is the father of the child for any purpose, including under the Family Law Act 1975 (Cth).

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For reasons which will shortly emerge, there is some urgency about the proceeding. Before summarising the relevant statutory provisions, it is desirable to outline the background facts. In doing so, I will seek to avoid giving any information which may identify the applicant or her estranged husband. Outline of background facts The applicant, who has been given a pseudonym (EHT18), is a woman in her mid-40s. As noted above, she is married but has been separated and living apart from her husband since late last year. She wishes to have a child through IVF using her own eggs. She wishes to conceive the child from donor sperm and raise the child on her own, as if she were a single woman, or a woman separated from a de facto partner. She does not desire to have a child with her estranged husband and she does not want him to have any parental responsibilities for the child. The applicant explained why she was unwilling to seek her husband’s consent to IVF. It is unnecessary to go into any detail about that other than to note the applicant’s evidence that she considers that her marriage has broken down irretrievably. She said that she intends to file for a divorce as soon as the requisite 12 month separation period has passed. The applicant’s evidence is that this is only shortly before she will turn 46. That is significant because she has been advised by the respondent that patients are generally only able to use their own eggs in an IVF procedure when they are younger than 46. She also said that she had recently undergone a procedure to collect her eggs and freeze them for later use after she was divorced. She added, however, that she had been advised that the prospects of achieving a successful pregnancy using frozen eggs are lower than IVF of fresh eggs and using implantation of either a fresh or frozen embryo. She has also been advised that she could commence a further round of treatment in mid to late September this year. The respondent’s managing director gave evidence to the effect that while the respondent had Clinical Guidelines which were against a woman retrieving and using her own eggs after her 46th birthday, those Clinical Guidelines did not apply where a woman has frozen eggs which have been retrieved before her 46th birthday. She said that it was likely that the respondent would enable the applicant to undergo IVF to retrieve her own eggs up to two months following her 46th birthday. These background matters explain why there is some urgency in the proceeding. The respondent played a limited role in the proceeding, which was largely confined to the issue of the proper construction of the ART Act. The Attorney-General of Victoria intervened under s 78A(1) of the Judiciary Act 1903 (Cth), however, his intervention was limited to the scope of any declaratory relief that the Court might be minded to grant in relation to the applicant’s alternative claim of inconsistency between the ART Act and the SD Act. In the absence at the time of a fully participating contradictor, Bromberg J made orders on 27 August 2018 and requested the President of the Victorian Bar Association to nominate a barrister to assist the Court as amicus curiae and in the role of contradictor. The Court is grateful to Mr R B C Wilson and Ms S M C Fitzgerald who agreed to accept that role. They provided helpful lengthy written submissions and supplementary submissions on the issue of joinder. They also appeared at the hearing on 20 September 2018 and made oral submissions. The relevant statutory provisions summarised

Evidence

Evidence Before The Court

Thirdly, as noted in the passage from News Limited which is set out at [137] above, the relevant test includes consideration of the “practical realities of the case”. That must include the unusual circumstances of this particular case and the urgency with which it has been brought and determined. Another relevant practical consideration is the valuable role played by amici curiae in drawing the Court’s attention to, and making detailed submissions on, relevant matters such as whether or not the husband ought to have been joined. (b) Is additional evidence required from the applicant? Amici curiae raised for the Court’s consideration whether further evidence should be provided by the applicant to establish that she is still married, is not divorced but is separated from her husband and intends to file for a divorce as soon as she can. I do not consider that this is necessary. I accept the applicant’s evidence on these matters. Costs The relevant parties were agreed that there should be no order as to costs. Conclusion Orders will be made to give effect to these reasons for judgment. The Court expresses its profound gratitude to the President of the Victorian Bar Association and to Mr Wilson and Ms Fitzgerald who nobly agreed to assist the Court in the role of amici curiae. Their participation has greatly assisted the Court and has enabled the Court to give a prompt judgment in recognition of the urgency of the proceeding.

Decision

Reasons for decision

The relevant parties were agreed that there should be no order as to costs. Conclusion Orders will be made to give effect to these reasons for judgment. The Court expresses its profound gratitude to the President of the Victorian Bar Association and to Mr Wilson and Ms Fitzgerald who nobly agreed to assist the Court in the role of amici curiae. Their participation has greatly assisted the Court and has enabled the Court to give a prompt judgment in recognition of the urgency of the proceeding.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.