Australian IVF doctors adopt an inclusive definition of infertility
The three professional bodies for fertility specialists in Australia have clarified what infertility in Australia is, in essence, anyone who needs to undertake assisted reproductive treatment.
The Fertility Society of Australia and New Zealand, the Australian and New Zealand Society for Reproductive Endocrinology and Infertility and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists have jointly stated a revised definition of infertility:
“Infertility is a disease condition or status characterised by any of the following:
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- The inability to achieve a successful pregnancy based on a parent’s medical, sexual, and reproductive history, age, physical findings, diagnostic testing, or any combination of those factors.
- The need for medical intervention, including, but not limited to, the use of donor gametes or donor embryos in order to achieve a successful pregnancy either as an individual or with a partner.
- In patients having regular, unprotected intercourse and without any known aetiology for either partner suggestive of impaired reproductive ability, evaluation should be initiated at 12 months when the female partner is under 35 years of age and at 6 months when the female partner is 35 years of age or older.
Nothing in the definition should be used to deny or delay treatment to any individual, regardless of relationship status or sexual orientation.”
In taking that stance, the profession has recognised that the previous definition of infertility- a heterosexual couple regularly having unprotected sexual intercourse but being unable to conceive a child after 12 months- excluded single people and same sex couples. The position with the profession also is in line with the international consensus by the profession, including by the American Society for Reproductive Medicine.
What is infertility needs to be clear because of financial considerations. Medicare benefits are payable for assisted reproductive services for what is a clinically relevant service under the Health Insurance Act 1973 (Cth). The Commonwealth Government has left it up to the profession by consensus of professionals to determine what is a clinically relevant service. Anyone undertaking an IVF cycle, for example, who is able to obtain Medicare benefits, will receive a Medicare rebate of about A$5,000. This will leave their out of pocket cost of about A$10,000.
Single people and those in same sex relationships have often been excluded from Medicare benefits for assisted reproduction services, because they have been deemed social infertile, not medically infertile.
In the past, there have been barriers to treatment for LGBTIQA+ people when seeking assisted reproduction. For example, in a Queensland case in 1998, a lesbian was denied treatment- because she was a lesbian, and therefore did not meet the previous definition of infertility. Judges of the Queensland Court of Appeal had this to say:
“It is possible that a person with the attribute of lesbian sexual activity generally has the characteristic of being exclusively lesbian. Whether that is a probability or not, and it may very well be, was not a question on which any evidence was adduced. I do not think that this, or any other court, can reach the conclusion, as if it were a notorious fact, that a person who engages in lesbian sexual activity is generally exclusively lesbian.
On the other hand I think it may be accepted as a notorious fact that the characteristic of being exclusively lesbian is often imputed to a person who has the attribute of lesbian sexual activity. Consequently it may be assumed, for the purpose of this appeal, that the discrimination relied on in this case includes discrimination on the basis of the characteristic of being exclusively lesbian….
The true basis of the doctor’s refusal to provide services to the patient was not because of her lesbian activity but because of her heterosexual inactivity. Minds may differ on the question, but common sense suggests that many lesbians are also prepared to engage in heterosexual activity. One can only include the quality of heterosexual inactivity in a particular individual if one overworks the term “lawful sexual activity” by adding personal relationship factors such as “exclusive relationship” to the concept.” [1]
Thankfully, times have changed. Since then, in 2017 the Marriage Act 1961 (Cth) was amended to recognise same sex marriage, and the Sex Discrimination Act 1984 (Cth) was amended in 2013 to ensure that it was unlawful to discriminate in the provision of a service or the administration of a Commonwealth program based on sexuality, relationship status, gender identity and intersex status. Only in Western Australia now are single men and male couples specifically excluded from access to surrogacy.
In 2017, the medical profession internationally determined that what is infertility is in essence anyone who needed to undertake ART: [2]
“A disease characterized by the failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse or due to an impairment of a person’s capacity to reproduce either as an individual or with his/her partner. Fertility interventions may be initiated in less than 1 year based on medical, sexual and reproductive history, age, physical findings and diagnostic testing. Infertility is a disease, which generates disability as an impairment of function.”
The exception to that international consensus was the World Health Organization, which took the view that infertility remained the traditional definition.
In 2021, the IVF Medical Directors committee of the Fertility Society of Australia and New Zealand adopted the wider definition of infertility.
In 2023, the American Society for Reproductive Medicine adopted the wider definition of infertility. [3]
In December 2023, the Fertility Society of Australia and New Zealand took the same approach.
In August 2024, the Australian and New Zealand Society for Reproductive Endocrinology and Infertility and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists have also agreed to this wider definition.
The change should make it less of a lottery for patients about whether or not they will receive Medicare benefits. It is now clear that if they need to undertake ART, then they should be entitled to Medicare benefits.
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[1] JM v QFG [1998] QCA 228 per Davies and Thomas JJA.
[2] https://www.icmartivf.org/glossary/i-m/.
[3] https://www.asrm.org/practice-guidance/practice-committee-documents/denitions-of-infertility/.
