How the proposed Queensland laws fall foul of the Sex Discrimination Act

Here goes:

In Australia we have a Federal system. Essentially sooner or later there will be conflicting State and Federal laws. To overcome this impasse, section 109 of the Commonwealth Constitution provides for the Commonwealth law to override the State law:

 “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

Section 22 of the Commonwealth Sex Discrimination Act  provides that someone providing a service must not discriminate on the basis of marital status. This section has previously been relied on in cases in South Australia and Victoria to overcome State legislation that said that doctors could only treat women who were married. In one case the woman had separated form her husband. In the other, the woman was single.

The proposed Queensland laws would make it an offence, punishable by up to 3 years imprisonment, to enter into a non-eligible surrogacy arrangement. An “eligible surrogacy arrnagement” can only be entered into by a married couple or a heterosexual de facto couple who have been together 2 years or more. Therefore, the proposed laws say that if you are not married or do not fit the latter category, then you cannot seek surrogacy as you will be committing a criminal offence. If you are an intended parent who is single (including separated or widowed) , or in a same sex relationship, or in a heterosexual relationship of less than 2 years, you will commit a criminal offence if you proceed with a surrogacy arrangement.

It is apparent, therefore, that the discrimination clearly relates to marital status, but not at that point to the provision of a service.

Traditional v gestational surrogacy

There are two medical forms of surrogacy. A traditional surrogacy is when the surrogate is not only the carrier but also the genetic mother. A gestational surrogacy is when the surrogate is the carrier but is not the genetic mother of the child: some other woman’s egg is used. This would either be the intended mother’s egg or a donor egg.

Traditional surrogacy may not involve the use of a doctor to achieve pregnancy, for example the use of a syringe or the infamous turkey baster. The significance, legally, is that with the Government’s proposal, to engage in such a surrogacy would constitute a criminal offence for non-eligible intended parents (plus the surrogate and her partner, as they would also be parties to the offence), but because there would be no services needed from a doctor, the Sex Discrimination Act would not apply.

Gestational surrogacy necessary needs the help of a doctor, through the use of IVF or similar ART treatment. This might also apply in some traditional surrogacies when a doctor’s help might be needed to fall pregnant.

Imagine the conversation at the doctor’s clinic: (sorry for the corny script)

Jim: “I want you to help Gloria to become pregnant.”

Doctor: “I’m happy to help, are the two of you married?”

Jim: “That’s very funny! No, we’re not. My partner is Wayne. Gloria is to be our surrogate.”

Doctor: “I’m sorry, I can’t treat you, because to do so would be to commit a criminal offence.”

It is at that point that doctors will form the view that they cannot treat because to do so might be to aid and abet, counsel or procure or to conspire to commit the entry into of a surrogacy arrangement, or in some way might be tainted with the criminality of the laws. It is at that point that there would be a refusal to provide a service due to marital status, which would invoke section 22 of the Sex Discrimination Act.

Pity the doctor. The refusal by the doctor to provide treatment, on the basis of marital status, is unlawful.

That Act is binding on Queensland. Section 22 provides:

(1)  It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy, or breastfeeding:

                     (a)  by refusing to provide the other person with those goods or servicesor to make those facilities available to the other person;

                     (b)  in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

                     (c)  in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

             (2)  This section binds the Crown in right of a State. 

             (1)  For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the marital status of the aggrieved person if, by reason of:

                     (a)  the marital status of the aggrieved person; or

                     (b)  a characteristic that appertains generally to persons of the marital status of the aggrieved person; or

                     (c)  a characteristic that is generally imputed to persons of the marital status of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.

             (2)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the marital status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital status as the aggrieved person.

             (3)  This section has effect subject to sections 7B and 7D.