Remove Discrimination in Assisted Reproductive Treatment

If you thought that discrimination against LGBTIQ+ people in assisted reproductive treatment in Australia was now a thing of the past, you’re wrong.  Four years after the passage of laws to remove discrimination in marriage, sadly discrimination in assisted reproductive treatment continues to exist in various parts of the country.  That discrimination has been highlighted because the Queensland Human Rights Commission is undertaking a review of Queensland’s discrimination law which highlights unfinished business, namely that the Anti-Discrimination Act 1991 (Qld) continues to discriminate in the provision of assisted reproductive technology services.

COMMONWEALTH LAW

Under federal law, there should be no discrimination at all in the provision of treatment.  The Age Discrimination Act 2004 (Cth), not surprisingly, prohibits discrimination based on age.  The Disability Discrimination Act 1992 (Cth), not surprisingly, prohibits discrimination based on disability.  The Racial Discrimination Act 1975 (Cth) prohibits discrimination based on race.  Following changes during the Gillard Government in 2013, the Sex Discrimination Act 1984 (Cth) is the most wide-ranging. Section 22 speaks for itself:

“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, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

• by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
• 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
• 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.”

Before those changes were made in 2013, the Sex Discrimination Act did not protect sexual orientation, gender identity or intersex status.  They were added.

Because State laws discriminated, then a carve-out for the discriminating State laws was given as a political fix.  Each of the States and Territories were allowed under regulations of the Sex Discrimination Act 1984 to continue to discriminate based on sexuality.  Those exemptions finished in 2016, and in respect of Western Australia, in 2017.

At that time Australia copped fierce criticism from the United Nations Human Rights Commission for failing to protect the human rights of LGBTIQ+ people.

Hence the exemptions ended.

Although the exemptions have ended, and the Sex Discrimination Act and its equivalent Commonwealth Acts remain in place,  despite the international pressure some State and Territory laws remain discriminatory when it comes to assisted reproductive treatment and surrogacy.  Some of those laws are in clear breach of the Commonwealth laws such as section 22 of the Sex Discrimination Act – but they remain on the statute books.  Some are not discriminatory in breach of the Commonwealth laws but remain active barriers to undertaking surrogacy.

FIRST, THE PLACES WHERE THERE AREN’T DISCRIMINATORY LAWS

These are simple: New South Wales and Victoria. Everywhere else has some issue to do with discrimination.  Going clockwise around the country:

Queensland

The protection under the Anti-Discrimination Act 1991 (Qld) as to the provision of goods and services does not apply to the provision of assisted reproductive technology services if the discrimination is on the basis of relationship status or sexuality.

Assisted reproductive technology services are defined as meaning:

“(a) Services provided in the course of, or for the purpose of, any of the following –

• In-vitro fertilisation;
• Artificial insemination;
• Gamete, zygote or embryo transfer; or

(b) Any other services provided for the purpose of assisting in artificial fertilisation.”

In my view, this section would fall foul of section 22 of the Sex Discrimination Act 1984 (Cth) and therefore has no application.  Nevertheless, it remains on the statute books.

Australian Capital Territory

There is no discrimination based on sexuality or relationship status in the ACT.  The Parentage Act 2004 (ACT) however specifies that anyone who wants to undertake surrogacy must be a member of a couple and the surrogate must be a member of a couple.  Therefore, a single intended parent cannot proceed in the ACT and a single surrogate is not eligible to undertake an ACT surrogacy journey.  These rules may be in breach of the Commonwealth legislation because of the requirement under section 22 of the Sex Discrimination Act 1984 (Cth) not to discriminate based on relationship or marital status.

Tasmania

There is no discrimination based on relationship status or sexuality in Tasmania in the provision of assisted reproductive treatment or surrogacy.

However, the Surrogacy Act 2012 (Tas) requires that everyone who is entering into a surrogacy arrangement must then reside in Tasmania.  The evident difficulty with this is that it does not enable a Tasmanian intended parent to have a surrogate who lives outside Tasmania (such as a sister or sister-in-law or even a mother) and when combined with the small, aging population of Tasmania, puts a barrier in place.  This requirement would not be in breach of Commonwealth legislation but poses a barrier to undertaking surrogacy in Tasmania.

South Australia

South Australian law does not discriminate in the provision of assisted reproductive treatment or surrogacy.  There is the ability under federal licensing conditions of IVF clinics throughout the country for a clinician or student to decline to provide treatment based on a conscientious objection.  Those licensing conditions are subject to the law (for example, Racial Discrimination Act 1975 (Cth) and Sex Discrimination Act 1984 (Cth)).

As the price for allowing same-sex couples to undertake surrogacy in South Australia, changes were made to the Assisted Reproductive Treatment Act 1998 (SA) which specifically allow this conscientious objection. The licence condition imposed by South Australia on IVF clinics includes a condition prohibiting a person from refusing to provide assisted reproductive treatment to another on the basis only of the other sexual orientation or gender identity, marital status, or religious beliefs. That provision however does not apply to a registered objector, but in that case, it is instead a condition of the registered objector’s registration that the registered objector take steps to refer the person seeking assisted reproductive treatment to another person who is registered under the Act.

I understand that there have been a number of doctors who are registered objectors, but the name and shame file of registered objectors is not accessible on a Government website.

Western Australia

Western Australia allows surrogacy for single women, lesbian couples and heterosexual couples. Single men and gay couples are excluded. It is unclear whether transgender, non-binary or intersex individuals or members of a couple could undertake surrogacy in Western Australia.

A Bill to remove this discrimination was defeated in the Upper House in the last term of Parliament.  Following the election, it remains unclear when the Government will introduce a Bill to remove this discrimination.

Northern Territory

UPDATE: We are pleased to announce that in late December 2022, the Northern Territory (NT) Government commenced the Surrogacy Act 2022 and Surrogacy Regulations 2022.

The Northern Territory prohibits discrimination on a number of bases, including:

• Race
• Sex
• Sexuality
• Age
• Marital status
• Pregnancy
• Parenthood
• Breastfeeding impairment
• Trade union or employer association activity
• Religious belief or activity
• Political opinion, affiliation or activity
• Irrelevant medical record
• Irrelevant criminal record

Although the Anti-Discrimination Act 1992 (NT) prohibits discrimination in goods, services and facilities, there is an exemption for the carrying out of any artificial fertilisation procedure, which includes both IVF and artificial insemination.

Surrogacy cannot currently happen in the Northern Territory through the only IVF clinic there, due to a lack of surrogacy laws.  The Northern Territory Government is currently considering having a proposed Surrogacy Act.  I was a member of the Northern Territory Government’s surrogacy joint working committee – but I don’t know if the proposed surrogacy laws will be enacted any time soon and whether they will remove this discrimination.

This discrimination runs foul of section 22 of the Sex Discrimination Act 1994 as well as other legislation such as the Disability Discrimination Act 1992, Age Discrimination Act 2004 and Racial Discrimination Act 1975.