Single people aren’t good enough to be parents through surrogacy in South Australia- but LGBTI couples are now ok, apparently
In simple constitutional terms, if there are conflicting federal and state laws, the federal laws overrule the state laws to the extent of the inconsistency. A recent example was seen in the High Court in the equal marriage case.
Something had to give. The obvious thing was to change South Australian law to get rid of discrimination on IVF and surrogacy so that singles and LGBTI couples could access both. And this is what the Weatherill government sought to do. First up it held an inquiry, well in advance of the end of the exemption, run by the law reform institute seeking to identify how the law discriminated against LGBTI couples- and how to change the law.
I took part in that inquiry and submitted that discrimination in IVF and surrogacy should end for LGBTI couples and single people.
The inquiry recommended an end to discrimination.
Then the government introduced an omnibus bill to get rid of the discrimination.
Then things did not go exactly according to plan.
The first thing the government did was to blink. It decided to split the first bill, so that the changes to IVF law and surrogacy were dealt with in a separate, later bill.
The second thing that happened was that it got to the Upper House – the Legislative Council- where the government does not have the numbers. Amendments made at the behest of Families First made major changes to the legislation, and provide a forerunner to what might happen with marriage law reform:
- IVF doctors could object to providing ART or surrogacy to singles or LGBTI couples- but if they did so they would have to refer the patients on to someone else, and the doctors would have to be on a public register. My view is that very few doctors will want to be on that public register, named and shamed, as it is likely to be the death knell of their practice- but time will tell.
- while single people could access IVF, as well as LGBTI couples, this meant in effect only single women. This is because the surrogacy laws would be extended only to LGBTI couples. Single men and women need not apply. Therefore single women could receive ART assistance (assuming the doctor did not object) but single men (assuming they were not transmen seeking to become pregnant) , who of necessity needed to rely on surrogacy- could not.
It seems extraordinary and shameful, for example, that single women who have been cancer survivors, or have had the misfortune of being born without a uterus will not allowed to become mums in South Australia.
I have acted for single women who have become mums through surrogacy. My clients have included cancer survivors and women who were born with a uterus.
It is expected that the laws will pass the Lower House- the House of Assembly- any day.
It is likely that the laws continue to fail the test under the Sex Discrimination Act and therefore:
- any doctor who refuses to provide treatment, becoming a registered objector, is in fact acting unlawfully under the Sex Discrimination Act;
- and doctor who refuses to assist a single man or a single woman undertake surrogacy is again acting unlawfully under the Sex Discrimination Act.
South Australian politicians should know better. After all, Mrs Pearce when she was refused IVF because she was a single woman (divorced) due to South Australian laws prohibiting IVF for single women, took South Australian authorities to court alleging a breach of the Sex Discrimination Act. She won.
In a similar case, Dr McBain, a Victorian IVF doctor, took the Victorian government to court when he found that he was not allowed to provide treatment to a single woman, because Victoria’s IVF laws prevented him from doing so. He said that the Sex Discrimination Act overrode the Victorian law. He also won.
Do we really need to have a repeat?