Community needs a say on fertility procedures law

Community needs a say on fertility procedures lawIn 2000, a Federal Court found, in the case of McBain v State of Victoria, that it was inconsistent with Commonwealth anti-discrimination law to allow only married women or de facto heterosexual couples to access reproductive treatments like IVF and artificial insemination. That finding implied that women who are single or in a non-heterosexual relationship cannot be automatically excluded from accessing medical treatments to help them have a child.

The Victorian Law Reform Commission has recently reviewed Victoria’s Infertility Treatment Act 1995, and released its recommendations on who should be considered legally eligible for medically assisted reproduction. Controversial as the initial McBain decision was, the Commission’s recommendations are perhaps even more so. While the Federal Court upheld the view that it is clinical infertility, and not marital status, that is the relevant factor in deciding eligibility for assisted reproduction, the Victorian Commission’s view is that not even infertility should be a deciding factor.

Any woman, whether married, single, or in a non-heterosexual relationship, would be eligible for medically assisted reproductive treatment, as long as the doctor is satisfied that without treatment she is 'unlikely to become pregnant in the circumstances in which she finds herself'. Those circumstances can include her being medically infertile, but also her being medically fertile but not likely to conceive with a male.

In the context of calls for uniformity between the states and territories on fertility laws, the importance of these recommendations extends beyond Victoria, to other states and territories.

A far-reaching social reform such as this needs to be inclusively debated and soundly justified. Despite the Commission having consulted widely, it has left some significant gaps in its case for extending legal access to medically fertile women. Some of those gaps relate to the logic and clarity of the arguments it puts forward. But the most problematic gap resides in the Commission’s failure to address an issue that is critical and fundamental to the whole question of access to medical techniques, and pivotal to all the other arguments the Commission discusses.

Both non-discrimination and children's interests are certainly important in deciding who should have access to medically assisted reproductive procedures. But these considerations become academic if it is simply not within the proper purposes of medicine to provide medical treatments or apply medical techniques to people who do not have medical or clinical conditions. Not every use of medical procedures is a justifiable use of medicine.

The basic question remains as to whether the latter falls within the scope of the proper purposes of medicine. Once all the arguments are in and thoroughly assessed, it may well turn out that it is. But the point is that those arguments really need to be addressed and assessed prior to all the other considerations the Commission focuses on.

The Commission (and the Act it reviews) are concerned to ensure women's appropriate access to procedures that are assumed to be legitimate applications of medicine. If providing an infertility treatment to a medically fertile woman/couple were shown, on independent grounds, not to be an appropriate use of medicine, such a practice would arguably fall outside the intended scope of the Infertility Treatment Act. It would arguably be out of contention from the start. Most importantly, it is a logically necessary condition for justified access to a medical procedure that it is medically proper and legitimate  no matter what any of the other 'access' arguments might have to say.

Of course, what the underlying goals and purposes of medicine are, and what count as proper uses of medicine, are complex social and ethical matters. In the public debate surrounding the McBain decision a number of years ago, applying infertility procedures to fertile women was questioned on several grounds. One of these was that medical interventions are inappropriate when there are other effective options (such as adoption or intercourse with a man). A second was that physiological interventions are for physiological conditions and should not be used to address ‘lifestyle preferences'. A third, that the purpose of medicine is to restore ‘normal' human functioning, not to enhance the lives of women who function normally, by helping them have children. Needless to say, how well these and other views about the purposes of medicine hold, is a matter for debate.

Clearly, it's not the role of legislators to decide for us what counts as a proper use of medicine. That's something that has to be determined by the community. And not solely, or even mostly, by the medical profession, either. Without doubt, medicine is a technical and precise area of knowledge and skill that calls upon special expertise. But it is also, more fundamentally, a social practice, and one whose goals and purposes we all, as a community, have a legitimate stake in.



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