Ms Carolyn Tan is a lawyer and member of the Social Responsibilities Commission.

Dr Ian Barns is a Lecturer at the Institute for Sustainability and Technology Policy at Murdoch University.

Dr Pia Broderick is Senior Lecturer in the School of Psychology at Murdoch University

Summary of the legal background to the debate over In-Vitro Fertilisation (IVF) for single and lesbian women.

The WA Legislation

In 1991 the Human Reproductive Technology Act of WA was passed with one of its aims being to ensure that certain artificial fertilisation procedures could only be carried out for the benefit of persons who are "eligible to be treated" under the terms of the Act.

The Act set out the laws as to when an in vitro fertilisation procedure could be carried out.

The relevant section is section 23 which outlines the situations in which an in vitro fertilisation procedure may be carried out. These are:

(a) when it would be likely to benefit a person who as a couple are infertile or whose child would otherwise be likely to affected by a genetic abnormality or disease;

(b) when each of the participants has given effective consent;

(c) the persons seeking to be treated as members of a couple are:

(i) married to each other; or

(ii) are cohabiting in a heterosexual relationship as husband and wife and have done so for period aggregating at least 5 years during the immediately preceding 6 years;

(iii) the reason for the infertility is not age or some other cause that is prescribed;

(d) consideration has been given to the welfare and interests of the participants and any child likely to be born as a result of the procedure and in the opinion of the licensee that consideration does not show any cause why the procedure should not be carried out.

The relevant aspect is that in vitro fertilisation procedures are only open to people who are either married or have been cohabiting in a heterosexual relationship as husband and wife for periods of at least 5 years during the previous 6.

"Marriage" is not defined but this would mean a legal marriage and not include de facto relationships.

Note that these rules only apply to an in vitro fertilisation procedure, which is a procedure involving the removal of an egg from a woman's body for purposes of future fertilisation or is directed at the introduction of an egg from someone else into the body of a woman or some other prescribed artificially assistance human conception.

The Act does not affect artificial insemination and there are no laws in WA prohibiting this.

Commonwealth Laws

Under our constitutional structure, State laws are overridden by any Commonwealth law passed by the Federal Parliament, where the State laws are inconsistent with any Commonwealth law.

The relevant Commonwealth law is the Sex Discrimination Act 1984. This provides that it is unlawful to discriminate against a person on the grounds of marital status in the provision of goods or services. (s22). Marital status is defined as "the condition of being single, married, married but living separately from one's spouse, divorced, widowed or the de facto spouse of another."

This means that the provision of the WA Act which requires IVF procedures to only be applied to married couples or heterosexual de facto couples is inconsistent with the Commonwealth legislation which prohibits people from discriminating against people on the grounds that they are not married or not in a particular type of de facto relationship in the provision of IVF services.

The major cases

The recent debate started after the decision by a Federal Court judge in Victoria in the case of McBain v. State of Victoria a decision handed down in late July 2000. The case was one where Dr McBain wanted to provide IVF services to a single woman and wanted a declaration that the law in Victoria which has a similar provision to the WA laws prohibiting IVF services for unmarried people was invalid. The State of Victoria took a neutral position but the Roman Catholic Church intervened to argue against the application. The judge ruled that the Victorian law was invalid a because it was inconsistent with and therefore overridden by the Commonwealth Sex Discrimination Act. This is because the State law required the relevant doctor to treat the plaintiff who was a single woman less favourably than a married woman or a woman in a de facto relationship with a man.

There was actually an earlier case on this issue. In August 1996 the Full Court of the South Australian Supreme Court in the case of Pearce v. South Australian Health Commission decided that the South Australian Reproductive Technology Act was inoperative due to the inconsistency with the Sex Discrimination Act. The South Australian Act provided that a person must not carry out an artificial fertilisation procedure except with a licence granted by the South Australian Health Commission. The standard licence was subject to a condition that the artificial fertilisation procedures could only be used for the benefit of married couples, where the husband or wife or both appeared to be infertile or where there appeared to be a risk of a genetic defect being transmitted to a child conceived naturally. The definition of “married couple” included two people who not married but were cohabiting as husband and wife for the immediately preceding 5 years or at least a total of 5 years out of the preceding 6.

Changes proposed

The Government proposes to move changes to the Commonwealth Sex Discrimination Act to specifically allow States to pass legislation which discriminate on the grounds of marital status in the provision of IVF services. The precise wording of this is still being formulated.

On the other hand, if governments were seeking to prevent discrimination, this could be achieved by either:

· not watering down the Commonwealth Sex Discrimination Act or
· by amending State legislation to remove any prohibition on IVF treatment for unmarried people or non-heterosexual couples.
In WA, the Greens (WA) have indicated an intention to do the latter by moving to amend the WA legislation to remove the discriminatory provisions. (A similar move has been made by the Victorian government following the McBain case.)
- Ms Carolyn Tan, LlB (Hons), B Juris (Hons)

Notes on the recent IVF controversy

- Dr Ian Barns

By 2000, more than two decades after the birth of Louise Brown, the first ‘test tube baby’, it seemed that IVF technology had become more or less routine. Since 1978, thousands of babies have been born through the use of IVF or related reproductive technologies. To be sure, from time to time there have been headlines about exciting new technical developments and ethicists and others pondered the fate of unwanted embryos. By and large, however, IVF had become an accepted part of the landscape of modern medicine.

Well, not quite. When in July 2000 the Federal Court upheld Lisa Meldrum’s claim that the Victorian Government’s limitation of access to IVF to married or long term de facto couples violated the Federal Sex Discrimination Act, IVF technology once again moved to the centre of public controversy. This decision effectively opened access to IVF technology to both infertile single women and, most probably, lesbian couples.

The controversy surrounding the Federal Court judgement was exacerbated by the Howard Government’s decision to amend the Sex Discrimination Act to protect the right of States to restrict access to IVF technology. In the ensuing flurry of public comment, editorials, letters to the editor and opinion polling it became apparent that there was a significant polarisation of attitudes towards the issue [1]. On the one hand there were those who regarded any form of restriction as discriminatory and condemned anyone who wanted to preserve the status quo as homophobic, bigoted and worse [2]. On the other hand there were those who argued that the provision of IVF to single mothers and lesbians would violate the rights of unborn children to a normal family life, including the love and nurture provided by a father.

In fact much of the public debate focussed on the question of whether the absence of a father would or would not be detrimental to the well being of children brought into the world in such a fashion. There were those, like Bettina Arndt who claimed that research showed that in general married couples provided a more stable and supportive environment for the care of children than did de facto couples and single parents [3]. There was also the claim that the children of assisted reproduction would suffer the same kinds of identity problems as adoptees [4]. On the other side, there were those, like Marcia Neave who claimed that there was no indication at all that children raised by single parent or lesbian couples suffered were any worse off than those raised by married heterosexuals [5] . All you need is love was a prominent message [6].

The intensity of the debate indicated that something much deeper was going on. I suggest that the Federal Court decision has been something of a ‘cultural flashpoint’ in which underlying tensions associated with the profound changes unfolding in our culture were brought to the surface. These tensions are not just a result of the rapidity of change, but reflect the cumulative effects of the long-term erosion of many ‘traditional’ beliefs, practices and institutions in our continually modernising culture. We are experiencing much more dramatically what it is like to live in a world where ‘all that is solid melts into air’.

The question of who gets access to IVF technology raises three deeper tensions in our culture of modernity.

Gender relations: Over the last three decades there have been enormous changes in sexuality, gender relations and, indeed in the nature of male and female identities. Since the 1960s there has been a profound revolution in sexual mores and sexual practices. There has been a shift away from monogamous heterosexual marriage as a (more or less) accepted norm to a situation in which a diversity of consenting adult relationships, including gay and lesbian relationships, are widely accepted as legitimate. The women’s movement has had and continues to have a profound impact on the culture of public life, challenging not only male dominance in the workforce but also ingrained sexist and patriarchal cultural attitudes. As these shifts become institutionalised in law and social practice, framed by the language of rights and prohibitions against discrimination, there is a deepening division between those who are troubled by the changes taking place and for whom monogamous heterosexual marriage continues to be the norm, and those for whom such ‘reactionary’ attitudes are to be condemned as discriminatory and homophobic. Obviously, Lisa Meldrum’s appeal to the Federal Sex Discrimination dramatically highlighted these continuing shifts in gender relationships.

Individualism: A second underlying tension arises out of the increasingly individualistic nature of our culture and the associated sense of a loss of ‘community’. We treasure individual freedom, autonomy, expression and achievement. An ethos of self-reliant individualism is strongly re-inforced by larger changes in the economy, in public policy, in popular culture and technological change. A market economy promotes, nay compels, an individualistic consumerism, particularly through the dream world of consumer advertising. Public policy, especially over the past two decades has re-inforced a free market ethos by its programs of deregulation and privatisation and by emphasising competition and individualistic approaches to social issues. Technological change has helped to expand this culture of consumption, greater personal mobility and individualistic self-expression. In the words of British sociologist Anthony Giddens [7], these combined processes, dramatically expressed in the dynamics of ‘globalisation’, have had a profound ‘dis- embedding effect’ weakening our sense of connection to particular places and communities and making us ever more reliant on the larger structures of the market and government administration.

Of course, our individualistic culture is not only possessive and consumerist. For many people it supports a strong ethical sense of the need to respect individual rights and freedoms, and values the right to be different. Individual endeavour, creativity and self-expression are honoured. There is enjoyment in various forms of civil association, a kind of ‘relational individualism’ which values the voluntary connections that can be made between people. Nonetheless, there are many for whom this culture of individualism results in a lonely, fragile and fragmented existence. There is a sense of the loss of community, of tradition, of place, of long term relationships that provide a sense of enduring identity and meaning. Against this background, Lisa Meldrum’s wish to have a baby without the connections and obligations of husband and family was, perhaps, a symbol of this continuing erosion of community and connection.

Developments in reproductive and genetic technology: Whilst the basic IVF procedure is now a relatively well established and accepted technology, it is also one element in a whole array of remarkable new developments which promise to extend the capacity for reproductive choice, not just in relation to infertility, but also in relation to what is often called ‘designer babies’.

Many people, including feminists, have been wary about IVF and developing gene technologies. They have felt that it might lead to the gradual ‘commodification’ of human life, particularly if parents have the capacity to select their children’s physical, intellectual and emotional traits. However, others are more positive about the potential benefits of such technologies. Thus Peter Singer, whilst on a visit to Australia, was reported as arguing that the state should provide subsidies to ensure an equality of access of all parents to new gene technologies in the design of their children: a development which he considered to be inevitable and probably for the good.

Of course all that Lisa Meldrum wanted was a ‘natural’ baby, achieved through assisted reproduction. Yet, as already noted, the prospect of single women and lesbian couples (as well as gay men?) making use of IVF to have children highlights the potential of technology to dramatically change what has been the ‘natural’ way of producing children.

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The need to see the IVF controversy in a bigger context was a theme taken up by social commentator, Hugh Mackay[8]. Mackay argued that what fuelled opposition to allowing single women and lesbians access to ‘assisted reproduction’ technologies was basically fear of change: “ the huge reaction to the idea of in-vitro fertilisation being available to single women is not as simple as it seems. It’s not so much a debate about the morality of access to IVF as a fresh outbreak of anxiety about the long term consequences of the women’s movement”.

Mackay went on to suggest that “the IVF program is but the forerunner of new biotechnologies that will, among other things, transform the processes of conception, pregnancy and birth for those few women – and men – who wish to explore the emerging biological possibilities of the gender revolution”.

Mackay’s message was: we need to keep the issue in perspective The processes of change we are experiencing are part of a larger ongoing process of biological and cultural evolution. Besides, the use of technologies in this way will always be limited. Most people will continue to produce children ‘naturally’ through heterosexual relationships.

Whilst Mackay was sanguine about the long term future of human relationships and reproduction in a liberal, technologically driven modernity, there are many others who paint a much darker picture: about the growing complexity of gender relations, about the fragility of the self in a culture of individualism and about the long term costs of ongoing technological development. For example, in an interesting piece called ‘In Freedom’s Shadow’ published in the Australian Review of Books a couple of years ago [9], Anne Manne discussed the problems associated with a society that made individual freedom its highest virtue. Although Manne was not writing specifically about the implications of new reproductive technologies, she did address the question of commitment and obligation in marriage relationships and whether being nurtured within a stable, committed family was an important factor in a child’s mental well being. Drawing on various postmodern writers she described the ‘unbearable lightness of being’ associated with making individual freedom an absolute virtue. There were many, she suggested who were looking for ‘islands of obligation’ in a sea of freedom. Manne’s alternative was only briefly sketched – though it did suggest the need for a recovery of some kind of traditional framework, some sense of social coherence which could recover the sense of mutuality and connection and obligation to one another.

How can we make sense of this issue Christianly? In fact there has been quite a lot of commentary by Christians, much of it in support of John Howard’s move to amend the Sex Discrimination Act based on a view of the sanctity of the traditional family [10].

However I believe that it is perhaps more important to address the deeper issues touched on by Mackay and Manne and not get entangled in complex factual issues such whether or not a lesbian couple can provide a genuinely loving environment for the raising of children.

I believe that Mackay’s view that opposition is just ‘fear of change’ is much too sanguine. Anne Manne rightly identifies the increasingly problematic nature of human identity and relationships in a world shaped by a radical individualism and by technologies driven by largely commercial imperatives. There is a need to resist the hyper-individualism of the market and to recover the sense of community, obligation and inter-dependence.

Yet at the same time I don’t believe that as Christians we are in the business of defending ‘traditional society’ with its hierarchies and inequalities. Neither should we be appealing to the idea of some kind of ‘natural order’ (or ‘creation mandate’): God made it this way. Nature or creation by itself is a pretty shaky basis upon which to build an ethic of human society and gender relationships. There is an extraordinary plasticity with respect to ‘natural’ human behaviour and social organisation. ‘Creation’ is as much open to what is made of its possibilities in history than laying down some determined blueprint.

The grounds for a Christian vision of gender relations and reproduction are not primarily to be found in ‘creation’ but in a community that is formed and sustained by the gospel of the risen Christ (That doesn’t mean that we don’t appeal to the purposes God has for the created order, only that we can’t appeal to creation apart from the framework of salvation). It is the common life of a worshipping community, framed by the practices of the eucharist, baptism and the various ministries that sustain Christian commitment and service, that provides the context for dealing with questions of gender, individualism and technology.

On the one hand life in Christian community stands in contrast with our culture of individualism. The highest virtue is not autonomy and the defence of rights, but mutual inter-dependence and learning to be part of the social body of Christ. Yet on the other hand, it does not mean an unqualified defence of ‘traditional’ forms of community, including ‘the nuclear family’

A Christian vision of community does not provide a nostalgic support for nation and family (which often forgets the inequality, oppression and exploitation that a ‘traditional’ community involves). Indeed to be baptised as a Christian involves radical transfer of primary allegiance from these forms of community to the ever new body of Christ.

At the same time Christian community does not ‘ go beyond’ history, place and a tradition that embodies and remembers. Rather it gives to such places, histories and traditions a new meaning within the framework of the incarnated Christ. Baptism into Christian community does not transcend, but rather re-imagines the historical, embodied stories within which we live out lives, including those of our ethnic communities, the places where we belong, our kinship and reproductive relationships, and those of our own bodies. It both affirms our embodiment whilst at the same time signifying its resurrection transformation.

What does this mean in relation to the issues of individualism, gender and technology brought to the surface by the IVF controversy?

First it means that our primary frame of reference is that community of obligation and freedom that is sustained by a eucharistic community. It is not ‘family values’ vs ‘individual choice’ but ecclesia that is fundamental.

Second, membership in the body of Christ does affirm the central but contingent importance of faithful heterosexual marital relationships within embodied human community . Yet these now derive their meaning from the covenant community of Christ and not from ‘nature’ or even a (stand alone) ‘creation mandate’. A Christian community does not mean sexual freedom, but is one which affirms our historical and embodied lives within the framework of incarnation and thanksgiving. But neither does it make marriage, or even our own lives ‘sacred’ and absolute: they derive their value and meaning from the body of Christ celebrated and made present in the community of the faithful.

Third, whatever new genetic technologies that might be developed, they are not to be rejected out of hand or embraced uncritically. They should be judged in terms of the contribution they make to the flourishing of eucharistic community and the creative expression of human relationships within it. Thus there is not opposition per se to reproductive technologies, but neither are they seen as an individual ‘right’.

How does this help us in relation to the public policy question of who should have access to IVF technology? My argument is that as Christians we cant afford to adopt stances on specific issues if and when the deeper currents of our culture undermine the intelligibility of that stance. In an increasingly (post) modern culture in which a Christian vision of life becomes ever more ‘alternative’ we need to give more attention to explaining the transcendental gospel basis of the particular views we have towards issues of gender, individual rights and freedoms and the shaping of reproductive technologies and less energy towards defending particular forms of legislation.

– Dr Ian Barns, BSc(Hons), MEd, PhD

[1] Phillip Hudson, ‘Nation split on IVF for singles, lesbians’ The Age 15 August 2000. Hudson was reporting on AC Nielsen Agepoll data

[2] Candice Heard, ‘Many Different Families – Who Are You to Judge?’ Candice’s World http://people.goplay.com/chemhed/articles.html (accessed 26 Sept 2000)

[3] Bettina Arndt, ‘Julia’s right to be upset’ The Age August 21, 2000 [the reference in the title is to a report that Julia Roberts was upset that her lover, Benjamin Bratt wants to have children, but doesn’t want to get married. Arndt’s evidence for her claim is drawn from a recent British report, Marriage Lite – The Rise of Cohabitation and its Consequences written by Patricia Morgan

[4] Jenny Ahmat, ‘IVF spits ancestral dummy’ The West Australian 6 Sept 2000, 22

[5] Marcia Neave, ‘Flawed assumptions underlie IVF fears’ The Age 8 August 2000; see also Lesslie Cannold, ‘Calling all single childless women…’ The Age March 20, 2000

[6] Melissa Stevens, ‘All you need is love: lesbian’ The West Australian August 3 2000

[7] Anthony Giddens, Modernity and Self-Identity: Self and Society in the Late Modern Age, Stanford, Stanford University Press 1991

[8] Hugh Mackay, ‘IVF Row born of future fear’ West Australian 15 August 2000, 17

[9] Anne Manne, ‘In Freedom’s Shadow’ Australian Review of Books 3,4 (July 1998) 12 - 15

[10] See, for example, statements by the Australian Christian Coalition ‘Christina Groups Condemn Labor stand on IVF: Media release 21 August 2000)’ Australian Christian Coalition Home Page http:/www. acc.net.au/ivf.htm

‘Heterosexuality and a marriage certificate’: Criteria for good parenting practice?

- Dr Pia Broderick

As a clinically trained developmental psychologist I have good reason to examine the literature and conduct research investigating children, parents, their experiences, and their relationships. The clinical and research literature is unequivocal. The best parents provide a positive parenting experience for their children, creating an environment for optimal development. This takes the form of unconditional love, care, nurturance, consistency and security, the facilitation of a loving and secure attachment bond, and the provision of social, physical, personal, emotional and material support.

The literature is equally unequivocal about what constitutes poor parenting. Children of deficient or abusive parents experience a non-optimal environment for development. This is typified by a lack of unconditional love, care, and nurturance; the presence of insecurity and inconsistency, the absence of a loving and secure attachment bond, and non-provision of social, physical, personal, emotional and material support. There are also some specific indicators. For example, people living in severe poverty; those who are extremely young (teenagers); those who suffer many forms of mental illness or intellectual disability and those who abuse their children; all make poor, even ‘bad’, parents, by our society’s standards.

Most arguments in favour of banning access to reproductive technology for particular groups are couched in terms of the ‘best interests of the child’. Yet I have not yet heard any serious discussion suggesting that we legislate against potentially deficient parents conceiving and giving birth to children, although our children are likely to be physically and mentally far more healthy, well adjusted and happy, and our society much less problem-ridden if we did exactly that.

In addition, I have not yet found evidence to suggest that the best parents are heterosexual rather than homosexual; in a heterosexual couple relationship instead of maintaining single status; or opt for a purely sexual relationship rather than medical intervention in order to conceive a child.

Yet Prime Minister John Howard’s proposed amendment to the Federal Sex Discrimination Act, which would effectively ban single women and lesbian couples from accessing medically assisted conception, suggests exactly this: …[that] ‘good parenting [is defined] first and foremost by sexuality and a marriage certificate’ (Saunders, Letter to the Editor, The West Australian, 19/8/2000).

Single women and lesbian couples are in fact only the latest minority groups to be targeted in terms of the debate concerning who should have, and who should be denied, access to reproductive technologies. Others for whom access has been hotly debated, and sometimes denied, include couples who require donated gametes because they are unable to produce healthy eggs or sperm; women who are unable to carry a baby because their uterus is damaged or has been removed; menopausal or post menopausal women; and unmarried and de facto couples. Single women and lesbian couples are unique at this time in the debate as they are the first groups for whom federal legislation has been suggested to ban them from accessing reproductive technologies.

If we attempt to look for common factors in the characteristics of deficient parents with the characteristics of people unable to become parents because of some physiological disability, life circumstance, or lifestyle choice, we find that there is no commonality. The characteristics of people who need access to reproductive technologies to conceive and bear a child are not criterion characteristics for being either a good or bad parent. Those characteristics, which currently prevent them conceiving or gestating a child, are irrelevant to the sort of parents these people will make. Any of the individuals constituting these groups may have the characteristics commonly found in good or bad parents, but there is no evidence at all that the criteria resulting in their need for reproductive technologies make them one or the other.

Research which has specifically investigated children produced by couples using donated gametes; children born to older parents; and children born to unmarried and de facto couples have not found any evidence that these specific factors contribute in any way to poor parenting. In fact, in the case of children born using donated gametes or other more complex reproductive technologies, these is substantial evidence to suggest their parents are ‘better’ than average parents, presumably because the children are long wanted and greatly treasured.

In the case of single women, there is indeed some evidence that children in fatherless families are more likely than their peers to experience emotional and behavioural problems. However this is not simply due to the absence of a father. Poverty, isolation, lack of social support, and trauma and conflict during parental separation are likely significant contributors to these childhood problems. It is both inappropriate and irresponsible to predict parenting outcomes for children born to single women who have planned and want children in their ‘single state’ from the experiences of single women raising children conceived in radically different circumstances.

The information available about lesbian couples’ parenting ability is both more appropriate and positive. A research program conducted in the UK and Europe, headed by Professor Susan Golombok of City University, London, has established that there are no differences in the quality of mother-child interactions when comparisons are made between heterosexual and lesbian families; that the quality of the social (non-biological) mother-child interaction is in fact superior to father-child interactions in heterosexual families; and that there are no differences between children raised in heterosexual and lesbian families in terms of emotional, behavioural and gender role development.

An analysis of letters to the editor of The West Australian and The Australian over the period of media focus on this issue indicates that Australian majority society does not like what single women (desiring babies) and lesbian women represent. We feel uncomfortable with these groups wanting to have children. We will legislate to deny them access to reproductive technology simply because we can. We know that many people who are naturally fertile are unfit to be parents by most of our society’s standards, yet they will not be prohibited from bearing children.