A new ruling may end discrimination in access to donor sperm.
SHOULD everyone have the freedom to parent? Fitness for parenthood has been a hot topic in Victoria recently. Reports of children locked in hot cars, and the Melbourne Magistrates Court’s dismissal of charges against two gay police officers who used IVF to have a baby, have forced us to think about who is – and is not – fit to parent.
Questions of parental fitness are unlikely to have confronted the parents of the children left in cars, because most were – or appeared to be – straight, married and fertile. But because both police officers are gay and the female cop is involved in a stable de facto relationship with another woman, they are forbidden under the Victorian Infertility Treatment Act from access to assisted reproductive technology, including donor sperm. The act also denies treatment to single women.
The thinking behind these denials is clear: that it is not in a child’s interests to be born to single women or lesbian couples, because these women are not fit parents.
The singling out of single women and lesbians as unfit parents is staggeringly inconsistent and unfair. Widows are single parents, yet no one suggests the lack of a male partner makes them unfit mothers.
Being gay is like being black or male or straight – a natural attribute beyond a person’s control and irrelevant to her capacity to get the job done. Numerous studies examining the wellbeing of children of single women and lesbians show such children generally fare well.
The impulse to differentiate between those who should and should not be entrusted with the responsibilities of parenthood is ubiquitous, understandable and – at times – honorable. Who among us hasn’t muttered, “there oughtta be a law” upon news of a particularly heinous case of child abuse?
Thoughts of restricting the freedom to parent, however, founder on the rocks of implementation. When, how often and in what manner would the parental fitness of the enormous population of fertile people be assessed, and by whom? How would a person deemed unfit to parent be stopped from having a child: mandatory weekly pregnancy tests and forced abortions?
Controlling the physically infertile or those – such as lesbian or single women – facing social infertility is a less overwhelming task. Perhaps that’s why there are various state laws and codes that attempt it.
Parenting is a responsibility, not a right, and the past behavior of some individuals may suggest they are not up to the task. But the key concepts here are ``past behavior‘’ and ``individuals’’. While it may be legitimate to deny a person the right to infertility treatment at a particular time because of what he or she did – raped a child or committed another violent crime, for instance – it is wrong to deny them treatment because of who they are. Would the state propose or the public support attempts to restrict access to infertility treatment to those of Greek heritage because they are Greek?
Basing criteria for excluding individuals from treatment on behavior rather than identity assumes all prospective parents are fit, and places the burden of proof to show otherwise on the Government.
For many people, children give their life a meaning and purpose they cannot envision getting elsewhere. This makes depriving people of their freedom to have children as serious as hell: something to be done only on the basis of evidence, and only as a last resort.
Not only is discrimination against single women and lesbians morally wrong, the former unquestionably contravenes the Federal Sex Discrimination Act. A little-reported Human Rights and Equal Opportunity Commission judgment handed down the day before last Christmas found the Royal Women’s Hospital discriminated when it denied a woman access to donor sperm because she was single, and awarded damages against the hospital. Melbourne IVF specialist Dr John McBain has just launched a case in the Federal Court that, if successful, will strike down the discriminatory provisions of the ITA.
However, single women may be able to gain access to donor sperm before McBain’s case is decided. That is because any hospital that denies them treatment may – should the woman file a complaint – wind up in the Federal Court on a sex discrimination charge.
The federal sex discrimination commissioner, Susan Halliday, says: ``I am happy to receive complaints on this issue and, where there is legitimate discrimination on the basis of marital status, I will accept those complaints.’’
My advice to any woman who fears she is running out of time and is willing to call herself single is this: get ye to your nearest infertility clinic with a copy of the HREOC judgment in your hot little hands! There are no guarantees, but you never know your luck in a big city.