The Discriminatory Legal Barrier of Partner Consent in Victorian ART Law: EHT18 v Melbourne IVF

In September 2018, the Federal Court of Australia found that a Victorian woman did not need her estranged husband’s consent to undergo in vitro fertilisation treatment (IVF) using donor sperm. The woman, who was 45 years of age, made an urgent application to the Court for permission to undergo IVF using donor sperm. In a single judge ruling, Griffiths J held that the requirement in the Assisted Reproductive Treatment Act 2008 (Vic) (‘ART Act’) for a married woman to obtain the consent of her husband discriminated against the woman in question on the basis of her marital status in contravention of the Commonwealth Sex Discrimination Act 1984 (Cth) (‘SD Act’). His Honour declared the Victorian law in this instance ‘invalid and inoperable’ by operation of section 109 of the Commonwealth Constitution to the extent it was inconsistent with the Commonwealth law. Although the declarations by the Federal Court were limited in their terms to the circumstances of the case, the judgment raises broader issues about equity of access to assisted reproductive treatment (ART) in Victoria. The issue of partner consent as a barrier to access to ART was specifically raised by an independent review of the ART Act in Victoria. The Victorian Government released an interim report late last year as a first stage of the review, which canvasses some options for reform. This raises a broader question as to whether prescriptive legislation imposing detailed access requirements for ART is necessary or even helpful.