Sandor, Danny --- "Children Born From Sperm Donation: Financial Support and Other Responsibilities in the Context of Discrimination" [1997] AUJlHRights 30; (1997) 4(1) Australian Journal of Human Rights 228

Postscript - Children Born from Sperm Donation: Financial Support and other Responsibilities in the context of Discrimiination

Danny Sandor

The decision in JM's case was challenged by the doctor and his clinic and went on to appeal to a single judge of the Supreme Court of Queensland. After this article was completed, the reserved reasons for judgment in that appeal became available (QFG and GK v JM, 24 October 1997, Mr. Justice Ambrose). Mr. Justice Ambrose set aside the findings of the Tribunal as to direct and indirect discrimination and remitted two issues for the Tribunal's consideration. The most significant features of the judgment are noted below.

In finding there was no direct discrimination, the constructions of sex and sexuality applied by Mr. Justice Ambrose led to his rejection of the inclusive definition of "infertility" applied by the Tribunal. He favoured the one advanced by the appellants which presumes a heterosexual couple and requires attempts by them to conceive through intercourse for a period of 12 months. In doing so, however, the judgment failed to engage with the former Tribunal President's finding that JM fell within a category of eligibility for donor insemination service established by the 1996 NHMRC draft guidelines: eligibility based on health risk.

Following from this approach to the meaning of "infertility", Mr. Justice Ambrose found that JM was not discriminated against on the grounds of her "lawful sexual activity". Using a strained approach to the language of the statute, he considered that the service was refused to JM because of "her heterosexual inactivity". He characterised JM as having "refused" to try to become pregnant through heterosexual penetrative intercourse and said it was "impermissible to infer" that she or other women in lesbian relationships "are not physically or psychologically `able to comply' with the criteria adopted by the [doctor]" (QFG and GK v JM at 15).

This logic means that donor insemination services can be denied to any woman who has not tried to become pregnant in what his Honour termed "the normal way" and that questions of direct discrimination against lesbians such as JM in accessing these services are effectively foreclosed by the narrow definition of "infertility".

The outcome also encompasses heterosexual women who do not wish to engage in penetrative intercourse with a man. However, to view the result as unconnected to discrimination against exclusive lesbians runs contrary to the commonsense observation by the former Tribunal President, that it is a characteristic of a person in the lawful sexual activity of a stable and exclusive lesbian relationship that she is not in a sexual relationship with a male partner (JM v QFG and GK at 8).

In respect of indirect discrimination, his Honour overturned the finding that the requirement of a male partner's consent amounted to indirect discrimination. Mr. Justice Ambrose characterised the real questions to be answered as follows and remitted them for consideration by the Tribunal.

1. Whether it was indirect discrimination against women in an exclusive lesbian relationship, or reasonable and therefore not unlawful, for the doctor to provide insemination services "only to women considered medically infertile because they have failed to achieve pregnancy in the normal way by engaging in heterosexual intercourse for a period of 12 months prior to seeking treatment from him" (QFG and GK v JM at 50-51).

2. Whether the doctor's act of limiting services in such a way "was not unlawful because it came within the exception contained in s 104 of the Anti-Discrimination Act 1991 (QFG and GK v JM at 51). That section allows acts which are "to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with" the Anti-Discrimination Act 1991 (Qld).

The remittance of these issues is problematic. The first question appears to leave it open to the Tribunal to revisit the meaning of "infertility" but it will have to do so against the backdrop of his Honour's strong expressions of view as to the meaning of the term and his application of those views to the issue of direct discrimination. The second question effectively invites the Tribunal to consider whether the restrictive access created by the definition is a type of positive discrimination and again begs the question of the meaning of "infertility".

JM has lodged an appeal against the decision of Mr. Justice Ambrose. This is to be welcomed because his Honour's judgment is the first Australian judicial authority on access to fertility services by a self-identifying lesbian, and contains a number of concerning features and assumptions. The judgment has implications for jurisdictions other than Queensland and should be subjected to a review which takes greater account of the health and human rights dimensions of the issues.