Ok, this will be long.... sorry! Those interested in a paragraph summary will find it at the end...
It is worth saying from the outset that the ART Bill is a far more complicated and nuanced piece of legislation than either of the others recently debated (abortion/euthanasia). While Christians have generally been able to identify the key issues regarding abortion and euthanasia and approach them in an identifiably Christian way, there has been far less agreement about the ART Bill and its meaning. Some prominent Christians have spoken both for and against aspects of the proposal, and the wide range of issues covered in this Bill mean that no simple and unanimous ‘for’ or ‘against’ is likely to come from the Church. Nonetheless, Christians can and should be able to appreciate the main areas that this Bill addresses, and be ready to faithfully respond to them.
People interested in reviewing the bill in its entirety can access it from
http://www.legislation.vic.gov.au/This Bill arises as a result of the Victorian Law Reform Commission (VLRC) review of the areas of IVF and adoption between 2002-2007. Part of the impetus for the proposed changes to the IVF component of this Bill was a Federal Court decision in 2000 that found Victoria’s existing laws were in breach of the Federal Sex Discrimination Act. The court found that the requirement for a woman to be married in order to be eligible for IVF was unlawful, and in response the VLRC have recommended that “the marital status requirement be removed from the Act, and that people seeking ART not be discriminated against on the basis of marital status, religion, race or sexuality”. The Bill is not limited to the provision of IVF, however, and also deals with issues related to sperm donation, privacy, adoption, surrogacy, parenthood and sex selection of children. The breadth of this legislation is significant, and requires consideration point-by-point of the major areas of interest. There are a number of provisions of the proposed legislation that are not dealt with here, and I am going to try to outline the important areas. I am also going to try to be informative rather than argue too much, as I am currently working on a more substantial response to the bill and the issues involved (watch this space!).
1)
Concerning provision of IVFCurrent Victorian law prohibits the provision of IVF to women outside of a marriage or heterosexual de facto relationship. As mentioned above, this has been successfully challenged in the Federal Court, and some amendments to the Act are required in order to comply with Federal law. The proposed legislation, however, goes beyond what appears required by removing all restrictions on IVF, including the need for clinical infertility. The requirement proposed under the new bill would be that a woman is 'unlikely to become pregnant' - a definition specifically worded to allow IVF to be provided to single women or women in lesbian relationships regardless of their medical fertility.
The proposed legislation does retain an assessment of the child’s well-being, such as requiring police checking for IVF applicants.
Quite apart from any moral arguments about who should be parents, I would argue that it is inappropriate for legislation to provide medical treatment to those without a medical need. IVF is an expensive medical procedure and, like all medical technologies, has inherent risks. While its value as a fertility aid for the clinically infertile is apparent, it is unreasonable for legislation to demand that such a medical procedure be provided to those with no medical indication. Rather than legislation to allow anyone to access IVF, it would be more appropriate to limit its use to women who have medically-established infertility. Distinguishing on such grounds would not be in breach of the Sex Discrimination Act as, for instance, unmarried but infertile women would still have access to the technology.
2)
Concerning surrogacyVictoria’s existing laws deal primarily with commercial surrogacy, prohibiting any surrogacy arrangement where contracts or financial exchange occurs. Aspects that surround commercial transactions, such as advertising, are also prohibited. Unlike other states, Victoria’s existing legislation does not specifically address the issue of altruistic surrogacy. This means that it is not prohibited, but is difficult in practice because of the range of potentially illegal activities that surround it. This means that IVF clinics are unlikely to agree to participate in surrogacy arrangements. It also means that a surrogate mother could decide to keep the child despite an informal surrogacy arrangement, and there would be no legal recourse for the ‘commissioning parents’.
The proposed legislation would make non-commercial surrogacy legal, with certain safeguards included. It would not require that the ‘commissioning parents’ be infertile, only that they would be ‘unlikely to become pregnant’. Again, the change to this phrase is intended to include both single women and women in same-sex relationships, as both are ‘unlikely to become pregnant’.
I have some broad concerns about surrogacy arrangements, particularly about the separation between biological parenthood and legal parenthood and about the risk of coercion inherent in asking a woman to carry a child that is not legally her own. It is also unclear to me how medical decisions would be made when there was conflict between a mother and a child she is carrying but does not have a legal relationship with.
3)
Changes to the birth registraton and definition of 'parents'Currently, the office of BD&M record the 'parents' as the mother and father of the child. Under the proposed changes, the mother (or the 'commissioning mother' in relation to surrogacy) and any partner could register themselves as parents.
As well as the opportunity to register as parents in this way, the bill would also make a presumption that the female partner of a woman undergoing ART is a parent of the child. I include the relevant section of the proposed bill in full below.
"
Women with a female partner: presumption as to status of child (1) If a woman undergoes a procedure as a result of which she becomes pregnant—
(a) the woman is presumed, for all purposes, to be the mother of any child born as a result of the pregnancy; and
(b) the woman's female partner is presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy if she—
(i) was the woman's female partner when the woman underwent the procedure as a result of which she became pregnant; and
(ii) consented to the procedure as a result of which the woman became pregnant; and
(c) the man who produced the semen used in the procedure is presumed, for all purposes, not to be the father of any child born as a result of the pregnancy, whether or not the man is known to the woman or her female partner."
Other less controversial areas:4)
Prohibition on sex selection of children through IVF, unless required to prevent transmission of a genetic disease.5)
Prohibition of using genetic material from people who have died unless they provided specific written consent prior to death.6)
Prohibition of mixing the genetic material of more than one man or more than one woman for the purpose of ART.7)
Decriminalisation of self-insemination.8)
Mandatory counselling prior to undergoing any ARTOVERALL - My concern about this bill is that too many issues across a wide range of sensitive bioethical and social issues are packaged together, thus limiting a genuine debate about what we want our state to be like. If I can grossly oversimplify the issues, I think that there are 2 major themes to this legislation that Christians may find problematic. First, there is extensive redefinition of family and parenthood, where biological parenthood is systematically devalued in favour of the intention to parent. This is seen especially in the surrogacy and IVF elements. Secondly, although the interests of children are not ignored, they are certainly given less prominence than in previous legislation, and competing interests are weighed against them.
Phew...
Justin
