McBain v. State of Victoria

The applicant was a gynecologist specializing in in vitro fertilization (IVF) treatment in Victoria, Australia. Under a state law in Victoria (the Infertility Treatment Act 1995), IVF treatment could only be provided to a woman who is married and living with her husband or who is living with a man in a de facto relationship. The applicant sought a declaration that these provisions amounted to discrimination on the basis of marital status and were therefore inconsistent with the Commonwealth Sex Discrimination Act 1984 (The “Commonwealth Act”), which makes it unlawful to discriminate against individuals on the basis of their marital status in the provision of services. Marital status is defined as including de facto relationships. Under the Australian Constitution, any state law that is inconsistent with a Commonwealth law is invalid to the extent of the inconsistency.

As representatives for the state took a neutral position, neither asserting nor conceding an inconsistency between the State Act and Commonwealth Act, amicus briefs were provided by several Catholic organizations which contending that there was no inconsistency between the Infertility Treatment Act and the Commonwealth Act.