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.
All parties appear to have agreed that the State Act discriminated against women on the basis of marital status. The issues to be decided by the court were therefore:
1. Whether the provision of IVF amounted to a service as defined under the Commonwealth Act.
2. Whether the service is only provided to women and therefore outside the scope of the Commonwealth Act.
3. Whether the discrimination on the basis of marital status is for a legitimate aim and reasonable and proportionate in the circumstances.
The Court rejected the amici’s argument that the provision of IVF is not a service as it is intended to replicate the natural act of intercourse for procreation is argument, noting that IVF is not intended to replicate intercourse, but to achieve fertilization through medical treatment. The Court found that such medical services provided by a doctor are clear “services” for the purpose of the relevant legislation.
The Court further rejected the amici’s argument that the word “services” should be interpreted in light of a child’s right to know their parents, as enshrined in international human rights treaties, finding that as the definition of services was clear and unqualified, it did not require further clarification from international treaties dealing with other topics.
As Section 32 of the Commonwealth Act states that the Act does not apply to services that by their nature can only be provided to one sex, amici argued that IVF can only be provided to women. The Court found, however, that while the fertilized egg would be inserted into a woman, the service was generally provided to couples, and therefore Section 32 did not apply.
While Section 7(B) of the Commonwealth Act states that no discrimination is committed where a condition is imposed that is reasonable in the circumstances, having regard to the disadvantage caused and proportionality in the circumstances, the Court rejected the argument that the “marital status” restriction was reasonable and proportionate given the public interest in a child knowing its parents and having a parent of both sexes. The Court recognized that Section 7(B) only covers indirect discrimination, which is the imposition of conditions that may disproportionately affect a certain group of people; however, by treating unmarried women less favorably than married women, the State Act amounted to direct discrimination and as such, considerations of proportionality and reasonableness did not apply.
Therefore, the Court held that the provisions of the State Act restricting fertility treatments to women who are married and living with their husband or in a de facto relationship amount to discrimination on the basis of marital status. The provisions were therefore inconsistent with the Commonwealth Act and inoperative in accordance with the Australian Constitution.