Lesbians, conception and the law
BY JO ELLIS
The last decade has been characterised as the "lesbian baby boom".
Famous lesbians Melissa Etheridge and her partner Julie Cypher have declined to give information about how their baby was conceived, but stories about DIY insemination (via a turkey baster or a syringe) have become part of lesbian popular culture. The 1990s (and perhaps the 21st century) may be remembered, not just for the successes of lesbian conception, but also for the legal struggles lesbians have fought in order to conceive.
In 1994, a lesbian who became known as JM wanted a baby. She approached a Queensland fertility clinic which provided her with a form that required her husband's name and signature and advised her to lie about her sexuality. She refused to lie.
On the grounds that there was no medical reason for JM to need fertility services, the clinic refused to provide her with the services she required to get pregnant — insemination with donor sperm.
JM took the clinic to court and, in January 1997, the Queensland Anti-Discrimination Tribunal found the clinic's decision to be discriminatory. The court awarded JM $7500.
The tribunal's decision unleashed a frenzy of homophobia from conservative politicians. Queensland's minister for health, Mike Horan, called for a ban on lesbian access to donor sperm and compared lesbian use of fertility clinics to Hitler's desire to create a "super race".
Federal health minister Michael Wooldridge wanted to withdraw Medicare benefits for lesbians seeking donor sperm. Deputy Prime Minister Tim Fischer said that society should tolerate gay and lesbian couples, but should not have to "subsidise their child-bearing whim".
In October 1997, the Queensland Supreme Court overturned the Anti-Discrimination Tribunal's decision. Justice Ambrose found that JM was refused access to donor sperm, not because she was a lesbian, but on the grounds of her "heterosexual inactivity" (in other words, because she did not want to have sex with a man in order to get pregnant).
In August 1988, the Queensland Court of Appeal upheld that decision. It found that the clinic had the legal right to refuse JM treatment because she was not infertile.
The states that exclude lesbians from services provided by fertility clinics stipulate in legislation that services be provided only to heterosexual couples. Single heterosexual women are also excluded.
The Human Reproductive Technology Act (1991) in Western Australia limits fertility treatment to couples who are either infertile or who may conceive a child with genetic defects. A couple is defined as a man and a woman who are married or have been living in a de facto relationship for five of the last six years.
The Victorian Infertility Act also limits fertility treatment to married or heterosexual couples. The Northern Territory fertility clinic, Repromed NT, says that NT legislation restricts access to fertility treatment to heterosexual couples (either married or de facto). It says that women who are not in a heterosexual relationship may have to go "down south" to be treated.
Tasmania and NSW do not confine IVF treatment or artificial insemination to married or de facto heterosexual couples.
Victorian lesbian couple Haley Atkinson and Joy Murphy enlisted the help of Atkinson's friend and colleague (Atkinson was a police officer at the time), Mark Keen. When Atkinson failed to conceive in the conventional way, she and Keen asked for IVF treatment that resulted in Atkinson becoming pregnant.
In February, Atkinson and Keen faced a Victorian magistrate's court. In 1999 they had been charged with providing false information or failing to provide relevant information when applying for IVF treatment. They had lied about their relationship to access treatment.
The court dismissed the charges, but the case sparked a push to make artificial insemination and IVF equally available to lesbians and single women in Victoria. Dr Ruth McNair, convener of the Fertility Access Rights Lobby, points out that international human rights covenants signed by Australia oblige governments to provide equal access to fertility services.
The case has also sparked comment from conservatives like Bill Muehlenberg, secretary of the Australian Family Association. Muehlenberg said that the rights of the child should also be considered and that the traditional family unit is the best way to raise children. He said that the risk of child sexual abuse doubled where the child was not living with its biological father, and that in a homosexual relationship, only one partner could be a biological parent to the child.
The conservatives' desire to limit fertility treatment to married women denies the right of all women to control their own bodies. A woman's marital status should not determine when and if she is able to receive the medical treatment that she seeks.
Apart from the issue of democratic rights, denying women access to medical treatment increases risks to their health. McNair says that women who cannot access artificial insemination or IVF treatment face risks from using unscreened semen such as "transmission of chlamydia, syphilis, hepatitis B and HIV".