AB v. The Attorney-General for the State of Victoria

AB’s husband passed away from a motor vehicle accident in the state of Victoria. The couple usually resided in the Australian Capital Territory (ACT). In vitro fertilization (IVF) treatment was available in the ACT, but s 43 of the Infertility Treatment Act 1995 (IT Act) prohibited the use of a dead man’s sperm for a fertilization procedure in Victoria.

Wanting to conceive a child using her husband’s sperm, AB (the plaintiff) sought, and was granted, a court order (the Removal Order) to remove and store the sperm as per the requirements of the IT Act. A second court order was required to do anything further with the sperm.

In a sworn affidavit, AB’s doctor stated that the procedure would be carried out by intracytoplasmic sperm injection (ICSI) and that, as AB was 36, the chances of successful IVF treatment were decreasing with time. The ICSI procedure involved the formation of an embryo outside AB’s body, which would then be transferred to her womb.

AB requested the Infertility Treatment Authority (the Authority) to transfer the sperm to storage in the ACT, but was refused for fear of violating s 43 of the IT Act. The plaintiff sought orders and declarations which would allow the ICSI procedure to occur either in Victoria or the ACT.

Section 43 of the IT Act banned “insemination” using the sperm of a dead person and the transfer of “gametes” from a dead person to a woman. Previous versions of the Act had additionally banned the transfer to a woman of “zygotes” and “embryos” made with gametes from a dead person. The Act had since been amended to remove these provisions, as well as to replace the terminology of “zygote” with “oocyte in the process of fertilisation.”

The IT Act further required a woman to be married or in a de facto relationship (the marriage requirement) and the written consent of both parties to the marriage before IVF treatment would be given. However, the marriage requirement had been rendered inoperative by the earlier decision of McBain v. Victoria (2000) 99 FCR 116, which held it to be inconsistent with the Commonwealth Sex Discrimination Act 1984.

The Court made declarations that s 43 of the IT Act did not ban the transfer of an embryo formed from the gamete of a dead person to a woman, that the sperm of AB’s husband was  nonetheless unable to be used in IVF treatment because AB’s husband had not consented in writing to such a procedure, and that the plaintiff could apply to transfer the sperm to the ACT.

The Court interpreted the IT Act in light of its purposes and amendment history, and found it did not ban the use of sperm from a “man known to be dead” to form an embryo outside the body, as the provision specifically banning this procedure had been repealed.

In the Court’s opinion, the history of amendments to the IT Act indicated a legislative intention to allow procedures where a fertilized oocyte or embryo would be formed outside of the body, such as the ICSI procedure. In particular, it was noted that the sections banning the use of gametes in a procedure such as in ICSI had been repealed, and that no explicit language banned the procedure in the current version of the IT Act.

The Court also accepted that since McBain, it was not necessary for AB to satisfy the marriage requirement. However, it held that it would still be necessary for AB to obtain the written consent of her husband, which she did not have. It was not enough that AB’s husband had expressed a desire to have a family. For this reason, AB could not undertake the procedure in Victoria.

Because of the legality of the procedure under s 43 of the IT Act, however, AB could nonetheless apply to the Authority to have the sperm transferred to the ACT. The Attorney-General argued that this should not be allowed to occur, because the Removal Order had been made without jurisdiction, and the declaration that s 43 of the IT Act did not ban the use of the sperm was dependent on the validity of the removal order. The Court disagreed, finding that although the Removal Order should not have been made on the merits, this error was not a jurisdictional one. The Removal Order was therefore valid when the sperm was removed. Furthermore, the Court did not accept that its ability to grant declaratory relief was conditioned on the validity of the Removal Order.

“Accordingly, on a plain reading of the words of s 43(a), it does not prohibit the procedure which the plaintiff wishes to undergo.  It is not proposed to ‘inseminate’ the plaintiff with the sperm of her late husband.  It is proposed to transfer to her an embryo formed outside of her body which will be formed from the sperm of her late husband.  This is the very procedure which was specifically prohibited by s 43(c) whilst it was still in force.  In my view, it necessarily follows that Parliament intended, by the repeal of s 43(c) to permit such a procedure provided that it was not otherwise prohibited by the Act.” Para. 56.

“It is one thing for a married man to wish to have a family.  It is altogether another thing for a married man to consent to his sperm being used in a treatment procedure as defined by the Act.  It should not be assumed that such consent would necessarily have been forthcoming if the matter had been considered by the plaintiff’s late husband.” Para. 92.

“I do not accept that the declarations sought by the plaintiff are properly characterised as ‘consequential’ upon the removal order.  In my view, the declarations sought depend upon two things.  First, the fact that the sperm of the plaintiff’s late husband exists in storage and is capable of being utilized in the procedure.  Second, the declarations sought depend upon the proper interpretation of the Act.” Para. 146.