A Victorian couple with three sons are asking VCAT to allow them to select the gender of their next child. The couple are desperate for a girl after they had a baby girl who died a few days after birth. The Herald Sun reports:
[The couple] are asking the Victorian Civil and Administrative Tribunal to allow them to choose the sex of their next child in a test case, and give them the opportunity to have the daughter they were denied.
An independent panel, known as the Patient Review Panel, recently rejected the couple’s bid to choose the sex of their next child using IVF.
They have gone to the tribunal to have the decision overturned. The tribunal recently ruled it had the power to review a decision made by the Patient Review Panel.
The tribunal will hear the couple’s case in March.
So determined is the couple to have a girl that recently they terminated twin boys, conceived through IVF.
They said it had been a traumatic decision to make but they could not continue to have unlimited numbers of children.
If their bid to have a daughter fails they say they will go to the US so they can conceive a girl.
The couple, who cannot be identified, conceived their three boys naturally.
The woman – in her thirties – says she loves her sons but would do anything to have a daughter.
“After what we have been through we think we are due for a bit of luck,” the man said.
“We want to be given the opportunity to have a girl. We know we definitely won’t be replacing her in any way, but want the chance to have the baby girl we don’t have.”
Section 28 of the Assisted Reproductive Treatment Act 2008 (Vic) bans parents from selecting the gender of an embryo:
(1) A person carrying out a treatment procedure must not use gametes or an embryo, or perform the procedure in a particular way, with the purpose or a purpose of producing or attempting to produce a child of a particular sex.
Penalty: 240 penalty units or 2 years imprisonment or both.
(2) Subsection (1) does not apply if -
(a) it is necessary for the child to be of a particular sex so as to avoid the risk of transmission of a genetic abnormality or a genetic disease
to the child; or(b) the Patient Review Panel has otherwise approved the use of the gametes or embryo for the purpose or a purpose of producing or attempting to produce a child of a particular sex.
I presume that these provisions were enacted to prevent parents from preferencing gametes of one gender. In some cultures there is a very strong bias towards having a male child (eg, in some cultures in China and India). An Indian friend told me that he and his wife were banned from finding out the gender of their child before she was born because India is trying to prevent the abortion of female foetuses.
Of course, I am lucky enough to have had a child of each gender naturally. I never really minded which gender my children were, and did not have a strong preference. I still found out what gender they were before they were born because I’m insanely curious, and it reduced 50% of the names list immediately. I feel very sorry for the couple having lost a daughter, and I understand that if one has had three sons and lost a daughter, the desire to have a daughter would be very great.
Still, I can’t help feeling deeply uncomfortable about this story. I have a friend who has been trying to conceive a child via IVF (no success yet, but my love and prayers are with her). She would love to have a child, whatever the gender. It has been a gruelling and awful process for her. I simply can’t imagine how she would feel at this story. It just seems so selfish when the couple already has three other healthy children.
On the other hand, on a pragmatic level, I wouldn’t want this couple to keep trying to conceive children and aborting male foetuses, so perhaps it would be better to let them have a female foetus implanted. But would it open up the floodgates for others to argue they wanted to select the gender of their child via IVF? Sometimes technology makes life easier, but sometimes it also makes the ethical questions in life so much harder…
64 Comments
I think in your post you’ve already pointed to the alternative, abortion, and the fact that it’s used in this country, occasionally, for sex selection does mean that parents to be already have the means to choose the sex of a baby. It seems wrong and pointless to me to prevent them from doing it by a less horrible means. This from someone who is pregnant with a much wanted child achieved after 2 years fertility treatment, including IVF and other things. My IVF experience and difficulty conceiving don’t make me have any issues with IVF sex selection.
There is one hypothetical justification that comes to mind, where the father has something nasty on his X chromosome (that could lead to pain or greatly increased health costs in a child or grandchild). A male child avoids the problematic X being passed on.
The gender aspect of this can be avoided by addressing (indeed encouraging) the more generic problem of pre-impantation or early tests for a list of specified non-trivial conditions, followed by genetic counselling. An example of these might include those particularly dangerous variants that almost guarantee a cancer of some sort.
I’ll admit, when I got the news that a daughter was on the way, I was quite happy, the thing on my mind being the statistic that males are more likely to die in utero (significantly more males are conceived).
Apart from those specific issues to avoid suffering and huge financial burdens, I’m deeply uncomfortable about embryo selection – especially on trivial things like gender. The film Gattaca is well worth watching, and if you have the dvd with the planned coda on it, it covers the issue beautifully, and deeply, in a couple of minutes.
I think the horse has bolted on this one. Throughout human history, certain groups and individuals have had preferences for children of a certain sex and have taken steps up to and include infanticide to meet this preference.
Now that the technology exists to allow for determining the sex of a child, it will not be long before moral objections to this will dissipate (in the same way that the moral objections to IVF itself have largely disappeared). If the technology exists, it will be used.
It already seems hard to me to reconcile the notion that it is a breach of basic human rights to prohibit same-sex couples from accessing reproductive technology with the notion that couples (same sex or otherwise) using the same technology to determine the sex of their child is not to be allowed. It is the same underlying technology allowing the achievement of a goal that would otherwise not be possible.
I don’t know. It seems like such a barrier could prevent it from becoming a social engineering tool and reduce the social impacts of cultural pressures.
For some reason, I’ve tended to think that where a couple really wants a child of a particular gender – to the point where they are willing to go through the pain, cost and effort of IVF – that they should be able to do so.
After all, if you were the next son, knowing your parents DESPERATELY wanted a girl (or vice versa)… ugh.
Not sure if I would apply the theory everywhere though – the sex selection bias in China and India seems so extreme that enabling it more would be difficult to justify…
Laura, I’m so pleased to hear that you’re pregnant!
I hadn’t checked in for ages, so obvs missed that one… 
That’s made my day.
Dave, the legislation caters for that possibility in s 28(2) – if there is a gender-related genetic condition or disease, then you can choose the gender of your child.
Ms Laurie – I was thinking of the sons of this couple and feeling a little sad. Would the sons feel like they were not good enough? I hope not. Perhaps I can’t quite understand because I never desperately wanted a particular gender, and I never particularly minded. I was surprised to have one of each, though – for some reason, I’d decided Eaglet No. 2 was a girl, perhaps because I’ve got a little sister.
Eaglet No. 1 is now starting up the campaign for a little girl. I’ve warned her that it can’t be guaranteed, and in any case, Daddy would have to be persuaded. Her latest gambit today: “Well, can you get another man to be the Daddy?” Daddy was not impressed.
God help me, what does it matter what sex a child is?
Isn’t a little boy as precious as a little girl or vice versa?
Designer babies, again- give me a break!
Just thinking of gender selection where there is a large cultural bias is a self-limiting thing. Too many males, and choosing a son decreases the chance of grandparenthood. Darwin in action, I reckon. Porking futures rather than pork-belly futures perhaps.
The best option to pass on your genes is choosing a kid’s gender the opposite of what the majority would.
Allowing or encouraging selection of males is a great way to maximize the workforce in the medium term while decreasing environmental load long term – lots of workers with no need for family friendly arrangements.
Mind you, we are finding out that processes like freezing or IVF does something at the epigenetic level, the extreme being the disasters like dolly the sheep. The dangers of selection and implantation processes other than villus sampling and termination aren’t on the radar of most people making the decisions.
SL was telling me interesting research which indicated if there are more men than women in a particular society, men tend to treat women better…they have to, or else they won’t get a girl!
LE, it is hard enough to find a reasonable woman already, without further culling of the base.
Speaking of crass, I’ll say here that I congradulate Laura, on the basis of her thoughtful recommendation to me of a left feminist writer, Tina Power, some time ago.
Lest folk think me me anti technology or troglodyte on sex selection or the other esoterica of modern western reproductive culture, that is..
I think that once on accepts an absolute right of abortion (which I don’t) it’s pretty hard to impose conditions on the exercise of the right. It’s either absolute or it isn’t. If one accepts the right as absolute, one can’t question the motivation for its exercise.
Similarly, if one accepts the ethical efficacy of IVF (which I do), what ethical complaint can there be to choosing the gender. In the end both are scientific process designed to defeat the course of nature. I don’t mean that last observation to sound value-loaded even though it probably does. I just think its a fair characterisation of things.
I’m so glad to hear your news Laura.
As I understand, IVF may result in more than one viable embryo. It seems strange that when some embryos must be selected for implantation over others, the parents have no say in the choice. I am also wondering in which circumstances the Patient Review Tribunal would grant its permission given that genetic abnormalities are already dealt with under subsection 2(a).
Su, Prof Kovacs makes a related point in the linked article – how come you can choose whether or not to bear a child of a particular gender after it is implanted (via abortion) but you can’t choose before it is implanted? Looked at like that it seems illogical.
It’s all a question of where you draw the line, I guess.
What would happen if a parent of a particular ethnic background said that she would suffer mental harm if forced to bear a female child because she already had three daughters, and she wished to implant only male children because of the importance of male children in her culture? Would we want to encourage that? If it is different from the situation related in the post, how is it different?
LE says:
“SL was telling me interesting research which indicated if there are more men than women in a particular society, men tend to treat women better…they have to, or else they won’t get a girl!”
Unless you happen to one of the tens of thousands of Vietnamese, Burmese etc women who are kidnapped and kept as bride slaves by Chinese men.
Even the Chinese media has reported on the problem:
“Chinese police freed 10,621 women and 5,896 children who had been abducted for human trafficking as of Sept 6, since the Ministry of Public Security launched a crackdown on trafficking the crime in April last year.” http://www.chinadaily.com.cn/china/2010-09/20/content_11325519.htm
Speaking as one who is mildly repulsed by the idea of selectin the sex of your child, and who would prosecute people who select through abortion for murder, I can’t help but agree that the horse has bolted and on balance this is to be filed under ‘Technology makes for a more civilised society’, no 256748656.
Now if only this blog’s luddite ‘progressive’ element could accept that ‘capitalism ONLY makes technology’, and then join the dots, there would be a lot of kumbaya here…
I have no problem with IVF sex selection in Australia because, notwithstanding the incessant drum-beating by a small and mostly irrelevant gaggle of feminists, Australia is not an egregiously sexist country and consequently we are unlikely to see it cause a gender imbalanced population.
I wonder what has made this couple cling so strongly to the idea that their next child must be a girl? I read the part of the story where they mentioned having had a girl child earlier that died.
I just can’t quite balance their expressed distress at the loss of one female child when we then read that they then decided to abort two (I presume healthy) male foetuses.
Some of the research I’m familiar with is summarized here:
http://www.economist.com/node/15636231
The effect LE mentions (where skewed sex ratios result in better treatment of women, because they have scarcity value) is known as ‘the law of one price’. That is, in an efficient market, all identical goods will have the same price. Tim Harford’s The Logic of Life (2007) has a good discussion of the phenomenon, and how it has played out in South Korea.
Originally, South Korea had even more skewed sex ratios than China or India, which then dissipated incredibly suddenly. It seems that the law of one price was the main reason for this.
Likewise, allowing sex selective abortion for the second child when the first is a girl has the effect of making gender ratios for the first child completely normal and reducing family size, as well as reducing the worst of the gender skew (although it does not eliminate it entirely). There are also some other odd (recent) things going on as well: girls are often preferred among the Chinese urban middle class, because they more willingly ‘follow the family trade or profession’ than sons, something almost as important in filial piety cultures as supporting one’s parents in old age.
Sl, you are saying Chinese people like having daughters because they are nicer than boys, rather than just because they are girls?
Mel@16
My problem with gender selection without a damn good medical/economic reason is that this falls into the class of mere preference – no real difference from choosing hair color.
Even with medical conditions, there are issues of what is significant, what genes might be a pain in the butt for individuals, but are useful in the population (e.g. there’s more evidence coming that the genes involve in mental health problems in the community is the price you pay for genius and innovation). It’s a very tricky area.
Perhaps the best example of disorders that can be useful is cystic fibrosis – a “half dose” is extremely handy if there is a cholera epidemic. OK, cholera isn’t really a problem in our particular community, but it’s a good example of WHY quite a few of these harmful genes are maintained, even selected for, in a population.
So… gender is pretty much as trivial a reason as I can think of – and therefore, while I’m big on genetic counselling in stopping breeders of frankly harmful genes (think Huntington’s in Taswegia), I’m dead set against gender selection – it’s WAY down the slippery slope.
Here’s a piece in the New York Times about the South Korean experience (thanks to Theodora for the tip off). According to this, the entry of women into the workforce was pivotal to their recognition as useful members of society.
There are strange trends abroad as the century moves into its swing. Were others watching the ABC program tonight about the incredible surveillancing and cocooning of children on the ABC tonight?
Fewer children, more nervous parents and the show even proposed physiological damage to brains denied the “born free” free-range childhoods that my generation enjoyed, relatively speaking.
Still, like botox and gas guzzlers, one supposes it will stay, as does so much else of the lifeless detritus of US culture so often irrelevant to this country inhaled in by the national cultural nostril.
L Plate Lawyer, that’s how I feel too. How can one react to the death of one child so badly, and then abort two healthy foetuses just because they are male? I don’t think I could do that, personally.
On balance, I tend to think allowing sex selection in a case like this is better than causing parents to abort healthy foetuses which are being carried by the mother. But there is still the problem I raised in @ 13 – would we allow parents from a different culture who said that having a son was particularly important to them for patriarchal reasons to select a male foetus? I think if we let this couple do so, we have to let my hypothetical couple in @ 13 do so too. That’s the thing about freedom of choice – it means that you allow people to do things that you don’t necessarily like personally.
Paul, we were watching that too, and were totally freaked out. Rest assured, we’re not bringing our kids up like that. They get plenty of free play!!!
LE, people rubbish my home town of Adelaide for being old fashioned even compared to Sydney or Melbourne let alone a big American or European metropolis. Altho technology narrows the gap exponentially and by the hour. Australians are like yanks and culturally attuned especiially sharply to “get” cultural meanings within or related to rapidly reproducing yet ongoing stream of cultural artifacture.
Should have had added (I think), “from the anglo sphere, esp the USA”. Blip.
Paul@19, it is very complex. Broadly, recent research indicates that women are more compliant employees than men: more diligent, harder working and more likely to complete tasks in a timeous fashion. On top of this effect is the fact that industrialisation requires a compliant, disciplined workforce that (to use the old teaching phrase), ‘can take direction’.
This phenomenon is behind survey data indicating that women fared better during the mass job shedding as a result of the GFC than men, or that in France Muslim males are grossly underemployed and underachieving compared to Muslim females (often including within the same family). I saw this latter phenomenon up close and personal in the UK during my stint at the Home Office. It was common for a girl from a British Asian Muslim family to win a place at Oxbridge, while her brother would not attain a single ‘good’ GCSE (grade from A-C). Since intelligence is largely heritable, and the two were being raised in the same family, then gender and religious attitudes to gender (ie, boys being valued because they are male, rather than because they have to achieve something useful in addition to their maleness) were the important variables.
The reason the filial piety cultures climb out of this gender morass (like South Korea has done, and long before that, Japan) is in part because while maleness is privileged, it has to be allied to achievement in other areas (job or profession, earning potential, education). Maleness alone is not enough. And since industrialisation makes educational attainment and profession transferable across the genders, and girls succeed in an industrialised workforce, some Chinese families are coming to prefer girls.
I should also mention that the gender ratio effect was always less pronounced in Japan (something 18th and 19th century observers noticed) because a Japanese woman always kept her dowry and property on marriage and after divorce, unlike the situation in China or India, where it became the husband’s property on marriage and the woman was often trapped and unable to divorce thanks to a combination of religious law (India) or property loss (China). Japanese families did not have to worry that, in having a daughter, they were ‘watering someone else’s garden’ (as the Indian proverb goes).
You never fail to amaze me, SL.
The trap here is to say or not say whether anglo males on certain other cultures follow a trend like the French and or French Muslim males. I’m not sure I’d like to have to move cultural generations to a new era suddenly, having witnessed the milder version I suspect – back here in OZ since arriving from a straight Aussie background to a satellite town of migrants in 1960. Culture shock is a characteristic of the age. A precondition?
The linkage for males in France is that the linkage to a novel situation works less well. If the case were that straight forward. One suspects that European French males might be likely to do better as a dominant or more numerous male grouping. My gosh, people are complex creatures.
French Muslim males represent quite a gross statistical outlier (that’s why they are easy to study). The gap between Anglophone (or Francophone) men and women when it comes to workplace compliance is much smaller, which is why it took quite a while to appreciate that there was any difference between the genders in the post-GFC fallout.
“On balance, I tend to think allowing sex selection in a case like this is better than causing parents to abort healthy foetuses which are being carried by the mother. But there is still the problem I raised in @ 13 – would we allow parents from a different culture who said that having a son was particularly important to them for patriarchal reasons to select a male foetus? I think if we let this couple do so, we have to let my hypothetical couple in @ 13 do so too. That’s the thing about freedom of choice – it means that you allow people to do things that you don’t necessarily like personally.”
Agree, LE. But we probably shouldn’t be letting these reptiles become citizens in the first place.
The tragedy for them is that they have arrived just as large parts of Europe seem to be de-industrialising.
I think there are discernible patterns the world over.
You know, worse still, it could just say some thing about a certain clubiness in a subculture but without a totally illogical cause for it. Shades of grey.
Surely there is a couple who want to select a boy via IVF. Couldn’t they pair off the boy couple and the girl couple. Both of them get their wishes and the gender ratio is not really harmed.
That’s a bit lame PW, who wouldn’t do better as part of a dominant majority?
I’d love to be part of a dominant majority, too (well I’m white male and well-educated, so I am). Seriously, this boils down to saying that they would do better if they were able to impose themselves on people despite being shiftless, up themselves and not that clever.
OR, one could say that they would do better if they grew up in a Catholic Protestant Shinto Buddhist Jewish you name it culture where their superiority came from something other than the mere fact of having things hanging between their legs. That might be more illuminative.
SL@27
… but hates an organized workforce, otherwise a Kapital statement. Dare I say cowed, easily harassed (in all types of ways)?
Back to the topic. One thing about daughters is that grandmothers are assured of not being cheated on investment in grandchildren (grandfathers less so).
More women than men also improves pushes evolution along nicely.
Moreover, there’ll sooner or later be a female overbalance of fertile individuals, whether through environmental androgen disruptors, or the long-term shrinkage of the Y chromosome. The more radical male-hating feminists will get there wishes, even if it takes millions of years. In the medium term, unless the environment is cleaned up enough to stop dropping sperm counts, or unless there are early tests for infertility (abortion/infanticide for the infertile males) then daughters are a better bet for grandkids – although some might selfishly want childless sons to dote on them in their dotage.
Whether in 50 years or 5 million, gender ratios will become a big and very complex issue.
Reproductive strategies in humans (when females can control their inheritance) are little different to kangaroos which can control gender – females first for assurance (and assistance/time to learn parenting), then finally male if there is a chance of becoming a fertile alpha.
I don’t know, but I wonder if in times of decent female property rights, combined with war’s casualties limited to males on the battlefield outside towns and few civilian deaths, whether the masses realized daughters were a better bet?
Even in these safe days, Dave, I look at my son and think, “Please don’t go off and fight in a war!” My daughter is like me, can’t stand hurting a fly, so I’m not so worried about her.
LE@35: I was thinking more of the times of press gangs and soldiers lining up in fields going at each other – while civilians could stay out of range – pre c20. Although, when towns were stormed, males were more likely to be put to the sword than females.
Yes, lucky females getting away with just being raped beaten and taken into slavery.
When was it that daughters were preferred, exactly?
I don’t think anyone does very well when a town is raped and pillaged: man woman or child.
DB@34
In which case, the Soviet Union should have been very good at industrialising! They even went so far as reintroducing serfdom.
I think I agree with Nick Ferrett@11, but am mindful of Dave Bath’s obvious knowledge of the genetics. The only comment I would make on the particular situation is that it is a worry that this couple have aborted possibly healthy offspring to pursue their wishes.
But what I wanted to ask is about the law in this. Board A seems to have the power, but Board B (superior?) said “don’t agree -we will decide”.
Two questions: Is there now an assumption by Board B of all decisions, or only those it disagrees with? Secondly, does this particular case go from Board B to Supreme, to High Court – or what is the trail which might have to be followed?
kvd,
I was wondering that myself. Looking at section 96 of the Assisted Reproductive Treatment Act, it appears that VCAT is specifically designated as a review authority for the Patient Review Panel. They have the ability to review any cases based on requests by people affected by the Patient Review Panel. It seems the phrasing “The tribunal recently ruled it had the power…” is somewhat misleading as the power seems to be explicitly given through the legislation.
A quick look at the VCAT legislation indicates that cases can be appealed from there to the Supreme Court.
Board B (VCAT) is the appeal avenue. Therefore, Board A (Patient Review Panel) will still make the ordinary determinations it always makes. However, VCAT can overrule it in this instance. I presume that even if the PRP is not bound by the rules of precedent, a decision overruling one of their decisions will nonetheless affect the way they decide cases in future.
If the parents disagree with VCAT, from recollection, the next avenue is appeal to a single judge of the Supreme Court (or to the Court of Appeal if one of the sitting VCAT members is a Supreme Court trial division judge as well). Thence up to Court of Appeal, thence to High Court. But you must have what is called a “special leave” application to appeal to the High Court in most instances – the High Court has to agree that the case is special and novel enough to merit its attention. Otherwise the High Court would be simply overwhelmed with questions which it did not need to answer.
Yes, desipis, you’re correct (I still think you should come study law, you bush lawyer, you!)
LE, I was trying to work out why the president/vice president thing mattered in where the appeal went. Hadn’t yet read how they had to be supreme court judges to hold the position in the first place. (I didn’t even know what a VCAT was when I first read this post).
And I am! Starting at UQ at the end of February (assuming it’s not underwater).
Desipis, that’s great news! There’s some good people there. I think you’ll do well.
Yeah, the head of VCAT is always also a Supreme Court Judge, so if they make the decision and you want to appeal from it, you can’t go to the single Supreme Court judge (who would be equal, not superior) – you have to go the triple whammy in the Court of Appeal.
The funny thing is when they have five sitting on the Court of Appeal (which sometimes happens when there’s particularly important matters). The benches aren’t really built for five at once, and they all bob and jostle in their chairs.
Here’s a thought: is it a breach of s. 28 to go through an IVF procedure intending to /abort the fetus if it is the ‘wrong’ sex?
What’s interesting (or worrying, depending on your view) is that the ban is on attempts to ‘produce a child of a particular sex’, not an embryo.
Query, though, whether going through IVF intending to abort boys amounts to the ‘use’ of gamettes or embryos, or to performing the process ‘in a particular way’. And what ‘produce’ means in this context. But if you interpret those terms narrowly, then you might not capture all versions of artificial sex selection either. Hmmm.
(Note that sex selection via abortion will still be open to naturally conceived embryos, regardless. Also, s. 28 won’t capture decision-making that is strictly post-IVF, e.g. a sudden change of heart on learning the gender. And it also presumably wouldn’t capture post-IVF abortions on non-sex grounds, such as aborting a multiple conception.)
I just want to record my appreciation to the authors and commenters on this blog for quite regularly making the law come down to the particular, to the “real world”. I don’t envy the panel’s responsibility, or that of the higher panel now having to decide this particular case.
If it were left to me (please no!) I would probably decide against the couple in this case – because I would put the wider community issues ahead of their needs. And before you “judge” my judgement, just be aware that my wife carried a girl child to full term, before losing her, and I was basically a spectator, unable to assist, in the ongoing agony that caused my wife for many years, despite another happy healthy offspring.
I just think the law is not easy, when it gets right down to the people affected, and that this blog does an exceedingly good job of bringing that point home.
That’s very insightful, kvd, so much so that they coined a phrase – ‘hard cases make bad law’
JG@46, I think not. The section prohibits use of the gametes and embryo and performance of the procedure in such a way as to obtain a particular result. I don’t think that would extend to the subsequent abortion. I suppose if you had the procedure performed a particular way so as to make the pregnancy more easily aborted (if that’s even possible) then you could get into trouble.
That said, the Act sets out guiding principles including a requirement that the prospective child’s interests are paramount. Given that the particular provision includes references to children born and “to be born” that would have to include a child in utero. However, I don’t think this would be enough to prohibit subsequent abortion. It merely guides interpretation of the Act as far as it goes.
NF, s28 actually prohibits ‘use of gamettes/embryos’ OR ‘procedures in particular ways’ for sex selection. I agree that the procedures option is unlikely to matter. The interesting bit is the use option. If it doesn’t include getting someone pregnant, then what does it include?
Note that the ART Act was enacted after the Abortion Law Reform Act, so presuambly it can override it. Section 28 is in the same terms as a providion in the earlier Infertility Treatment Act, enacted at a time when abortion was illegal unless within the defence of necessity. Neither the VLRC report nor the EM contain any discussion of the reach of s28
Hmmm, my instinct is that s 28 was not intended to be read that way, Jeremy, but on reading it again, I can see how it can be. I suspect they overlooked that possibility – just lifted the section from the previous Act without considering it too deeply.
Has anyone ever found much of use in an Explanatory Memorandum or a Second Reading Speech? I always look hopefully for something useful, and am yet to find guidance on the points I am looking at. Maybe the things I look at are too abstruse.
Nope, I’ve never found an EM discussion much use. That’s probably mostly a good thing, as they border on the undemocratic. They are rarely discussed in parliament and there seems to be no way to amend them.
In this case, there’s no surprise that this question wasn’t discussed, whether or not it was thought of. If you were trying to get the Bill passed, you wouldn’t touch the abortion issue with a barge pole!
But surely it’ll have to be considered in VCAT if the applicants rely on the lawfulness of abortion as an alternative…
Section 28 refers to the person performing the procedure, not the patient. Unless it’s the one doctor performing both the IVF and the abortion (or perhaps some form of conspiracy between doctors) I don’t see how the section would apply.
Also the start of that sentence:
indicates that the restriction on “use” is only within the context of a treatment procedure (as far as s28 is concerned). A “treatment procedure” is defined in s3 as:
I think you’d have to get creative to fit an abortion within “assisted reproductive treatment”.
What desipis said
D, it’s true that the offence is committed by the doctor (although the parents could presumably be prosecuted for complicity in the doctor’s crime.)
However, s. 28 certainly doesn’t require that the doctor must be the one that performs the abortion. Rather, it requires that the doctor have ‘a purpose’ of producing a child of a particular sex. That would surely be satisfied if the doctor knows of the parents’ plan to abort all boys. (Oblivious doctors are safe though. Not a great incentive for doctor-patient communication, but c’est la vie. But the secret’s out in this case, isn’t it?)
You might try to distinguish between the doctor’s purpose (to help the parents achieve their purpose) and the parents’ purpose, but that’d create a worrying loophole in s. 28, I think.
The definition of treatment procedure (ART + AI) covers all medical treatment to procure a pregnancy other than by sex or self-insemination. So, to the extent that ‘use of gamettes/embryos’ is tied to the procedure, the requirement is for the purpose to exist prior to the pregnancy. But why does that rule out a pre-pregnancy purpose to abort boys during the pregnancy?
The key point is that s. 28 is all about purpose. It limits who has the purpose and when they have the purpose (the doctor at the time of the treatment) but not how the purpose is to be effected.
Also, the fact that it creates an offence means that you would read the provision as narrowly as possible.
Jeremy, I guess we could stretch that “purpose” even further. For example:
A women goes for IVF and successfully has a male child. She goes back a second time and says to the Doctor: “I hope it’s a girl this time”, but it ends up being another boy which she keeps. Going back to the doctor for a third treatment she says “I’m going to keep having children until I get a girl”. Does this make the purpose of the doctors actions “to produce a child of a particular sex”?
I’m uneasy about judging doctors on the basis of what their patients may or may not do in the future. Are we going to start charging doctors with aiding crimes when they provide treatment to people they suspect may commit a criminal act sometime in the future?
That said, there is a clear intent to consider the future possibilities, both in the “presumption against treatment” section and in the guiding principles:
I guess it could be argued that the doctor should not provide treatment where they believe in a significant risk (abortion for being the wrong gender) to the “person to be born”.
As far as the case in the news article is concerned, I think that and the next bit of the guiding principles could be relevant:
I imagine the Patient Review Panel could have concerns the child would be exploited as a means of therapy for the mother:
I also noticed there’s nothing in the guiding principles about any broader social impacts through the use of treatment, but then neither is there anything that would support an exception in this case.
EMs are interesting indeed. The ATO is a big fan of them.
However prevailing jurisprudence, and indeed the bare words of sections 15AA and 15AB of the Acts Interpretation Act 1901, suggest a very limited scope for the EM.
And I can’t find it off the top of my head, but there was a recent(ish) case, I think a bankruptcy case in NSW, where the judge pointed out a few errors in the EM and then said, in light of the manifest errors as to the actual operation of the law, how could he possibly rely on the EM? I’d love it if anyone had a cite!
And I am sure there are older judgements (perhaps McHugh or Dawson or maybe even Callinan?) addressing use of the EM to clarify the purpose of the relevant provisions which pour scorn on the idea that the EM expresses the purpose or intention of anyone other than its drafter. Some sophisticated Judges have even commented on the fact that given the sausage factory model of legislation the search for a unified Parliamentary intention is misguided in the first place.
I wonder if the definition of “treatment procedure” excluding self-insemination provides somewhat of a loophole for s28. Could the treatment center provide the equipment and training to do self-insemination, and simply allow their client to select the embryo and perform the procedure?
NF#56, the presumption that penal provisions should be read narrowly is pretty weak these days. The HCA refers to it as a principle of ‘last resort, given that most interpretation issues (perhaps including s28) are to be resolved by purposive interpretation. Given the comprehensive interpretation principles pointed out by desipis, it’s hard to see how the penal presumption will matter. Surely, ‘best interests of the child’ (at least) will trump it.
D#57. ‘Purpose’ is a very tricky word (and in my view should not be used at all in criminal offences, especially where it’s the core of the offence, as here.) You could perhaps distinguish between a ‘hope’ (where there’s a wish, but no reason to expect it to transpire) and a ‘purpose’ (where there’s some reason to think you can influence things.) I dunno.
P#58. The EM of the Charter of Human RIghts and Responsibilities is my personal bug bear. A wrong date in the EM to the transitional provision has been wrongly relied on by a dozen judges to date. And the EM to the rights themselves are packed with nasty caveats that have no place in any EM, let alone one for the Charter.
D#59. Self-insemination is a deliberate loophole for the whole ART Act (as no-one wanted to try to regulate turkey basters.) For similar reasons,so is sex (so, if anyone produces a drug that influences gender through natural conception, then it isn’t subject to s. 28.) For now, I doubt that any ‘use of gamettes or embryos’ is presently viable for either sex or self-insemination, but maybe in the future?
S 28 has to be construed in the context of the whole of the statute: AG v Prince Ernest Augustus of Hanover [1957] AC 436.
S 1 of the Act provides that one of the main purposes of the Act is to “to regulate the use of assisted reproductive treatment and artificial insemination procedures (other than self-insemination)”. There is no similar provision about regulation of pregnancy more generally.
The guiding principles to which desipis refers (in s 5) are to “be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act”. There is nothing to suggest that they are intended to expand the meaning of other provisions such as s 28.
The opening words of s 28(1) effectively confine the rest of the provision: “A person carrying out a treatment procedure must not …”. Plainly the provision is talking about the use of gametes or an embryo in the course of a procedure. This interpretation is supported by the apparent limitation of the Act to regulation of artificial insemination rather than pregnancy on a more general basis.
Jeremy, that’s ok, the entire Human Rights Charter is a bugbear of mine
One Victorian Supreme Court Judge was enthusiastically pressed with submissions on the Charter by both parties. He relegated it to a footnote noting that counsel had directed him at length to the implications of the Charter applying but that in the end he couldn’t see any, or something to that effect. Another case of my wishing I had the citation.
NF#63.Ii’m not saying that s28 regulates pregnancy. Rather, what s28 regulates is the purposes the doctor has in mind when she/he is doing a treatment procedure, including when she/he is putting a gammete/embryo in someone. If the doctor’s purpose is to produce a child of a particular sex, then there’s a breach of the section.
Your argument is that the words ” with the purpose or a purpose of producing or attempting to produce a child of a particular sex” should be read down so as to only cover purposes brought into effect by the procedure itself, rather than subsequent (and also, I assume, prior) actions. Maybe you’re right, but I think that any interpretation that involves putting words into a provision – especially one whose purpose could be undermined by technical loopholes – needs pretty strong justification.
I’ve done a little more digging around to find similar provisions to s. 28 elsewhere. The big news is that there are hardly any similar provisions elsewhere. All other Australian jurisdictions, plus the UK and NZ, sensibly regulate this issue through ethical guidelines for ART practitioners. (The VLRC report is misleading on this point, claiming that other jurisdictions have bans like Victoria’s, but then citing ethical guidelines for the most part.)
One exception is Canada (in its Assisted Human Reproduction Act 2004):
There’s a ten year penalty!
Canad’s provision, in contrast to Victoria’s s.28, is all about procedures ‘that would ensure or increase the probability’ of a particular sex. If Victoria had wanted to similarly limit its offence, it could have inserted those words after ‘perform the procedure in a particular way’.
A better (or additional) way to limit the Victorian offence would be to insert the words ‘of a known sex’ after ‘use gamettes or an embryo’. Canada achieves the same outcome by barring pre-pregnancy sex identification. (India tries to achieve a much broader ban by barring all pre-birth sex identification, and doesn’t bother with any other regulation of procedures.)
Or we could just do things the Victorian way and just read the words as meaning whatever our preconceptions say they should mean.
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