Explainer: IVF and discrimination in Queensland

pregnancy ivf stock photo

First came love, then came marriage (equality), then came the LGBTIQ+ couple with a baby carriage.

With the growth of technology and medical advancement, the dream of having a child has never been more accessible for same sex couples.

Anti-discrimination legislation in Queensland, however, explicitly allows discrimination against the queer community, enabling IVF clinics to refuse service to couples based on their sexuality or relationship status.

Marriage equality was an enormous achievement for the LGBTIQ+ community. It was a symbol that Australia at large supports and recognises the union of love, regardless of gender.

But the fight for equality is far from over. After marriage equality, we must turn our attention to the many other laws. The laws were once in the shadows while marriage equality took the spotlight. But the laws continue to unfairly discriminate against queer individuals, couples and families.

Queensland laws under the spotlight

One of the most surprising of such laws is that in Queensland. Organisations that provide assisted reproductive technology services – including any type of artificial fertilisation, including but not limited to IVF and artificial insemination – are allowed to discriminate on the basis of a person’s sexual orientation or relationship status.

This means that such clinics can outright refuse to provide services to LGBTIQ+ couples and single people.

It also means that clinics can legally charge more for their services, impose more onerous obligations, or in any other way treat a person unfavourably in connection with their supply of services based on the patient’s sexuality or relationship status alone.

In any other setting, refusing to provide services on the basis of someone identifying as LGBTIQ+ or being single would be an actionable breach of the Anti-Discrimination Act 1991.

IVF clinics, by definition, provide their services on the basis of scientific and medical findings, not religious beliefs. It is baffling that they have a legal right to deprive the community of access to services on such arbitrary and discriminatory grounds as a person’s sexual orientation and relationship status.

No other state or territory in Australia allows such discrimination. It is unacceptable that such an exemption exists in our laws.

We call on the Palaszczuk Government to abolish this unnecessary and unfair exemption in the Anti-Discrimination Act 1991. We must bring our IVF laws into the 21st century.

They did not create this law but they can be the ones to undo it. This is a fundamental right for LGBTIQ+ couples, who often need medical assistance to conceive their biological child.

Many IVF clinics do the right thing

We applaud the many IVF clinics who, despite this exemption, welcome LTBTIQ+ couples with open arms.

And while individuals in Queensland who experience discrimination from IVF providers can make a complaint pursuant to the federal Sex Discrimination Act 1984, this process if it doesn’t resolve at the informal stage is generally more time consuming and more expensive than a complaint made in the state system.

But even for those LGBTIQ+ people who find a supportive IVF clinic in Queensland, there’s a secondary hurdle to overcome.

Heterosexual couples who cannot conceive after attempting to do so for 12 months might be eligible for Medicare rebates for IVF treatment on the basis they are “medically infertile”.

Some IVF clinics are willing to treat queer couples as being medically infertile, thereby giving them access to the rebates. But many clinics and doctors are not.

This means a queer couple will pay more than a straight couple receiving the exact same treatment from the same doctor.

Using IVF services to conceive is an expensive journey, and the cost can be a barrier to IVF for all persons, not just single or same sex couples.

Given far more queer couples need to explore the avenue of IVF to conceive their biological child, such rebates should be automatically provided for couples who cannot conceive without some kind of intervention.

It’s time Medicare IVF rebates are amended and equalised

We have recently seen the federal government open up Medicare benefits that directly benefit the community. PrEP coming onto the PBS is one example of this.

It’s time that the Medicare IVF rebate is amended to reflect the circumstances of all patients seeking such treatment. A person’s sexual orientation should not impact their ability to access a Medicare rebate.

These are examples of how laws adversely impact the queer community. At best, the laws have conventional heterosexual couples in mind, and at worst they target LGBTIQ+ individuals.

We have not truly achieved equality until LGBTIQ+ couples are treated equally under all laws. We must continue our energy, outrage and passion until they are.

Paloma Cole is a lawyer in Maurice Blackburn’s employment and industrial law service in Brisbane. She represents clients facing discrimination on the basis of their gender, sexual orientation or gender identity. Chris Peppel is a lawyer in Maurice Blackburn’s personal injury practice in Caboolture. Paloma and Chris head up Maurice Blackburn’s PRIDE Network in Queensland. They’re passionate about supporting, representing and advocating for their queer community.

For the latest lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) news in Australia, visit qnews.com.au. Check out our latest magazines or find us on Facebook, Twitter, Instagram and YouTube.

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