Should people with criminal records be able to access assisted reproductive technology? The law in Victoria, Australia
Until recently, people seeking fertility treatment in the state of Victoria, Australia had to undergo criminal record and child protection checks. If a criminal record check revealed that the woman, or her partner (if applicable), had been convicted of a sexual or violent offence, or a child protection order had been made and a child had been removed from the care of the woman or her partner, a presumption against treatment was triggered. This prohibited clinics from treating the individual or couple. The rationale behind the presumption against treatment appears to be that in some situations the best interests of the future child are served by him or her never coming into existence.
On 8 July 2020, the presumption against treatment in section 14 of the Assisted Reproductive Treatment Act 2008 (Vic) was revoked by the Assisted Reproductive Treatment Amendment Act 2020 (Vic). In Victoria, all legislation must be compatible with the Charter of Human Rights and Responsibilities Act 2006 (Vic). The presumption was considered to be no longer compatible with the right to equality in section 8(2) of the Charter on the basis that it indirectly discriminated against individuals on the basis of their sexual orientation or marital status. For example, a lesbian couple would be more affected by the requirements imposed by section 14 than a person in a heterosexual relationship, because they would need to use assisted reproductive technology (ART) in order to conceive a child.
In April 2018, the Victorian government initiated an independent review of the regulatory framework for ART in Victoria. Chaired by lawyer Michael Gorton, the Interim Report of the Independent Review of Assisted Reproductive Treatment was released in October 2018. The interim report focused specifically on the LGBTIQ+ community (the group one could assume would be most affected by the presumption) yet nothing in the report referred to the removal of the presumption against treatment.
In May 2019, Helping Victorians Create Families with Assisted Reproductive Treatment: Final Report of the Independent Review of Assisted Reproductive Treatment was published. Recommendation 36 of the report was that the responsibility for arranging and sighting criminal record checks should fall to the ART provider, as opposed to a counsellor. It suggested that shifting this responsibility would enhance the therapeutic relationship between the individual or couple seeking treatment and the genetic counsellor. The report did not recommend that the presumption be abolished.
When the Assisted Reproductive Treatment Amendment Bill was debated in Parliament, member of parliament Jaala Pulford, argued that in the absence of the presumption the welfare of the future child would still be safeguarded through the guiding principles set out in section 5 of the Assisted Reproductive Treatment Act 2008 (Vic). Section 5(a) states that the 'welfare and interests of persons born or to be born as a result of treatment procedures are paramount'. Therefore, an ART provider is able to refuse treatment to a person if they reasonably believe that the person (or their partner) would pose a threat to their future child.
This discretion to refuse treatment in the best interests of the future child has broader application than the presumption as it does not contain any restrictions. For example, in 2010, an ART provider refused to treat a single woman with a history of mental illness (a decision that was eventually overturned by the Victorian Civil and Administrative Tribunal in PQ v Patient Review Panel  VCAT 291). This is perhaps the most coherent of the arguments for revoking the presumption.
The final reason given in Parliament for revoking the presumption was that 'the regulatory landscape for child safeguarding in Victoria has changed significantly' since the presumption came into operation, and thus the presumption was no longer required. The problem with this argument is that measures related to child safeguarding all apply once the child has been born and harm has been done. For example, one of the measures referred to in Parliament was 'initiatives addressing family violence'; such initiatives mainly deal with the fallout from violence as opposed to preventing harm in the first place. They are therefore not a replacement for the presumption, which was tasked with the function of preventing harm.
During its period of operation, the presumption against treatment was controversial, and there are no doubt many people who are happy to see it go. Whether this was the correct decision or whether implementing the recommendation of the Gorton Review would have been more desirable remains to be seen. As individuals and couples presenting for treatment are no longer required to undergo criminal record or child protection checks, the onus is now on doctors and ART providers in Victoria to determine whether or not treatment will be in the best interests of the future child. While this brings the situation in line with other Australian jurisdictions, it is disappointing that the presumption was revoked without empirical evidence showing that there is a lack of correlation between past offences and harm to future children.