A convicted sex offender and his partner have been denied access to IVF treatment by the Victoria Court of Appeal in Australia, pending a re-hearing by a lower court.
The Court of Appeal refused to uphold an earlier decision by the Victorian Civil and Administrative Tribunal (VCAT) allowing the couple access to fertility treatment, saying the court had used the wrong legal test when deciding whether to allow the couple to have IVF treatment.
'The correct test that should be applied when determining whether there is a barrier to a person receiving treatment was that the best interests of the child to be born from the treatment was paramount', the Court of Appeal held.
The couple, known as ABY and ABZ, had already undergone one cycle of IVF treatment prior to ABY's imprisonment in 2009. ABY was convicted after having sex with a 16-year-old student while he was a teacher's aide at a special-needs school in 2008. He was sentenced to three years in prison, with two years suspended, and was released in 2010 after serving twelve months.
Under the Assisted Reproductive Treatment Act, every person seeking IVF in Victoria must undergo background police checks and convicted sex offenders must have their application reviewed by a panel before it is granted. The Patient Review Panel, established under the Act, must decide whether the person applying for fertility treatment presents any actual or potential risk of abuse or neglect to the putative child.
ABY was originally refused treatment under the review but appealed against the decision to the VCAT, which granted him access to treatment. The VCAT said that ABY posed little threat to minors and so there was no justification in refusing them treatment.
In its appeal to the Court of Appeal, the Patient Review Panel said that that the VCAT had used the wrong legal test to judge whether the couple should be allowed to have fertility treatment. Instead of concentrating upon the best interests of the putative child, the VCAT had looked at ABY's risk of reoffending. The Court of Appeal agreed with the Patient Review Panel, and the case must now be reheard in the VCAT with a different panel of justices.
Victoria is the only state in Australia which requires serious offenders to justify why they should be allowed access to fertility treatment.