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Australian court rules no barrier to IVF treatment for sex offender

28 May 2013
Appeared in BioNews 706

A court in the state of Victoria, Australia, has allowed a previously convicted sex offender and his partner to have access to IVF treatment.

ABY, a former teacher's aide, was convicted in 2009 of sexual offences against a 16-year old girl with learning difficulties who was under his care. He received a custodial sentence, with part of it suspended, and was placed on the Sex Offenders Register for 15 years. He was released from prison in 2010 having served one year of the sentence.

Shortly after his release, ABY and his partner, ABZ, made an application for IVF treatment, but it was initially refused (reported in BioNews 615). Under the Assisted Reproductive Treatment Act 2008, if a criminal record check reveals that charges have been proven against a women or her partner for a sexual offence, there is a presumption against providing treatment. Their application was, however, allowed on appeal.

The Victorian Civil and Administrative Tribunal (VCAT) came to hear to case again after it the case was appealed up to the Court of Appeal, which sent it back to the VCAT last year saying the wrong legal test had been used in the previous decision to allow the couple access to treatment (reported in BioNews 679). The Court of Appeal had said the VCAT should look at the best interests of any resulting child, and had focused too heavily on the risks of reoffending.

After hearing the case again in March 2013, the VCAT ruled that there was no barrier to IVF treatment. It said: 'After considering all of the potential risk factors together with the mitigating and protective factors, we have decided that there is no barrier to treatment'.

The court heard evidence that ABY had undergone a treatment program for sex offenders and had greater insight into his past conduct, acknowledging the harm caused to the victim. It also found that ABY and ABZ were happily married and ABY's alcohol consumption, which was considered a possible risk factor, had reduced to moderate levels. Furthermore, the court said that ABY and ABZ have an extensive and supportive family network.

It said: 'We conclude that to the extent we have found that there are identifiable or established risk factors, that there is no real risk of harm to a child to be born to ABY and ABZ as should constitute a barrier to treatment'.

ABY & ABZ v Secretary to the Department of Health & Anor (Human Rights) [2013] VCAT 625 (15 May 2013)
AustLii |  15 May 2013
Victorian sex offender gets IVF access
9 News |  21 May 2013
29 October 2012 - by Dr Mary Yarwood 
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....
11 July 2011 - by Kyrillos Georgiadis 
An Australian man is seeking to overturn a ruling barring him and his partner from accessing IVF on the grounds of his previous conviction in 2003 for having sex with a 16-year-old student while he was employed as a teacher's aide....
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