Australians debate IVF social policy after 'wrongful birth' claim

Last week, following public outrage over the legal concept that a healthy baby might amount to 'damage', the Australian Medical Association (AMA) president, Dr Andrew Foote, condemned the recent unprecedented case before the Australian Capital Territory (ACT) Supreme Court. In it, two women are suing their doctor for negligently causing the multiple-birth of their twins following the implantation of two embryos, rather than one embryo as requested for an IVF procedure performed in November 2003. The case has sparked public debate on two fronts - whether the Courts should entertain medical negligence claims for the birth of healthy children, so-called 'wrongful birth' claims, and who should have access to IVF.

The couple are suing their specialist consultant at the Canberra Fertility Clinic for $400,000 to help compensate for the cost of raising one of the daughters, and testified that they have suffered significantly from the strains of raising twins. The couple emphasised in a written statement to reporters that they 'cherish' their girls but this is about negligence and their right to consent to the procedure performed. They argue that they conscientiously consented to the 0.1 per cent risk of identical twins, and not to the reported 20 per cent increased risk of twins resulting from two-embryo implantation.

Foote cited fears that allowing this case to go forward will open litigation floodgates and establish the ACT as a 'litigation tourist destination' being the only jurisdiction on the east coast to allow judicial remuneration for these controversial claims. ACT Opposition spokeswoman, Vicki Dunne, is proposing that Parliament amend the Civil Law (Wrongs) Act 2002 to prevent parents from suing over the birth of a healthy child.

ACT Attorney-General Simon Corbell countered that the amendment would be a dangerous precedent. Chief Minister Jon Stanhope criticised Foote as 'going on about' emotional 'nonsense' about who loves children more and clouding the facts which turn on important legal principles such as a doctor's duty of care and patient trust. Others, like Australia's Herald Sun editorialist, Robyn Riley, accuse the couple of immoral consumer culture values that contextualise kids as commodities and IVF as a business proposition.

Still others have focused on the couple's homosexuality. Liberal Senator Guy Barnett used the case as a platform to call for federal legislation to restrict publicly-funded IVF treatment to heterosexuals. The couple stated that discussion of their homosexuality reveals a 'double-standard' to expect minorities including homosexuals to be 'grateful' for reproductive privilege rather than 'equal' rights.

The AMA estimates that the average cost of an IVF treatment is about $5000 AUD. Most Australian couples are eligible for a rebate of up to $1700 for each procedure. Medicare does not keep separate statistics on the sexuality of those accessing rebates to either support or not support recent claims that an increasing number of lesbian couples are seeking IVF.

Barnett's ban would fly in the face of legal precedent and the Victorian Law Reform Commission's recommendations following recent review of Victoria's Infertility Treatment Act 1995 on who should be legally eligible for medically assisted reproduction.

In 2000, a Federal Court found in McBain v State of Victoria that it is discriminatory to allow only married women and heterosexual couples access to reproductive treatments like IVF.