McBain v. State of Victoria

Dr. John McBain, a Melbourne doctor specialising in reproductive technology, was consulted by Ms. Lisa Meldrum, a single woman wishing to conceive through in-vitro fertilisation (IVF) using donor sperm. Dr. McBain told Ms. Meldrum he was prohibited by Victorian legislation (namely, the Infertility Treatment Act) from administering IVF treatment to her because she was single. He then commenced proceedings seeking a declaration that provisions of the Victorian legislation were inconsistent with the Sex Discrimination Act (in particular, section 22, which deals with discrimination in relation to the provision of goods and services), and hence inoperative to the extent of the inconsistency. Justice Sundberg held that fertility treatments, including IVF, constituted “services” provided by medical practitioners within the meaning of section 22 of the Sex Discrimination Act. Because the Infertility Treatment Act makes provision of IVF treatment contingent on a woman’s marital status (as well as her medical state), Justice Sundberg concluded that the Victorian legislation violated section 22 of the Sex Discrimination Act and was unlawful under section 109 of the Australian Constitution. This case holds that women do not have to be married or in a de facto relationship to be eligible for infertility treatment.