Woman wins bid to access IVF without estranged husband's consent

An Australian woman has successfully won a bid to receive IVF treatment without the permission of her estranged husband. Photo / 123RF

An Australian woman has been told by the Federal Court she will be allowed to go through IVF, despite a law that required her to obtain her estranged husband's permission beforehand.

The landmark court case comes as the Victorian government reviews its laws around assisted reproductive treatment and could prompt a change in the current legislation

At the moment, married women who are separated from their husbands are prohibited from seeking in-vitro fertilisation treatment to attempt to conceive a child.

The woman, known as EHT18for legal reasons, approached a Melbourne fertility clinic to attempt to become pregnant following her separation but was denied the procedure without her husband's consent.

The decision was in accordance with current Victorian reproductive treatment laws introduced in 2008.

Maurice Blackburn Lawyers social justice practice manager Jennifer Kanis told news.com.au she took on the case on a pro-bono basis to assist the woman in an "urgent court appeal" to be allowed to conceive on her own.

"We saw that the current Victorian legislation around this was not in the best interests of women in similar circumstances and we would like to see this act amended," Ms Kanis said.

She added if a woman was divorced from her partner, the legislation would not apply.

The pair could also have been separated for many years and the woman would still required her estranged husband's consent to become pregnant using IVF.

Ms Kanis described the provision as "absurd".

"It is quite absurd to require a woman to seek the permission of her estranged husband in circumstances where a sperm donor would be used and there was no intention that the estranged husband would have any part in the life of the child," Ms Kanis said. "Whether that be physical, emotional or financial involvement".

Ms Kanis said the outdated legislation had a further consequence for women.

"A separated woman should be able to make her own decisions about IVF treatment," she said. "This legislation ensures that the separated partner still ultimately has control over his former wife's life, which is quite unacceptable".

Federal Court Judge John Griffiths agreed with the legal team, approving their request and describing the legislation as "invalid and inoperative".

Ms Kanis said her client as well as her legal team were "delighted" with the outcome.

"Our client is very pleased with today's outcome, which will mean that she can undergo IVF to try and have a baby, just like any other single woman in Victoria," she said.