McBain v. State of Victoria

In McBain v State of Victoria (2000) 99 FCR 116, Dr. John McBain, a Melbourne fertility specialist, was approached by Ms. Lisa Meldrum, a single woman seeking in-vitro fertilisation (IVF) using donor sperm. Dr. McBain advised her that the Infertility Treatment Act 1995 (Vic) prohibited him from providing IVF to unmarried women. He then initiated proceedings in the Federal Court seeking a declaration that these provisions of Victorian law were inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth), which prohibits discrimination in the provision of goods and services. Justice Sundberg held that fertility treatment, including IVF, constitutes a "service" under section 22. Because the Victorian legislation denied access to IVF based on marital status, it amounted to discrimination and was inconsistent with federal law. Applying section 109 of the Constitution, Justice Sundberg declared the inconsistent provisions of the Infertility Treatment Act invalid to the extent of the inconsistency. This ruling effectively enabled single women to access fertility treatment services, marking a significant moment in reproductive rights jurisprudence in Australia.

The legal position established in McBain has since been overturned through legislative reform. The Assisted Reproductive Treatment Act 2008 (Vic) replaced the earlier legislation and removed marital status as a barrier to treatment, aligning Victorian law with federal anti-discrimination principles. In addition, later High Court jurisprudence and statutory amendments have clarified the limits of judicial declarations in such cases and the role of state parliaments in regulating assisted reproductive technologies.

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  • 2000

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Jurisdiction