ACT News

Court dismisses IVF discrimination suit against government

The federal government did not discriminate against a desperate and distressed Canberra couple when it denied them early access to super to pay for an overseas IVF treatment, a court has found. 

The woman applied for release of her superannuation while struggling to overcome IVF failures in late 2010, describing her infertility as "the most devastating thing [she has] ever been faced with".

She suffered from Turner syndrome, a genetic disorder causing underdeveloped ovaries and preventing the production of ova.

Unable to find a voluntary IVF donor, she had travelled to the United States in 2009 so she could legally pay for eggs as part of an expensive IVF treatment. 

The entire trip cost $200,000 but the IVF failed, prompting the couple to go to a local fertility specialist in Canberra as they prepared for a second cycle in the US.

Lacking money, the doctor suggested the couple try to get early access to their superannuation to pay for the next trip.

The woman applied to the Australian Prudential Regulatory Authority, asking for access to her super fund on compassionate grounds.

She said she was suffering chronic depression caused by her infertility, and that the IVF treatment would alleviate it. 

The fertility specialist even took the unusual step of writing a letter in support of the couple's bid. 

Despite her pleas, the application was refused, as was a second attempt and bids to have the decisions overturned on review.

They were given various reasons, including that they didn't meet requirements for a release on compassionate grounds, and that it was illegal to pay for ova in Australia.

A complaint to the Human Rights Commission was also knocked back.

That prompted the couple to take their battle to the Federal Court, where they alleged the Commonwealth discriminated against the woman under the Disability Discrimination Act during its repeated decisions against her.

In the meantime, the woman took a redundancy to fund her continued push for a child. 

The claim of discrimination centred on what they said to be a "hidden agenda" from the Commonwealth.

The couple argued the government was simply unwilling to give them money because of the type of IVF treatment they were seeking, which involved paying for a donated ova.

That, they argued, was discrimination. 

But in a judgment published on Tuesday, the Federal Court found against the couple, saying the evidence "does not support a finding of unlawful discrimination".

The court acknowledged their ordeal in accessing superannuation had been frustrating and distressing, but dismissed all of their arguments of discrimination. 

The applicants had argued the woman was suffering from an acute or chronic mental disturbance, namely depression, yet the agency had focused too significantly on the IVF elements of their application for the super.

It was argued that a person with a mental disturbance that was not IVF-related would have been treated more favourably.

The court found the evidence was not enough to prove the agency had discriminated against the woman because of her disability.

"In short, the applicants have not proved that the way in which the application was processed or the decision was reached occurred because of [name removed]'s disability.

"The proposition that a person with a mental disturbance which was not 'IVF-related' would have been treated more favourably is mere conjecture."

The Commonwealth was cleared of discrimination in any of its decisions, reviews, or subsequent conduct toward the couple.

"The applicants have been unable to prove any of their allegations of unlawful discrimination. The application must therefore be dismissed."