Castan Centre for Human Rights Law
Submission to the Senate Legal and Constitutional Legislation Committee:
INQUIRY INTO THE SEX DISCRIMINATION ANMENDMENT BILL (NO. 1) 2000
I am strongly opposed to the Bill and put the following arguments against
it forward for the Committee's consideration. My comments focus on the
central circumstance at which the Bill is directed, namely the use of
artificial insemination services by single or lesbian women.
BACKGROUND
I am a legal academic and have been teaching and researching in Anti-discrimination
Law for over 10 years. I have observed the development of legal protection
for women against discrimination in Australia, and of legal protection
in several states against discrimination on the basis of sex and sexuality.
I have also taught Civil Liberties and the theory of liberty, including
Mill's theories of liberty on which the Australian legal (and arguably
political) tradition rests.
1. PROTECT THE INTEGRITY OF THE SEX DISCRIMINATION ACT.
While the Sex Discrimination Act is not a perfect protection for women,
it is of enormous importance and of great symbolic as well as practical
importance. The symbolism shown by the government in amending the Act
to reduce protection for women will be clearly noted both within and
outside Australia. Even though Australia has not ratified the Optional
Protocol to the Convention on the Elimination of All Forms of Discrimination
Against Women, nevertheless a complaint in relation to this action could
be lodged under the ICCPR which may expose Australia to international
condemnation. It is particularly unacceptable that in international
fora Australia derogates only from human rights, not from trade or other
commercial conventions. Within the country, the passage of this Bill
would be evidence that major political parties who pass it fail to take
seriously women's interests in health and liberty (the ability to live
the life they choose), for the reasons that follow.
2. WOMEN AFFECTED WILL HAVE TO UNDERGO UNSAFE SEXUAL CONTACT TO BECOME
PREGNANT
Those single and lesbian women who are strongly enough motivated to
seek pregnancy through the use of assisted reproductive technologies
(ARTs) are likely to proceed to attempt this anyway by another means.
The Bill will not prevent children being born to such women, but will
merely have the effect, if States legislate to restrict access to ARTs,
of forcing women to seek conception by artificial or coital means in
a situation where no ongoing heterosexual relationship exists. This
means that there may be no knowledge of the sexual health of the sperm
donor or short term partner and by definition, unsafe sex must be practiced
for conception.
Thus the major effect of this legislation is to facilitate exposing
the women affected and their children to what may be a small but is
nevertheless significant and avoidable risk of sexually transmitted
diseases including HIV/AIDS. In this day and age it is difficult to
conceive of any justification in medical terms for exposing women to
such a risk w here it is avoidable. It should not be forgotten that
we are discussing access to a medical service which, whatever else it
does, is aimed at minimising risks of disease. To exclude any individual
from such a service should not be done lightly.
It is difficult to see how any religious beliefs which valued women
independently could justify exposing them (but not men) to such avoidable
but potentially life threatening risks.
3. THE BILL DISCRIMINATES AGAINST WOMEN
The situation facilitated by the Bill is itself discriminatory, since
only women will be affected by it. As a society we already accept that
even if a woman is able to become pregnant coitally, but her husband
is infertile, then ART can be used. From the point of view of the woman's
fertility, this is use of ART for a "social" problem - to
try to provide a man his own genetic offspring. Thus we allow ART treatment
for a woman who is not biologically infertile when what is at stake
is a man's right to children of his own. However this Bill closes this
off as an acceptable course of action for women without a heterosexual
relation ship when they seek a child of their own.
The fertile wife of an infertile man could become pregnant through
coital reproduction, or informal, possibly unsafe donor insemination
in the same way as the women affected by this Bill. To allow this for
men but to deny it for women is plainly discriminatory.
4. THE BILL UNDERMINES LIBERTY AND TOLERANCE
The Bill enacts into law the views of one or two particular sections
of society, in particular those of conservative social views and followers
of religions opposed to single motherhood. But Australia is diverse
not just culturally and ethnically, but socially, politically and religiously.
It is unacceptable in such a context for the liberty of all citizens
to be restricted on the basis of the views of sections of the public
who are not directly affected by their actions. This would contravene
John Stuart Mill's principle of liberty, whereby the only ground for
restricting the liberty of a person is to prevent actual harm to another.
The life choices of some people should not be precluded to satisfy the
consciences of others.
To allow such an approach also undermines the significant social glue
of tolerance for the views and practices of those who choose other life
paths than those chosen by members of mainstream religions or conservative
sections of society.
5. FEAR OF WOMEN'S REPRODUCTIVE AUTONOMY
Finally, I believe that the underlying motivation of such legislation
is fear that our current social structure will be undermined by women
being able to have children autonomously, that is, without being required
to obtain the personal participation (whether or not ongoing) of a man.
This raises deep and complex issues but I make only two brief points
here.
First, it should be noted that this is very unlikely to become a common
way of having children: life as a single mother is far from easy in
our society, so only those who are very committed to it in this situation
are likely to try to make this choice. Small numbers of women choosing
this path by safe instead of unsafe means will have little effect on
society in general, but tolerance of it will reaffirm the common spirit
and benefits of our society.
Second, as stated above, women can already make this choice, but the
Bill would require them to risk their health and that of their baby
as well. The real issue is whether or not this practice is to be safe,
not whether it will occur. If the Bill is passed, it will be the health
of the women affected which is risked to salve the unarticulated or
examined fears of people who are in no way personally affected by the
life choices involved, and who are not themselves restricted in any
way in such choices. This cannot be justified.
CONCLUSION
I oppose passage of the Bill for the reasons given above and ask you
to recommend against its passage.
Ms Beth Gaze Senior Lecturer
Law Faculty
Monash University
Clayton VIC 3800
Ph. 03 9905 3309
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