Four-year battle for reproductive rights
BY LISA YOUNG AND PAM CURRIE
BRISBANE — With women's reproductive and abortion rights under attack across the country, Queensland activist and mother of three Jennifer Morgan is leading the struggle to win equal access for all women to fertility services. Morgan has been fighting a court case since 1996, alleging anti-lesbian discrimination by a clinic here. Queensland's privately run clinics are not subject to state laws, leaving them free to decide who will and who won't reproduce. Here, Morgan explains why she decided to fight her case not just to access treatment for herself, but for the right of every woman to access that treatment.
I first approached the clinic in 1996. The culture in Queensland was that lesbians and single women weren't allowed to use these services, and I wanted to confirm that this was the case. The doctor I saw told me that if I forged a signature on the consent form, he would treat me.
I stressed about this for weeks: I wanted a baby, but this was wrong. I decided I couldn't do it and phoned the doctor to tell him. He said that he'd never done this before and would never do it again, that I'd stuffed it up for all other lesbians.
When I first saw him, I told him if he didn't treat me I'd complain to the Anti-Discrimination Board. He said that if I did the government would legislate to stop all lesbians and single women accessing the service, that it was much better that we continue to be treated on the quiet. He now denies this.
When we went to the tribunal he maintained that I'd lied to him, that I'd implied that I was heterosexual, and when he'd found out the truth he'd denied me treatment. The complaint was against both him and the clinic, alleging direct and indirect discrimination.
There were and are no laws in Queensland relating to fertility services. The clinic claimed to be following guidelines written in 1985; the tribunal subsequently ruled that these were not legally binding.
During the trial, the clinic stated that they were not anti-lesbian, that all they wanted was a directive and they would follow it. They got that directive when the tribunal ruled in my favour — they appealed anyway. The director of the clinic admitted last week in the Courier-Mail that they've been treating lesbians and single women since that first hearing, yet they still appealed.
The appeal went to the Supreme Court, which was exceedingly homophobic. Overturning the decision to allow me access to artificial insemination, the judge found there was no discrimination on the part of the clinic. By this time, however, I was pregnant with my son following treatment from the clinic. With the doctor, they found no direct discrimination but ruled that the indirect finding was unclear. They then sent it back to the tribunal to be re-heard.
I appealed to the Court of Appeals and lost. We applied to the High Court for leave to appeal, after being rejected by the Court of Appeal. They also rejected the case, and ordered that we pay the other party's costs of over $9000. When we applied to Legal Aid for assistance, I was told that bankruptcy would cause "no undue hardship"!
We're now waiting for the outcome after the Supreme Court sent the case back to the tribunal for the case of indirect discrimination by the doctor to be re-heard. If the outcome is in my favour, the clinic can appeal again. Having come this far, it doesn't look like they're going to back down, despite admitting they're providing the service!
The basic reasons for the findings were along the lines that the doctors were using a medical definition of infertility. This is the inability of a couple to conceive within 12 months of intercourse with no contraception — an innately heterosexual definition. We argued that there are various definitions of infertility, including "social infertility". There are classes of women that this definition necessarily excludes, and there is no reason these women shouldn't be considered separately.
I wanted donor insemination in 1996, not IVF treatment. I get so angry that the media keeps talking about IVF and fertile women accessing IVF treatment. The difference between artificial insemination (AI) and IVF is that in AI they take "straws" of treated, frozen semen and insert it into the neck of the cervix; it's no more complex than a pap smear.
In IVF, they take your eggs, fertilise them and plant them back in the uterus. It's a very expensive and complicated procedure, and not very successful.
If I went away and slept with a man for 12 months, I'd get pregnant. And I don't want to conceive in that way. It makes no sense, and the judges don't seem to have grasped that — they still talk about infertile women in their judgments.
When the doctor gave me the choice of signing the consent form, he'd obviously decided he was willing to treat me — probably because I'm a white, middle class woman who comes across as educated, someone he sees fit to treat. So there was the potential for him to decide who of us can breed and who can't, and that's not right.
I was aware of the Anti-Discrimination Act and went to the clinic expecting to be refused. How many women don't even approach the clinic because they believe they'll be turned away?
Challenging the clinic was a big decision, one that would affect those women who were accessing services as well as those who could not. But those women have to face the reality that there are a lot of women who are in desperate situations and taking desperate risks to get pregnant.
A huge problem with the law is that it is so unclear — like in Victoria. In Victoria and South Australia it is also illegal to self-inseminate, so a lesbian or any woman who accesses a private donor, for whatever reason, is committing an offence. The penalties are huge: four or five years in prison and fines of up to $50,000 for self-insemination! How much reproductive control can they grasp? How dare they legislate what a woman can do with her body?
John Howard suggests they can legislate to ensure that children have a mother and a father. He also talked about the care and love that children are entitled to. You can't legislate to make sure a child has care and love. It's pretty sad that he's using his power in this way; statements like that don't help any child.
I can't believe that people really think the gender of a parent is relevant. I tell the mainstream media that I don't think gender is important, as long as a child's got one or more parents to love and care for them. They just look at me and ask, "How is your son going to learn what it is to be a boy?" Well, he's not; he's going to learn what it is to be a human being.
The only thing a boy could need a father for is to learn how to relate to the mother, and that could only mean learning a position of power or supremacy. How many women observe that their husbands play no part in the parenting, yet still think that they need them there as a role model?
My partner and I have talked about having more kids, but not right now. The reason I started this case was out of concern that the service needs to be available to all women, and that hasn't changed.
I continued with the court case because the clinic and the doctor had treated me so appallingly. The number of women who are affected is unclear; so many pretend to be in heterosexual relationships or just don't approach the clinics at all. But irrespective of whether it's five women or 50,000 women, it's a human rights issue.
It's misogynist, this belief that doctors and the state have the right to take a woman's reproductive capacity under their control. It's good that it's been put out there in the public arena through the Victoria case. It's made more women realise that this is about every woman.
[Queer Families are raising funds to help meet Morgan's legal costs. To make a donation, please contact Jennifer Smith, c/- Student Union, University of Queensland, St Lucia 4067, or telephone (07) 3377 2200.]