Sacha Petersen, 17-month-old Mabel, conceived in an Albury clinic, and Anna Russell.
Photo: Rebecca Hallas
TO MAKE their first baby, Anna Russell and Sacha Petersen drove 3½ hours to cross the NSW border to Albury. Petersen lay on a table, and a nurse inseminated her with a donor's sperm. Ten minutes later, what the couple call the "spermination" was complete. Blue-eyed baby Mabel was born 17 months ago.
Now Russell and Petersen are trying for a second child. The first donor is unavailable and the Albury clinic — traditionally the place where Victorian lesbians and single women go for fertility treatment — has all but run out of sperm donors. So the couple have shifted their hopes to Tasmania. Each month they fly to Launceston and leave Mabel with family there. Then they drive to Hobart, where Petersen receives treatment. They drive back to Launceston, pick up Mabel, and fly back to Melbourne. The couple have gone through this ritual five times, costing them about $5000 in airfares and treatment. But Petersen hasn't fallen pregnant.
If their sixth attempt in May fails, Petersen can be declared "medically infertile" — that means that under Victoria's labyrinthine laws governing reproductive treatment, she can receive IVF treatment in her own state for the first time.
"There's no logic behind it that we can see," Russell says. "The Federal Government is handing out money for straight people to have babies left, right and centre. The famous quote (by Treasurer Peter Costello) 'one for you, one for your partner, and one for Australia'. You have a whole community wanting to do that."
There is another anomaly. Victorian reproductive laws are the most restrictive in the country mainly because it was the most progressive state for infertility treatment in the early years. Victoria was one of the first places in the world to offer IVF, in which embryos are created using a woman's eggs and a man's sperm then implanted into the woman. It was the first Australian state to legislate in 1984 when IVF was so new and so controversial that it was strictly controlled. The sole purpose of IVF then was to help infertile married couples have biological children.
The medical technology has always bumped up against community unease. Even de facto heterosexual couples were banned from using it until a decade ago and, although attitudes towards lesbians and single women having children have changed dramatically in a generation, such people remain excluded unless they are clinically infertile.
Soon, that might change. The Victorian Law Reform Commission has spent more than four years reviewing the state's fertility legislation. Yesterday, it handed its final report to Attorney-General Rob Hulls, and its recommendations will be made public in coming weeks. In a draft report released in 2005, the commission indicated it would recommend that lesbian couples and single women be given the same access to fertility treatment as women in heterosexual relationships. That would have been unthinkable 20 years ago, when the notion of "social infertility" was unheard of.
Despite the rapidly changing definition of "family", the debate about whether Victoria should, like most other states, make it easier for single women and lesbians to have children is likely to be emotional and intense. In a sign of the discomfort the issue arouses, the Bracks Government has so far avoided making its position clear.
What is clear is that the impact of the restrictions has been profound for Victorian women desperate for a child who have been forced to travel around the country for treatment. The phenomenon even has a name — "reproductive tourism". Last year, the Albury clinic treated 44 women, of whom 30 were from Victoria. Thirteen were lesbians, 19 were single and eight were married. Victorian women also travel regularly to Canberra, Sydney, Hobart and Brisbane.
Those wanting change see the law as a mishmash of contradictions. For instance, for lesbians and single women, infertility can be a cause for celebration — they can have IVF treatment in Victoria. But fertile single women or lesbians, who do not have a male partner or who are unwilling to sleep with a man solely for the purpose of becoming pregnant, do not have access to reproductive help.
The anomaly is due to a court case six years ago. A single woman who could not conceive for medical reasons, Leesa Meldrum, and her doctor, Melbourne IVF director Dr John McBain, tested a ban on single women using IVF in the Federal Court. The court upheld their argument that state legislation contravened the federal Sex Discrimination Act. Since then, women can no longer be excluded based on marital status. But they still need to meet the requirement of infertility.
So women who are fertile have to be creative. They either ask a friend to provide the sperm and inseminate themselves at home, a practice some worry is unsafe. Or they travel interstate.
In the aftermath of the McBain case, Hulls asked the Law Reform Commission in 2002 to review the legislation. Its interim recommendations urged the Government to remove the infertility requirement and allow access for women who are "unlikely" to become pregnant without treatment. That would cover all women without a male partner.
The commission argued the law was unfair because it was applied unevenly — a single woman with a genetic abnormality that could be passed onto her child is eligible for treatment. A single woman of 45 may be eligible for treatment because her age has made her clinically infertile. But a single woman aged 35 who does not have clinical infertility cannot be treated. These distinctions, the report noted, "make no sense". Nor did it believe that the marital status of a child's parents was linked to the child's health and welfare.
One heterosexual woman who spoke to The Age first explored the idea of having a baby when she was 40 but was ineligible because she was single. She is now 43 and pregnant, but only because tests proved she was medically infertile. Instead of celebrating her pregnancy, she lives in fear that she is going to have another miscarriage — her first pregnancy ended in miscarriage late last year. "I've been waiting for this all my life and then it's not the journey it should have been," she says. "I want to celebrate it, but you're scared all the time. Your chances of doing it earlier are easier. You shouldn't have to wait until you're infertile and you have 50 million obstacles in front of you."
There are other quirks caused by galloping technology. If a woman can find her own sperm donor, the Melbourne IVF clinic will screen and store the sperm for six months to make sure it is safe. She can then take it home and inseminate herself. The clinic can do all the tests but not the insemination. The aim is to reduce a woman's vulnerability to HIV.
Alice Murray and her partner are trying to have a baby using this program. "Both my partner and I work full time and going to Sydney when you're ovulating, which might be mid-week, is impractical from a work perspective," she says. "If you're working in a professional environment you can't just drop everything and leave."
The law may change to allow women to be inseminated in a clinic. But even if they could, some women might still choose to do it at home.
Dr Ruth McNair, a Melbourne University senior lecturer in general practice and a GP who specialises in gay and lesbian health, believes self-insemination is relatively safe. She says some women prefer the autonomy of doing it themselves. And some like the idea of giving gay men the opportunity of being parents, too. But if it isn't clear where they all stand — or if feelings change after the birth — it can lead to problems later.
"The most fraught part of it is the medical risk of transmitting infection, and secondly the legal risk if they haven't managed to make an adequate written negotiated contract," McNair says.
Dr Deb Dempsey, a lecturer in sociology at Swinburne University, says the law needs to catch up with the complexity of people's relationships. "Children deserve to be well supported and have legal recognition for the people that are actually parenting them," she says.
Opponents of lesbians and single women having access to IVF argue that children are better off being part of a traditional family. In the storm following the McBain case, Prime Minister John Howard said: "Children are entitled to the opportunity of both a mother and a father." His views were echoed by State Opposition Leader Ted Baillieu, who said in the lead-up to the November state election: "My view is that IVF ought to be for heterosexual couples."
When the Law Reform Commission released its interim report, Health Minister Tony Abbott blasted its "apparent dismissal of the traditional notion that children should ideally have male and female parents".
Australian Family Association spokeswoman Angela Conway says the priority should be the rights of the child. "Children do best in the context of family life, where their natural mother and father are involved in their day-to-day life and upbringing as their recognised parents, and preferably where that natural mother and father are married," she says.
But the Law Reform Commission has reviewed the literature and does not believe this is the case. It says there is sound evidence that children born into families with non-biological parents or same-sex parents do at least as well as other children.
According to social researchers, there is scant evidence that children who are not raised by a father and mother in a traditional way are worse off than children who are.
Sarah Wise, the principal research fellow in children and parenting at the Australian Institute of Family Studies, says the research, predominantly from the United States, does not suggest that children's wellbeing is at risk. Whether they're raised by one parent or two, a heterosexual couple or a gay one, is less important than the quality of care," she says.
"What matters most to children is the environment in which they grow up, the quality of the interactions they have with their care-givers and the security that they feel within those relationships."
What may be harmful to children is the lack of legal recognition given to the non-birth mother in a lesbian relationship. The non-biological, or "social" mother, does not have the right to be on the child's birth certificate and is not recognised as the legal parent in Victoria.
However, in another anomaly, if a heterosexual couple uses donor sperm to have a child, the woman's male partner is on the birth certificate.
The Law Reform Commission has suggested the non-birth mother deserves legal recognition and should appear on the birth certificate alongside the birth mother. Acting chairman Dr Iain Ross says if the birth mother dies , there is legal ambiguity about the rights and obligations of the surviving partner and it would be possible that the child could become a ward of the state. Then there are issues to do with inheritance and being able to consent to medical treatment and sign school forms.
"At worst, you've got a position where someone who was for all intents and purposes the parent of the children does not have any legal rights," Ross says. "They're not recognised as the parent and would have to seek some sort of legal intervention."
Robyn Hamilton and Helen Grutzner want this legal recognition. They have a four-year-old daughter, Harper, who was conceived in a Sydney clinic. They believe the non-birth mother, Hamilton, should automatically be considered a legal parent from birth. Their only recourse was to go to the Family Court to get a parenting order that gives her limited recognition of responsibility but doesn't give her legal status as a parent.
Anyone can apply for such an order — a grandparent, relative, even a friend. The order enables non-biological mothers to make some day-to-day decisions. But if anything were to happen to Grutzner, Hamilton would not necessarily get custody of Harper. That would depend on the good will of the court.
"It has an undermining impact on us as a family, in that we don't have that legal recognition and protection that other families do," says Grutzner.
Felicity and Sarah Marlowe are in a similar position, although they have not yet applied for a parenting order. Sarah Marlowe is medically infertile and can legally have IVF in Victoria. Her partner can't. Marlowe had twins Callum and Rafi, who are nine months old. As the birth mother, only her name is on the birth certificates. Even though the couple went through the process of having children together, Felicity Marlowe has no legal rights. She could walk away from the relationship and not be obligated to pay child support. If Sarah Marlowe ended the relationship, her partner may never see the twins again.
Meanwhile, for the women who are still trying to have a baby, the frustration and sense of grievance lingers. "We have a good house in the suburbs," says Alice Murray.
"We can afford to send our kids to good schools, we earn good money, we're in the best position to be parents, we want it more than a lot of people and there are roadblocks in the way."
Anna Russell and Sacha Petersen are creating story books for their children to explain how they were conceived. They've made one for Mabel, detailing how the couple met, fell in love and knew they wanted to have babies together.
But, the story goes, to have babies, you need an egg and sperm — but "mum" and "muma" are both girls who only have eggs. So they got into their little blue car and drove to a place called Albury, where a kind man supplied the sperm.
Mabel will know her story from the start. But more importantly, says Russell: "Our children will know that they're the most wanted children, because we had to go all over Australia to create them."
ELITE AFL footballers are being asked to lend a hand to lift the nation's sperm supplies.
As the AFL season starts this weekend, fertility clinic Monash IVF will write to the 10 Victorian-based AFL clubs, asking their players to become sperm donors.
Another clinic, Melbourne IVF, is lifting a 20-year ban on gay men becoming sperm donors. It has not permitted gay men to be donors since HIV became a problem in the 1980s. But gay men have been allowed to donate sperm for friends.
The two clinics are on a recruiting drive in anticipation of changes to state laws that will put their sperm supplies under even more pressure.
The Victorian Law Reform Commission has spent more than four years reviewing the state's fertility legislation. Yesterday, it handed its final report to Attorney-General Rob Hulls. A key recommendation is likely to be that single women and lesbians be permitted access to donor insemination and IVF, regardless of whether or not they are clinically infertile.
Melbourne IVF donor counselling co-ordinator Kate Bourne said while she supported the changes, the "floodgates" would open. She urged men to think about coming forward. "Donors aren't wankers," she said. "The donors I've had contact with have been genuinely nice men."
Melbourne IVF has changed its policy on gay donors because it is confident that sperm can be safely screened for HIV. Couples would be aware of the donor's sexuality before selecting them.
Monash IVF managing director Donna Howlett said the clinic was also considering approaching Victoria Police. It tried to recruit AFL footballers about 10 years ago, and sought the sperm of Victorian MPs two years ago. Neither drive was overly successful, but they raised awareness.
"If we get support from high-profile footballers it may highlight the need for donor sperm."
March 16, 2007 12:00am
THREE children have won a share of the estate of a man said to be their sperm donor father after using tweezers to pluck his eyebrows for DNA testing as he lay dead in a hospital morgue.
In a landmark decision, the NSW Supreme Court yesterday granted administration of Willem Wijma's estate to one of those children, ruling against his family's wishes.
It is a judgment that raises questions about the legal rights of thousands of men who have donated sperm – and alarm among the men's families who face sharing their inheritance with a stranger.
"I haven't heard of a case like this before," Leonie Hewitt of the Donor Conception Support Group said.
Mr Willem's daughters from his marriage, Janna and Tineke, claimed the "sperm donor" children had ransacked their father's house, stolen and destroyed his will and showed "unseemly haste" in plucking his hair for DNA testing.
But Justice Ian Gzell found Mr Willem, who died in October 2001 aged 75, with an estate worth about $500,000 including a house and car, had died without a will.
The court was told Mr Willem and his family migrated to Australia in the 1950s but his wife and daughters returned to Holland after the couple divorced.
He then fathered three children – Julie Mougalis, Jeffrey Sullivan and Scott Sullivan – with Constance Sullivan, whose husband, Ed, was infertile but did not know it.
The children grew up believing Ed Sullivan was their father until their mother told them the truth in 1995 after Mr Sullivan died.
Mr Sullivan also believed he was their father.
Mr Willem's Dutch daughters claimed he told them in 1995 that he had a brief affair with Mrs Sullivan. Then, in the days before IVF, she had returned to ask him to be a sperm donor because she wanted children.
Mrs Sullivan told the court the children were born out of love.
Justice Gzell said yesterday Mr Willem, caretaker of the former Koala Inn apartment complex on Sydney's Oxford St, had never supported her children.
"They were careful to avoid any public acknowledgement of their relationship," he said.
However after the Sullivan children found out he was their biological father, they met Mr Willem and he "appears to have cared for them", the judge said.
Friend Hendrik Korporaal, said that, shortly after confessing he was the father of the Sullivan children, Mr Willem discussed his will.
He said Mr Willem told him: "I want the bulk of my things to go to my two daughters. You are my executor . . . I know that when I die the vultures will come out."
Justice Gzell rejected any suggestion the Sullivan family had stolen a will and said evidence pointed to it having been destroyed beforehand.
DNA testing proved they were Mr Willem's biological children after their solicitor plucked his eyebrow hair as he lay in Port Macquarie Base Hospital.
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