A landmark ruling allowing a convicted sex offender's wife to undergo IVF treatment is being challenged by Victoria's patient review panel, which says the decision doesn't put child welfare first.
The Victorian Civil and Administrative Tribunal (VCAT) overturned an automatic ban on IVF access for the 34-year-old man and his wife, but the patient review panel is now urging the Court of Appeal to quash the VCAT ruling.
Convicted child-sex offenders are automatically barred from IVF.
The man, identified as ABY for legal reasons, was convicted in 2009 of having sex with a 16-year-old girl under his care when he was a teacher's aide.
He was jailed for three years, with two years suspended.
The review panel, an independent body formed under health department guidelines, rejected the couple's application to access IVF in November 2010 under the new Assisted Reproductive Treatment Act.
VCAT overturned the ban in July 2011, finding that ABY's risk of reoffending was low, there was no evidence to suggest he would sexually offend against his own child, and his wife should therefore be allowed to receive IVF treatment.
The review panel argued today that VCAT had not considered the indirect harm ABY might pose to a child he fathered through IVF.
"They've only focused on (ABY's) risk of re-offending per se ... if for example he was to reoffend against another child, that would also impact on ABY's biological child," Kerri Judd SC, for the review panel, told the court.
Barrister John Ribbands, for ABY, argued that even if an IVF child's criminally convicted parent did reoffend, it would be extremely rare for a given offence to make that child's very birth an unacceptable risk.
"The law takes care of children who are born ... not to be flippant, but what is in the best interests of an unborn child is to be born," he said.
Speaking to ABC's 7.30 in June 2011, ABY said he was sorry for he'd done, but that it was unfair for his "pure stupidity" to stop him having children.
"Every person deserves the right to have a family. People make mistakes. It's just very trying," he said.
His wife said, "Any person who can conceive a child naturally can and does. There are people with sexual offense and murder charges that have children - and more than one child. Why do they have children and we can’t?"
Chief Justice Marilyn Warren, Justice Pamela Tate and Justice David Beach reserved their decision.
The law takes care of children who are born ... not to be flippant, but what is in the best interests of an unborn child is to be born