Court overturns sex offender IVF ruling

26 Oct 2012, 3:03 pm   -   Source: AAP

An appeal court has overturned a decision allowing the partner of a convicted sex offender to receive IVF treatment.

A Victorian tribunal failed to consider the best interests of a child when it allowed a convicted sex offender and his wife access to IVF treatment, an appeal court has found.

The Victorian Civil and Administrative Tribunal (VCAT) last year granted the couple access to the fertility treatment despite the husband having been jailed for sexually penetrating a 16-year-old girl who had a cognitive impairment.

The VCAT ruling overturned a decision by the Patient Review Panel to deny IVF treatment to the woman and her 34-year-old partner, referred to as ABY.

On Friday, in what Victorian Chief Justice Marilyn Warren said may be considered a test case, the Victorian Court of Appeal ordered VCAT to reconsider its decision, saying it failed to apply the proper legal test.

Chief Justice Warren and Justices Pamela Tate and David Beach said the correct test that should have been applied was whether it was in the best interests of the child born from the treatment.

They said these include matters affecting his or her physical, sexual, emotional and developmental wellbeing.

"The Court of Appeal said that the correct test that should be applied when determining whether there was a barrier to a person receiving treatment was that the best interests of the child to be born from the treatment were paramount," a summary of the judgment said.

"It would not be in the best interests of the child to grant treatment if the panel considered that the person seeking treatment presented any potential identifiable and established risk factors to the child (as supported by research and expertise in the field) and that these factors presented a real risk of harm to the child when applied to all of the circumstances in an individual case."

ABY and his wife had undergone fertility treatment in 2007 and 2008, but after one round the treatment was interrupted.

In January 2009 ABY pleaded guilty to three counts of sexual penetration of a child aged 16 or 17 under his care, supervision or authority and was jailed for three years with two years of the sentence suspended.

He was 29 at the time of the offences and working as a teacher's aide at a special needs school.

ABY was convicted as a serious sexual offender and placed on the Sex Offenders Register for 15 years.

On his release from prison in 2010 the couple applied to resume the IVF treatment.

ABY also had a history of poly-substance abuse which he said ended in his mid-20s, the judgment noted.

The couple's application to have IVF treatment has been sent back to VCAT for rehearing.

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