Playing Against a Stacked Deck

In the culture wars, fair fights are hard to come by. Sometimes the odds are so stacked against you, that you hardly feel like wading into a fight. Often those promoting all the wrong causes are entrenched in public service bunkers, with heaps of public funding, enjoying the support of the media, the education system and so on.

Those seeking to champion pro-life, pro-faith and pro-family values, on the other hand, often have none of these benefits. They usually have little or no funds, little government support, are ridiculed in the media and/or ignored in the public square. Thus it is a real David and Goliath battle that we are in, and the chances of success seem slim indeed.

Numerous examples could be raised here. One recent example very clearly illustrates the stacked deck that we play against. Consider a recent call for submissions by the tax-payer funded Victorian Law Reform Commission (VLRC). It has put out a Consultation Paper on “Assisted Reproductive Technology & Adoption: Should the Current Eligibility Criteria in Victoria be Changed?”. (1)


Let me give a brief background to this Paper. In Victoria Assisted Reproductive Technologies (ART) and in vitro fertilisation (IVF) were made the subject of regulation in 1984. The Infertility (Medical Procedures) Act 1984 said that only infertile heterosexual married couples could get access to such procedures. This legislation was revised in 1995 in the Infertility Treatment Act 1995.

In 1997 three unmarried couples challenged the marriage restriction before the Human Rights and Equal Opportunity Commission (HREOC). They argued that the Federal Sex Discrimination Act 1984 (SDA) prohibited discrimination based on marital status. As a result the Victorian Act was amended to allow de facto couples access to fertility procedures.

In 2000 Dr John McBain, a Melbourne IVF specialist, representing single woman Leesa Meldrum, took action in the Federal Court. On 28 July 2000 Justice Sundberg ruled that the 1995 Victorian Act  violated section 22 of the SDA. This opened the way for both lesbians and single women to access tax-payer funded ART services.

This decision was challenged by the Catholic Church in the High Court. But in April of 2002 the Court sided with the earlier ruling, by refusing to overturn it. As a result Victoria’s reproductive technology legislation effectively went into limbo. Thus the Victorian Attorney General Rob Hulls has called for this inquiry, handing the job over to the VLRC.

The Discussion Paper

As to the Discussion paper, several alarm bells should already be ringing. The VLRC, an activist body formed in 2001, already has a history of pushing trendy social causes. And its chair, feminist and libertarian Marcia Neave, has also made a name for herself in promoting trendy causes. For example, in 1985 Professor Neave chaired an Inquiry into Prostitution for the Victorian Government in which she argued for the legalisation of prostitution, a position she has subsequently championed.

She is also on the Committee of Liberty Victoria (the Victorian Council for Civil Liberties), a libertarian group, which, among other things, supports gay “family” rights. And this is their policy on reproductive rights: “All people have the right to control their own fertility. Access to fertility treatment should not be restricted by use of discriminatory criteria, such as marital status or sexual orientation. The right to choose whether or not to terminate pregnancy is that of the woman.”

Thus as the head of the Commission, there is a clear bias in favour of the gay rights agenda which the majority of Victorians would disapprove of. No wonder the Commission is, as they proclaim, “committed to progressive reform.”

And the title of the Paper tells us where it wants to go: allowing more folk into ART and IVF. And the chief beneficiaries appear to be those of the gay and lesbian community. That is, this discussion paper seems to be one big exercise in pushing the gay agenda, while claiming to be an impartial inquiry.

And that is exactly how the document reads. The whole thrust of the VLRC Consultation Paper is moving in the wrong direction. It has a built-in bias toward the homosexual community, and it shows animus or indifference to the traditional understanding of the natural family.

The whole bent of the paper is to open up the eligibility of ART so that singles, and especially lesbians and homosexuals, can have complete and unfettered access. More on this in a moment.

Suspect Advisors

Not only is the document an exercise in political correctness and leftist advocacy, but the people involved are all the usual suspects in the PC wars. Consider the four Member Advisory Committee: all of them have agendas to push. Two are activists in homosexual and lesbian law reform. One is an activist Family Court judge. And one is the head of the Infertility Treatment Authority (ITA). (2) With such a line up, one hardly gets the impression of impartiality.

It is worth examining each of these four advisors in some detail. Such an examination will reveal just how stacked the deck really is. It will make perfectly clear that this group already has a decided outcome in mind, and public input notwithstanding, this outcome is sure to emerge.

First, consider Dr Ruth McNair, who is simply listed in the Discussion Paper as Senior Lecturer, Department of General Practice, University of Melbourne.  Sounds innocuous enough. But the publication does not inform us that she is also the spokeswoman of the Fertility Access Rights (FAR) group of the Victorian Gay and Lesbian Rights Lobby. Nor does it let us know that she is also convener of the Australian Lesbian Medical Association (ALMA), a member of the Victorian Ministerial Advisory Committee on Gay and Lesbian Health, and a member of the Attorney General’s Committee on Lesbian, Gay and Transgender Issues. She and other members of the ALMA marched in the 2004 Sydney Gay and Lesbian Mardi Gras. (3)

Dr McNair has been active in the homosexual and lesbian cause for years now. She has been a frequent commentator on the McBain case both in the gay press and in the general public. In a talk given at the Royal Children’s Hospital in August 2000, for example, she said that “we must challenge the limited view of family, and the fear of alternative family structures and diversity. The attitude of compulsory childlessness for single women and lesbians is outdated and discriminatory.”(4)

A second member, Kristen Walker is simply identified in the Paper as Senior Lecturer, Faculty of Law, University of Melbourne. She is that, to be sure, but much more. She is another long-standing proponent of homosexual rights, and a leading campaigner against the traditional family. She too is involved with FAR, and she has been quite outspoken on the McBain case, seeking the rights of lesbian and single women to have ART access. Consider a few of her many comments in this area.

In an article on ART and sexuality, she speaks of “the continuation of outdated 1950s family values that are deeply homophobic and fearful of women raising children without men”. (5) There you have it. The family is just a recent invention, and it is outdated anyway. And to be concerned about the well-being of children is to be “homophobic”.

In this article she also claims that children do just fine when raised by same sex-families, and claims that children do not need a mother and a father for optimal development. Elsewhere, in writing about the McBain case, she says the Victorian Act and the federal government’s response “are based on inaccurate stereotypical notions that single women and lesbians will not make good parents. This is an assumption based on prejudice – the stereotyping of people because of some generic feature of their lives.” (6)

In these comments she of course chooses to ignore a mountain of social science evidence that tells us exactly the opposite: by every indicator, children do best when raised in a heterosexual two-parent family, preferably cemented by marriage. (7)

In another article she speaks of a “transformative social project” in which “diverse sexualities” are “fostered,” recognised as “good” and promoted by education. The “notion of sexual self-determination” involves “not only the absence of criminal law regulating sexual activity, but the fostering of social structures that recognise individual and joint choices about important relationships that permit the expression of sexuality by individuals, couples and groups” (emphasis added). (8)

And in a chapter of a book on the recognition of same-sex relationships, she argues that “we need to use international law” to challenge “the definition of family” and to seek “recognition of non-normative sexual relationships”. (9)

Consider a third member, Justice Sally Brown, of the Family Court. She was the one who recently ruled that a baby boy born to a surrogate mother in the United States should be looked after by two gay Australian men. She said it was in the baby’s “best interests” that he be raised by the homosexual couple.(10) It seems that she already has her mind made up on these sorts of issues.

The fourth member is Ms Helen Szoke of the ITA. She has a lower public profile on contentious issues, constrained by what the ITA can comment on. But the ITA itself has tended to represent the interests of Big Biotech and the fertility industry, while ignoring the concerns of the general public.

In fact, the ITA tends to ignore ethical and community concerns, instead giving ear to the radical social reformers. For example, the ITA held a public conference in Melbourne in July 2000. I attended, and was surprised at how the whole drift of the conference focused on the rights of adults, especially gays and lesbians, to have access to ART and IVF. I was alarmed at how almost nothing was said about the rights of a child to have a mother and a father. Ruth McNair, for example, was one of the speakers at the conference, doing her best to convince us of the need for lesbian access to fertility services. (11)

Given that these four individuals comprise the Advisory Board, it is quite clear that to a large degree the VLRC already has its mind made up.

But wait, there’s more. The Discussion Paper also mentions a number of individuals who “assisted the Commission” to understand the issues better. These include none other than Dr John McBain, who instigated the whole legal revolution in the first place, as well as two members of Melbourne IVF and two members of Monash IVF. (12) Talk about selective assistance.

What Discussion paper?

But the deck stacking does not end there. Not only does the VLRC clearly have a preconceived outcome in mind, but it is going out of its way to ensure that it happens. While most of the general public would have no idea that the inquiry is even on, special interests groups appear to know all about. The gay press, for example, has been running with the story in a number of articles.

And Committee members are hitting the streets, doing active evangelising in the gay community. Ruth McNair, for example, has made a point of targetting the homosexual community, letting them know of how favorable the paper is to their cause. She says that the Commission has “framed it positively for our community and haven’t left anything off the table, even complicated issues like surrogacy”. (13)

And in another gay newspaper she is reported as having set up a “How to write a submission” session for the gay community. She even had the discussion paper and related documents made available at the homosexual Midsumma Carnival Stall on February 15. (14)

And in yet another gay newspaper she was again urging homosexuals and lesbians to get involved, calling on “queer parents and their allies” to tell their stories to the Commission. Said McNair, “The voices of gay and lesbian parents are really important and were crucial in influencing opinions in terms of the reforms we’ve seen in WA, Tassie and the ACT.” She said it was important that queer people speak out, so that the voices of “conservative rightwing ‘family’ advocates” would not be the sole voice in the debate. And she said that the FAR Lobby was planning another workshop to “assist people in putting in submissions.” (15) Talk about proselytising. Talk about activism.

Strange, but I don’t read of any VLRC members targetting the general public, setting up submission writing stalls at churches or other “straight” community groups. It seems they only have a selected target audience in mind.

Indeed, the gay community has written extensively about the proposed law reforms, and they are quite excited about it all. They are upbeat about their chances, and about all the issues being covered, including lesbian access to donor insemination, gay men being allowed to become donors, etc.

All the issues certainly are there. There is even a chapter on what is a family. But the whole push of this chapter is to say the family is changing, and we need to change with the times. In fact the entire document gives the impression that we live in changing times, and families come in all shapes and sizes, and anyone should have access to ART, IVF, etc.

For example, the Paper says it is a “problem” that a birth mother’s female partner is not currently legally defined as a parent. (16) But it is not a problem if we believe that lesbians should not have children in the first place. The Paper goes on to make proposals for change so that the female partner can be recognised as a parent. (17) It is encouraging the homosexual community to jump on the reproductive rights band wagon, while ignoring the rights of a child to be born and raised by a mother and father.


All in all, this Paper reflects the social engineering agenda of many of those who make up the VLRC. Remember the words of Dr McNair: the VLRC has “framed it positively” for the gay community. It is pushing for social reform, and is using this Paper as a means to implement change. One certainly does not get the impression that it is just a neutral, impartial, body holding a fair minded inquiry. It is an activist body, working toward a pre-determined outcome. And as documented above, it is making sure that its own ends will indeed be reached.

[2399 words]

1. Victorian Law Reform Commission, Assisted Reproductive Technology & Adoption: Should the Current Eligibility Criteria in Victoria be Changed? Consultation Paper. Melbourne, December 2003.
2. VLRC, p. v.
3. “Queer doctors head for Mardi Gras,” Melbourne Star, 4 March 2004, p. 3.
4. Ruth McNair, “Eligibility for single women and lesbians to access assisted reproductive technology,” Melbourne; Royal Children’s Hospital, 14 August, 2000. Reprinted on the Australian Institute of Health Law and ethics website:
5. Kristen Walker, “1950s family values vs human rights: In vitro fertilisation, donor insemination and sexuality in Victoria,” Public Law Review, vol. 11, December 2000, pp. 292-307, at p. 307.
6. Kristen Walker, “Equal access to assisted reproductive services: The effect of McBain v Victoria,” Alternative Law Journal, vol. 25, no. 6, December 2000, pp. 288-291, at p. 290.
7. For full documentation of this claim, see Bill Muehlenberg, “The case for the two parent family”. Melbourne 2004.
8. Kristen Walker, “Capitalism, gay identity and international human rights law,” Australasian Gay and Lesbian Law Journal, vol. 9, February 2000, pp. 58-73, at p. 71.
9. Kristen Walker, “United Nations human rights law and same-sex relationships: Where to from here?,” in Robert Wintemute and Mads Andenaes, eds., Legal Recognition of Same-Sex Partnerships, Oxford; Portland, Oregon: Hart Publishing, 2001, pp. 743-757, at p. 756.
10. Fergus Shiel, “Gay couple ‘parents’, court finds,” The Age, 13 December 2003, p. 3.
11. Bill Muehlenberg, “Unrestricted IVF: Who protects the child?,” News Weekly, 29 July 2000, p. 6.
12. VLRC, p. v.
13. “Parenting reforms,” MCV, 30 January 2004, p. 4.
14. Sherele Moody, “Sperm changes, use or lose them,” B.News, 29 January 2004, p. 3.
15. “Queer families speaking out,” MCV, 12 March 2004, p. 4.
16. VLRC, p. 84.
17. Ibid., pp. 90-92.

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