Sex | Sex Offender Allowed Access To IVF

A convicted sex offender's wife will be allowed to undergo IVF treatment only if he completes counselling.

In what's been termed an Australian first, the Victorian Civil and Administrative Tribunal (VCAT) has overturned a ban which had prevented the man and his partner from accessing IVF because he is a convicted sex offender.

In a two-to-one majority decision handed down on Friday, the tribunal ruled that there was no barrier to the man's wife undergoing IVF treatment.

But the tribunal imposed a condition that the 33-year-old man, identified as ABY for legal reasons, complete 12 counselling sessions for sex offenders before his wife has access to the treatment.

VCAT president Justice Iain Ross and member Dr Elaine Fabris said ABY's risk of reoffending generally was low and there was no cogent evidence to suggest he posed a risk of sexually offending against his biological child.

'It is extremely unlikely that ABY would have difficulty discerning the boundaries between parent and child such that he would not have the skills or moral understanding to prevent inappropriate sexualised behaviour with a child,' they said in their majority decision.

ABY was convicted in 2009 of having sex with a 16-year-old girl under his care when he was a teacher's integration aide. He was jailed for three years, with two years suspended.

He and his wife began IVF treatment in 2007, but a new law came in at the same time as his release from jail in January 2010 restricting sex offenders from accessing the treatment.

Victoria is the only state with laws requiring sex offenders to argue why they can access IVF.

Last November, ABY's bid to access the treatment was rejected by the patient review panel, established under Victoria's Assisted Reproductive Treatment Act.

While the panel argued it was appropriate for VCAT to look at ABY's potential parenting capacity, Justice Ross and Dr Fabris said the tribunal was not conducting a general inquiry into the couple's capabilities as parents.

They said the tribunal was focused on the risks arising from ABY's sexual offending to a child born as a result of the IVF treatment.

But they said the purpose was not to further punish ABY for his offending.

'The focus of this proceeding is on the best interests of the child who would be born, not on exacting retribution for ABY's past conduct,' they said.

The third VCAT member, Patricia Harper, concluded that the IVF treatment was not consistent with the best interests of a child who would be born as a result, and that the treatment should not proceed.

She based her finding on factors including the circumstances of ABY's offending, the man's defensiveness of his behaviour, lack of empathy and remorse and limited insight into his conduct, and his failure to participate in a treatment program.

ABY's lawyers had argued there was no risk to the welfare of any child to be born to him and termed it an Australian first test case.