Australia: Prisoner access to IVF

Australia: Landmark Supreme Court Decision on Prisoner Access to Reproductive Healthcare

Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)

On 9 July 2010, the Supreme Court of Victoria in Australia found that the plaintiff, Kimberley Castles, was entitled to undergo IVF treatment while serving a term of imprisonment at a low security women’s prison.

Prior to her incarceration, Ms Castles had been receiving IVF treatment for over a year.  From 27 November 2009, Ms Castles made repeated requests to continue to access IVF at her own cost, emphasising that she would become ineligible for treatment from December 2010 by reason of her age.

On 3 May 2010, the Department of Justice made a decision to deny Ms Castles’ request.  The Secretary reasoned that Ms Castles ‘does not have an entitlement to this form of medical treatment’ and cited, among other things, resource constraints and the precedent that may be set by allowing Ms Castles to access treatment.

Emerton J found that, in Ms Castles’ circumstances, IVF treatment was ‘reasonable and necessary for the preservation of health’ under section 47(1)(f) of the Corrections Act.

The Court recognised that IVF is ‘a legitimate medical treatment for a legitimate medical condition’.  In a landmark statement on the status of reproductive healthcare, her Honour held:

“I see no proper basis to treat IVF treatment differently from other forms of medical intervention that are considered to be necessary to enable people to live dignified and productive lives, unencumbered by the effects of disease or impairment.”

Accordingly, Ms Castles was deemed eligible for permits to leave the prison on a visit-by-visit basis, subject to security and resource considerations.

This matter was run on a pro bono basis by the Human Rights Law Centre, together with law firm Blake Dawson, Debbie Mortimer SC and Michael Borsky of Counsel.

Further commentary is available here.

The decision is available here.

Rachel Ball is Director of Policy and Campaigns with the Human Rights Law Centre (rachel.ball&AT&hrlc. org. au)

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