Therefore, it would not be unlawful under the Anti-Discrimination Act 1977 for a practitioner to apply eligibility criteria based on marriage or de facto relationship status, provided the application of that criteria was mandated under NSW legislation. The question of whether the State should prescribe eligibility factors based on relationship status therefore requires close examination. In South Australia and Western Australia, licence conditions prevent the application of ART to a couple unless they are, or appear to be, infertile or there is a risk that a genetic defect would be transmitted to the child if conceived naturally. Prescription of a criteria of infertility may have an effect on access to the program by women who are not in a heterosexual relationship. If a definition of fertility relates to an inability to conceive as a result of intercourse, this would prevent women who are not engaging in intercourse from being considered infertile.
Adoption involves the State making decisions as to the welfare of a child already born.
In the case of ART, the relevant decisions are as to the welfare of future children when they are born. Couples intending to have children naturally are not required to submit to any assessment procedure. If the aim of ART is simply to allow infertile or subfertile couples to conceive as a fertile couple can, then one may question the justification for such an assessment. Medical practitioners may not wish to be put in the position of making decisions of this nature. In adoption, the assessment process is undertaken by the State which has the necessary resources and expertise at its disposal and which is responsible for the care of the child should they not be adopted.