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5.12.6 Section 80(3) - IVF consideration
Policy guidance provided in chapter 5.12.5 is relevant when considering children conceived and born through the In-vitro Fertilisation (IVF) process under subsection 80(3).
The purpose of section 80 is to provide the veteran with compensation to assist them with the expenses associated with raising the children they have at the relevant time, as well as any child they might have (barring intervention of some kind) as a result of a pregnancy or adoption proceedings that commenced prior to the relevant time. The veteran is not, however, entitled to assistance under section 80 in respect of any subsequent child they have where the child is conceived, or adoption proceedings commenced, after the relevant time.
There is a clear distinction between children of veterans who existed, or were on their way or growing into existence, at the relevant time, and children who might come later. The veteran is entitled to compensation in respect of the former, but not in respect of the latter.
While the reason for this distinction is not made explicit in the MRCA, it would seem to be because the veteran should be taken to be compensated in respect of the circumstances they find themselves in at the relevant time (whether those circumstances include a child already born or a child on the way).
In other words, it seems that the intention was that the veteran not be placed in an inferior position merely because they have children or are expecting children (in the sense described above), which, at the relevant date, is a circumstance beyond their control.
It is of course a different situation where a veteran chooses to have a child at a later date with the knowledge of their impairment (as the relevant circumstances are within the control of the impaired person). That is, the veteran can be taken to comprehend the situation they are in at that time (including their financial situation), the consequences of choosing to have a child (or additional children), and can make a decision accordingly.
The Military Rehabilitation and Compensation Commission (MRCC) view of the meaning of ‘conceived’ in subsection 80(3)(a) of the MRCA is:
- the commencement of pregnancy.
In the context of IVF, the commencement of pregnancy broadly equates to implantation of the fertilised egg in the uterus.
This interpretation is consistent with authority on the ordinary meaning of the term ‘conceived’, and is the most logical reading of the term for the purposes of section 80 of the MRCA. The MRCC made this determination based on advice from the Australian Government Solicitor.
The delegate determines the relevant date for the purposes of subsection 80(2) is 30 January 2019. The veteran provides evidence confirming their child was born on 1 March 2019 via IVF. In this example, it is open to the delegate to determine the child, whilst born after the relevant date, was conceived (i.e. the fertilised egg was implanted) around nine-months earlier in June 2018, and therefore before the relevant date. In this example, subsection 80(3) applies and an additional amount of compensation is payable in respect of that child.
The delegate determines the relevant date for the purposes of subsection 80(2) is 30 March 2021. The veteran provides evidence confirming their child was born on 30 March 2022 via IVF. The veteran also provides evidence confirming that he and his partner commenced the IVF process in January 2021. In this example, whilst the IVF process commenced before the relevant date, the fertilised egg which resulted in the pregnancy was not implanted until April 2021, after the relevant date. In this example, it is open to the delegate to determine that an additional amount of compensation is not payable in respect of the child, as whilst the child was born after the relevant date, the child was not conceived before, and therefore subsection 80(3)(a) is not satisfied.
Note: Please consult Benefits and Payments Policy on any borderline or complex cases. To do so, please refer to the Delegate Support Framework.