This proceeding addresses the conduct of the Commonwealth, and its relevant Departments, which have prevented Class Members from accessing Medicare rebates when undergoing fertility treatment (including IVF/IUI). The proceeding alleges that Medicare rebates were not available to Class Members because of a policy that excluded persons who were deemed to be ‘socially infertile’, rather than  ‘medically infertile’. 

The Class Members in this proceeding are persons who accessed fertility treatment  between 28 June 2013 and 4 September 2024; and

1. were unable to access Medicare rebates when using assisted reproductive technology services, including one or more of the following treatments:
   1. In-vitro fertilisation (IVF)
   2. Gamete intrafallopian transfer (GIFT)
   3. Intracytoplasmic sperm injection (ICSI); and
   4. Intrauterine insemination (IUI).
2. and were deemed to be “socially infertile” for the purposes of Medicare or otherwise were determined not to be “medically infertile”.

The class action alleges that: 

1. the Commonwealth Government was responsible for maintaining a policy of not paying Medicare benefits towards fertility treatments unless the person/s seeking the services were deemed to be “medically infertile”; 
2. by reason of Class Member’s relationship status or sexual orientation, Class Members were treated less favourably than other persons seeking the same services; and 
3. the above amounted to unlawful discrimination. 

1. What is a class action?

A class action is a group Court proceeding comprised of seven or more people who have been wronged, whose claims generally arise out of similar circumstances.

These actions allow the group an opportunity to be heard based on common issues of law or fact and are often commenced by one or two lead litigants on behalf of the group.

2. What is the IVF Medicare Rebates Discrimination Class Action about?

This representative Court proceeding is being advanced on behalf of single women, persons in a same-sex relationship and other members of the LGBTIQ+ community with female reproductive characteristics, including transgender men (Class Members). The proceeding alleges that Medicare has unlawfully prevented Class Members from accessing Medicare rebates for assisted reproductive technology services (such as IVF) due to those persons being deemed to be ‘socially infertile’ (or otherwise), rather than them being deemed to be ‘medically infertile’ and therefore eligible for such Medicare rebates. The filed claim alleges that this conduct has amounted to breaches of various provisions of the Sex Discrimination Act 1984 (Cth).

If you believe you have been affected by these issues, then you may be entitled to compensation and should register your details above.

3. What is the difference between ‘medical infertility’ and ‘social infertility’?

The National Health and Medical Research Council (NHMRC) defines ‘medical infertility’ as:

“Generally seen as a delay of greater than 12 months to achieve a planned pregnancy…in some contexts, such as advanced maternal age, it may be appropriate that a diagnosis of infertility is made in a lesser time period”.

The NHMRC defines ‘social infertility’ as:

“The inability to have children because of social factors, rather than medical reasons, e.g. same-sex relationships, single individuals”.

4. Are there any costs to take part in the class action?

JGA Saddler, the law firm representing the claimant group, is committed to ensuring that everyone, regardless of their background or financial situation, has access to justice. JGA Saddler runs class actions in a way that means you are not exposed to any costs or financial risk, so joining and being part of the class action will cost you nothing.

The class action is being funded by Litigation Capital Management (Funder) on a “no win, no pay” basis in accordance with the terms of a Funding Agreement or other terms as imposed by the Court.

If the class action is successfully resolved and there is a recovery of compensation, the Funder will be entitled to reimbursement of the costs that it has funded plus an additional commission from the judgment or settlement amount. The Funder’s commission is set out in the Funding Agreement that Class Members are asked to sign as part of the registration process. The Funder may also seek the Court’s orders for payment of costs and a commission out of the class action’s proceeds.

If the class action is not successful, Class Members do not have to pay anything, as the Funder is funding the proceeding on a “no win, no pay” basis and also agrees to pay any legal costs that might be awarded to Medicare if they succeed in defending the action. Again, this will all be dealt with at no cost to Class Members.

5. Will there be any cost to me if the class action is unsuccessful?

No. Class members do not have to pay anything in the event that the class action is unsuccessful, as the Funder is funding the proceeding on a “no win, no pay” basis and also agrees to pay any legal costs that might be awarded to Medicare if they succeed in defending the action. It is important to note, Funders wear the risk of funding a proceeding with prospects of success in mind, which is encouraging.

6. How long will the class action take to resolve?

Unfortunately, we are unable to provide a timeframe of how long the class action will take to resolve. Our objective will always be to act in the best interests of the Class Members to ensure any resolution is reached as quickly as possible while ensuring the best outcome for Class Members.

7. Do I need to sign a Funding Agreement to be part of the class action?

No. However, it is important to be aware that the costs of progressing a class action are likely to be considerable and the Funder has offered to make the up-front payment for all of those costs. All Class Members are encouraged to complete the registration process.

8. Do I have to pay anything if I’m a Class Member and I don’t sign a Funding Agreement?

If you do not sign a Funding Agreement, you may still be required to contribute to the Funder’s commission and the costs of the class action.

Firstly, if the action is successful and achieves a recovery (through a settlement or a judgment), the Court may make an order that some of that recovery be used to pay some or all of the legal costs and disbursements incurred in prosecuting the class action.

Secondly, the Funder may ask the Court to make an order requiring all Class Members who have not signed Funding Agreements to contribute to the Funder’s commission in the same way, and to the same extent, as Class Members who have signed Funding Agreements.

9. If I sign a Funding Agreement, can I change my mind?

Yes. The Funding Agreement offers a cooling-off period of 15 business days.

On 17 July 2025, a representative proceeding was lodged with the Federal Court of Australia on behalf of Class Members alleging that the Commonwealth Government has unlawfully prevented Class Members from accessing Medicare rebates on the basis that they were deemed to be “socially infertile” rather than “medically infertile”. The class action alleges that this conduct has amounted to breaches of various provisions of the Sex Discrimination Act 1984 (Cth). 

JGA Saddler

Lawyers

Legal Capital Management

Litigation Funder