REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No.1. Clause 7, page 4, lines 3 to 9 [clause 7, inserted section 4A]—

Delete inserted section 4A and substitute:

4A—Welfare of child paramount

The welfare of any child to be born as a consequence of the provision of assisted reproductive treatment in accordance with this Act must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of this Act.

No. 2. Schedule 1, page 12, lines 21 to 37—

Delete the Schedule and substitute:

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendments to Family Relationships Act 1975

1—Amendment of heading to Part 2A

Heading to Part 2A—delete "medical" and substitute:

fertilisation

2—Amendment of section 10A—Interpretation

Section 10A(1), definition of fertilisation procedure—delete the definition and substitute:

fertilisation procedure means—

(a) assisted insemination (within the meaning of the Assisted Reproductive Treatment Act 1988); or

(b) assisted reproductive treatment (within the meaning of the Assisted Reproductive Treatment Act 1988).

3—Amendment of section 10B—Application of Part

Section 10B(1)—delete subsection (1) and substitute:

(1) Subject to this section, this Part applies—

(a) in respect of a fertilisation procedure carried out before or after the commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 either within or outside the State; and

(b) in respect of a child born before or after commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 either within or outside the State.

4—Amendment of section 10D—Rule relating to paternity

Section 10D—after subsection (2) insert:

(3) Subject to this Act, if a woman undergoes, in accordance with this or any other Act, a fertilisation procedure in consequence of which she becomes pregnant using the semen of a man—

(a) who has died; and

(b) who, immediately before his death, was living with the woman on a genuine domestic basis as her husband; and

(c) who had consented to the use of the semen for the purposes of the fertilisation procedure,

the man—

(d) will be conclusively presumed to have caused the pregnancy; and

(e) will be taken to be the father of any child born as a result of the pregnancy.

5—Insertion of section 10EA

After section 10E insert:

10EA—Court order relating to paternity

(1) This section applies to a child if—

(a) the child is domiciled in this State; and

(b) the child was conceived as a result of a fertilisation procedure carried out in this State; and

(c) 1 or more of the following applies:

(i) the paternity of the child is not able to be determined by the operation of section 10D;

(ii) the operation of section 10E(2) does not reflect the wishes of both the provider of the sperm used for the purposes of the fertility procedure (the sperm provider) and the mother of the child;

(iii) the fertility procedure was carried out in any other circumstances brought within the ambit of this paragraph by the regulations.

(2) The Court may, in relation to a child to which this section applies and on the application of the sperm provider in respect of the child, make an order under this section.

(3) However, the Court must not make an order under this section unless satisfied that both the mother and the sperm provider freely, and with a full understanding of what is involved, agree to the making of the order.

(4) The Court must, in deciding whether to make an order under this section, regard the welfare of the child as the paramount consideration.

(5) In deciding whether to make an order under this section, the Court may take into account anything it considers relevant.

(6) If the Court makes an order under this section, the effect of the order will be as follows:

(a) for the purposes of the law of the State—

(i) will be conclusively presumed to have caused the pregnancy; and

(ii) will be taken to be the father of any child born as a result of the pregnancy.

(b) the relationships of all other persons to the child will be determined according to the operation and effect of paragraph (a).

(7) If the Court makes an order under this section, the Court may make any other ancillary order the Court thinks fit.

(8) In this section—

Court means the Youth Court of South Australia constituted of a Judge.

Part 2—Transitional provisions

1—Existing licensees

(1) A person who, immediately before the commencement of this clause, held a licence under Part 3 of the Reproductive Technology (Clinical Practices) Act 1988 (as in force immediately before the commencement of this clause) will be taken to be registered under Part 2 of that Act (as enacted by this Act).

(2) Any licence condition to which the licence was subject under section 13(3)(a) and (e) of the Reproductive Technology (Clinical Practices) Act 1988 (as in force immediately before the commencement of this clause) will be taken to continue to apply as a condition of registration under Part 2 of that Act (as enacted by this Act).

2—Record keeping

A person who held a licence under Part 3 of the Reproductive Technology (Clinical Practices) Act 1988 (as in force immediately before the commencement of this clause) must keep any record required to have been made or kept as a condition to which the licence was subject under section 13(3)(d) of that Act (as in force immediately before the commencement of this clause) as if the record were a record required to be made or kept under that Act after the commencement of Part 2 of this Act.

No.3. Long title, page 1—After '1988' insert:

and to make related amendments to the Family Relationships Act 1975

At 22:20 the house adjourned until Wednesday 9 September 2009 at 11:00.