Family Relationships (Surrogacy) Amendment Bill

Second Reading

Mr GARDNER (Morialta) (10:47): I move:

That this bill be now read a second time.

It gives me great pleasure today to introduce into the House of Assembly the Family Relationships (Surrogacy) Amendment Bill. I acknowledge and appreciate that the Hon. John Dawkins MLC is in the gallery today to see the House of Assembly first give consideration to this bill.

The SPEAKER: Member for Morialta, it is always disorderly in the course of debate to buttress one's debate by the presence or absence in the gallery of individuals.

Mr GARDNER: Thank you, sir; I appreciate your guidance and I take it. The Hon. John Dawkins has worked on this matter for eight years to ensure that families seeking to have surrogacy arrangements to assist in their reproductive opportunities are able to access those in a reasonable manner. The Golden Gate Bridge took four years to build and the Hon. John Dawkins has been working on this for eight years. In 2007, he first introduced legislation into the Legislative Council. It was sent to the Social Development Committee to consider how best a framework might be developed to allow for surrogacy arrangements to be put in place for South Australian families seeking assistance in reproduction. I know that the member for Hammond served on that committee as did a number of other members, and they did good work.

In 2008 the Legislative Council passed the first surrogacy bill, which then sat in this house for 18 months before eventually, at the end of 2009 in the twilight of that parliament, the surrogacy bill came into law, and for the first time families in South Australia were able to have the hope and the joy that comes with being able to have children, despite the fertility problems that they may have had, with the assistance of a surrogate.

In 2010 further legislation was passed which enabled some technical improvements to that bill to take place, and now here we are in 2015 and we have further improvements that were brought by the Hon. John Dawkins to the Legislative Council at the end of last year, and then reintroduced after the prorogation of parliament at the beginning of this year. Now, having passed the Legislative Council in early May, we have the opportunity in this house to make this a law.

Having taken eight years I just say to all members that this is an opportunity for us to show the community of South Australia that these improvements which will bring hope and joy to so many families are things that can be done expeditiously. I indicate to all members now that, after those who wish to make a contribution to this debate today, we will be no doubt adjourning off and I will seek on 2 July to progress the debate further and if possible get to the committee stage and a vote.

I indicate that now so that all members are on notice that for the next month the Hon. John Dawkins has undertaken to make himself available to any member who wishes to discuss details of the bill because, of course, through the Legislative Council process there were a number of amendments that came forward. Parliamentary counsel has been working closely with the Hon. John Dawkins to access some of those refinements, and so the opportunity is there, and for anything that members wish to raise in the committee stage the standing orders, of course, provide for that too. But I think there is the opportunity to do this expeditiously and I hope that the parliament takes the opportunity to do so and that we can have that further debate on 2 July.

The purpose of the bill in summary is, as I say, to enable those families who wish to seek surrogacy arrangements to have greater opportunity and greater access to do so. I will quote from something that John Dawkins said:

Often it is the ability to find a willing surrogate that presents the biggest hurdle for couples seeking to have a child through this method. However, by establishing a 'surrogacy register', these reforms will improve access to potential surrogates across South Australia, hopefully diminishing this barrier and increasing the viability of surrogacy as an option for those who cannot conceive naturally. This bill seeks to introduce a range of measures that will ultimately make surrogacy more accessible and attractive for potential surrogates by increasing the financial and psychological assistance available throughout the entire process.

It is critical to understand, this bill seeks to maintain the offence and clarify the offence of commercial surrogacy. This is not about commercial surrogacy, this is not about setting up an industry whereby people will undertake these measures for profit; this is altruistic surrogacy where those who are willing to assist families who are struggling to conceive can join a surrogates' register and those who wish to access surrogacy will have far greater opportunity to find a surrogate to assist in that process.

At the moment surrogacy is restricted to where a family is able to identify somebody known to them already who can assist with the process, and that is, of course, the greatest hurdle, and it means that many families, who do not have somebody readily identifiable who is willing and ready to assist in that process, seek other alternatives.

I think the community has been troubled by some of the alternative pathways that a number of families have taken, especially when those families do not fulfil the obligations that any respectful or reasonable society would expect of them. We were appalled at the situation of baby Gammy in Thailand, and we were appalled at the way that that family treated that surrogate mother in Thailand and what happened with poor baby Gammy. The community responded in that case with an outpouring of emotional and financial support to that mother.

I think the establishment of international agreements, which this bill will provide for, will enable the facilitation, where it is appropriate, that families go overseas, and that it recognises that we have a responsibility in this parliament to ensure that vulnerable women are not exploited overseas. So the minister will have the opportunity to set up arrangements with a framework around which those may take place rather than having this complete free-for-all where we have effectively washed our hands of what happens overseas, and 'What happens in Thailand stays in Thailand' would be the unfortunate way that it might be presented.

This bill would do a good measure to make it more accessible in South Australia thereby reducing the level of people who are seeking to access surrogacy overseas, and it will provide a framework within which those overseas matters may take place. Because the joy and the hope and the love that may be brought to South Australian families by virtue of surrogacy arrangements should not come at the expense of the exploitation of vulnerable people in other countries: the human cost must be taken into account.

I commend the Hon. John Dawkins for the work that he has done over eight years and particularly, in relation to this bill, over the last six months. He has consulted very widely. He has consulted with other members, he has consulted with the community, with experts, and a range of people.

To the particular measures of the bill, the bill seeks to create a surrogacy register which will enable individuals willing to become surrogates to place their name on a list which can be provided to prospective parents, making it easier for both parties to connect. The bill will establish a state framework for the advertising of surrogates, conduct of those involved in the organisation of surrogacy agreements, and a criteria for approved international surrogacy agreements.

The bill will make counselling for surrogates and their partners, whether that relationship is marital, de facto or domestic, both before the pregnancy and after the birth available at no cost to them. It will become a requirement that the commissioning parents will in fact make that counselling available to give further support to those surrogates, and it will expand the out-of-pocket expenses that surrogate mothers may be reimbursed for in the fulfilment of the agreement. We are not talking about commercial surrogacy, we are not talking about fee-for-service and payment, but it is necessary that the current restrictions to ensure that there is not commercial surrogacy on what may be paid to the surrogate be relaxed so that all legitimate out-of-pocket expenses for that surrogate are able to be met and their family.

The bill will also seek to clarify any ambiguity that currently exists for fertility service providers when it comes to the timing of when eggs may be harvested. It is the intention of this bill to ensure that fertility service providers can harvest and freeze eggs at any point, regardless of whether a recognised surrogacy agreement is in place. The bill seeks to reinforce the fact that a surrogate mother, insofar as it complies with the surrogacy agreement in place, may conduct her pregnancy as if the child was her own. The bill provides for the minister to establish a process for approved international surrogacy agreements to prevent situations such as baby Gammy from occurring again and ensure that the welfare of the child is the primary concern when such agreements are put in place.

The bill has been the result of input from a number of individuals and organisations over a lengthy period of time. Specific thanks should be given to Stephen Page, an expert surrogacy lawyer from Queensland; the Law Society of South Australia; Dr Christine Kirby of Repromed; and Kerry Faggotter, a mother who has lived the benefits of surrogacy first-hand.

John Dawkins and I have also both had contact with a range of constituents who have both used and are hoping to use surrogacy, and their feedback has been substantially incorporated into the bill. I also recognise the work of Mark Herbst of parliamentary counsel, without whose efforts and assistance the bill would not be a reality, and we thank him and his team for their efforts. We acknowledge also the Attorney-General's office, who have been helpful in keeping the Hon. Mr Dawkins informed regarding the work of this area in COAG and the state committees of attorneys-general.

I note that there have been discussions that some of these matters should be dealt with through a national framework, and that would be of benefit, but if we wait for COAG and for the state committees of attorneys-general on such matters, it will be years longer. We could build another Golden Gate Bridge in the time that we were waiting for that work to take place. It would be terrific if this was a prioritised matter for a department or for the COAG; the reality is it is not, and we have the opportunity as parliamentarians to bring this to a conclusion and to enable these benefits to take place.

For the Liberal Party, this matter is a conscience vote. I understand that for the government it is also a conscience vote, so it is up to each individual member of parliament to form their views. The reasons for a conscience vote on these matters are well understood: things to do with reproductive rights are often conscience vote matters. However, I do note that, even by the scale of things that are classified in this house as a conscience vote, this bill does not actually grant a new opportunity for a new right for potential parents. That right currently exists; this is a change to the way these things are facilitated.

This actually will restrict the, I would suggest, exploitation of potential surrogates overseas, and it will do little more, in terms of the local level, than provide extra counselling for those who are undertaking the process and the potential for advertising and for an altruistic register to take place.

I would suggest that, if members who have significant concerns about the philosophical issues behind the introduction of surrogacy in the first place actually look at what the provisions of the bill are seeking to do, they may well find it within their hearts to support the bill. I encourage them to consider it in those terms, because it is administrative and it is pragmatic.

I would like to identify the main sections for those members who wish to turn to the bill itself and consider these matters. The guidelines for the state framework for altruistic surrogacy are outlined at clause 4, which seeks to insert new division 1A—section 10FA—State Framework for Altruistic Surrogacy. The matters relating to the surrogate register are again at clause 4, in new section 10FB, and are really quite simple: that the register be established by the department and the restrictions on it. I note that clause 7(6) refers to:

any reasonable out-of-pocket expenses incurred by the surrogate mother in respect of the agreement

and that subclause (7) provides:

commissioning parents will…ensure that the surrogate mother and her husband or domestic partner, if any, are offered counselling (at no cost to the surrogate mother or her husband or domestic partner) after the birth of a child to which the agreement relates (including, to avoid doubt, a stillbirth).

I think that is one of the key components of the legislation.

The other key part that members should familiarise themselves with, if they are looking into the detail, is at clause 8—Insertion of section 10HAB—Medical decisions affecting surrogate mother or child, which provides that questions relating to any medical treatment to be provided to a surrogate mother or an unborn child to which a recognised surrogacy agreement relates are to be determined as if the recognised surrogacy agreement did not exist. So, consideration of matters while the surrogate mother is pregnant are treated as if the surrogate mother's own child were at stake and as if the agreement was not in place. That is a critically important matter.

I reiterate that this bill will significantly enhance the opportunities for families in South Australia to undertake surrogacy within South Australia and, thereby, potentially reduce the challenges that come from overseas surrogacy. Those who continue to use the overseas method will have a framework in place whereby we can reassure ourselves that the opportunities for exploitation are reduced. I hope that all members will consider and support this bill, which will facilitate that and put the welfare of the child at the centre of matters in relation to those international agreements.

I congratulate the Hon. John Dawkins for his significant efforts over eight years in dealing with this matter in the South Australian parliament—long hours, long years. I hope that members will take the opportunity to inform themselves between now and 2 July. I look forward to the other contributions in this place, and I hope that the house will work with us in four weeks' time to deliver a resolution.

Mr PEDERICK (Hammond) (11:03): I rise to support the Family Relationships (Surrogacy) Amendment Bill. This bill was introduced by my colleague and good friend the Hon. John Dawkins MLC from another place. It seeks to amend the Family Relationships Act 1975 and to make a related amendment to the Assisted Reproductive Treatment Act 1988. Obviously, this all relates to the Statutes Amendment (Surrogacy) Act 2009.

An investigation was undertaken to improve the existing law in South Australia, firstly, to ensure security for children who are born through surrogacy; secondly, to try to make the existing surrogacy arrangements accessible in this jurisdiction more extensive; and, thirdly, limiting the use of the overseas commercial surrogacy process while also ensuring that commercial surrogacy remains banned in South Australia.

As stated before, commercial surrogacy at the moment remains banned in South Australia. However, various forms of altruistic surrogacy are legal. As of 26 November 2010, recognised surrogacy arrangements were also permitted. Altruistic surrogacy is where the surrogate mother does not receive any compensation and may only be reimbursed for the medical costs incurred during the pregnancy.

One of the amendments that the Hon. John Dawkins has made is to provide a suitable allowance for reimbursement costs which the surrogate mother may have incurred during the pregnancy period. This amendment may attract more women to be surrogates. At present, the number of willing surrogates is minimal. This is due to the lengthy process without any sort of reimbursement of the cost which may have been acquired during the gestational period.

Before the commissioning parents have the access to begin a surrogacy arrangement, they must provide the following evidence. They must show that the woman is or appears to be infertile, or there seems to be a significant risk of a serious genetic illness being transmitted to a child born. The commissioning parents also have to be legally married or have been living as a de facto husband and wife. If possible, at least one of the commissioning parents' gametes are to be used, and it is understood that, in some circumstances, this is not possible. It is also a requirement that the commissioning parents live in South Australia, and all parties participating must be 18 years of age or over.

I would like to make mention of a second amendment, that being the desire to build a register of approved surrogates which is to be accessed only by approved medical institutions. Creating the surrogacy register would minimise the difficulty of finding a willing and reliable surrogate. Many commissioning parents find themselves having to travel overseas and engage in a commercial surrogacy arrangement. As I mentioned previously, at the moment, commercial surrogacy is illegal in Australia. The current proposed amendment reads:

(1) The Minister must establish a register (the Surrogate Register) of women who are willing to act as a surrogate mother within the meaning of section 10HA.

(2) The Surrogate Register must be kept and maintained in accordance with the State Framework for Altruistic Surrogacy.

(3) A woman cannot apply for registration on the Surrogate Register unless—

(a) she is 18 years of age or older; and

(b) she is resident and domiciled in the State; and

(c) she is a permanent resident of Australia; and

(d) she satisfies any other requirement set out in the regulations for the purposes of this subsection.

(4) The Surrogate Register is not available for public inspection.

(5) The regulations may make further provisions in relation to the Surrogate Register (including, to avoid doubt, provisions relating to inspection of the Surrogate Register by specified persons, or persons of a specified class).

Having a certified register of surrogates may provide the commissioning parents with a sense of security when deciding to enter into a surrogacy agreement. People want to be certain that the selected surrogate mother bringing their possible child into the world is reliable and suitable to conceive and carry a baby.

Another amendment that I would like to note is a similar procedure that is in place for overseas adoptions. Any proposed international surrogacy must go before the relevant minister to review and assess each proposed surrogacy agreement case by case. Before approval, the minister must consider that the welfare and security of the possible child is secure, and any unsuitable parents would be discouraged from access to use the option of surrogacy. This amendment would regulate overseas surrogacy arrangements. In regard to offences in the bill, there is an amendment that involves the substitution of section 10H. It deletes the previous section and substitutes it with:

10H—Offences

(1) Except as authorised by or under this Act or the State Framework for Altruistic Surrogacy, a person who, for valuable consideration, negotiates, arranges or obtains the benefit of a surrogacy contract on behalf of another is guilty of an offence.

Maximum penalty: Imprisonment for 12 months.

(2) A person who, for valuable consideration, induces another to enter into a surrogacy contract is guilty of an offence.

Maximum penalty: Imprisonment for 12 months.

(3) For the purposes of subsections (1) and (2), the prosecution need not prove that—

(a) a surrogacy contract was, in fact, entered; or

(b) a woman became pregnant, or a child born, pursuant to a surrogacy contract.

This bill has been amended in a way to ensure security, wellbeing and a healthy lifestyle for all parties involved.

The bill supports the welfare of the child being born, which in my view is the top priority. Certainly, and as the member for Morialta mentioned earlier, I was involved in the Social Development Committee in my first term in this parliament, and surrogacy was a major reference which we debated for a considerable length of time before the original legislation came several years ago.

There were some very heart-rending stories and evidence provided by people who had been involved in an interstate surrogacy arrangement, including the evidence provided by Kerry Faggotter, and others. It was tough, because essentially what was going on was that these people were having to go interstate and, by the time they went through the whole process, it was costing in many cases at least $50,000.

What the Hon. John Dawkins sought to do with part of the original surrogacy bill was to stop people having to spend that amount of money so that they could enjoy the joy of having a child. It was a very interesting reference to deal with, and I know on our side of the argument the Hon. Stephen Wade from the other place was working on it with me.

I think that this just brings the legislation into line and takes on the reality of the world of what is happening at the moment. We have obviously heard of the case in Thailand and baby Gammy, and there are obviously other things that are going on where people are trying to pick the sex of a baby and that kind of thing in overseas surrogacy arrangements. It is just wrong, and this kind of legislation will avert that practice to a great degree.

I think it is just sensible legislation, updating what has already been brought to the house. As I said, all the amendments I have mentioned today are a significant contribution to improve the current act, and I commend everyone who has had input to this and all of the agencies, and certainly the eight years, or so, of work that the Hon. John Dawkins has put into this cause to get something right for the good citizens of South Australia and for people who for whatever reason cannot conceive a child of their own.

My wife and I had the ability to have a couple of kids. We did not need to use surrogacy arrangements. There is nothing better than witnessing childbirth. It is such a great thing; and if this opens up the world for couples and opens up the state for couples to have the opportunity to have children what greater thing can we do in this place. Certainly, with those few words I support the bill.

The Hon. S.W. KEY (Ashford) (11:12): I rise to support the Family Relationships (Surrogacy) Amendment Bill 2014, as I did to its predecessor, and I thank the Hon. John Dawkins for his ongoing work, and certainly the member for Morialta for carrying on this work in the House of Assembly.

I agree with everything, I must say, that the honourable member for Morialta had to say except his analogy about the Golden Gate Bridge. I was talking to the member for Colton about this, and we think that probably a better example would be the two-way Southern Expressway. We should probably use a local example to talk about the length of time it takes for things to happen; and, in my case, being the member for Ashford, I remember very strongly the length of time it took for the rail electrification, and I am sure there are other members who would understand my angst of that whole process, especially on a local level.

I rise to support this bill because, one, it makes common sense. It actually adds and improves the arrangements that we have in place. I think it is really important that we try to support families to seek a whole lot of arrangements and options when they are not able to look at the usual methods of having children; and so for that reason I support different ways of making sure that we do give that support to people.

I think the register is a really good idea and I also think it is good that it will not be for public viewing. The register will make sure that people do not have to rely on just friends and family to make those arrangements, and I think that is really important. I understand that surrogacy, as it happens at the moment, really does have to rely on who you know and who is prepared to be involved in that process. I think the register will help join up people who are interested in that program.

It is a really important point that out-of-pocket expenses and issues to do with surrogacy are supported, and I also agree that this should not become a commercial business or proposition. One very important aspect of this is the counselling that will be made available. It is really important that people going through the process get as much support as possible to go through what is a different way of having a family.

The overseas framework is important, and I agree with the comments that have been made by the member for Morialta, and I assume the views of the Hon. John Dawkins. If we wait for some sort of national framework we might be waiting a long time, so it is important that we get our act together and make sure this important service is available in a safe and secure way in South Australia.

Dr McFETRIDGE (Morphett) (11:16): I think the only banks we should be referring to here are not the State Bank debacle or the one-way expressway, it should be sperm banks and egg banks, and even there they are not concerned with this particular piece of legislation.

This is the fifth time I have spoken in this place on this legislation in various forms. I spoke on both the Statutes Amendment (Surrogacy) Bill and the Family Relationships (Surrogacy) Amendment Bill on a number of occasions, and this is another reiteration. In fact, we spoke on this matter on 13 November 2008, 19 November 2009, 1 July 2010 and on 29 March 2012, and here we are again speaking on this bill on 4 June 2015.

There have been variations to the bill. Each time it has either been getting the legislation in place or improving the legislation, tidying up some technical issues. I am not going to go through this particular piece of legislation now. Members can go back and look at what I have said in the past about this issue and how I have supported my colleague the Hon. John Dawkins in the upper house. I appreciate his determination in this area, as in many other areas in which he is involved. We all know he is a champion in the cause of suicide prevention.

The members for Morialta and Hammond have summarised this bill rather well. I will let the people who read Hansard look at what is involved in this piece of legislation. Again, it is about giving people in South Australia a fair go, it is about giving them some justice. We make many laws in here. We have a legal system, but we should have a justice system where we put laws in place that give South Australians the right to go about their lives peacefully and achieve the best outcomes for themselves and for those they love. That is what this legislation is about.

I hope I do not have to come back in here for a sixth time to talk about this and I hope we do not have the delaying tactics with this piece of legislation that we have had previously, when certain people in this place with particular views on the world obfuscate and obstruct when they do not agree with some of these social causes. Let's hope that that does not happen now.

The SPEAKER: Is the member for Morphett imputing improper motives to any member?

Dr McFETRIDGE: I think their motives are pure and honest.

The SPEAKER: At least that is clear.

Debate adjourned on motion of Ms Digance.