Family Relationships (Parentage Presumptions) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2015.)

Mr KNOLL (Schubert) (10:53): I rise to continue my remarks, and I am fairly certain that this will be only a speech in two parts, rather than the four we got to last year. Just to reiterate, I do not believe that the clause we are seeking to amend today is in and of itself discriminatory, because I do understand it applies to all couples where there is a non-biological couple involved, but where heterosexual couples have options where homosexual couples do not relates to the ability to get married and the ability to have a child biologically and naturally and therefore have both parents in both of those scenarios go onto the birth certificate.

In this place, as much as we like to try to fix the problems of the world, we also need to be mindful of the fact that in fixing a problem we do not create others, and I have significant questions which I will put on the record so that, hopefully, they can be answered in a reply speech by either the member for Unley or through the committee stage. On that basis, I will not be opposing the second reading but will certainly have formed a fairly definite view, I think, through the third reading.

The questions I have are around how this will be administered and interpreted by Births, Deaths and Marriages. How will this marriage-like relationship be interpreted? What are the standards by which that will be judged? I have not a concern but a question about whether or not this applies where the father is known, not where we are talking about an anonymous sperm donation. I am keen to understand whether this confers all rights and responsibilities on the non-biological parent or if there is still a differentiation between the two.

Here is where my real concern comes from. The reason the three-year rule is in place is to use time as a way to show commitment to a relationship. I stated last time that this is something I would love for all couples, for time to be used as a way to cement the permanency of a relationship. How do the changes we are seeking to make here apply when a biological parent (the mother) conceives with one non-biological parent, that is, consent is given and they make the decision to have a child together, and then there is a change where the non-biological parent decides, 'This is not for me,' and the biological parent has the child and goes through to birth? What happens in that process? Obviously, they make a decision at the beginning of the process to do it but what happens when that relationship breaks down before the child is born?

In that instance, will only the biological parent then be on the birth certificate? Is there some sort of binding contract, if you will, on the non-biological parent to have to remain on that certificate? Where, for instance, a couple gets married, has a child and gets divorced before the child is born, there are obviously rights and responsibilities conferred upon the father, or the non-custodial parent. Does that happen in this instance? At what point does the responsibility of the non-biological parent start? Is that at the point of consenting to go through an assisted reproductive procedure or is it only after birth?

Is there a case, for instance, where one non-biological parent could consent to the assisted reproductive procedure but then a second non-biological parent can end up being on the certificate as relationships change? We need to be careful and mindful of the unintended consequences of legislation that we put forth and, hopefully, through the course of this debate, I can have those questions answered.

It is interesting to note that these issues of deep conscience that we grapple with are only here because of the evolution of the human race and scientific advancement. These problems that we grapple with would not have been problems two or three generations ago because the options available to us now were not available then. We have evolved as a human race based on the concept of a nuclear family and we are currently grappling with what that family now looks like in the modern context with all of the scientific advancement and how we can make sure that the best elements of the family nucleus survive these changes, that we can do things to strengthen that bond and structure within our society.

I do not think we as a society are ready for the breakdown of the family unit. We rely upon it very much to be the bedrock—that we have loving parents who take care of their children in a way that the state cannot—and we need to make sure that we are very much mindful of that. In the end, I will be attempting to make a decision on what I believe to be in the best interests of the child in this instance. Obviously, we have two competing thoughts on that but, in the end, I will be seeking to do what I think is best to keep the family unit as strong as it can be and advance that as a concept in modern society and ensure that children have rights to the best upbringing possible.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (10:59): I just wanted to say a few words about this proposal, and in so doing I just flag the fact that I have put on notice a couple of amendments in relation to this proposal. I will speak briefly to those as well to probably make as clear as I can my position in relation to this.

Can I start off by saying that I have great sympathy for any people in the community who feel that their position of guardianship of children, by whatever name, is in some way made more complicated because of a lack of recognition or formalities. And, indeed, the problem that has been suggested to me on occasions is the problem of people not being able to access a child in respect of whom they have a guardianship or parental arrangement because of the fact of their name not being on a certificate or some other document, for instance, and I have great sympathy for that, and I think that is something that we should be doing something about to make sure that people in those circumstances are not in a position of disadvantage.

To summarise my position, Madam Deputy Speaker, I do not really have an issue so much with the matter of making sure people in these arrangements are not disadvantaged vis-a-vis anybody else. I really have an issue with the method by which this is sought to be achieved. If I can just put it this way, and I have to do this, I guess, in a way as the minister who is responsible for the Registrar of Births, Deaths and Marriages. I just want to make my position on that clear.

I see the register as being a registry of certain facts, publicly known facts, and in many respects it is if not a conclusive legal repository of information it certainly creates some legal presumptions, or it is an aid to proof. Now, if we just go through those very quickly. In respect of deaths, the register says that whoever it was died on a particular date. That is a fact. It is backed up by a certificate of a medical practitioner. It is not something about which there can be any argument.

This becomes difficult, however, if people wish to add different things on, for example: who is the spouse? This can and does vary over time. There are complications about whether a person is married but no longer living in that relationship, living in another relationship, questions of children, adoption and all these things all get quite complicated. But the fundamental issue for that certificate is that, at a particular point in time, that person was declared by a legally qualified medical practitioner to be dead, and that then is on the public record. It is relatively clear.

With respect to marriage, again, whatever might be said about the definition of marriage from time to time it is undoubtedly the case that, at a particular point in time, an event occurs which is recorded on the register, namely that A and B have gone through a process at the end of which they are married. Again, an objective and easily ascertainable matter.

As to birth, again, the incidence of birth itself: this child was born at a particular day at a particular time—an objective fact. When we move beyond that it depends on how you see the register. I think there are very good reasons for seeing the register in respect of birth at the very least as being primarily, and importantly I would say, a record of genealogical connections.

So, historically, of course, the mother of any infant is always known, so that aspect of the thing has been always clear, and there has always been an educated guess as to who the father of the infant was, with varying degrees of accuracy over time; but at least it was an educated guess or at least everyone's assumption at the time the certificate was recorded.

I think there is a very important aspect here of a child's right to know what their actual genetic history is, not just from the point of view of having a connection or not with people that they may not currently have a connection with, but it also has very important implications for things like medical management of that person. It would be important for a person to know they were related to a person who had a history of diabetes, or whatever it might be; that is an important thing.

From my point of view and from the point of view as the minister administering the register, or at least overseeing the register, I do not see that this is a place to record other relationships. However, I do note that in this context adoption has been traditionally put on this register, and that in itself has caused problems, because people who have been adopted have to spend a lot of time to find out who the original birth parents were because they might need to know, for a whole bunch of very important reasons.

The amendments that I will be moving are of minimal position, so far as I am concerned. The first is the practical issue of when this could ever possibly be done, and we are just changing the date to make it clear that the date upon which this could be done, at the absolute minimum, would not be before 1 July. The second amendment is to deal with the fact that as amended in the Legislative Council, this now has retrospective effect and the complication of the registrar being potentially obliged to make a determination of matters which are retrospective, I think, is difficult. I also would draw this fact to the attention of the chamber: that is, for us to legislate what is demonstrably a scientific impossibility into legal verity cannot of itself be a good idea.

However, I have a suggestion of how to deal with these things, and my suggestion is this: I believe what we lack in this state and what would be very valuable, and valuable beyond this particular context in broader contexts—and I am talking here about domestic co-dependency, punitive spouses, whatever it might be—would be if we were to establish a voluntary (and I emphasise the word voluntary) register of domestic co-dependency, punitive spouses, etc. Having had somebody voluntarily place their details on that registry, it could be made to have the same sort of presumptive validity that comes from a certificate of marriage or something else of that nature.

This would be very, very useful for many people—the people we are talking about in this particular amendment, but also many other people who wind up in court arguing about things like what is going to happen when a will is read and there is an argument about whether somebody was a punitive spouse or a domestic co-dependent, and there is no easy independent way of ascertaining that. Would it not be helpful if these people could voluntarily submit that fact onto a register which would then be at least presumptive proof from the point of view of a court in any future disputation? That is basically my position on it.

As I said, I am moving these two amendments which from my point of view are in order to make it as manageable as possible from the point of view of the registrar. I come back to where I started, that I do think if there are situations where people are disadvantaged by reason of the fact that there is no public record of their relationship with a child, that is not something I support. My only issue is whether the solution to that problem lies in this particular public record, and I make the point I would be very sympathetic with us creating a specific public record which could assist people in those circumstances.

Mr GARDNER (Morialta) (11:08): I was not planning on speaking, but the Attorney-General has said something which I am actually quite troubled by, so I do want to put on the record my views, because I think his argument conflates by talking about the genealogical need for health reasons of an adoptive child to be able to identify their genealogical history as being somehow an argument against this bill. It actually troubles me deeply.

My sister was in this situation, and for many, many years, she had to work very hard to track down her genealogical details to deal with a health condition. In doing so, she discovered her genealogical brother. The troubles that the Attorney-General alludes to, the challenges that he alludes to, are so utterly irrelevant to this bill as to be worthy of my concerns being raised, and I do not think that it is appropriate for those matters to be conflated into this matter any more than completely non sequitur victims being drafted into the argument for something completely unrelated in any circumstance.

The fact is that when the Attorney says that a birth certificate must be no more than a measure of objective fact and a record of known genealogical questions, he is denying that right now there are a number of circumstances in which that is not the case. The Attorney alluded to adoption indeed, and this is something on which the Attorney and I have some history. I come to these questions with a simple test of whether something is worthy of support. What is the impact going to be on people in our community? Is this going to be something that creates problems? Is this going to be something that assists people to live better lives, freer of government intrusion on their lives?

When it comes to birth certificates, birth certificates are something that government requires us and companies, as a result of government relations, require us to produce in relation to a whole manner of events. The history that the Attorney and I have is in relation particularly to those of overseas-born adoptees. Three or four years ago, I moved in this place and I sought changes through the regulations that were ultimately successful for adoptees from China, a country that did not produce a birth certificate in a manner that was capable of being accepted by any of our institutions, should in fact those adoptees be able to have their birth certificates produced in South Australia, so that those children would not be disadvantaged in a way similar to the children who are the subject of this bill.

The government opposed that bill, but solved the situation through a regulatory amendment which provided that adoptees from countries that did not produce what would be considered a birth certificate were able to be provided with a birth certificate, in the same way that our legislation allows for any adoptee to have their birth certificate altered so that their adoptive parents are registered on the birth certificate without any question about their genealogical history being answered. The birth certificates in South Australia, where it is the standard course of events, are a record of that nature, but the fact is that these exceptions already exist. A birth certificate is not the device by which the Attorney's concerns about being able to trace genealogies can be answered.

When the Attorney uses the argument that a child has a right to know what their genetic history is and the right to find that out on the birth certificate, his alternative to the measures proposed in this bill does not provide any more assistance of that nature than this bill will provide for. The alternative that is faced is that in the small number of cases that are going to be adjusted by the outcome of this bill, rather than having just the mother listed, you will have the mother and the mother's partner listed.

For all of the purposes that are dealt with, the principle of whether the mother and the mother's partner should both be listed is actually one that this parliament has considered before. It considered it several years ago when parentage presumption was first considered, and it was passed considerably overwhelmingly—I am not even sure that there was a division at the time. This bill does not argue on the principle of that case. This bill is a technical amendment to say whether we should be in line with the national definition or if we should continue with the anachronistic definition that limits it for a small number of children in South Australia. Frankly, my view on the matter is that it should be judged on no more than what is going to impact best on the lives of those children to whom this bill relates.

Ms HILDYARD (Reynell) (11:13): To begin, given some of the issues that have been raised today, I would like to be very clear for the house what the issue is that this bill seeks to address. Currently, couples who conceive by IVF are subject to a three-year cohabitation rule, which in practice means that the parent who is not the parent giving birth cannot appear on the birth certificate of their child if they have not cohabited with the other parent for three years prior to the birth. Couples who do not conceive by IVF are not subject to the same provision.

This bill will ensure that all couples are subject to the same requirements for obtaining a birth certificate and that every child has a birth certificate which names both of their parents, which in turn, importantly, enables both parents to consent to travel and medical procedures and enables a child to be able to access other rights either parent has—that is, a right to a UK passport, etc.

I am incredibly proud to speak in favour of this bill today because it is about equality and fairness, and those two principles should be at the heart of every decision that we consider and make in this place. During the course of this year, I have got to know Sally Amazon and Elise Duffield, two exemplary people who are parents to a beautiful baby boy, Tadgh, who I hope is enjoying his time in our gallery today. Tadgh is now over a year old and both his parents are not acknowledged on his birth certificate.

Sally and Elise were understandably surprised when they went to register Tadgh's birth, fittingly on Mother's Day last year, and had their forms returned requesting proof that they had lived together for three years before his conception. Sally and Elise are a couple: they have a child, a shared mortgage and, in every way, a shared life. They are deeply committed to each other and their son and yet they have been caught up in what can only be described as an antiquated relic of our law.

The cohabitation rule is archaic; it affects only those who conceive by IVF and it is unfair in practice. It is disheartening that these two women, who have such a lovely relationship and beautiful son, have been caught up in this issue. This quirk of law has allowed Tadgh to pass his first birthday without Sally being recognised as his parent. What we wish for all children in our community are loving parents committed to their children's wellbeing, safety and happiness. As parliamentarians, we should do what we can to support such relationships and such good examples of family life.

In doing so, I pay tribute to the work of Elise and Sally throughout the growing community discussion about this bill. As every parent would, they have told their personal story about the impact of an unfair law to get the best outcome for their son. They have articulated that a loving and supportive family is the best outcome for all children and that the gender of parents is irrelevant when a child is cared for and wanted.

Sally and Elise have emerged at the forefront of the fight for parenting rights in the LGBTIQ community, and their growing influence in this sphere has been inspiring to watch. Their ongoing advocacy saw this bill highly supported and passed through the upper house earlier this year, with many speeches in favour and only one voice opposed when a vote was called. I pay tribute to their courage and determination to speak up and out for fairness for their son and also to address discrimination which does and will impact many other families.

Sally and Elise have done some extraordinary campaigning around this bill, including bringing a case to the Human Rights Commission, where their claim was accepted as discrimination. While the rule that we are talking about today technically also applies to heterosexual couples, there is no automatic assumption in relation to heterosexual parents that a child was conceived via a fertilisation procedure unless they offer up further information at their own initiative. The existing rule is therefore not applied equally in practice to all couples. It is an unintentional slight that exists because of an overlap of the assisted reproductive technology bill and one which we have the opportunity to correct today.

In every other state in Australia, this rule does not apply. Had Sally and Elise and Tadgh lived in any other part of our nation, Sally and Elise could have registered their son in the same way that any parent is able to register their child. It is a particular quirk of South Australian law that we have a responsibility but also an opportunity to rectify here today. As one of my parliamentary colleagues and a long-term friend said yesterday, 'The reason that we usually do not allow things to be retrospective is that they will negatively affect good people.' But in cases like this it is essential that we try to make up for the wrongdoings of the past. This law must be retrospective. We must right a wrong: that is the whole point. If, in law, we fix something that discriminates, we must fix it for all when it discriminates against all.

It is essential for children like Tadgh that both his parents be given the legal rights of parentage which we have, as a society, decided are available to same-sex couples, not just for the day-to-day inconveniences they may face with issues through being able to show that Sally is his mother but for incredibly serious issues, such as one of his parents being able to consent to medical treatment. Sally is also a UK citizen and, unlike many other parents, would be unable to pass on her citizenship to Tadgh.

At the end of the day, there are many elements of our laws that still discriminate against couples like Sally and Elise. We must change all of them and, together, we will change all of them. I would be proud to vote for all of the changes that will come next year from the SA Law Reform Institute review, just as I am proud to help change this small piece of legislation today.

Equality must be something that we seek out in all of our laws. We must not be complacent, we must not think that just because something is small or affects a small number of people that it is not worthy of our time. Equality is an ongoing and continuous struggle that we must always keep at the forefront of our mind and our heart. Another couple who emailed me their story had this to say:

I have been with my partner for over 5 years but due to circumstances outside of our control and our desire to be as 'traditional' as possible we did not start to live together until after our wedding ceremony. We have spent over a year trying to conceive our child together before finally becoming successful and are now expecting a beautiful baby boy. My partner has been by my side every step of the way throughout this journey and is now eagerly awaiting the arrival of our son. However, due to the current rules…she will not be recognised as his legal parent in any way. This child would not have been possible without her and she is every bit of his parent that I will be, irrelevant of biology.

The way things are currently structured is unfair and discriminatory and if we lived in another state this would not have been an issue. We have attempted to structure our wills in a way to protect her and our son as much as we can but with the laws the way they currently are there is only so much we can do. Our son deserves to have both of his parents present on his birth certificate. He deserves the right to have his family and parenting recognised and know that he is the same as other children and just as loved and wanted by my partner as by myself. My partner deserves the right to be recognised for her role in his life and the right to legally call him her son. Listing myself as a single mother on his birth certificate is not only false but devastating for my partner and our child. It denies her the rights afforded to other parents and denies him the protections he rightfully deserves should something ever happen to me….

Having a baby is stressful enough by itself without the added worries of not being able to have his birth certificate reflect the truth of his family and the protection the recognition provides. We have been waiting and praying for this change for years and to pull it away when it is so close for 'convenience' is just cruel and dragging out finally righting an unfair law unnecessarily.

These laws affect real people in our community. Another woman who contacted me talked about the issues that affect her family. She said:

Our daughter is 10 this year and still has no legal relationship to her own mother other than through a parenting order. When she turns 18 if this amendment has not been made there will be no legal recognition of her family structure at all.

Our state has a proud history of leading the way in introducing and amending legislation to fight inequality. I want to do what I can to continue this proud history. This legislation forms part of an ongoing series that will continue until we have true equality for all of our citizens. I hope that I will always be able to contribute to this fight. We have come so far, but it is easy to see how far we have to go and how easy it would be to slip backwards. I look forward to seeing the finish line.

This is a matter of conscience for our party today, but I will strongly and proudly advocate for this legislation and vote yes because equality is not a matter of conscience. I look forward to the day when we have struck discrimination from all of our laws and our hearts. I thank all of those who have supported this bill. It is good work that we are doing today, work that will help our fellow community members, work that we are here for. I hope that this bill is another step in paving the road to true equality and eliminating the vestiges of discrimination that have gone before. I commend this bill to you.

The Hon. T.R. KENYON (Newland) (11:23): I rise to make a few brief comments. Some of the conscience issues that come before this house are, to my mind, relatively simple. I do not really take a lot of time to mull over them because I am so clear about them and I know what I believe and what I do not. This one presents a number of technical issues that really have made me think a lot harder. I thank the member for Morialta and the member for Reynell for the contribution they have just made. I do not think I am speaking too far out of school when I say that sometimes a lot of the debate in this chamber goes unlistened to, but it has not this time—for me, at least, because I have been carefully considering these things.

I can see why it is important to people who are effectively parenting a child to be able to do practical things like travel with that child. Indeed, it is unfair that they cannot. I know quite a number of children being brought up in same-sex relationships, and you would have to say that they are being brought up in a loving environment that generally cares for their welfare. As far as any of us who are parents can make good decisions for our children all the time, that is being done, and there is a genuine attempt to do that.

Insofar as the law should permit people to operate in the same way, right across the whole spectrum in an equal way, that should be done. We have already permitted people in families not in traditional marriages to have children—and even if we did not it would still happen from time to time anyway—so allowing them some technical things like wills and travel rights, citizenship rights to be transferred, and all those things, are not necessarily things I would actually oppose in any forceful way.

This bill, the one before us, the presumed parentage bill, that other speakers have spoken on, and the experience of people in my electorate who were brought up through donated embryos, and others, have opened my eyes to the difficulties they face in trying to trace their parenthood; who they are, where they came from, who was involved in their conception and all those issues. I will just flag now that I have an amendment I will be moving in the committee stage of the bill that requires that in addition to the parents at the time in the relationship, who may be recorded on the birth certificate, the biological involvement is recorded as well. In this case I suppose it would be the donating father who would be recorded—if known of course, you cannot record something you do not know. If known, the donor sperm would be recorded so that the child has the opportunity at a later time to come back and work out their history, their make up, where they are from and for what purpose.

Where I do disagree with the member for Morialta and agree with the Attorney-General is that the birth certificate is not just the property of the individual involved and their parents; it is also the property of society, and it is recorded by society for a number of purposes. One of them is as a public record of the existence of people and their history. My amendment seeks to keep that as full a history as possible of that individual person and it seeks to allow the child, at a later point, to come back to see the full history of who they are.

I think that is important. It is a decision they may choose to make or not at a later point, and some children may not care, some people may not care where they come from. I have to say that my wife is a lot more interested in her genealogy than I am. I know all my cousins and my uncles and aunties, but I cannot go back much further my grandparents, and I have to say that I am not really inclined to. However, some people are and I think it is important that they are able to do that should they want to at some point.

For some people, one of my constituents in particular, there is a deep I would not say crisis of identity but a deep yearning to understand their full identity, the full background of where they came from, and that is an important thing. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

The DEPUTY SPEAKER: Member for Torrens.

Members interjecting:

The DEPUTY SPEAKER: Order! The member for Torrens is entitled to be heard in silence. If I could ask members of the gallery to take their conversations outside, that would be really appreciated, thank you. Member for Torrens.