Bills

Statutes Amendment (Surrogacy Eligibility) Bill

Committee Stage

In committee.

(Continued from 16 November 2016.)

Clause 24.

Mr ODENWALDER: I move:

Amendment No 3 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(a)(ii)]—

Delete inserted paragraph (ii) and substitute:

(ii) the commissioning parents;

Amendment No 4 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(c)]—

Delete inserted paragraph (c) and substitute:

(c) both of the commissioning parents must be domiciled in this State;

Amendment No 5 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(d)]—

Delete 'if there are 2' and substitute 'the'

Amendment No 6 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(d)(i)]—Delete 'they'

Amendment No 7 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(d)(ii)]—Delete 'they'

Amendment No 8 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(g)(ii)]—

Delete inserted subparagraph (ii) and substitute:

(ii) the commissioning parents;

Amendment No 9 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(h)(ii)(A) and (B)—

Delete subsubparagraphs (A) and (B) and substitute:

by at least 1 of the commissioning parents;

Amendment No 10 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(j)]—

Delete 'commissioning parent or commissioning parents (as the case may be)' and substitute:

commissioning parents

Amendment No 11 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(1), inserted subsection (2a)(k)]—

Delete 'commissioning parent or commissioning parents (as the case may be)' and substitute:

commissioning parents

Amendment No 12 [Odenwalder–1]—

Schedule 1, Part 6, clause 24 [Clause 24(5), (6) and (7)]—Delete subclauses (5), (6) and (7)

These amendments are merely consequential to the amendment we made yesterday.

An honourable member: We made a lot of amendments yesterday.

Mr ODENWALDER: We made one major amendment yesterday, to remove reference to single commissioning parents.

The Hon. A. PICCOLO: I have a question for either the member for Little Para or the assistant minister. If these amendments are successful, I understand this would have an impact on surrogacy for single people. Do they also have an impact on IVF or assisted technology?

Ms HILDYARD: No. It is just in relation to surrogacy.

The Hon. A. PICCOLO: My next question is to the member for Little Para. Why would you have a change for one group and not the other? If your concern is about single parenting, why would you have it for one and not the other? Why would a single parent in one type of relationship be fine and not the other?

Mr ODENWALDER: It was because of the nature of the bill, the way it has been set up and the way it has been split up from the previous bill. We are amending different bills. Yesterday, we amended the ART bill. These are amendments to the Family Relationships Act, so it is dealing with a different set of circumstances.

The Hon. A. PICCOLO: I am not sure I agree with your explanation. I understand what you are saying, but I would have thought that if the issue were to exclude single people from surrogacy that would be on the basis, I assume—I am a little confused because this week we have dealt with same-sex couples adopting, we have dealt with a whole range of things, and now it seems we are in a whole different pattern. If we are trying to exclude a particular group, we should just say so. If that is the case, I would like to understand why we are trying to exclude a particular group. I cannot find a sound basis for this proposal, and I indicate that I will be voting against the whole bill if that is the case.

Ms HILDYARD: I think I understand the question about what we are doing here. When we talk about assisted reproductive treatment—and we dealt with that particular issue when we went through the clauses yesterday—we are talking about a woman accessing assisted reproductive treatment. So, we are talking about a single person accessing assisted reproductive treatment because that is all that you can talk about, if that makes sense.

Whereas in relation to surrogacy, so that we are really clear, all these amendments that the member for Little Para has proposed do take away the ability for a single person of either gender to be a commissioning parent in relation to applying for a recognised surrogacy agreement. All we are doing now is dealing with the single parent issue that the member for Little Para has raised in relation to surrogacy. I hope the ART explanation helps answer your question.

Mr ODENWALDER: Can I just add, and perhaps receive clarification from the Chair, that we passed the—what was the term we used yesterday?

Ms HILDYARD: The substantial amendment.

Mr ODENWALDER: We passed the substantial amendment yesterday, so the amendments we are discussing now are merely consequential. So, is it appropriate to discuss—

Ms Chapman: You can ask whatever you like.

Mr ODENWALDER: Can you? I am new at this, member for Bragg.

The Hon. A. PICCOLO: I am happy for the member for Little Para to provide some context for why this is different, and why he has moved this particular amendment.

Mr ODENWALDER: As I advised the member for Ashford yesterday, there is a hierarchy of things we are trying to achieve in this bill, and I sincerely wish things which I and others place higher in the hierarchy of the needs of this bill to be passed, and I think it would have a better chance of passing if amendments were made.

The Hon. A. PICCOLO: If I understand you correctly—and I do not want to put words into your mouth—you are saying that to get this bill across the line you will be quite happy to discriminate against a group of people, even though this whole bill is about non-discrimination.

Mr ODENWALDER: You are putting words into my mouth. What we are doing is not changing the act in relation to certain groups of people. We are changing the act in relation to certain groups of people I am placing arbitrarily in this hierarchy of needs and we are not changing the act in relation to another group of people. I am not against changing the act in relation to that group of people, just not in this bill.

Ms CHAPMAN: What we passed yesterday was essentially to exclude a single person from being a commissioning parent to obtain a surrogate child, and that has followed the debate this week resulting in adoptions in South Australia now being available to heterosexual couples (married or cohabiting) and gay couples (registered or unregistered), but not a single person (someone who does not have a husband, wife or partner).

Furthermore, in this bill a person can apply now for assisted reproductive technology, irrespective of whether they are in a partnership. I think that the member for Light is right in identifying that we have—and if we pass the consequential amendments that go with this, we will have—a situation in South Australia where, other than for the purposes of applying for assisted reproductive technology, a single person cannot obtain the right to have a surrogate child or adopt a child under our adoption law. I have some issues about that, I must say, and it was concerning to me. I address this now to the mover of the amendments, that we could end up in a situation like that.

I accept that we have had the vote on the principal amendment, the result of which I think was three to the rest of the world. Surprisingly to me, I had the Speaker on my side. I am not reflecting on the vote. You should be grateful when you only have two votes to get three, I suppose, but unbeknownst to me there had been some discussion about how the controversial aspects of this bill in relation to surrogacy might progress at least to give some opportunity for same-sex couples to be commissioning parents and that a compromise had been reached.

I point out to the parliament that, when we do this type of thing, we end up with an absurd outcome. I am not going to stand in the way of the consequential amendments, member for Little Para, because I had a crushing defeat yesterday. However, I make the point that that is what we are left with, and if there is any more absurdity it is the fact that we seem to have excluded, in this negotiated compromise position during this week, single parents.

Not only do we have mobile relationships these days for people who might cohabit in a shared arrangement and who, for significant periods in their lives, may be single parents, but we actually employ and enjoy the benefit of single people in South Australia who generously give their time to provide for the care, supervision and upbringing of many disabled children and a very significant number of foster children.

We have gone through a social agenda of change this week, most of which I have supported and which has enjoyed the support of the parliament, with the consequence now of saying to these people, 'You can look after someone else's child if they are disabled or damaged, but you can't commission your own. If you are in the right circumstances and you can afford it, you may access ART, if that is an option available to you.' But for someone who is being asked to do that on a regular basis, or for a group of people who generously do that in South Australia, I think it is shameful that we should now exclude them from this opportunity to either have a surrogate child or to adopt a child.

Hopefully, when we look at this in the clear reflection of what we have done this week, we will sit down and deal with a number of issues—not just this one but also the shameful circumstances in which the surrogacy contracts are still entered into currently with heterosexual couples in the buying of children from vulnerable and exploited parents overseas. I am not going to say anymore about it, but I can tell you that it is unfinished business. I will support the amendments.

Ms HILDYARD: I want to place on the record that I certainly agree with the member for Bragg's sentiments and look forward to continuing the conversations about the issues that she has raised over time so that we can resolve those issues.

Amendments carried.

Mr PEDERICK: This I think becomes the nub of this legislation. As I indicated in earlier contributions in regard to this bill—again, probably when it was part of the Relationships Register Bill—it goes away from the intent of where the Hon. John Dawkins from the other place wanted to go with surrogacy. Again, I recognise the fine work he did in this parliament in regard to access for surrogacy for South Australian couples, being men and women legally married or in a de facto relationship.

To be frank, I will be voting against the bill. This clause goes against the original intent, and I must say that, to me, this has been rushed into this parliament along with a whole raft of similar legislation in recent weeks. I repeat that the original discussion around surrogacy was part of a standing committee reference to the Social Development Committee years ago now. Quite frankly, I think if we were going to debate this in the proper way that should happen again, but I understand we are here debating it today.

I voice my disapproval of where we are going with this clause by opening up surrogacy. I just wonder whether the parliamentary secretary can explain to me some of the practical experiences in accessing surrogacy that will have to be dealt with by gay couples, whether they be women or men, in a relationship.

Ms HILDYARD: I will make a couple of comments about your lead-up to your broad question. As I said yesterday, in 2015, we commissioned the SA Law Reform Institute to undertake a review of all South Australian laws that discriminate against our LGBTIQ community members. We received the report into these particular issues in June. As you know, member for Hammond, you were invited to and attended a number of briefings that I held. You asked questions at those briefings. You were given written information at those briefings. Those were a number of months ago now.

As you also know, on several occasions I invited you to continue to ask questions, etc. so I reject the assertion that these issues have been in any way rushed. If anything, I wish we could have addressed this discrimination against our fellow South Australians somewhat earlier. I just want to place that on the record. In terms of your very broad question about what this means for couples accessing registered surrogacy agreements, they are now able to equally access surrogacy agreements in the same way as any other couple is able to do so, and rightly so.

Mr PEDERICK: That is fine. We also get the opportunity in this house to ask questions, which is obviously the appropriate place to do so. You said that they have the same access as other couples. For gay couples, whether they be women or men, can you tell me the procedure? Do you have to have a relative? Do you have to have a consenting friend? I am trying to flesh out how it will work in a practical sense with gay couples. If it is such a strong part of the legislation, it should be known.

Ms HILDYARD: We are just dealing in this particular clause, and indeed in this bill, with eligibility to access a surrogacy agreement. We are certainly not talking about the process in terms of how that actually happens. This clause sets out—and it is one of the key features of the act—that we are now enabling surrogacy for same-sex couples who are in a registered relationship, which we spent some time discussing on Tuesday and at briefings that you have attended, or same-sex couples who are in a marriage-like relationship. If, in their circumstances, they are unlikely to become pregnant, they are now able to access surrogacy agreements. It is the eligibility issue that this particular clause, and indeed this bill, addresses.

Mr PEDERICK: I assume you are talking about clause 24.

Ms HILDYARD: Yes, section 10HA.

Mr PEDERICK: Yes, section 10HA. I am still not satisfied. We did flesh out in the Social Development Committee who an appropriate surrogate mother would be. I am intrigued to know, and I would like the parliament to be reminded, who an appropriate surrogate would be. Obviously, I understand it is not for profit. You are supposed to be accountable for reasonable costs, but it is not to be a profit-making venture. I am trying to flesh this out because this is a big change, and it is a big change from where the Hon. John Dawkins wanted this to go. He explicitly left these amendments out of the original process of surrogacy in this state.

Ms HILDYARD: To be clear again for the member for Hammond, this bill deals with the criteria around commissioning parents for a surrogacy agreement; it does not deal with who can be a surrogate. That responsibility lies with the Attorney-General in other legislation.

Mr PEDERICK: I beg to differ, because in section 10HA—and it is involved in the bill as well—there are eligibility criteria around the surrogate mother and the agreement that has to be gone into. As I said, it talks about valuable consideration, expenses incurred with or consisting of a pregnancy, the birth or care of a child, counselling or medical services and legal services, so I do beg to differ. Obviously, as part of surrogacy, you do need a surrogate.

As part of both the bill and the Family Relationships Act, the surrogate mother does have to be assessed and approved as a surrogate by a counselling service. It goes through a whole range of accreditation procedures and guidelines that have to be met with the National Health and Medical Research Council, and that is in both the act and the bill. This is quite a big part of this legislation, and I think it is significant because, if you do not have a surrogate, you cannot have commissioning parents.

Ms HILDYARD: I hope this makes it clearer because I think perhaps my last answer was not as clear as it could have been. The Family Relationships Act absolutely sets out those matters that you have just spoken about. We are not changing anything in the Family Relationships Act except in relation to matters relating to who can be commissioning parents for a surrogacy agreement. We are not changing anything that is already in the Family Relationships Act about anything other than who can now apply for a recognised registered surrogacy agreement. If you look at the bill, you will see verbatim the existing clauses that you have just spoken about exported directly from the existing Family Relationships Act into this bill, and the only changes are in relation to commissioning parents.

Clause as amended passed.

Clause 25.

Mr ODENWALDER: I move:

Amendment No 13 [Odenwalder–1]—

Schedule 1, Part 6, clause 25 [Clause 25(1) to (5)]—Delete subclauses (1) to (5) (inclusive)

Amendment No 14 [Odenwalder–1]—

Schedule 1, Part 6, clause 25 [Clause 25(7) to (10]]—Delete subclauses (7) to (10) (inclusive)

These amendments are consequential.

Amendments carried; clause as amended passed.

Clause 26 negatived.

Clause 27 negatived.

Ms HILDYARD: I move:

That the following words of enactment be inserted:

that the Parliament of South Australia enacts as follows—

Amendment carried.

Ms HILDYARD: I move:

That the short title clause be inserted—

This act may be cited as the Statutes Amendment (Surrogacy Eligibility Act) 2016

Amendment carried.

Ms HILDYARD: I move:

Clause No.2—Commencement clause be inserted—

This act will come into operation on a day to be fixed by proclamation.

Clause No.3—Amendment provisions clause be inserted—

In this act, a provision under a heading referring to the amendment of a specified act amends the act so specified.

Amendment carried.

Ms HILDYARD: I move:

That the title of the bill be—

A bill for an act to amend the Assisted Reproductive Treatment Act 1988; the Equal Opportunity Act 1984; and the Family Relationships Act 1975.

Amendment carried.

Bill reported with amendment.

Third Reading

Ms HILDYARD (Reynell) (16:20): I move:

That this bill be now read a third time.

Mr PEDERICK (Hammond) (16:20): We come to this bill because it came about quite clumsily, to say the least, under the Relationships Register Bill. That bill, I believe, was split into two and the more controversial part of the Statutes Amendment (Surrogacy Eligibility) Bill 2016 was hived off.

In my almost 11 years in this place I have not seen this happen. It can be a drama on any given day in this place to be absolutely certain about what is going on from one minute to the next because the line-up of bills gets changed as well as the line-up of debate and bills come back from the other place. I well and truly know that is how it works, but I think that this could have been dealt with in a lot better way.

As I said, I certainly will not be supporting this bill. It does go against the massive amount of work that was done in the early 2000s and instigated by people who had contacted the Hon. John Dawkins from the other place about access to surrogacy. If these people want to access surrogacy they had to go interstate where it was available, in Victoria, and some of these commissioning parents were spending around $50,000 to access surrogacy.

I went through the bipartisan committee process of the parliament, and we did a full and exhaustive review. We certainly had some emotional couples telling us about their desire to have children and the obstructions that were in the way to their having that ability. It is nice to know that we assisted those couples—those couples who are either de facto couples or who are in a legal marriage arrangement.

That was certainly the full intent of the honourable member John Dawkins from the other place. That is where he wanted surrogacy to be and which people were going to be eligible to be part of the process. Certainly I fully supported that process those years ago now, and I acknowledge what it did for couples who could not have children any other way and saved them spending the tens of thousands of dollars going interstate to access surrogacy arrangements.

The minister has reminded me about briefings that have happened over the last few months, and that is fine, but they are not anywhere near as exhaustive as either a select committee investigation or a standing committee investigation. It certainly has been awkward, to say the least, for people in this place to negotiate their way through what was originally the Relationships Register Bill and with this one being split off to debate clauses during the committee stage.

The Hon. A. PICCOLO (Light) (16:24): I just indicate that I am not satisfied that the inconsistency between the ART provisions, which were adopted yesterday, and this bill can be justified.

This is no reflection on the member for Little Para because I understand the circumstances in which this came about. That just reflects what I believe to be an unsatisfactory process for all of us and it has put all of us in a difficult situation where we are not quite certain. Certainly, if I was aware of the provisions yesterday, I would have spoken a bit differently on it. I think that, as a matter of principle, if you are trying to deal with discrimination and you are going to use discrimination as a part of the answer, that is just untenable, and I will be voting against the bill.

Ms HILDYARD (Reynell) (16:25): I want to place on record a few points as we draw to the conclusion of this debate on the Statutes Amendment (Surrogacy Eligibility) Bill 2016, what I think is an incredibly important piece of legislation that will, indeed, help bring South Australia closer to true equality for LGBTIQ South Australians.

In closing this debate, I want to thank everybody who has contributed to the debate and also say again to the deputy leader and place on record my thanks to her for her very constructive debate in this house and also in the various briefings and conversations we have had about these matters. I also was asked by the member for Elder, who is unable to be here this afternoon, to mention in closing the debate that she was very much looking forward to voting for this legislation. I just wanted to put that on record for the house.

What we are changing in this bill will not affect most South Australians. The changes will not in any way affect the day-to-day operations of many of our lives. Many amongst us will not even realise that these laws have changed. But, for those who can now access assisted reproductive treatment and a surrogacy agreement, including those who talked with me and others with tears in their eyes about what it will mean for themselves and their loved ones, these changes will have a profound impact.

There are so many different types of families. Each of us has a different experience of family life, of ups and downs within our families, and of happiness and sorrow. What we all know is that the essential ingredient for a positive and nurturing family life where family members are safe, with their mental, physical and emotional wellbeing cared for, is love. This bill helps people who love each other to create those families. It means they do not have to travel interstate away from their loved ones to do so. To be very clear, the bill does these things:

It amends the Assisted Reproductive Treatment Act of 1988 so that a person can access assisted reproductive treatment if in their circumstance they are unlikely to become pregnant other than through the use of assisted reproductive technology.

It creates an exemption in the Equal Opportunity Act to ensure that a person going through assisted reproductive treatment will not be discriminated against in terms of receiving care.

It also makes changes to surrogacy via amendment to the Family Relationships Act of 1975 so that non-heterosexual couples can become commissioning parents in terms of applying for a recognised surrogacy agreement.

There are some, including here in this house, who may feel that we should deny same-sex couples the opportunity to enter into surrogacy agreements. I feel very strongly that these are views from another time. Today, we have an opportunity to continue our work, undoing archaic laws to offer hope to future generations and to support loving couples to grow their families.

To illustrate the real impact this legislation will have on South Australian couples, I put on record the words of Ali and Jo, a same-sex couple living in Adelaide who had to travel to New South Wales to conceive their children because of the barriers to accessing IVF in South Australia. Their story is not unusual and, hopefully, it will become a thing of the past after the passage of this legislation today. They say:

The discrimination in the law makes what is already a complicated and stressful process even more complicated and stressful. Rather than undergo invasive exploratory procedures to assess my fertility levels, we decided to go to [New South Wales] to conceive our two beautiful children.

We had to save up each time we needed to travel for a consultation or procedure, sometimes delaying treatment because we ran out of money, simply because of these hurdles in the current law. We're allowed to foster children but not allowed to have our own children in our own state—I hope the parliament finally realises that this just doesn't make sense.

A participant in the SA Law Reform Institute process added the following:

I believe this law creates a situation whereby I am required to use risky, unchecked sperm from a male (known to me by friendship or via a website set up to provide sperm to people) rather than being able to access IVF.

The lack of sperm in my relationship (as we are both women) is not considered to be enough reason to justify why we need to use IVF to have a baby. I believe this is unfair—as we should not have to use sperm from a donor, whom we may not know about his HIV status or STI risk…I think [the current law] discriminates [sic] against people…

It is clear to me, and I hope that it is clear to all my fellow parliamentarians, that this is a long-overdue reform for South Australian couples.

I hope that today we have yet more good news for our LGBTIQ community and yet more progress for our community at large. Again, it is the work of active community members, the South Australian Law Reform Institute, the leadership of our Premier and, of course, the votes of my parliamentary colleagues here today that will bring about this progressive change for South Australians. I thank all who are part of doing so.

The house divided on the third reading:

Ayes 25

Noes 16

Majority 9

Third reading thus carried; bill passed.