Bills

Family Relationships (Surrogacy) Amendment Bill

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:41): I move:

That this bill be now read a second time.

I will be very brief because this is one of those matters that has been floating around for a while. It was originally a bill that passed through the parliament some time ago. Basically, it passed through on the voices, and it certainly was not looked at in any great detail here. As it turns out, that bill was extremely difficult, if not impossible, to give practical effect to.

I had discussions with Mr Dawkins from the other place about that bill, because it is a matter of considerable interest to Mr Dawkins. As a result of those discussions, he and I went away and he agreed to put forward some changes to the legislation as it presently exists. I undertook that if he did that I would do two things for him. The first thing was that, without necessarily endorsing the bill or otherwise, I would be prepared to move the second reading and so forth of the bill, which I now do. I also undertook to him that I would make every attempt to find some government time within which to finish it before the end of the parliament, which I have now done.

The only thing I would say for my own part is that the present act is completely unworkable. If anybody cares about this issue, this is the only way to progress it and make it practical. If people are not supportive of the issue altogether, then whether they support this or not is entirely a matter for them. Absent this amendment being passed by the parliament, we are going to be left with the ruinous shambles that we presently have, rather than something that is potentially a bit orderly. I do not wish those remarks to be an indication of my support or otherwise for the concept of surrogacy or anything else. I am merely trying to give a fair and accurate representation of my discussions with Mr Dawkins and to fulfil my undertakings to him.

Mr GARDNER (Morialta) (17:43): I am interested in the Attorney-General's remarks. While I have undertaken to be brief, he has said some things that cannot go without response. The Attorney-General says that a bill went through the parliament some time ago—the original bill to which this amendment bill makes further changes. In fact, it was the original act, because this parliament passed that bill. The Attorney said it 'passed on the voices' and was not really addressed here. I had carriage of that bill, which was of course of interest to Mr Dawkins, as the Attorney said. That is because it was Mr Dawkins' bill, as is this.

Mr Dawkins took that bill through the Legislative Council, where it was fully debated. It was considered by caucus, and it was considered by the Liberal Party's party room. The Attorney-General had the opportunity in caucus, or indeed in the parliament, to give weight to his considerations. He thinks it is unworkable legislation, yet his party was happy enough to support it, and it was allowed through the parliament. I do not know if the Attorney-General is aware, but in this chamber the government has the numbers and he is the Attorney-General.

If the Attorney-General is so certain that the current act of parliament that passed through this parliament was so inferior that it was not deserving of support, then perhaps he could have used his weight as the Deputy Premier to convince his party colleagues and caucus not to support it. He did not and the bill went through the parliament. At the time, he had the opportunity to put all these things on the record. He is the Attorney-General, he has lots of staff giving advice on these things, and he did not.

However, he did, in good faith, engage with Mr Dawkins so that these improvements to the bill, as he has outlined, could go through. He has made government time available, which I know Mr Dawkins appreciates, as do I. We want the bill to be workable. Anyone interested in my views or the views of other members on surrogacy and the principles themselves can go back to those original debates and consider them. The particular concern of Mr Dawkins was to ensure that a situation such as baby Gammy would not be countenanced or able to happen. The opportunity to make regulations was left with the government by that act. Now, the government not having done so, not having put regulations in place, has requested that the bill be brought forward as well.

I am supportive of the bill. The Hon. John Dawkins MLC has been working for many years toward enabling surrogacy provisions to be available for families in South Australia. He has worked very hard and we are very close to the end. I hope that the bill will enable that to take place in a sensible manner. I commend the Hon. Mr Dawkins for the work he has done over that time. Hopefully, we will see some of those South Australian families have much better outcomes in the years ahead.

The Hon. S.W. KEY (Ashford) (17:46): I rise to support the Family Relationships (Surrogacy) Amendment Bill 2017. I also supported the previous bill in this house. I am very pleased to note that there has been a lot of work done to make sure that the bill is practical. I think we have taken some guidance from legislation in New South Wales to make sure that people will be able to access surrogacy services on a non-commercial basis and also to make sure that we look after the product of such surrogacy, to make sure that the baby, the child that eventuates from this process, has information about their origins that they may need in future life.

I congratulate the Hon. John Dawkins on his work in this area over many years. I understand that he was very much assisted by the Hon. Ian Hunter in the other place. There was certainly support shown by the Hon. Tammy Franks and the Hon. Kelly Vincent, as I understand it, and the Hon. Stephen Wade.

Having read that more recent debate, I feel very comforted by the fact that the Attorney has spent a lot of time making sure that this is a practical application. I note his non-view, as he puts it, on the actual topic itself, but I am very pleased that we have something before us that the Attorney believes will work and will be of use to South Australians. Hopefully, this will stop people having to go interstate, where there are proper surrogacy provisions, to access that service, which is what I understand people are doing now from South Australia.

Also, hopefully, this will stop people operating outside the law. I do not have any examples that I can put forward, but there are people who are operating without any regulation or support in South Australia at present. I commend the bill and I thank the Attorney, despite his position on this issue, for making sure that we have legislation that may work.

Mr PEDERICK (Hammond) (17:49): I rise to speak to the Family Relationships (Surrogacy) Amendment Bill 2017 and also note the great work of the Hon. John Dawkins from another place for his championing of this cause of surrogacy. Back in 2006, I was involved with the Social Development Committee inquiring into surrogacy and I note that legislation was passed in 2009. There was another Family Relationships (Surrogacy) Amendment Bill in 2014 that was passed in 2015, and we have this current legislation before us.

Part of what will happen under this legislation is that entering into a commercial surrogacy agreement is punishable by imprisonment of up to five years, and entering into or offering to enter into a surrogacy agreement other than one permitted by the bill is punishable by imprisonment of up to 12 months. It is an offence to act as a surrogacy agent, with imprisonment of up to 12 months, and it is an offence to induce another for payment or other consideration to enter into a surrogacy arrangement, with imprisonment of up to 12 months. This bill will also allow altruistic surrogacy agreements to be entered into in certain circumstances and allow these agreements to have the operation and effect of a binding contract between the parties.

Most of the other items in this bill have been covered. This brings us to a matter of where surrogacy has progressed as far as the legislative component over the years. It was ridiculous when, way back in 2006, we heard at the Social Development Committee about people paying $50,000 to go to Victoria to make surrogacy arrangements. This bill stops people going into commercial arrangements, like the baby Gammy case, where people do not take on a child with birth defects.

I commend the work of the Hon. John Dawkins in the other place and commend the bill's speedy passage through the house.

Mr SNELLING (Playford) (17:51): I will be a lone voice in opposition to this bill. I appreciate what the Attorney-General is attempting to do. He is faced with a dog's breakfast that has come down from the Legislative Council that has not had the appropriate scrutiny that it should have had. It has gone through on the voices and has proved to be impossible to implement, and the Attorney-General is now trying to clean up the mess. I think it shows very bad form on the part of the member for Morialta to criticise the Attorney for actually trying to clean up the Liberal Party's mess when it comes to this particular bill.

I appreciate what he is trying to do; however, I would state that my view is that the first thing we should do is repeal the original Dawkins bill and then we should properly consider a bill to in some way regulate surrogacy. I think trying to do a patch-up job on a bill that was given improper scrutiny in the first place is not a good way to go. I think we would be far better off repealing the Dawkins bill, have a vote on that, and then properly deal with this very complex issue.

I know that people enter this debate with the best of intentions; however, this is a very fraught area and a very difficult area. We are attempting to prevent or stop commercial surrogacy. It is my view that commercial surrogacy would be almost impossible to prevent if we allowed this practice. People will find ways around the law, and in the end it will be women who will be exploited.

I also have very grave concerns about making surrogacy arrangements contractually binding on the parties. What happens when a surrogate mother, a relinquishing mother, changes her mind partway through the pregnancy and decides that she does not want to relinquish the child to the couple for whom she is carrying the baby? Are we going to forcibly remove children from mothers, who have just given birth, in those sorts of circumstances?

I think this is a very fraught area. It should be getting far greater and closer scrutiny than being debated in the dying minutes of a parliamentary sitting day, having already been dealt with by the parliament and given improper scrutiny. I think this is a very fraught bill that deserves far greater scrutiny than it has been given by the parliament.

The Hon. T.R. KENYON (Newland) (17:54): I have a rough memory of the original bill coming through, but I cannot remember whether it was early in this parliament or towards the end of the last parliament. I certainly remember speaking in opposition to it, and I do so again now in opposing this bill. I agree with member for Playford in that the original bill was rushed through in unseemly haste, moving through on the voices, and there is an attempt again to do it now. In the last 20 minutes, we have had very little notice that it was coming on. I do not even believe it is listed.

The DEPUTY SPEAKER: It's on the back page.

The Hon. T.R. KENYON: There you go: it is on the back page.

The DEPUTY SPEAKER: A lot of people didn't see the big PTO in the corner.

The Hon. T.R. KENYON: So it was listed, but I did not see that. But it was only at the last minute. I do not think it was in the notices of business which went out, which makes it hard for people to prepare for something which is, for some of us, and I imagine for most people in this parliament, quite an important topic. There would be very few people who would not think that.

I reiterate my opposition to the very concept of surrogacy and surrogacy agreements in that it brings about the commodification of childbirth where it becomes a transaction amongst people for the procurement of children. Obviously it is a much more normal process than other ways, but the very idea that there can be commercial arrangements which we were told there would not be under the previous one. I remember raising that very issue and being told in that semblance of debate that may even have occurred at another time that there would not be commercial agreements.

One of the reasons we are discussing this bill here now is to outlaw commercial agreements that we were told last time would not happen and could not happen. Yet, here we are again, rushing a bill through that is supposed to outlaw something that was already supposed not to be available under the previous bill. The only good thing about that is that it is obviously the clear intention of the parliament not to allow commercial arrangements for surrogacy and childbearing which in my view is a good thing.

It talks about reasonable medical expenses. On my very quick reading of the bill just now, it looks like they are stepped out in division 2, clause 10I—Lawful surrogacy agreements—which steps out what an agreement should look like and that it must comply with the following provisions: 18 years old, be domiciled in the state, commissioning parents must be in a qualifying relationship which is defined. I seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting extended beyond 18:00 on motion of Hon. J.R. Rau.