Surrogacy Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 August 2019.)

Mr PEDERICK (Hammond) (12:00): I rise to speak to the Surrogacy Bill 2019. I note that it is a conscience vote on our side of the house and from what I understand it is a conscience vote for the opposition, so I will be very interested in the debate in regard to the Surrogacy Bill. I find this a very interesting debate because I was part of the Social Development Committee after I was elected to this place in 2006. On the reference made by the Hon. John Dawkins from the other place, we investigated surrogacy.

I will speak in broad terms before I go to my notes in a minute and reflect on more detail. People here would know generally how I vote on matters of conscience, but I have found that this one takes me down another direction, especially after being part of that committee and listening to the cases where people looking to have a child—we were basically talking about heterosexual couples at the time—were having to spend up to $50,000 to travel interstate, mainly to Victoria, from this state to access surrogacy arrangements.

We had some very emotional testimony to the committee. It is a little while ago now, but it still rings in my ears. We saw the people present on what they saw as their need and their right to have children and how they wanted to access it. You have to take your hat off to people who were willing to mortgage their house so that they could have the right to have children.

I know some people argue that if a couple, for whatever reason, cannot have a child, especially in the religious way—I was brought up in the Uniting Church, so I have had plenty of input on the religious side of things, my father having been a lay preacher in the Uniting Church for 60 years—they can express the fact that, 'Well, that's life, and that's God's will.' Man, however, has always found a way to interfere with God's will, if you like. We have fertilisation clinics and a whole range of ways in which people can have children if they need some assistance. The current legal arrangements for families to have children have brought much joy to those families being able to have children.

I am the father of a couple of healthy young footballers. They happen to be boys, but there are plenty of good young lady footballers as well. In fact, one young lady at Peake on the weekend got the best and fairest in the junior netball and the best and fairest in the junior football. It was a bit of a struggle when they changed the times around for her one day at the MCG—the Murrayville cricket ground—and she had to choose which one to play. I think on the day she ran with the netball, so the footy lost their best player for the day. That is young Ruby Ballard. Her sister Abbie is on the Crows list. I think they are both on the Crows list somewhere or at least on the West Adelaide list.

Abbie was, I believe, the best player for West Adelaide in the women's league this year. She played right through from under 16s for the Peake club in the Mallee Football League. She played with the boys—my boys were part of that team—and everyone respected that. There are other girls who do that as well and it works fantastically out in that league, but I digress.

As I note from my contribution reflecting on the committee report in regard to surrogacy—back in my first term, I think it was, between 2006 and 2010—I do not know if there is any greater joy than having children, watching them grow up, nurturing them as young ones, taking them through, always hoping you point them in the right direction and making sure they are safe. Obviously, the conversations seem to become stronger the older they get, but that is good in a way, too; it is a great thing.

Some people naturally think I would not vote in support of this legislation. I have had some people from my electorate communicate with me who want me not to support it, probably for the reasons I have already explained, but I do have some previous knowledge of this issue and I am happy to have those discussions with those constituents who wrote to me with the other view.

Certainly, there are constituents who have the view that this should be supported. It will be difficult for some, and there are some parts of this legislation that I am not 100 per cent comfortable with, but we have to look at how society has changed over time, even since we did the Social Development Committee report into surrogacy way back when.

In regard to some of my reflections at that time and the reference undertaken by the Social Development Committee, some of my comments were around this being one of the tougher topics before the committee. It was a diverse committee of members, as I indicated back then. When I say that it was diverse, I mean that its members had many opinions on which way we should go with gestational surrogacy, and conflicting views were held right to the end.

I also note that this was about the Statutes Amendment (Surrogacy) Bill 2006, a bill introduced by the Hon. John Dawkins from the other place. Going into some of the detail of what we found during that committee's discussion, there was quite a range of people seeking to be surrogates or going interstate to have their children through a surrogate. As I have already indicated, there were some very emotional stories of not just the travel but the cost involved. As I have already indicated, it usually cost up to around $50,000 to go through this process.

What I am saying is that people will find a way if they want to experience the beauty of having children. We know that they will travel interstate or even overseas, and I note there have been some issues with overseas surrogacy. I think some of that stems from the fact that these were, in the main, commercial arrangements that are outlawed under this legislation, and I am going to make it perfectly clear that I certainly would not be supporting commercial surrogacy.

I have already talked about how people will borrow against the family home or find other ways to find the money. I note that one of the recommendations—and I will go through some of them—is about getting the commonwealth on board to review Medicare arrangements to make gestational surrogacy more accessible for people right across the spectrum. There were divergent views about who should have access to this technology. I note that life moves on, but I do have a personal view that it should be limited to heterosexual couples. As I stated at the time, that is my view; there were plenty of divergent views across the committee.

I note that in this legislation there will be the ability for same-sex parents to have a surrogate child. I guess when you look at the way the world has moved since then, and whether you fully agree with it or not, the federal government has legalised same-sex marriage in this country. I have had strong debates, mainly within my family more often than not, about who should, could or would have children in their care. It is an interesting discussion when you go through that process. Certainly, in this role, you sadly come across issues of child protection. Thankfully, I have not had too many come through my door as a member of parliament, but we do have them come to us.

I note that child protection is a huge issue wherever you are in the world. I would like to acknowledge that it is one of the toughest jobs that a minister could have and I commend minister Sanderson for the work she is doing in this field. It is a simple fact—and in the main it is heterosexual parents—that some parents literally do not know how to look after their children or children in their care. That raises the conversation about other levels of parenthood and, certainly, I have had those levels of conversation.

As I said, I am not perfectly excited about it, but I understand the point of view and I think, for the sake of getting this legislation through, giving people the right to have children probably rides above that. I only say that because already in this state there are ways that same-sex couples have their own foster children in their care. It is an interesting debate and I will be really interested in people's contributions throughout the debate.

In regard to some of the recommendations, and I know changes to legislation have been made in regard to surrogacy since this committee, these are some of the recommendations to the committee of that time. This was in 2007, I believe. They were as follows:

1. That the State Government introduce, as soon as possible, a bill to amend the Family Relationships Act 1975 and other relevant legislation to recognise the rights of children born through gestational surrogacy arrangements. The bill should, among other things, ensure that:

(a) all parties involved in the surrogacy arrangement, especially the surrogate mother, are fully informed about the personal and legal implications of the transfer of parenthood and freely consent to this transfer taking place;

(b) a process is developed to allow the legal transfer of parenthood to occur without the need for commissioning parents to adopt their own genetic child;

(c) in transferring the legal parentage from the surrogate mother to the commissioning parents, the best interests of the child should be paramount considerations;

(d) an appropriate time-frame is established during which the transfer of parenthood may occur;

(e) persons born through surrogacy arrangements have access to their genetic history and are provided with information about the circumstances of their birth;

(f) once the transfer of parentage has occurred, birth certificates be amended to appropriately reflect this transfer. The provisions contained in the Australian Capital Territory Births, Deaths and Marriages Registration Act 1997 should serve as a suitable example of the type of process that could be applied;

(g) an abridged birth certificate is issued for general use that records the commissioning parents as the parents of the child born through gestational surrogacy;

(h) a detailed birth certificate is issued and made available to the child upon request, listing the commissioning parents, the surrogate mother and, if applicable, the use of donor material;

(i) the legislation is drafted so that it applies to children already born through surrogacy arrangements; and

(j) appropriate training on the proposed operation of the Act is provided to all relevant individuals and agencies responsible for its administration.

In regard to the future of surrogacy in South Australia, recommendation 2 states:

2. That the State Government introduce a bill allowing the use of non-commercial, medically-indicated², gestational surrogacy³ in South Australia. In doing so, the bill should:

(a) provide for a set of clear standards, processes and principles to underpin the legislation and support the safety and wellbeing of all parties involved in the process;

(b) ensure that counselling, consistent with Australian and New Zealand Infertility Councillors Association (ANZICA) and National Health and Medical Research Council (NHMRC) guidelines, is mandatory for all parties involved in a surrogacy arrangement;

(c) clarify the forms of surrogacy covered by the legislation and ensure those responsible for administering it are appropriately trained; and

(d) ensure that reproductive technology specialists and appropriate experts are consulted, and the views of all major stakeholders and interested parties are taken into consideration.

3. As part of the development of a bill pertaining to gestational surrogacy, the State Government should initiate a review of the Reproductive Technology (Clinical Practices) Act 1988 and other relevant legislation, to, among other things:

(a) amend current eligibility criteria to allow a fertile woman wishing to act as a gestational surrogate mother access to reproductive technology;

(b) examine whether regulatory reform is needed to enable individuals or couples who require assistance with fertility treatment, but prefer to remain outside the medical system, access to screening procedures for disease and counselling through accredited reproductive units;

(c) ensure that people conceived through donor conception have access to information about their genetic parentage should they request it; and

(d) wherever possible, incorporate all legislation pertaining to gestational surrogacy into one Act.

4. That the State Government ensure that it enacts legislation that is consistent with State and Commonwealth anti-discrimination legislation.

5. That the State Government work closely with the Commonwealth and other States and Territories to ensure consistency of surrogacy laws across all Australian jurisdictions.

6. That the State Government encourage the Commonwealth to review Medicare arrangements to ensure that rebates are available to a fertile woman who is acting as a gestational surrogate mother and is consistent with any amendments made to South Australian legislation pertaining to gestational surrogacy.

² refer to Part One: Medical indications for gestational surrogacy.

³ I.e. the surrogate's ova are not used.

Just looking through the bill before us right now, it appears that most, if not all, of those recommendations are taking place in this bill to get it wound up in one piece of legislation. I know there has been legislation reform in the past with regard to surrogacy, but there has not been such a complete rounding up of this legislation as the legislation in front of us right now. I commend the Hon. John Dawkins from the other place for his advocacy in regard to surrogacy, and note his work and his support for this current bill before the house.

I will be very interested to hear what debate comes through. It was an interesting time when we discussed this in the Social Development Committee, especially as a new member to this place. As you have already heard me indicate to the house, with the effluxion of time and noting some things that have happened at both the federal and state levels perhaps it is time that we move on and make sure we get the right outcomes.

People will seek the use of surrogacy, and they will spend tens of thousands of dollars to do it elsewhere in this country, let alone anywhere else. I think we should do what we can as a legislature to give the joy of children to people where we can in the most appropriate way.

Ms LUETHEN (King) (12:20): I support the Attorney-General's bill because it will make it easier for people who want to have a child to access surrogacy in South Australia while still outlawing commercial surrogacy arrangements. The Surrogacy Bill establishes a practical framework for non-commercial surrogacy arrangements that keep the best interests of the child as the priority. Surrogacy is a complex and sensitive subject raising many ethical, legal and other issues and implications.

I would like to share an excerpt from a personal story I read while doing my research on surrogacy stories. Sarah Bagnall, 33, carried a beautiful baby to term then handed this baby to the waiting arms of the baby's biological parents. Sarah said:

I started thinking about being a surrogate, after seeing a college friend struggle with infertility. She eventually had a baby via an egg donor and surrogate.

My husband Justin and I have two girls, Lara, six, and Heidi, three, and our family is complete. I thought, the time is right, I might investigate the idea a bit more…I spent time researching and reading forums, and found the Australian Surrogacy Community on Facebook.

That's where my journey with surrogacy began.

I sent a lovely sounding lady called Lauryn a private message. Lauryn was born without a uterus and was looking for a potential surrogate. We met Lauryn and her husband David at a Surrogacy Australia conference two months later, and spent time getting to know each other…

Whenever I spoke to friends, even acquaintances, I never claimed the baby as my own—and people were always curious. Many opened up to me and shared their own issues with infertility…

I said to my girls: 'Lauryn doesn't have a uterus and I do, so I'm going to carry a baby for her and give it to her.' My eldest said, 'OK Mum.' Along the way, as my tummy started to get bigger, we kept reaffirming with the girls, that it was Lauryn and David's baby, I was just growing it for them.

Everlie was born at 39 weeks, via a natural delivery. Lauryn and David were in the delivery room with us. With the cards they were dealt, not being able to carry their own baby, I made sure I took nothing else away from them.

Lauryn had the first cuddle, I can still picture her face when Everlie was put into her arms, she looked at me with tears in her eyes and said, 'thank you, thank you!' David then cut the cord; he was over the moon too.

Lauryn and David have become good friends, they're like an aunt and uncle to my girls, they're part of our family. People have asked me, 'how did you give away a baby?' I say, 'I didn't give it away, I gave it back, it was their embryo to begin with, I just cooked it for them.'

People choose surrogacy for a variety of reasons, including health conditions that make pregnancy and birth dangerous, recurrent miscarriages, an abnormal or absent uterus, failed IVF or being in same-sex relationships. I would like to acknowledge the valuable contribution of the Hon. John Dawkins MLC to surrogacy law reform in South Australia. Surrogacy law in South Australia has a significant history. It has strong support from the Hon. John Dawkins MLC, who has worked tirelessly on this issue for over a decade.

Public consultation has occurred on this bill, with extensive responses being provided and considered by the Attorney-General's Department. Key aspects of the Surrogacy Bill 2019 include that the birth mother must also consent to the transfer of parentage. The bill raises the age of required parties to a surrogacy agreement from 18 to 25 or older. It allows surrogacy arrangements in which neither intending parents provide genetic material, and it makes clear provisions for compensating surrogates for loss of income.

The bill ensures that counsellors have an appropriate role in the surrogacy process, which does not purport to be an administrative process. The current surrogacy provisions require a counsellor to assess and approve the proposed birth mother to act as a surrogate and to certify that the proposed surrogacy agreement would not jeopardise the welfare of any child born as a result of a surrogacy arrangement.

The bill also creates an offence to provide that parties who enter a surrogacy agreement other than in accordance with the act are guilty of an offence with a maximum 12 months' imprisonment. It creates an offence of advertising for commercial surrogacy services or advertising willingness to enter into a commercial surrogacy agreement.

The bill will create a situation where South Australia is the leader in the surrogacy field and should become a respected jurisdiction for surrogacy agreements to take place. For some people, surrogacy is the only way to start a family of their own, and I believe that it is essential that we come up with a process that helps them while ensuring there are sufficiency safeguards put in place.

The South Australian Law Reform Institute made 69 recommendations for change, many of which were adopted in this final bill. I have submitted two amendments that I feel are of paramount consideration because I believe they are in the best interests of the child born as a result of this arrangement. The first amendment, amendment No. 1, deletes paragraphs (f) and (g) from clause 4 on page 5:

(4) For the purposes of this Act, a person will be taken to have impaired decision-making capacity in respect of a particular decision if the person is not capable of—

(a) understanding any information that may be relevant to the decision (including information relating to the consequences of making a particular decision)

However, if '(f) a person will not be taken to be incapable of retaining information merely because the person can only retain the information for a limited time' or '(g) a person may fluctuate between having impaired decision-making capacity and full decision-making capacity', then they may still enter into an agreement. I feel this produces a risk that the surrogate may have impaired decision-making ability when agreeing to the arrangement and this concerns me.

Secondly, the South Australian Law Reform Institute made a recommendation under part 18, risk assessment, recommendation 32. SALRI recommends that any surrogacy act should require the full and frank exchange of information between the parties to a lawful surrogacy agreement—that is, the surrogate mother; her partner, if any; the intending parents and the accredited independent counsellors—prior to a surrogacy agreement being entered into so that all parties can properly assess whether or not to enter such an agreement and/or the agreement is appropriate and will be in the best interests of the child.

Included in the information exchanged should be any information that will enable the other parties to the lawful surrogacy agreement and the accredited independent counsellors to consider whether or not a party might pose a risk to the child or another party. As part of this process, each party should, if possible, obtain and provide to the other parties and the accredited independent counsellor a working with children check or national criminal history check.

Any check must be obtained prior to accessing any surrogacy-related fertility procedure and prior to entering into the surrogacy agreement. The parties should be advised of this requirement as part of their independent legal advice obtained in the process. My second amendment adds this recommendation into the Surrogacy Bill 2019.

I have consulted many members of my community on these two amendments and canvassed feedback online. Every member of my King community I have asked has supported the amendments because they agree that they are in the best interests of the child born of these proposed arrangements.

As we introduce this bill, we have the opportunity to eliminate any risk to the child that the intended parents have been convicted of any serious criminal offences, such as child sexual abuse. Already in Australia, one in five children could be sexually abused by their 18^th birthday. This is a statistic that is unacceptable and I will do everything within my means, including inserting this recommendation into the bill, to make sure that we minimise children being put at risk.

I received support from Fighters Against Child Abuse Australia, who published an official statement regarding the proposed surrogacy legislation and my proposed amendments, which states:

We at FACAA on behalf of our 120 thousand plus members, fully support the calls by [the member for King] to have conditions placed upon surrogacy candidates that include a criminal history check and a working with children check.

As it stands we have a big problem with child abuse and child rape in our nation and South Australia is no different to any other state. Child abusers are getting more and more sophisticated in their pursuit of child victims and ways to gain access to these victims.

We all remember the case of Australian Mark Newton and his partner Peter Truong who are serving 40 years in a US prison for the repeated rape and subsequent production of child exploitation material of their adopted son who was just 2 years old when the abuse started not long after the men purchased the boy in Russia playing the doting gay fathers.

It is not discriminatory to ask for a working with children check and criminal history check, it is protecting the children from potential abusers looking to exploit the system to gain unlimited access to a potential victim!

If a potential surrogate parent has nothing to hide then it will be absolutely no problem to produce a working with children check and criminal history check, the only people worried about it being discriminatory are those with something to hide who should be worried about what a criminal history check would bring up, and those are exactly the type of people we don't want becoming surrogate parents.

Paula Luethen MP is exactly correct and has the full support of all 120,000 plus members of Fighters Against Child Abuse Australia…in calling for working with children checks and criminal history checks for all potential surrogate parents.

I thank Fighters Against Child Abuse Australia for their statement and support. This is a vital piece of legislation for the future of surrogacy in South Australia and proof that the Marshall government is ensuring that our laws are kept updated and modernised as our community changes. The bill also aligns with our Liberal beliefs, as we believe in a just and humane society in which the importance of family and the rule of law and justice is maintained. We care about people having rights and we care about people being kept safe.

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (12:32): I am very pleased to be able to speak on the Surrogacy Bill today and indicate that I will be supporting the second reading of the bill. This matter is, as it has been for all surrogacy bills over the years, a conscience vote for the Liberal Party and Labor Party. As the member for Morialta, I indicate that I plan on supporting the bill.

There have been a number of efforts to resolve this question over the years. I recall the Hon. John Dawkins MLC first bringing surrogacy legislation to the parliament early on in my career. I think it was while I was a candidate, and certainly he was talking about it while I was a candidate. Ensuring that families seeking to avail themselves of this technology to build their family with the introduction of a child through the support of someone who is willing to be supportive of that desire through the act of being a surrogate is something that I know the Hon. John Dawkins has devoted a lot of time to. I believe that the passage of the bill, while moved by the Attorney-General and I think a couple of others, will stand as part of his legacy and the substantial effort that he has made in the parliament.

These sorts of bills can be tremendously important. For many South Australians this is a matter that may never come into the issues of concern at their dinner table or what they call water cooler conversations in the office but, for those South Australians for whom this is an issue, this is an issue that defines their lives. The capacity for them to have the joy of a child coming into their life is tremendously important. It is an opportunity to celebrate that life when it comes into our community. Children born through these arrangements are a joy to us all as well.

That said, it is, of course, a matter where sometimes moral questions have come into it and members have applied their judgement as to what is the moral and ethical outcome. There are also questions of practicality in order to achieve the moral purpose that the bill seeks to achieve. The legislation that has passed on that conscience vote basis has passed overwhelmingly every time that it has been put, often or potentially usually without division. I think there was one division: one of those bills had a division and passed and the others passed without division.

There is an overwhelming sense of support for the direction, but we have to get the legislation right—that is our obligation as legislators—and we have endeavoured to do so. We have used our best efforts and I think we have passed good legislation but, when faced with the practicalities of enacting that legislation through regulations, there have been roadblocks along the way. I think there were two bills that passed and then a third bill was proposed in 2017. My recollection is that having been dealt with in the Legislative Council that bill then came to the House of Assembly.

The Labor Party, the former government, on the last day of sitting chose to promote above this important bill that would give life—literally enable more life to be born in South Australia, to bring more families together—and prioritised instead the removal of the fairness clause from the South Australian constitution in relation to electoral redistributions. That is salient to this debate, of course, because it is the reason that this bill is necessary now in the form that it is, because the former government decided to promote the fairness clause abolition ahead of it.

Members may recall that that abolition came despite the fact that the clause had been introduced by a referendum of the South Australian people to introduce it—but that was the Labor Party's priority. Before the last election, they wanted to abolish the fairness clause and not deal with surrogacy. They felt that their electoral interests were more important, and so now we have the constitution we have now and we have the surrogacy laws that we have.

It is important that that is said because the purpose of that legislation, which the Labor Party set as a lower priority than abolishing the fairness clause, was to bring our surrogacy laws into a form that the department felt could be enacted and transacted in a reasonable manner. Since the election, the Attorney-General—as Deputy Premier and Attorney-General—has worked closely with her department and the Hon. John Dawkins MLC to bring this bill, which will hopefully resolve all those remaining tensions. It is an improved bill with notable differences to the current arrangements.

Just to be clear, the bill includes arrangements that parties to the surrogacy arrangements must enter into a written agreement relating to the surrogacy prior to the conception of the child. The parties must have received counselling and legal advice before entering into the agreement. I believe that the member for King has suggested an amendment that would provide further stages in that process to ensure that the proposed surrogate is of sound mind and is not under undue influence and so forth and, indeed, that the parents have passed a police check as well. Obviously, every one of us, all 47 of us, will give due consideration to those amendments over the course of the afternoon and, if necessary, through to tomorrow.

One important fact, and one that I recall in discussions with the Hon. John Dawkins, member of the Legislative Council, in the second of the surrogacy bills—which he gave me the privilege of handling in the lower house—is noteworthy in that it passed the lower house with flying colours that day, is that the surrogacy arrangement must not be commercial. I think there are those of us who are thoughtful about this matter and have ultimately come to the moral reflection that the value of life is enhanced by these arrangements and, therefore, they should be supported, but I for one believe that this should not be a commercial arrangement. For me, that would be a step too far, certainly in the way I think of it at this stage.

A commercial agreement entails the surrogate mother being directly compensated for the act of carrying the baby, over and above compensation for any expenses she occurs. It is important that they be capable of supporting incurred expenses; however, profit-making from this is not the purpose. Non-commercial surrogacy ensures that the surrogate is not disadvantaged by the surrogacy but at the same time does not profit from it.

The surrogate mother is considered the legal parent of the child at birth and cannot be forced to relinquish the child. If a child is born under a lawful surrogacy agreement, the intending parents are entitled to apply to the Youth Court for an order transferring parentage of the child. The order can only be made if it is in the best interests of the child and with the consent of the surrogate mother. That 'best interests of the child' case is critical. I think that some of these arrangements will be helpful in resolving issues such as those about which we have seen negative press in other jurisdictions in the past.

The bill makes certain changes. Rather than sitting under the Family Relationships Act, it establishes a standalone act, the surrogacy act. The bill removes the existing state framework for altruistic surrogacy with the various bureaucratic requirements that it has. The framework of course has never been implemented. It removes the surrogate register, as recommended by the South Australian Law Reform Institute. Indeed, it removes the individual overseas and potentially commercial surrogacy arrangements that are allowed under the previous arrangements, again as recommended by SALRI.

The bill includes principles that I think are useful. The first one comes into it and reflects on the points I made before, namely, that the human rights of all parties to a lawful surrogacy agreement, including any child born as a result of the agreement, must be respected and that the surrogate mother under a lawful surrogacy agreement should not be financially disadvantaged as a result of her involvement in the lawful surrogacy arrangements. I think that covers any question marks that are raised when we say that it cannot be for profit. What is 'for profit' and what is 'the reimbursement of an expense'? I think if that is covered in the act it gives direction, as necessary, to resolving any tensions there.

The bill retains the principles about consent to medical treatment but also contains a broader statement of the right of the surrogate mother to manage pregnancy and birth. In terms of modern legislation, it is useful that the bill has removed the gendered language. I do not think that there is any depth of concern about that. The bill also reflects on the language that is currently used in relation to surrogacy, rather than using some outdated terms from the previous legislation.

In the parliament there have been arguments about whether the age of the surrogate should be set at a minimum of 18, as it was in the previous legislation. Eighteen is the age of majority, when people are adults and can make their own decisions. The bill puts in a minimum age of 25 years. While I am not somebody who had deep concerns about 18 having previously been the suggested age, I also do not have any objection to 25 being set as the minimum age as a precautionary principle for what is going to be in the best interests of the child and the family and to ensure that somebody is fully aware of the decisions they are going to make, given that this is effectively going to be a new set of opportunities and rights.

In relation to counselling, the bill has a separately enforceable right to counselling for the surrogate through conception attempts, pregnancy and for six months after birth. The costs of the counselling sessions must be met by the intended parents, irrespective of whether that is to be covered in the agreement.

The bill removes the need for infertility certification for surrogacy agreements in which neither intending parent provides genetic material, and it allows surrogacy agreements to cover all sorts of compensation found in the Family Relationships Act. This could include costs related to the pregnancy or the birth of the child; post-birth care; medical, counselling or legal services costs; and reasonable out-of-pocket expenses.

Additionally, it allows for the surrogate to be compensated for loss of income related to the pregnancy. I again come back to this point: we are not wanting to set up an opportunity for profiteering in doing this, but we need to have a realistic appraisal of reimbursing costs. I think it is absolutely fair that loss of income is included in those lists.

The bill deals with the opportunity for single intending parents or de facto couples who have not yet cohabited for a period of three years, which was not previously the case, and it accommodates for cross-jurisdictional arrangements such as the removal of the requirement for fertility treatment to occur in South Australia and allowing interstate lawyers to provide the lawyer's certificate. I think given the maturity and development of these arrangements interstate—we try to be a federation and not just a collection of states—having that responsible recognition of what occurs in other states is a reasonable step forward.

I thank the Attorney for her work with the Hon. John Dawkins on this bill. The Attorney-General introduced the bill on 22 July. I understand that opposition members from both the upper and lower house and their advisers were briefed on 28 August, and I look forward to their contributions either later today or tomorrow. I believe it is a conscience vote for the Labor Party as well, so there may well be contributions on both sides.

As we seek to enable our communities to grow their families through this opportunity if necessary, I think we as parliamentarians should do our best to reflect on the best interests of people living in our communities. I think that denying them the opportunity to use the services that this piece of legislation provides is unreasonable. For people who are unable to have children through other means, this can be an opportunity to change their lives for the better.

Members may be familiar with parents whose children have been born as a result of surrogacy provisions. They may have been in other jurisdictions or have managed to work within the frameworks wherever they may live. Those children are obviously the lights of their lives. I encourage members to support the bill. I look forward to discussion in the committee stage, assuming that the second reading is successful, about the member for King's proposed amendments. I imagine these will also be dealt with as a conscience matter by the Labor Party; they certainly are by the Liberal Party.

I indicate that as the member for Morialta I am inclined to support the member for King's amendments, so I do not have to reflect on that during the committee stage, although members with a different point of view may make persuasive contributions, so we shall see. For the moment, I am certainly inclined to support the amendments on the basis that the member for King has described and I look forward to the committee stage.

Members, in their contemplations, may look at the Hansard of the previous bills. I think that most members supported those bills, and I believe there is nothing in this legislation that would suggest to anyone who has previously supported bills of this nature that they should not do so again. I commend this bill to the house and thank the Attorney for bringing it forward.

The Hon. R. SANDERSON (Adelaide—Minister for Child Protection) (12:49): I also would like to speak on the Surrogacy Bill and commend the Attorney-General for bringing this to the house. I would also like to acknowledge the extensive work of the Hon. John Dawkins over many years on this topic. I actually worked with the Hon. John Dawkins many years ago. I was just trying to find the date, but I believe it was in my first term, so between 2010 and 2014, that I actually brought amendments to the house as a backbencher. I believe it was one of the first times that an opposition backbencher actually had support for a private member's bill.

I worked very closely with minister Hill, the minister at the time, to amend the surrogacy act, as it was then. In the original act, surrogacy was permissible for somebody in the instance where the child's life was in danger or where a woman could not conceive. It was brought to my attention by a young woman who had had a child already by IVF. During the term of carrying the child and after the birth, she had severe physical issues. She was in a wheelchair.

Her body had absorbed the calcium from her bones. She was on a walking stick for nearly two years because her body could not carry a baby. She had multiple blood transfusions. She wanted another child, however, was told that there would be a severe risk of those issues returning in the future. The surrogacy laws at the time only contemplated a danger to the baby rather than the mother, which it seems crazy to have a baby born and the mother does not survive or is unable to care for it.

It was very good to get the support of minister Hill to bring that through. He also took the opportunity to add in another amendment at that time, which was for women who could conceive but could not carry to term, because that was also something that was coming up often. There are many women who can conceive but often miscarry in the first few months, and they were not covered by the original surrogacy bill. We worked well together and we got both of those amendments through the house.

I note that this new legislation actually goes a lot further because this is now recognising that families come in many different styles. Same-sex couples and those who are unable to conceive, whether by age or circumstance or sexuality, are now covered, so it is less restrictive than it was. It does raise a few issues of inconsistencies as far as the utilisation of assisted reproductive technologies and even the current adoption act, which is not available, unless under special circumstances, for a single person. We need to really get some consistency going across other bills that will be affected by the changes in this bill.

I definitely think this is a move in the right direction. This is a move that will help many people who would be wonderful parents to have families. This gives them the opportunity, along with our recent announcement last Friday of adoption being more widely available and promoted, particularly for children in care. We know that for the last five years there have been no adoptions of children in care. That is something for people who are considering a family to also consider.

Obviously, it would only be in limited circumstances for the children who are in our care who could definitely not be returned home to their own family, and there would be careful consideration of the child's best interests. The voice of the child is also very important now in legislation, but also in determining policy for adoption and permanency planning for children.

Approximately five years ago, I was fortunate enough to meet with UNICEF in New York and talk to them about child protection in general across the whole world. At that time, there had been a major disaster. One of the things that we discussed, and in fact they suggested, was that our country needed to change its surrogacy laws not only to be more in line with the rest of the world but also to prevent what was happening after a major disaster in Third World countries—that is, children were actually being sold to raise money. They said that if we had surrogacy laws that were more available for people who wanted children then it would limit the trade of people who were going to these poor countries and buying children because they had no other option or way to have their own children.

I was quite surprised that UNICEF would be promoting that, but they did see it as a really big problem for wealthy countries such as Australia, New Zealand and England, where people did have the money and they do want the children, but that was then being used in the wrong way in poorer countries. So I think this will go a long way to solving that problem as well. Of course, there was the case of baby Gammy, which everyone would be very aware of as well and the issues around that.

It is very natural that people would want to have their own family and that they would want to have children, but not everybody, whether by circumstance, age, sexuality or whatever, has the ease of that possibility of having their own family. I think this is a great piece of legislation and I am proud to be part of a government that has brought this forward.

Again, I would like to particularly acknowledge the Hon. John Dawkins for starting this conversation so many years ago and for doing a lot of the work—years and years and years of work, I think—to get to this point. Now we are finally in government and we can actually bring through this legislation, so I commend the bill to the house.

The Hon. D.J. SPEIRS (Black—Minister for Environment and Water) (12:55): It is a pleasure to be able to make a contribution today on the Surrogacy Bill 2019. It is a bill for an act to recognise and regulate certain forms of surrogacy in South Australia, to ensure commercial surrogacy remains unlawful in South Australia, to make related amendments to the Assisted Reproductive Treatment Act 1988, the Births, Deaths and Marriages Registration Act 1996 and the Family Relationships Act 1975, and for other purposes.

I believe this legislation is a long time in coming in South Australia. I would particularly like to reiterate the comments that have been just made by the Minister for Child Protection in relation to the contribution that the Hon. John Dawkins has made to this policy area and policy debate over a very extended period of time. When I first got involved with the Liberal Party, around a decade ago, I became aware very quickly that the Hon. John Dawkins was a leader in the policy discussions taking place around surrogacy, and I know this has been a labour of love—excuse the pun—for him over an extended period of time. I know that the Hon. John Dawkins joins us in the chamber today, and I would like to pay particular tribute.

When you enter politics and public life, you have an opportunity to take a close look at particular policy issues that are either your personal passion or a passion of people in the community you seek and desire to represent. The Hon. John Dawkins has certainly done this when it comes to the situation of surrogacy in South Australia. Over an extended period of time he has done the research, he has looked at models overseas, he has looked across the nation at what is happening and he has identified the need for law reform around surrogacy in South Australia and to provide appropriate protections as well. We are here today because of his contribution to this area.

When it comes to conscience issues before this house, I have a history of having quite a conservative approach. However, in terms of surrogacy and the need for surrogacy law reform, with the appropriate protections, it is certainly something that I will be providing my support to, as a member of this place, when this legislation comes to be voted on. I think it is legislation that is needed in 2019. I think there is a place for surrogacy within our society. I think there is a very important place for surrogacy, as I say, with the right protections, within society in South Australia in 2019.

I have reached that conclusion. It was not a difficult conclusion for me to reach because I have on many occasions come across people within our community, either constituents of mine or people who are within my circle of personal friends, who have, for whatever reason, struggles with becoming pregnant or being able to bring children into their lives in some way or another. I would like to seek leave to continue my remarks.

Leave granted; debate adjourned.

Sitting suspended from 12:59 to 14:00.