Bills

Surrogacy Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2019.)

The Hon. D.J. SPEIRS (Black—Minister for Environment and Water) (15:35): I believe that I was on my feet the last time this bill was considered by the house and so I will briefly conclude my remarks. I do not have a great deal to say. As I mentioned when this bill was before the house yesterday, I said that I was broadly supportive of the directions of the bill. I will, of course, look at each of the amendments that are going to be put before the house and make up my mind on each individual amendment, but I am broadly supportive of the direction of this bill.

I do believe—and quite strongly believe, in fact—there is a place for surrogacy as a way for people to be able to have children, and I think that it is worthy that in 2019 this parliament is taking the time to consider law reform in this area. The bill has a range of features outlining what lawful surrogacy agreements would look like and focusing on the desire by the proponents of this legislation to ensure that commercial surrogacy is not something that South Australians will be able to have access to.

People who enter surrogacy agreements will be able to cover the costs borne by the woman who decides to carry the child on behalf of another person or another couple, and that is more than appropriate; however, commercial charges will not be allowed as part of this legislation. There is no doubt in my mind that providing the opportunity for commercial charges to be allowed as part of the surrogacy legislation is drifting into a moral area which, in my mind, is not appropriate. It is obviously good to see that this legislation will take all appropriate steps to outlaw commercial surrogacy.

The legislation also covers off on counselling requirements for those entering a lawful surrogacy agreement and requires intended parents to ensure that counselling is available to the surrogate mother, not only during the pregnancy and during the decision-making period but also after the birth. There is also an amendment before the house from the member for King, who is looking to amend the legislation to insert a clause that will require a working with children check before the surrogacy service is accessed. I believe that is an appropriate protection.

I know that the safety of young people in our society is something that the member King is particularly passionate about. She has worked hard on this amendment and, having only just seen it today, regardless, I certainly agree with the spirit of this amendment and would see myself supporting that as well.

Really, that is all I wanted to say on this piece of legislation that is before parliament. I think it is necessary legislation. I have already congratulated the Hon. John Dawkins on taking the time to pursue this legislation over some 15 years, he tells me, and I look forward to seeing this legislation pass into law and become an avenue for people in our state who are unable to have children for whatever reason. Surrogacy will give them an option that they are not currently presented with, and I commend the legislation to the house.

Mr BELL (Mount Gambier) (15:39): I rise to make some very brief comments on the Surrogacy Bill and indicate to the house that I will be supporting it through to the committee stage. I also congratulate the Hon. John Dawkins on his tireless work in this area.

In the committee stage, I will be reserving my right on the final vote on this bill because the strength of any legislation is not proven when things are going well and things that can be foreseen occur. The strength of legislation, how robust that legislation is and how it holds up to factors that may not have been thought of or contemplated at that time, is proven when things do not go well.

I just want to touch briefly on a couple of concerns as a forewarning, I suppose, for the committee stage when I will be asking questions really around the rights of the surrogate and also the donors, or what I will call the parents, of the child. When it is going well it becomes a not simple but logical transaction. Of course, in Thailand we had baby Gammy, who was born with Down syndrome, and I reflect on that situation when it comes to this bill. How is this legislation going to handle something like this, which can occur?

I reflect on that situation where the parents no longer want the child, as happened with baby Gammy in Thailand, because of a disability. Where is the onus on who is looking after that child or the legal guardian of that child if that contract breaks down for whatever reason? I am just using the reason of a disability. What occurs if in that transaction phase of nine months or 10 months, the parents separate and no longer wish to pursue having that child?

These are the things that I really want to explore in the committee stage, that is, what this legislation does to address some of those issues within the bill not when things are going well but when things potentially go very badly and this legislation is then before the courts, or people are before the courts. I keep coming back to one part that I really like about this, and that is the best interests of the child.

As I said, there are other questions that I will have through the committee stage. I congratulate the government on bringing this forward. It is a conscience vote so there will be many people with diverse views on this. While I segue a little away from the bill, I also congratulate the Minister for Child Protection on her push for adoption and increasing the ability for people in South Australia to adopt children.

I really do congratulate the government on putting the child first. Looking at that through the lens of what currently has been going on, I would argue quite strongly that perhaps in a lot of instances, or some instances particularly, what is best for the child has not been held up in the highest manner it can be.

I also indicate that I support the member for King's amendment regarding criminal history checks or police checks. I will be interested to ask some questions around the introduction of that and how it is going to play out as part of this bill. With those very brief comments, I indicate that I will be supporting this through to the committee stage. I will certainly be engaging heavily with questions during that stage and reserving my right on the final vote.

Mr PATTERSON (Morphett) (15:45): I also take the opportunity to speak on the Surrogacy Bill 2019. The South Australian Law Reform Institute (SALRI) defines surrogacy as the practice of a woman (the surrogate) becoming pregnant with a child that may or may not be genetically related to her and carrying the pregnancy and giving birth to the child for another family (the 'intending parents', as this bill refers to them), who then become the legal parents of the child.

A more simple definition of surrogacy is that it is an understating or agreement by which a woman (the surrogate mother) agrees to bear a child for another person or couple. At the outset of this debate, I acknowledge that surrogacy is a complex and sensitive subject that raises many ethical and legal issues and other implications. It is certainly a topic that attracts strong and often conflicting views. As such, we are certainly considering an extremely sensitive area of policy for the community.

In terms of the present law in relation to surrogacy in South Australia, it is contained in part 2B of the Family Relationships Act 1975. I acknowledge the valuable contribution the Hon. John Dawkins MLC has made to surrogacy law reform in South Australia—notably, the Family Relationships (Surrogacy) Amendment Act 2015 and the Family Relationships (Surrogacy) Amendment Bill 2017.

As a consequence of the 2017 amendments, in December 2017 the South Australian Law Reform Institute was asked by the former attorney-general to inquire into and report on the law regulating surrogacy in South Australia as outlined in part 2B of the Family Relationships Act, and to suggest a suitable regulatory framework for surrogacy in South Australia. One of the recommendations of the review was:

SALRI recommends that, for ease of reference and application and accessibility, the current scheme for surrogacy contained in Part 2B of the Family Relationships Act 1975…be excised and replaced with a standalone Surrogacy Act for South Australia.

The current Attorney-General (member for Bragg) supported this, and introduced the Surrogacy Bill 2019 that we are currently debating. It is certainly a practical reality that some form of surrogacy is an established feature of all Australian jurisdictions except, I believe, the Northern Territory. That is on the basis that surrogacy is non-commercial and suitably regulated.

Added to this is the acceptance of IVF and adoptions. As some submissions to SALRI stated, it is unreasonable, as part of this process, to seek to wind back the law to exclude surrogacy. I concur with this view, as I will outline in my comments relating to this bill.

I have been incredibly fortunate to have met a wonderful lady who, for some strange reason, agreed to marry me, and we have been blessed to have four children naturally. My life has been made complete by having this opportunity to guide and nurture a family but, in return, this family has given me so much more. Again, acknowledging the different viewpoints of the community, if surrogacy can give the opportunity for couples to share in this experience, it is an aim worthy of support in general terms.

Additionally, in my considerations I have been guided by the Hon. John Dawkins' previous statements: the aim of the current law in South Australia to secure the welfare of children born through surrogacy, to widen accessibility of surrogacy arrangements in this jurisdiction, to limit overseas use of the commercial surrogacy process, and to ensure that commercial surrogacy remains banned in South Australia.

The Surrogacy Bill 2019 retains many aspects of the present part 2B of the Family Relationships Act. For example, parties to the surrogacy arrangements must enter into a written agreement relating to the surrogacy prior to conceiving the child, parties must have received counselling and legal advice before entering into the agreement, the surrogacy agreement must not be commercial, the surrogacy mother is considered the legal parent of the child at birth and she cannot be forced to relinquish the child, and 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. Importantly, this order can only be made if it is in the best interests of the child and with the consent of the surrogate mother.

Looking in more detail at various clauses within the bill, clause 3 of the bill provides a simplified outline of the act. Subclause (1) provides:

(1) This Act provides a scheme allowing for certain forms of surrogacy in South Australia. However, all other forms of surrogacy remain unlawful, and the Act provides for a number of offences relating to surrogacy.

Part 2 of the bill then goes on to outline the guiding principles that will apply to this bill. I feel that clause 6—Best interests of child paramount is a very important clause within the bill. In particular, subclause (1) provides:

(1) The best interests of any child born as a result of a lawful surrogacy agreement is to be a primary consideration in respect of the administration and operation of this Act.

One of the reasons this should be elevated to such a primary concern is that the United Nations Convention on the Rights of the Child (CRC) requires the best interests of the child to be the primary concern of all actions concerning children. That is incorporated into that clause. Importantly, the CRC prohibits the sale of children. The sale of children is defined as:

Any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.

With this in mind, it is therefore imperative that any laws relating to surrogacy must protect the child's rights and, importantly, prohibit anything that could involve a child being sold. In light of this, I am strongly of the view that laws relating to surrogacy should apply only to non-commercial surrogacy and certainly look to make unlawful the act of commercial surrogacy, which this bill does.

The bill also outlines what constitutes a lawful surrogacy agreement. That involves an initial counselling session with the parties and then also, at every stage of the process, the ability for counselling to occur right through to the birth of the child and any subsequent court order granting or declaring parentage. The best interests of the child principle certainly should be considered across all these processes, not just when the courts are deciding to transfer parentage.

Clause 7 refers to the surrogacy principles in relation to the lawful practice of surrogacy in South Australia. Subclause (1)(a) provides that the human rights of all parties must be respected. This point is worthy of discussion, because we have multiple parties to this agreement: the surrogate mother, the intending parents and also the child. They may be in conflict, you could postulate, in some form, so which would take priority? If we refer back to a report to the United Nations Human Rights Council, it outlines:

…it is recognised that there is no 'right to a child' under international law. A child is not a good or a service that the State can guarantee or provide, but rather a rights bearing human being. Hence providing a 'right to a child' would be a fundamental denial of the equal human rights of the child. The 'right to a child' approach should be resisted vigorously, for it undermines the fundamental premise of children as persons with human rights.

While this may be quite confronting to intending parents, the SALRI report did note that any such rights of the intending parents do not extend to a right for them to utilise surrogacy to have a child. Certainly, as such, a lawful surrogacy agreement should be entered into only if it is in the best interests of the child, rather than primarily in the best interests of the parents. This is borne out in clause 7(3) that 'surrogacy principles do not displace, and cannot be used to justify the displacement of, section 6', which deals with the best interests of a child.

Moving on to clause 10 and lawful surrogacy agreements, part 3 of this bill sets out the scheme for surrogacy agreements that are lawful and legally recognised, involving the surrogate mother and the intending partner. Section 10(2)(b) defines intending parents as:

a person, or both persons…on whom parentage of the child or children born as a result of the lawful surrogacy agreement will be conferred in accordance with this Act.

I think this is worthy of discussion because under the current law surrogacy is only available for couples who are legally married in a registered relationship or who have lived together in a marriage-like relationship for a period of three years, which I should note does include same-sex couples, whereas in this new bill access to surrogacy would be opened up to single intending parents or de facto couples who have not yet lived together for a period of three years.

Just thinking around this issue about single parents being given access to surrogacy, I think the best interests of a child are well served by having two parents. That is my view, but I do acknowledge that there are single parents out there who, not for deliberate reasons, would want access to children. In grappling with this concept, it is pertinent to point out that other jurisdictions do allow single parents to have access to surrogacy. The argument that not giving single parents access to surrogacy would be discriminatory might be a worthy one but, again, precedence has to be given to the rights of the child first. There are certainly questions around this that I will be interested to hear in further debate and in committee.

What led me to accept that it is in the best interests of the child was an example of a wife and husband who are married and the husband is terminally ill and they are able to collect the husband's sperm, even after he has died from the effects of cancer, and the wife is able to undergo IVF and have a baby. The example given to SALRI was the flipside of this, where a loving husband and wife were married and the wife was unfortunately diagnosed with cancer, a terminal illness.

She was able to store her eggs while the husband and wife were going through the surrogacy process, and they were able to find a surrogate mother with whom they would have been able to have a surrogate child. Unfortunately, the wife died before this could get enacted and so the husband was left stranded in terms of having a surrogate child in South Australia because the current laws do not allow for a single parent to have a surrogate child.

Under those circumstances, I can see that it would be restrictive to deny access to the husband. I would like to think that, as part of the counselling that goes on, precedence could be given to the counsellor to really work through it so that the singles understand what the best interests of the child are and that a bit of weight be given to that.

I moving on to clause 10(4)(f) and 'the following circumstances must exist in relation to the intended parent'. The existing law allows arrangements where neither intending parent is genetically related to the child but a medical practitioner must certify that both intending parents appear to be infertile or that it is medically preferable not to use their reproductive material—so in cases where it might put the mother in harm's way by going through to term.

The bill before us proposes to remove the need for an infertility certification for surrogacy agreements in which neither intending parent provides the genetic material. Of course, this opens up the possibility that intending parents who could use their genetic material may choose not to. It will be interesting to explore this in the committee stage, looking at some of the submissions to the SALRI report. SALRI looked into this concept and formed the view that, for embryo donation in lawful surrogacy agreements, where possible the genetic material from at least one of the intending parents should be used.

Again, in the committee stage, I would encourage exploration of having, where possible, at least one of the parents use their biological material to create a biological relationship with the child. SALRI also explored views for and against whether this had any long-term impacts on the relationship between the intending parents and the child. While there were differing viewpoints in terms of the best interests of the child, if there could be a genetic relationship because at least one of the intending parents had the ability to provide genetic material, that would certainly be my preference.

I will move on to one of the amendments that the member for King has brought out around potential criminal checks that should be part of the standard procedures that intending parents are subject to. In the SALRI report, there was a lot of investigation into this and the fact that the laws currently do not require the intending parents to have extensive criminal checks.

While not about surrogacy, an example was given where parents were able to purchase a young child through overseas adoption and groom it for sexual activities both among those parents and also with their associates, which is reprehensible. It is something that should definitely be avoided as an unintended consequence of a law here in South Australia that looks to provide children to people who genuinely want them because of the joy and love that will create both for them as a family and for the children.

The bill also looks into using other jurisdictions for fertility treatment. At present, both intending parents have to be residents of South Australia and the fertility treatment has to be undertaken in South Australia. This has proved to be problematic for some and has caused some South Australians to try going outside our jurisdiction. While the bill requires both the surrogate mother in clause 10(3)(c) and the intended parents in clause 10(4)(c) to be Australian citizens or permanent residents, it does accommodate cross-jurisdictional arrangements, which would remove the requirement for fertility treatment to occur in South Australia and also allow interstate lawyers to provide the lawyers' certificates.

With those remarks, I think it is also worth noting that the bill requires a review within five years. That will certainly be important to find out any complications that arise from the bill as it is rolled out. Again, I will reserve my right through the committee process pending some of the questions that come up around this. Overall, I commend the Hon. John Dawkins for his work in this area and the Attorney for bringing the bill to the house.

The Hon. A. PICCOLO (Light) (16:04): I would like to make a small contribution to this debate but certainly not repeat what has been said. Generally speaking, I support the principles of the bill. For my support, I would like to see addressed and put into the process of the bill my concern to ensure that the interests of the children are paramount. I agree with the member for Morphett that, while there is a strong desire for adults to have a child, that desire must come second to the wellbeing of the children who are delivered through this process, so I would certainly support that.

The member for Mount Gambier also quite rightly raised the issue of what happens when a child is unwanted at the end of the process. Again, highlighting the wellbeing of the child is very important. While there is a number of parties, including the intending parents, surrogate mother and child, I think it has to be very clear that as the legislature we must put the child's interests ahead of everything else.

I apologise that I was unable to make the briefing this morning, but one aspect that I think is very important and, if it is not covered, I certainly want covered in this bill for my support, is the child's right to know who their biological parents are. In other words, the child should have access to information about the child's biology or genetic material, as it is referred to. I think that children's identity as human beings includes social identity, which we get from socialisation, and there is also a strong desire for people to know things like their genetic and biological history to the extent that laws in other areas are changing to accommodate that. Certainly, there are people who have been adopted or otherwise who have spent many years of their lives seeking their natural parents. I think it is very important for their health information and also to understand their history and how they came into this world.

I also support the amendments put up by the member for King. If those amendments were removed, I am unlikely to support the bill. I would certainly support those amendments. I would like to ensure that the bill also addresses the issues the member for Mount Gambier and I have raised. Without those amendments to cover those issues, I am unlikely to support the bill. Having said that, I do support the general principle. I think it is sound public policy as long as we put the rights and the wellbeing of the child first.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:07): I wish to commence by thanking all the honourable members for their contributions on both the development of this bill and the contribution to debates. In particular, can I acknowledge the member for King, who has foreshadowed some amendments during the course of this debate and who I have absolutely no doubt is resolute in her motivation to do everything she can to ensure that we protect children. She has demonstrated that in a number of areas in the parliament already. Children who might be born as a result of a surrogacy agreement should be no exception. In that regard, I value her contribution.

I will have a little to say shortly in relation to the applicability of draft amendments that I have seen to date. Nevertheless, I want to assure members in the house that, in the circumstances, particularly as a number of other members will be sympathetic to the proposition, there should be some kind of capacity to do background checks on prospective parents and/or surrogate mothers. We need to do it, though, in a manner that will be both valid and capable of being implemented and not in breach of other agreements and/or create restrictions in other legislation. It is a little bit complicated, but I think the motivation is there. I think other members have presented to me the view that we need to have some sort of check. In that regard, we need to work to ensure that ultimately occurs.

The work that was previously done in the parliament to provide an appropriate and modern regulatory framework for surrogacy with minimal government intervention should also be acknowledged. As some members have pointed out, when we attempted to deal with this under the dying days of the previous government on the last parliamentary sitting days, there were other priorities of the former government. I think the person who was most disappointed by that was, of course, the Hon. John Dawkins, who spent a decade trying to support the previous government to get this right to be able to advocate in this parliament. The former attorney was deeply disappointed about the priorities that were displayed on the last day. Nevertheless, that happened.

A lot more work has been done and I think there is capacity for us to ensure what we are trying to do, which is to set up a regulatory framework that will enable South Australians to enter into lawful and enforceable agreements in relation to a surrogacy contract, can occur here in South Australia and to ensure that we provide that opportunity so that our residents do not have to go and live in another state and/or so the privileged few who might have the money do not have to go and effectively buy a baby via a process in other countries.

We have all heard and no doubt read in the SALRI report about some of the unscrupulous practices—it is the kindest way I can describe them—that operate in some other countries that leave particularly women vulnerable to not only being exploited as the carrier of a child, as a surrogate of a child, but left in either financially impecunious circumstances and/or left a child, the product of the agreement, whom receiving parents, for whatever reason, consider not to be satisfactory for them to receive.

That, of course, is no further exemplified than by the baby Gammy case with the rejection of a child who was considered by the receiving parents to not be to standard as a result of a disability with which he was born. If that is not bad enough, they took the child they considered to be in a wholesome state for the purposes of being acceptable to them. They took the good child, from their perspective, and left the one with difficulty, and we are left with a mother who is having to raise a child who is severely disabled.

Everyone in this parliament who has knowledge of that case will forever have etched on their minds the memory of that child being held by its natural mother—surrogate mother, as such—in a foreign country in an impoverished circumstance. The fate of that child's future is just too horrific to think about.

We are all trying to strive towards the same outcome. The previous parliament set up a register system with ministerial oversight. I think that even the minister of the day, the attorney-general (Hon. John Rau) was not at all pleased about having to try to operate that, and I think he was right. Nevertheless, it was something that needed to be fixed. Unfortunately, he did not fix it but, anyway, we are here. We have a chance to do this. We have a chance to give a future to parents who will rely on the surrogacy arrangements in South Australia and be able to have that come to fruition.

There were a couple of matters that were raised in the course of debate that I wish to place on the record. The first is access to genetic information for donor-conceived children. I am advised that a child's access to donor information depends on whether the donor was known or unknown. For known donors, if the parents used a known donor, they are required to list the donor on the birth registration statement, as per section 14(2) of the Births, Deaths and Marriages Registration Act 1996. This is the case for both clinic and do-it-yourself donor insemination and would cover donors to a surrogacy agreement.

Section 46(1a) of the Births, Deaths and Marriages Registration Act states that information about a biological parent—that is, a donor—cannot be released without the permission of the donor. Births, Deaths and Marriages' current processes require the donor to sign the birth registration statement and acknowledge therein that they understand their information will be released to the child at age 18. Therefore, they acknowledge their donation and give permission for the information to be released at a certain time, satisfying section 46(1a). The child can then be provided the official record of their genetic parents when they reach the age of 18. However, their legal parents may have provided that information to them earlier.

In respect of anonymous donors, I advise members as per the advice I have received that the Assisted Reproductive Treatment Regulations 2010 provide that all ART clinics operating in South Australia must comply with the National Health and Medical Research Council guidelines. These guidelines require the fertility clinic to collect and maintain identifying information and medical history about the donors, which must be provided to any children born from the donors' gametes once they reach the age of 18. The clinic may provide such information to a person under 18 if they determined that the person has sufficient maturity.

The next issue that was raised was in relation to the Youth Court processes and the best interests of the child. I advise members that the advice I have received on that matter is as follows. Intending parents under a surrogacy agreement are entitled, after the birth, to apply to the Youth Court for a transfer of parentage of the child. The order to transfer parentage must be in the best interests of the child. This is an express prerequisite for the order under clause 18(4)(a) of the bill.

Respect for the human rights of any child born under a surrogacy agreement is also a fundamental principle of the bill, which applies to the court and is set out in clause 7. The court must also be satisfied that the intending parents are fit and proper and assume the role of parent of the child. In deciding this and any other consideration, the court may inform itself as it thinks fit and therefore can seek any further information it requires. That is in relation to clause 18(11).

Further, clause 18(9) expressly allows the court to require any party to the proceedings to provide an assessment of a specified kind in relation to the matter from an accredited counsellor. That is obtained at the expense of the intended parents. The court must also be satisfied that the surrogate mother consents to the making of the order unless there are certain prescribed exceptional circumstances, such as the surrogate mother has died.

Regarding an issue raised in respect of the counsellor role, the bill covers two types of counselling: mandatory pre-agreement counselling for all parties and optional further counselling for the surrogate. On the question of the mandatory pre-agreement counselling, I am advised as follows. Firstly, prior to entering a surrogacy agreement, each party to the agreement—that is, the surrogate mother and all intending parents—must receive counselling on the implications of the agreement in order to help them come to an informed personal decision about whether to go ahead with the arrangement.

Secondly, the counselling must be provided by a counsellor accredited in accordance with the regulations. The expected requirement to be prescribed is eligibility for full membership of the Australian and New Zealand Infertility Counsellors Association (ANZICA), as recommended by the South Australian Law Reform Institute. Thirdly, the counselling must be consistent with the guidelines published by ANZICA and the National Health and Medical Research Council and any other requirements set out in the regulations. Fourth and finally, the counsellor must provide a certificate certifying that this required counselling was provided.

In respect of the optional further counselling for the surrogate, I am advised as follows. Clause 15 of the bill provides that intending parents must ensure counselling is available to the surrogate mother and her spouse or domestic partner, if any, during the attempt to become pregnant, during the pregnancy and for six months after the birth of the child. Costs are to be paid by the intending parents and the costs are recoverable as a debt. This ensures that the surrogate has access to appropriate professional support throughout the surrogacy process and after the birth.

There may have been other matters that I have missed in relation to contributions that were made. I listened with interest to the member for Light's contribution near the conclusion of the debate and I am hopeful that the access to genetic information for donor-conceived children material I have just provided covers his query. If I have missed other members' concerns or questions that they wish to foreshadow as being an impediment to them being completely satisfied with the bill, then I am more than happy to cover that as soon as I get further information on that.

Obviously, we are yet to go into committee, and we will certainly make every effort to make sure that members have all the material available and that they have their questions answered. I appreciate that this type of legislation raises a lot of questions about how it is going to operate. It is a new concept. It is a new procedure. It is a new process. Whilst I get a lot of advice in relation to these matters as the person who is moving this bill, it is fair to say that it is not without its complications. I fully expect members would want to be completely satisfied in seeking the approval.

Another matter I want to briefly raise is that the member for King has foreshadowed some amendments. One of the matters that has been raised that I do not think is proposed to be advanced as a formal amendment relates to the question of the definition of 'impaired decision-making capacity'. I just place on the record the principal reason why it is important that the bill maintain a consistent position in relation to the definition. It largely relates to the fact that the definition in this bill is not novel, it is not new and it is not peculiar: it is actually the same definition of 'impaired decision-making capacity' that is the standard definition across the statute book.

That includes such legislation as the Mental Health Act 2009, the Consent to Medical Treatment and Palliative Care Act 1995 and the Advance Care Directives Act 2013. Just in case any other members had the view that we needed to somehow or other have a different standard for the definition in relation to the decision-making capacity of the parties in a surrogacy agreement, when issues such as mental capacity for contractual arrangements are developed and the law relating to that is developed, consistency is pretty important for two reasons.

The first reason is so that we have the interpretation by the courts in a consistent manner, and the second reason is so that we do not set up, in this instance, a different set of arrangements for persons who might have a disability in one area of contractual decision-making from the arrangements of another.

It recognises the advancement, I would suggest, of the definition that applies across our legislation now—the advancement of the recognition of persons who have the disability and who may have episodic or intermittent interruption to their mental capacity but who are still recognised as being competent for the purpose of exercising contractual obligations.

That develops over a period of time and recognises, as I say, those who might have that impediment but where the law across other pieces of legislation recognises their capacity, and that is to ensure that the person is able and capable of understanding, retaining and using relevant information in the course of making a decision.

The member for King is quite right to raise the concern about making sure that, in this instance, we are ensuring that the people who are able to sign up to these agreements, these contractual arrangements for which they are seeking approval by a court, are competent to do so, because these are very important decisions. So are advance care directives for people who want to give instructions about their future care, and so are Mental Health Act determinations and decisions which they make and which they are capable of making, and things such as consent to palliative care or medical treatment.

That consistency is very important, that is true, and within the envelope of this legislation I certainly have been advised and am satisfied that maintaining that consistency is important. Having said all that, I thank the member for King for raising it because it also makes us reflect on making sure that what we have is exactly the best option in these matters for consideration; so, I thank her for that.

In relation to the second matter that has been foreshadowed, that is, to introduce some form of mandatory criminal history reporting or access to information in relation to criminal history of intending parents, again this is really a fundamental question which has quite rightly been raised by the member for King and which, I think, has general attraction when you ask yourself the question: 'Are we going to set up a restructure in relation to enforceable agreements for surrogacy in South Australia and in so many other ways in dealing with the protection of children require criminal history checks and the disclosure and the real-time updating of that information for other areas of care of children; why shouldn't we apply it to this?'

We do not have a criminal history check on couples who might partner and/or marry to have children of their own; we do not require that. However, more importantly and leaving aside that arrangement, where we have a regulation as to the competence, I suppose, to be a prospective parent, such as IVF treatment, which is able to be accessed by certain persons and cost provisions are made and guidelines are set up as to what is to occur (and, in fact, there is a very significant fee frequently paid for that by persons who are seeking to have IVF), in those circumstances we do not impose on them some form of criminal history check. The adoption of children under the Adoption Act in South Australia is again through a court process and a number of different checks are required in relation to that process.

Notwithstanding all that, let's assume for the moment that there is a desire for us to have some kind of assessment or check available to be considered and available as part of the information—if the parties seek to have it—for when the court makes the order in relation to an application under the surrogacy proposal.

I say 'if the parties seek to have it' because I think it is reasonable to assume that in a number of cases—most likely in a circumstance where a sister, mother or cousin is going to be the surrogate of the receiving parents and is volunteering to provide this service to their relative—it is probably unlikely that they will say, 'I want you to have a police check before you come into this arrangement.' So, 'Mum, thanks very much for offering to have a baby for me, but I want you to have a police check.' That is not necessarily something that the parties would want to do.

These are the sorts of things that we need to have a look at. I have discussed the matter with the member for King and I think we can probably come to some arrangement as to how we can progress this without breaching our obligations under the use of the current data we collect for the purpose of checks. I have undertaken to work with her overnight to see what we can come up with in that regard.

I just place on the record that, having received the 99(2) amendments that have been tabled, today I have been advised the use of the central assessment unit under the Child Safety (Prohibited Persons) Act 2016 to undertake working with children checks in the surrogacy process would actually breach a national COAG agreement in relation to the disclosure of data and its purpose. I have only just received preliminary advice in that regard, which I am happy to read into Hansard, but essentially it indicates that the use of this information would breach that agreement. If an amendment in that form were to pass, we would have to renegotiate, at the COAG level, access to that unit for the purpose of using it for surrogacy agreements.

One of the matters that has been raised is in relation to what else we can do. I have received some preliminary advice on that, and overnight I will be considering how we could use an alternate method to be able to do what I think the member for King wants; that is, if we are going to have surrogacy agreements in South Australia, we need to know that the parties to them—and I suggest the surrogate mothers as well, not just the receiving parties, as she has indicated in the amendment—do not have a record that obviously identifies them with convictions in relation to child offences. We will work to try to ensure that—

The DEPUTY SPEAKER: Attorney, can I just come in here, please. Can I remind the Attorney that the second reading speech needs to relate to the content of the bill, rather than the amendments in particular. We will deal with the amendments when they come up during the committee stage.

The Hon. V.A. CHAPMAN: Correct. Members have raised it in the contributions they have made; therefore—

The DEPUTY SPEAKER: Yes, and I have been listening carefully—

The Hon. V.A. CHAPMAN: —that is the reason why I am indicating that—

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: Excuse me?

The DEPUTY SPEAKER: Member for West Torrens, I will speak with the Attorney just at the moment. We have had a pretty good run at this, and probably for the past 10 or 15 minutes you have been discussing the amendments themselves. So, with all due respect—

The Hon. V.A. CHAPMAN: Let me put it in this context. Members have raised, in the course of the contributions made in this debate, the imperative and benefit of having checks in relation to children who are going to be parties to these agreements. Without foreshadowing amendments that have been put, I indicate that I think the submissions in those contributions have merit.

I am happy to work with any of the members, including the member for King, on how that can be effected without causing there to be a breach of a whole lot of other processes. I think we can probably do that and I am happy to continue to work on that. I mention that because I think there has been a general discussion on this issue—and there has been public reporting, of course—and it is reasonable that I indicate to the parliament my position as the mover of this bill to accommodate that as we can. In relation to that aspect, I think I have covered it sufficiently and otherwise commend the bill to its second reading.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.