Bills

Family Relationships (Surrogacy) Amendment Bill

Introduction and First Reading

The Hon. J.S.L. DAWKINS (16:43): Obtained leave and introduced a bill for an act to amend the Family Relationships Act 1975 and to make a related amendment to the Assisted Reproductive Treatment Act 1988. Read a first time.

Second Reading

The Hon. J.S.L. DAWKINS (16:44): I move:

That this bill be now read a second time.

Recently, there has been significant media attention and community disquiet regarding the actions of some Australians pursuing the use of commercial surrogacy in international jurisdictions. This has stemmed from several cases where surrogate parents have failed to take custody of a child produced through a surrogacy agreement due to birth defects. There have also been concerns raised about the suspicious background of some prospective parents, and certainly this was brought to public attention through the recent 'Baby Gammy' stories that members would be familiar with.

Such was the broadranging concern on the matter regarding overseas commercial surrogacy and the impact on altruistic surrogacy in this country that the potential of creating federal laws in this area was highlighted at a recent Council of Australian Governments meeting. This proposal was rejected by the commonwealth, which stated its preference to work with states to improve current laws and standards and to make access to surrogacy arrangements in Australia easier for approved prospective parents.

Having been originally responsible for introducing a bill to legalise altruistic surrogacy in South Australia a number of years ago, I felt that limited amendments to the act could be made to bring it into line with today's community expectations, and I say that without criticism of the original bill, but it was a bill that I prepared without the assistance of a department. It went through a parliamentary committee.

It had a very protracted passage in the House of Assembly, where it was stalled for some time and was, I think, weighed down to some extent by some amendments suggested by the health department. While I accepted those amendments, I think that they probably weakened the bill in some senses. However, my view at that time was always that we should have the bill and that there would always be opportunities to improve on it, and certainly the first of those took place a number of months after the act was brought to fruition.

I see this as an opportunity to further improve the current act. With this in mind, I convened a meeting with a number of external stakeholders, and we investigated what improvements may be possible to the current law in South Australia to secure the welfare of children born through surrogacy, to try to make accessibility of surrogacy arrangements in this jurisdiction wider, to limit overseas use of the commercial surrogacy process, and to ensure that commercial surrogacy remains banned in South Australia.

Following these discussions, it was generally agreed that a number of amendments needed to be made to the current legislation and to ensure that the law remained consistent with community expectations and to limit the prospects of international abuse of the system whilst maintaining the ban on commercial surrogacy in this state.

So, as a result amendments have been drafted to reflect the following principles in the relevant legislation. The first is to allow for reasonable reimbursement of costs incurred by a surrogate mother during the period in which she is carrying the baby. That would expand the number of people willing to be part of the surrogacy option as there are currently a limited number of women who are able or willing to participate in the lengthy and often onerous process without any reimbursement of reasonable costs.

The second is to establish a framework that would enable a register of approved surrogates to be established and to be accessed by approved medical institutions, to make finding a surrogate for prospective parents in South Australia easier. This framework will enable prospective parents to go to an approved institution and have a willing surrogate recommended to them, rather than having to source one themselves or be forced overseas to engage in a commercial surrogacy agreement.

The current situation, of course, is that it is limited basically to people who are looking for a surrogate being able to source one from their family and friends. If they have no-one in that group of people that they know who is either willing or able to be the surrogate, then they are really forced to then go into the overseas commercial surrogacy market. So, such an amendment would obviously make it possible for a commissioning couple to contact a surrogate via, first, the approved medical institution and, secondly, the register. I see that as something that would make the act much more accessible to many people.

Thirdly, an amendment would insert a provision that would regulate overseas surrogacy arrangements, whereby any proposed international surrogacy agreement would go before the responsible minister and be assessed on a case-by-case basis for approval, much like the process already in place for overseas adoptions. In the minister's consideration for approving a surrogacy agreement he or she would, as their primary concern, ensure that the welfare of the potential child is protected, and that unsuitable parents, certainly including those with criminal histories in the area of child sexual offences, are discouraged from using this option. This would be a solution, maybe not wholly but partly, to issues recently raised with current laws by the baby Gammy issue.

Fourthly, it is to ensure that the minister reviews the framework for the upkeep of a surrogate register and approvals of surrogacy agreements at least every three years to ensure that it is in line with current community expectations. I am very grateful for the assistance of a number of stakeholders that I have had in preparing this amendment bill, and I particularly mention Mr Morry Bailes, President of the Law Society of South Australia, Dr Christine Kirby from Repromed, and Mrs Kerry Faggotter, the mother who originally advocated for the surrogacy legislation and worked very closely with me on it, but also a number of other people who have a strong interest in improving the law in this area.

It is my intention to bring this matter to a vote in the very near future, certainly because I think it is a matter that is of great concern to the community in relation to some of the jurisdictions that are dealing with commercial surrogacy overseas. I think many people are of the view, like myself, that when we have such a world-class reproductive technology capability in this state, it makes such great sense to make it more accessible to couples who are seeking surrogacy to be able to do that here in South Australia.

I formally advise members that I will be seeking a vote on this bill on Wednesday 3 December and I am very happy to speak to any member of the Legislative Council about the bill and to answer any of their questions as much as I may. I am very grateful for the assistance of parliamentary counsel in developing such a bill. I think it is an area, obviously, that goes into some technical areas that are beyond the resources and knowledge of some of us in this place, so I am always very grateful to them, as I am to the stakeholders who have been assisting me with it. Finally, this will be a matter of conscience for members of the Liberal Party but I urge members of this chamber to support the bill.

Debate adjourned on motion of Hon. G.A. Kandelaars.