Bills

Family Relationships (Surrogacy) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. J.S.L. DAWKINS: In response to a number of honourable members' questions, and following contact from constituents, I advised the council on 25 February this year that I was considering amendments to certain sections of the Family Relationships (Surrogacy) Amendment Bill 2015. After receiving advice and a great deal of consultation, I wish to put on the record my position on a number of issues and potential arrangements that have been raised. In response to the Hon. Tung Ngo's question:

As a man I will never be able to understand the emotional bond that develops between a mother and her baby during pregnancy, but I can foresee a scenario where surrogate mothers who have previously come to an agreement with commissioning parents then decide that they want to keep the baby. How is this issue dealt with? I would also like to know what information will be available to women who are considering placing themselves on the register. It is a very big decision to make.

After contact from several constituents on similar issues, I indicated that I was considering amendments that may provide a legal circuit breaker in these situations. It is important to note that South Australia is not unique in the commonwealth when it comes to the issues of presumed parentage, parentage orders and surrogacy, as these legal hurdles have been experienced a number of times in a number of jurisdictions.

However, after further discussions I am advised that the experience of individuals caught up in these situations was an unintended practical roadblock from the original legislation passed by this parliament a number of years ago. The original legislation quite deliberately required the agreement of both parents and the surrogate as necessary preconditions to a parenting order being made by the court.

If a legal circuit breaker were inserted into the legislation, it may require a court to make a parentage order without the consent and, potentially in some cases, directly in opposition to the wishes of an individual who would be directly affected and party to such an order. It seems that it would be an unusual set of circumstances that would require the judiciary to step in.

For members' benefit it is worth noting that the current legislation, for instance section 10HB(8), currently allows the court to dispense with:

(a) the agreement of a surrogate in certain circumstances where their consent is not possible to obtain in order to grant a parentage order; and

(b) if the situation where one of the parents, party to a recognised surrogacy agreement, dies after the agreement was entered into, and therefore an indication of agreement from that party would no longer be possible, the court can still grant a parentage order.

With that being said, flexibility already exists in the legislation to accommodate a number of circumstances when consent for a parentage order may be difficult to obtain from one party, and the limits that currently exist to me seem sensible and should be retained.

It is not my intention to prevent, nor does it seem to be the case that a court could not make a parentage order where one parent party to the recognised surrogacy agreement gives consent but the other does not. Section 10HB(9) of the current legislation states only that the court take this fact into account when considering an application for a parentage order. It does not prevent the parentage order from being made.

This provision is backed up by section 10HB(13)(a), which provides for the ability to deal with the commissioning parents jointly or separately. Whilst the court may still choose to refuse orders in certain circumstances, in my opinion the current legislation provides sufficient flexibility to deal with the circumstances mentioned by the Hon. Mr Ngo. A further question from Mr Ngo asked:

Another question I would like a response to is whether this amendment bill is effectively setting up an industry, whether altruistic or not, which needs adequate safeguards built in to provide certain protections for all parties involved. Even if a surrogate acts out of altruism, she would still expect that the necessary expenses she has incurred throughout pregnancy would be accounted for by the commissioning parents. If this does not occur, what protections are available in this bill? What if there are unexpected complications in the pregnancy, and this changes the attitudes of commissioning parents? Do these matters become a purely civil issue with no protections available to the surrogate mother?

Again, after speaking with several constituents, as I indicated previously to the committee, I was considering bringing an amendment to broaden the definition of what costs surrogates may be compensated for.

However, whilst I am not in any way opposed to compensation for costs that surrogates incur during a pregnancy or even under a broadening of that definition, I am concerned about the practical effect of a provision that broadens recompense from out-of-pocket expenses to 'related' expenses and the potential for misuse.

The last thing I want to do is to scuttle the hard work that has been done in this state to get laws regarding surrogacy to the point that they are today by unintentionally allowing misuse of a provision inserted into the legislation with the purest of motives which makes it easier for individuals to abuse the provision for compensation and, in one form or another, allow commercial surrogacy in this state through the back door. For these reasons, I intend to leave the provisions for compensation of costs for surrogates as they currently stand.

I have also been contacted by a member of the public who has herself selflessly offered to carry a child as a surrogate for intending parents. An issue raised by this woman, who has actually been through the process in South Australia, is the fact that post birth counselling for surrogates, whilst compulsory at the beginning of the surrogacy agreement, is not compulsory post birth.

After hearing the concerns of this constituent and being able to, at least, fathom what emotional impact having a child for someone else, having a mother-like bond and then quite rightly handing the child on to the intending parents would have both emotionally and physically on a surrogate, I believe mandatory counselling post birth must be offered to these incredibly selfless women.

In this vein, I intend to have an amendment drafted to reflect this in the bill and ensure that surrogates who engage in this process receive the support they need post pregnancy. I do not intend to make noncompliance with this provision a criminal offence, however. I do believe this protection should be offered to those women who selflessly offer themselves to deliver arguably the greatest gift anyone could ever give.

I would further like to reiterate to the council answers I have previously given in this place and also answers to questions I have received from constituents since this issue was first brought before the parliament. In response to the question of whether the state framework for altruistic surrogacy as described in the bill will apply to an overseas arrangement, even if it is a commercial arrangement, I advise the council that the framework itself is not a substantial legal document and therefore is more of a guide or summary of information from which to work.

This bill does not provide for an offence or sanction for not complying with the framework as developed by the minister. The framework is designed to inform decision-making and qualify some offences, such as those in section 10H of the bill and also sets out the requirements that would be imposed on or in the proposed surrogacy register.

For an overseas agreement, commercial or otherwise, to be captured by this part, it would need to be a recognised surrogacy agreement, and, for the purposes of overseas surrogacy, be a prescribed international surrogacy agreement as defined in section 10F of the bill. Therefore, if this is not the case, it is not intended that it be affected by the framework; however, the responsible minister, if the agreement is that contemplated by paragraph (b) of the definition of a prescribed international surrogacy agreement, will be required to adhere to the conditions included in the framework and referred to in section 10FA(3)(c) of the bill.

Secondly, in response to the question of whether overseas arrangements need to go through the Youth Court in South Australia to confirm and/or recognise parentage, I advise the council that yes, that is the case. To get a parentage order from the Youth Court for an overseas arrangement, the request would need to come out of a recognised prescribed international surrogacy agreement, and the commissioning parents would need to reside in this state. If a parentage order is not sought, the usual presumptions of parentage would apply in South Australia.

Finally, in response to the question of whether the bill will place an obligation on intending parents who are bringing a baby back from somewhere overseas to then have to go through a parentage order application through the Youth Court here in South Australia in relation to that baby, I advise that that is not the case. It would only be in the case where the individuals concerned wanted to be the legal parents under the law of South Australia. In that case, they would need to obtain a parentage order through the Youth Court. If this is not the case, the ordinary parentage presumptions will continue to apply in South Australia.

I would finally like to place on the record some information which I received yesterday from the office of the Attorney-General regarding COAG's recent discussions on surrogacy arrangements across the commonwealth. The two points provided are:

The Attorney-General is advised that [Western Australia] raised the issue at the most recent COAG meeting (in October 2014) during discussions on intercountry adoptions, particularly due to the 'Baby Gammy' incident. COAG agreed that COAG Senior Officials (that is, the Chief Executives of First Ministers departments) would consider the merits of a national overseas surrogacy scheme…

In the meantime, the Attorney-General understands that the [Western Australian] Attorney-General has recently written to the [Attorneys-General] in all jurisdictions suggesting that they discuss the issue through the Law, Crime and Community Safety Council; on 6 March 2015 COAG Senior Officials agreed to leave the issue to the [Attorneys-General] to progress through that forum.

I would like to thank the Attorney-General's chief of staff, Kim Eldridge, and ministerial liaison officer, Peter Geytenbeek, for keeping me up to date with this information so that I could provide it to the council.

Since I brought this bill to the parliament, I have been in contact with a number of interested stakeholders and constituents. They have brought to my attention a number of issues and questions, along with those raised in this place. For the benefit of the council, I advise honourable members that I am still actively considering a number of these issues and others which have come to my attention, and will advise honourable members of further information and potential amendments if and when they become available.

Can I say that I think the overwhelming majority of people who have contacted me have been very supportive of the intent of the bill. Obviously there have been some questions that I have attempted to clarify, and I will continue to do that in due course. I am very happy to hear from any honourable members any questions that they or their officers have arising in relation to the bill and, more particularly, my clarification today and on the previous occasion that the committee met.

I do appreciate, once again, the assistance that parliamentary counsel and Mr Brad Vermeer of my staff have provided. It is a significantly complex matter, and it is one that I wish to get the absolute best result for this state and the couples who have approached me, who are, in the main, very private about their own situations, but they are very encouraging of my work.

I intend to have conversations with some members in the next week. I know that certainly the Hon. Tammy Franks is one who has already made that arrangement, and I am happy to do that with others. Given that our next sitting week is actually next week, I indicate now that I will be actually asking to take the bill through its remaining stages and have a third reading vote on Wednesday 6 May 2015.

Progress reported; committee to sit again.

The Hon. J.S.L. DAWKINS: Mr President, I draw your attention to the state of the council.

A quorum having been formed: