Bills

Family Relationships (Surrogacy) Amendment Bill

Committee Stage

In committee.

(Continued from 18 March 2015.)

Clause 1.

The Hon. T.A. FRANKS: I wish to speak at clause 1 because I had flagged in my second reading speech that I would seek to move amendments to this bill to address areas of equality for potential single commissioning parents and same-sex couple commissioning parents. I am informed by parliamentary counsel that I am unable to do that in this particular amendment bill that the Hon. John Dawkins has put before us and given some reasons by parliamentary counsel why that is the case.

In terms of the recommendation from parliamentary counsel that I perhaps introduce either my own private member's bill, or my own suggestion that I put this into the inquiry that has been flagged by the Weatherill government to look at areas of equality of gender identify and sexuality, I indicate that I will be considering both of those options.

The Hon. J.S.L. DAWKINS: I thank the Hon. Tammy Franks for putting that on the record. I appreciate the communication she and I have had on this bill and I understand the need for her to put that on the record, and I thank her for doing it. That is informative for not only this debate but for other matters that will be in front of the parliament in months to come, I presume.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. J.S.L. DAWKINS: I move:

Amendment No 1 [Dawkins–2]—

Page 4, after line 9 [clause 4, inserted section 10FA(3)]—Insert:

(ea) the information required under section 10HA(2)(b)(xi);

(eb) information explaining the relationship between this Part and the Assisted Reproductive Treatment Act 1988 and, in particular, how in vitro fertilisation procedures under that Act are, or are not, able to be provided in respect of altruistic surrogacy;

This amendment was drafted to address concerns that I had after having contact with a constituent couple who had been told by an IVF provider that they were unable to have any eggs harvested and frozen until a recognised surrogacy agreement had been put in place. So, this amendment is to clear up any ambiguity in the law, particularly for service providers. I note at this point that it is not my intention to prevent the harvesting of eggs by service providers from prospective parents before a surrogate is found.

I now wish that the committee consider this amendment, which would allow the bill's proposed state framework for altruistic surrogacy, which would be developed by the minister if this bill becomes law, to include information which will clarify the relationship between the Family Relationships Act 1975, particularly the sections relating to surrogacy, and the Assisted Reproductive Treatment Act 1988, and specifically how this may affect potential commissioning parents using altruistic surrogacy.

Amendment carried; clause as amendment passed.

Clauses 5 and 6 passed.

Clause 7.

The Hon. J.S.L. DAWKINS: I move:

Amendment No 2 [Dawkins–2]—

Page 6, after line 7—Insert:

(3a) Section 10HA(2)(b)(vii)—delete subparagraph (vii) and substitute:

(vii) the surrogate mother, her husband or domestic partner (if any) and both commissioning parents each have a certificate issued by a counselling service that complies with the requirements of subsection (3);

This amendment has been drafted to ensure that the partner of a surrogate, whether the relationship between the surrogate and their partner be matrimonial, de facto or domestic in nature, will be entitled to counselling prior to a surrogacy agreement being put in place between the parties. Individuals closely associated with a surrogate will be significantly exposed to the process, from the impregnation to the birth of the child, and therefore, in my view, should have access to counselling services to assist them during their partner's surrogacy journey. For the information of honourable members, this potential amendment was raised with me by a lawyer who has extraordinary expertise in surrogacy legislation across the commonwealth as a suggested practical improvement to the current bill and law. I commend the amendment to the committee.

Amendment carried.

The Hon. J.S.L. DAWKINS: I move:

Amendment No 3 [Dawkins–2]—

Page 6, after line 12—Insert:

(6) Section 10HA(2)(b)—after subparagraph (x) insert:

(xi) the agreement states that the commissioning parents will, in accordance with any requirements in the State Framework for Altruistic Surrogacy, take reasonable steps to ensure that the surrogate mother and her husband or domestic partner (if any) are offered counselling (at no cost to the surrogate mother or her husband or domestic partner) after the birth of a child to which the agreement relates (including, to avoid doubt, a still-birth).

The issue which this amendment hopes to address was brought to my attention by a constituent who has acted as a surrogate and therefore has significant experience of the practical implementation of current legislation. The suggestion was also supported by an expert surrogacy lawyer, whom I referred to in the previous amendment, who has made several practical suggestions to this bill.

The amendment would enable both the surrogate themselves and their partner, regardless of whether the relationship between the surrogate and their partner is matrimonial, de facto or domestic in nature, to be offered counselling after the birth of the child which was born as a result of the surrogacy agreement. These constituents and experts who have suggested this practical amendment to me believe that counselling for the surrogate and the person closest to them, as their partner, is vital to ensure the mental health and wellbeing of the surrogate couple after parting with the child born as a result of the surrogacy agreement. I commend the amendment to the committee.

Amendment carried.

The Hon. J.S.L. DAWKINS: I move:

Amendment No 4 [Dawkins–2]—

Page 6, after line 12—Insert:

(7) Section 10HA(3)—after paragraph (a) insert:

(ab) the counselling provided to each person referred to in that subparagraph must, unless it is not reasonably practicable to do so, be provided by the same counsellor;

Note—

Examples where it might not be reasonably practicable to do so would include where the counsellor has a conflict of interest with one of the parties, or is unavailable due to illness.

(ac) except as contemplated by paragraph (ab), the counselling must be consistent with—

(i) any guidelines related to such counselling published by the Australian and New Zealand Infertility Counsellors Association; and

(ii) any relevant guidelines published by the National Health and Medical Research Council;

(8) Section 10HA(3)(b)(i)—delete subparagraph (i) and substitute:

(i) that the person to whom it relates has received counselling about personal and psychological issues that may arise in connection with a surrogacy arrangement; and

(8) Section 10HA(4)—delete subsection (4)

I have moved this amendment after consultation with an expert surrogacy lawyer who I mentioned before and who has had significant experience in the practical implementation of current laws and how they might be improved for the benefit of all parties involved in altruistic surrogacy. The amendment will ensure that the counselling provided to the surrogate, their partner—regardless of whether that relationship is the result of a marriage or de facto or domestic relationship—and the commissioning parents is conducted where practicable by the same qualified and registered counsellor.

This will enable the counsellor involved to have a holistic view of all the relationships between all of the parties involved in a prospective surrogacy agreement and enable them to issue or not issue a certificate based on the substantial information which will be gathered through this holistic approach. This could help nip—I think that was the term that the lawyer used to me—any potential issues which could arise during the life of the agreement in the bud, so to speak, before the agreement is executed. I commend the amendment to the committee.

Amendment carried; clause as amended passed.

New clause 7A.

The Hon. J.S.L. DAWKINS: I move:

Amendment No 5 [Dawkins–2]—

New clause, page 6, after line 12—Insert:

7A—Insertion of section 10HAB

After section 10HA insert:

10HAB—Medical decisions affecting surrogate mother or child

(1) For the purposes of this Act, the Consent to Medical Treatment and Palliative Care Act 1995 and any other Act or law, a question relating to any medical treatment to be provided to a surrogate mother or an unborn child to which a recognised surrogacy agreement relates (including, to avoid doubt, a question relating who can consent to such treatment, whether or not it relates to the pregnancy) is to be determined as if the recognised surrogacy agreement did not exist.

(2) Nothing in this section limits the operation of an advance care directive under the Advance Care Directives Act 2013.

In explaining this amendment I would say to the committee that, while this amendment reflects existing law of the state of South Australia, after speaking with the legal expert in the field of surrogacy whom I mentioned earlier, I decided that it would be my intention with this amendment to reinforce that the surrogate mother—who is giving one of the greatest gifts that any person could ever give to another—has the right to conduct the pregnancy, insofar as it does not contradict the recognised surrogacy agreement agreed to by all parties, as if that surrogate was the natural mother of the child that would be born through the pregnancy that resulted from the agreement. I commend the amendment to the committee.

New clause inserted.

Remaining clause (8), schedule and title passed.

Bill reported with amendments.

Third Reading

The Hon. J.S.L. DAWKINS (17:39): I move:

That this bill be now read a third time.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:39): I rise to indicate that I will not be supporting the Hon. Mr Dawkins' bill for reasons which I have outlined previously in conversations with him in this place. I am still not persuaded that the bill may not have such inadvertent negative impacts on commissioning same-sex parents and, until such a time as I can be reassured of that, I find that I will not be able to support this legislation.

Bill read a third time and passed.