Statutes Amendment (Surrogacy Eligibility) Bill

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (16:20): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

In January 2015 the Attorney-General gave the South Australian Law Reform Institute ('SALRI') reference to inquire and report on South Australian laws that discriminated on the grounds of sexual orientation, gender, gender identity and intersex status. Following their review, SALRI released a report entitled Rainbow Families: Equal Recognition of Relationships and Access to Existing Laws Relating to Parentage, Assisted Reproductive Treatment and Surrogacy. The report encapsulated SALRI's review of equal recognition of relationships and parenting rights and surrogacy in South Australia, and recommended a number of changes.

On 22 September 2016 the Relationships Register Bill 2016 was introduced into the other place to address the recommendations set out in SALRI's report, amongst other matters. However, given the complex nature and the breadth of the issues which were addressed by the Relationships Register Bill 2016, the Bill was split, on 15 November 2016, into the Relationships Register (No 1) Bill 2016 and the Statues Amendment (Surrogacy Eligibility) Bill 2016.

Whilst the Relationships Register (No 1) Bill 2016 makes provision for the registration of certain relationships and makes consequential, related and other amendments to the Births, Deaths and Marriages Registration Act 1996, the Domestic Partners Property Act 1996, the Equal Opportunity Act 1984 and the Wills Act 1936, the Statues Amendment (Surrogacy Eligibility) Bill 2016 proposes amendments to the Assisted Reproductive Treatment Act 1988, the Equal Opportunity Act 1984 and the Family Relationships Act 1975 to alter the access and eligibility provisions and the rules dealing with surrogacy, access to assisted reproductive treatment and the recognition of legal parentage.

This Bill is an incredibly important piece of legislation that will help bring about equality for the lesbian, gay, bisexual, transgender, intersex and queer ('LGBTIQ') communities of South Australia. Although the changes proposed by this Bill will not affect most South Australian, it will have a profound impact on those South Australians who will, by virtue of the changes in this Bill, have access to assisted reproductive treatment and surrogacy agreements. The discrimination in the law, as it currently stands, makes what is already a complicated and stressful process even more complicated and stressful. This Bill will remedy that.

The Relationships Register (No 1) Bill 2016 proposes changes to South Australia's legislation to recognise that people in South Australia choose to enter diverse types of relationships. This Bill takes the logical next step by recognising that persons in the LGBTIQ community are capable of providing the essential ingredients for a positive and nurturing family in which family members are safe, with their mental, physical and emotional wellbeing cared for. This Bill does that by allowing members of the LGBTIQ to create their own families through access to assisted reproductive treatment and surrogacy agreements.

I turn now to the key features of the Bill.

The Bill will amend:

the Assisted Reproductive Treatment Act 1988 to clarify that a person can access assisted reproductive treatment if, in the person's circumstances, they are unlikely to become pregnant other than by an assisted reproductive treatment procedure and will include the guiding principle that people seeking to undergo assisted reproductive treatment procedures must not be discriminated against on the basis of their sexual orientation, marital status or religion;

the Equal Opportunity Act 1984 to remove the current exemption excluding particular fertilisation procedures from the definition of 'service' for the purposes of the Equal Opportunity Act 1984; and

the Family Relationships Act 1975 to:

amend the definition of 'qualifying relationship' to include a relationship between two people who are partners irrespective of their sex or gender identity; and

with respect to surrogacy, permit access to surrogacy for domestic partners (including parties to a registered relationship), regardless of sex, gender identity or marital status.

This Bill is a crucial and strong step towards removing discrimination against members of the LGBTIQ community. I commend this Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Assisted Reproductive Treatment Act 1988

4—Amendment of section 9—Conditions of registration

Section 9 of the principal Act makes provision for the kinds of conditions which must be imposed on the registration of a person authorised to provide assisted reproductive treatment under the principal Act. The first proposed amendment to this section provides for an additional condition of registration prohibiting the person from refusing to provide assisted reproductive treatment to another on the basis only of the other's sexual orientation or gender identity, marital status, or religious beliefs. Currently, a condition of registration prevents the provision of assisted reproductive treatment except where a woman or man is or appears to be infertile. This would be changed by an amendment that provides that such treatment may be provided if it appears to be unlikely that, in the person's circumstances, the person would become pregnant other than by an assisted reproductive treatment. The third proposed amendment achieves gender neutral language.

Part 3—Amendment of Equal Opportunity Act 1984

5—Amendment of section 5—Interpretation

This amendment is consequential on the amendment to the Assisted Reproductive Treatment Act 1988

Part 4—Amendment of Family Relationships Act 1975

6—Amendment of section 10A—Interpretation

This amendment proposes to substitute the definition of qualifying relationship that is not substantially different from the current definition but uses language consistent with other proposed amendments.

7—Amendment of section 10C—Rules relating to parentage

This proposed amendment would amend new section 10C(3a) (which commences operation on 23 September 2016) to ensure the use of consistent language.

8—Amendment of section 10F—Interpretation

Part 2B of the principal Act provides for certain surrogacy agreements to be legal. Currently, the scheme envisages that there will be 2 commissioning parents in relation to a surrogacy contract. The proposed amendments to this Part will, subject to the conditions set out in section 10HA, allow persons in a registered relationship to enter into a recognised surrogacy agreement as commissioning parents.

9—Amendment of section 10HA—Recognised surrogacy agreements

10—Amendment of section 10HB—Orders as to parents of child born under recognised surrogacy arrangements

These amendments are consequential.

Debate adjourned on motion of Hon. T.J. Stephens.