Bills

Statutes Amendment (Surrogacy Eligibility) Bill

Committee Stage

In committee (resumed on motion).

New clauses 3A, 3B and 3C.

The Hon. J.M.A. LENSINK: I have been listening intently to the debate both this morning and yesterday afternoon. I am pleased that the amendments to the amendment have been made; that is, the Hon. Tammy Franks has amended the amendment of the Hon. Dennis Hood and there has been some narrowing. I must admit that I had that same question mark when I looked at some of the conditions, and I was not sure what the intent was. I think there has been some additional transparency for clients that might not have been there before.

I do hold concerns about inconsistency between the federal legislation and the state legislation in terms of the Sex Discrimination Act and our state Equal Opportunity Act. I do not actually accept that these amendments are comparable to medical terminations because that conscientious objection is usually based on medical practitioners objecting to the procedure and administering it, whereas in these amendments it is an objection to providing a service to a particular client group.

In practice, as someone who has undergone these procedures, it is difficult to see how most of the staff who are involved—nurses, anaesthetists, lab technicians and other medical practitioners—would be aware of the personal circumstances of the client or the patient, apart from the actual doctor under whose care and with whom the client's patients are associated and who takes the personal history and so forth. So, for a range of reasons I am unable to support this set of amendments.

The Hon. K.L. VINCENT: I am certainly more inclined toward the Franks version of the amendment, and I thank the Hon. Ms Franks for moving it. My personal initial preference would be to pass neither amendment, and I think minister Hunter did a rather good job of explaining why before we rose for the lunch break. I am going to try to elaborate on some of the points why I think it is wrong to allow anyone to use their religious beliefs to not provide a service to a particular group.

The Hon. Ms Lensink has made a good point: this is not about whether or not they agree with the actual procedure or service holus-bolus; this is about denying it to a particular group. I will try to explain as eloquently as I can why I disagree with that. I try to refrain from telling personal stories in this chamber because, as much as the Hon. Mr Wade might think otherwise, it is not actually all about me; however, there comes a time every now and again when I think they are useful. I have a couple of stories, and I will start with one and then come back to another.

Should I ever have the privilege to have my own family—and it is important that we remember, as Mr Wade has reminded us, that that is not necessarily a right per se but a privilege—I would strongly prefer to do that via adoption rather than by carrying my own children. This is for a number of reasons, but mostly because I see it as: why would I have a baby born into not royalty but relative privilege when I can help a child who already exists? As a friend once put to me, 'You can hang a painting in your house and still love it without having to make the painting yourself.' However, I still support this bill because I understand that this is a very personal and nuanced issue, and it is not for me to stop others from building a family in a different way should they choose to, even though that might not be what I would choose to do.

I want to add at this point that I do support freedom of belief, including religion, in one's private life. I do not have any issue with that. I do not believe that this should extend to the provision of non-religious specific services. Indeed, I think this is backed up by the letter that we have received from such a service provider as Repromed, telling us that they would be quite happy to continue providing services to people seeking ART, regardless of marital status or family structure.

If I book an airfare, if I book a ticket on a flight, no-one at Jetstar or Qantas has the right to ask me why I am booking that flight, even though they might vehemently disagree with the reason I am going on that trip. If I order a cup of coffee at a cafe, no-one asks me if I am buying that coffee in the context of going on a date with a woman. So, I do not see why this sort of judgement should extend to ART services.

The last point I want to make is that I have given this some thought over the break and I have come to the conclusion that even if a registered objector has to refer the client, whom they do not wish to service, to another clinician who may service them, I still think this could cause significant anguish and pain. In thinking about this I was reminded of a similar, but different, experience of my own in which I was having a conversation with my disability support worker at the time—I think she was helping with housework or shopping or something and we got into a conversation, as you do in these situations. Somehow the topic of having children came up. She asked me whether I would like to have my own children. When I responded yes, she looked at me with a look of real shock on her face and said, 'But they would take them away from you, wouldn't they?'

The reason I think this story is relevant is that this disability support worker did not really know me; she was there to provide a service to me. She did not know anything about my physical abilities really, about my emotional abilities to care for a child, about my financial abilities, yet she saw fit to pass that judgement about me based on an obvious physical difference.

Similarly, you could argue that an ART provider does not know anything about a person's background, about their reasons for seeking ART to have a child, so why should they be in a position to pass that judgement? Of course, this support worker did not stop me from having children and has no ability to do that, thankfully, but that memory will stay with me, probably for the rest of my life. It may well be that, if and when I have the privilege of having my own children, that story might come back to me with the memory of the doubts, pain and rejection from that day.

My concern is that, even if a registered objector can state their objection and then refer the client on to someone who might provide those services, that rejection of service initially could cause significant emotional pain and cynicism for people who are already in a pretty vulnerable position, I think it is fair to say, when they are seeking ART services. It is a very emotional and sensitive time. Based on my knowledge and experience and the anecdote that I have just shared, it is clear that there are already enough people facing enough judgement and stigma for wanting to go about living their lives. I cannot sit by and allow more of that stigma and pain to continue, so I will not be supporting these amendments.

The Hon. D.G.E. HOOD: In relation to the Repromed email—I presume all members received a copy—I want to make it clear to the chamber that there is nothing in my amendment that will prevent Repromed from providing ART services to anyone they like, including same-sex couples; merely that a registered objector, if they follow the requirements, would not be forced to do it themselves and they would not be subject to any consequences if they referred those individuals or individual to somebody who was prepared to conduct the service.

The Hon. S.G. WADE: If I could follow on from the comments of the Hon. Mr Hood and relate it to the airline observation that the Hon. Kelly Vincent made. As I understand it, the Hon. Dennis Hood's amendment would not assist an organisation such as Repromed if they were not to provide the service. In that sense, if Repromed or any agency only had practitioners who wanted to become registered objectors, they would presumably be under a legal obligation to procure the services of people who do provide the services.

Can I remind the council that there is more than one set of rights and freedoms that need to be respected. Only a week or two ago, the House of Assembly considered the Death with Dignity Bill that provided in clause 19(1):

A medical practitioner, registered nurse or nurse practitioner may decline to administer voluntary euthanasia on any grounds without prejudice to their employment or any other form of discrimination.

It is a well-established principle that medical practitioners and other health practitioners can on moral grounds, whether that be religious or otherwise, choose not to administer a particular treatment. The Hon. Dennis Hood's amendment sits in a long line of legislative instruments to reflect that value. That does not mean that that bill, for example, was going to allow voluntary euthanasia. Likewise, as I said before, I support this bill opening up surrogacy to same-sex couples, but I do believe it is appropriate to recognise that some medical practitioners and other health professionals may choose not to participate.

The Hon. T.T. NGO: I rise to support the amendments of both the Hon. Ms Franks and the Hon. Mr Hood. I think they are good amendments because, whether we like it or not, there are people in society who have strong religious beliefs. Some honourable members may not think so, but it is their right to have strong religious beliefs. Society has opened up to the world, and migrants are coming here to make their second home, and many have strong religious beliefs. I believe that many migrants do respect same-sex couples even though they have strong religious beliefs.

However, you may have a situation where someone has strong beliefs and, because of their beliefs, they cannot provide that service, and I think we should provide a way out for them. This amendment does that because if someone has strong beliefs, they have to register. They cannot decide on the day or in the moment to say no to that couple. If someone has strong beliefs and they go out of their way to register, we should respect that.

The amendment does not say, 'That's it. You're not entitled to experience motherhood or fatherhood.' It says that they need to find an alternative provider to assist those couples. I cannot see the problem with that because you are not denying this couple a child. I know other honourable members talked about being discriminated against by airlines or while having a coffee, but those service providers do not discriminate based on disability or sex.

This is all about religion. If someone has a really strong belief and they go out of their way to express their view, then as members of this parliament we should respect that. It may happen every now and then, or it may not, but potentially it may. If we do not fix this up and that happens, it could cause a lot of headaches for innocent people who are happy to provide the service but who, because of their strong beliefs, may potentially end up in court.

Ayes 11

Noes 8

Majority 3

Amendment to new clause 3B carried; new clause as amended inserted.

Amendment to new clause 3C(1) carried; amendment to new clause 3C(2) carried; new clause as amended inserted.

Clause 4.

The Hon. D.G.E. HOOD: I move:

Amendment No 2 [Hood–3]—

Page 2, line 14 [clause 4(1), inserted paragraph (ba)]—Before 'a condition' insert:

subject to subsection (1a),

This amendment is consequential.

Amendment carried.

The Hon. D.G.E. HOOD: I move:

Amendment No 3 [Hood–3]—

Page 3, after line 6—After subclause (3) insert:

(4) Section 9—after subsection (1) insert:

(1a) Section 9(1)(ba) does not apply to a registered objector but, in that case, it is instead a condition of the registered objector's registration that the registered objector take steps to refer the person seeking assisted reproductive treatment to another person who is registered under this Part.

This amendment is consequential.

Amendment carried; clause as amended passed.

Clause 5.

The Hon. D.G.E. HOOD: I move:

Amendment No 4 [Hood–3]—

Page 3, after line 17—After inserted subsection (2) insert:

(2a) Despite subsection (2), the refusal by a person who is a registered objector within the meaning of the Assisted Reproductive Treatment Act 1988 to provide assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, or marital status will not be taken to be refusal of a service to which this Act applies.

This amendment is consequential.

Amendment carried; clause as amended passed.

Clauses 6 to 8 passed.

Clause 9.

The Hon. I.K. HUNTER: I move:

Amendment No 1 [SusEnvCons–1]—

Page 4, lines 29 to 32 (inclusive) [clause 9, inserted subsection (2a)(e)]—

Delete paragraph (e) and substitute:

(e) either—

(i) it appears to be unlikely in the circumstances that a commissioning parent would become pregnant, or be able to carry a pregnancy or give birth (whether because of infertility, other medical reasons, risk to an unborn child or for some other reason); or

(ii) there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to a commissioning parent; or

(iii) there appears to be a risk that becoming pregnant or giving birth to a child would result in physical harm to a female commissioning parent (being harm of a kind, or of a severity, unlikely to be suffered by females becoming pregnant or giving birth generally);

I think I said in the second reading speech that this phrasing was deleted with no intention whatsoever of removing any rights that exist under the current legislation, which essentially was inserted by the Hon. Mr Dawkins when he was introducing his legislation. We had a discussion about whether we could put a ministerial statement in place here to assuage any concerns that people might have that no rights were being removed. However, on the basis of discussions I had with the Hon. Mr Dawkins—

The Hon. J.S.L. DAWKINS: Mr Chairman, I am having difficulty listening to the minister. This is an important piece of information for the chamber and there are other people who are talking and I cannot hear the minister.

The CHAIR: I could not hear the others talking because I had my own people talking in my ear. I will ask all members to be respectful of the minister's right to move this in peace.

The Hon. I.K. HUNTER: Thank you, sir. As a result of discussions I have had with the Hon. Mr Dawkins over the last several days, my intention now is to put in place this amendment which makes it absolutely crystal clear, by using the old language, if you like, that a woman who is capable of achieving pregnancy but may not be capable of carrying a child to term will also be included in the definition of what services are available. In an abundance of caution and for absolute clarity I am very happy to move this amendment.

The Hon. J.S.L. DAWKINS: I greatly appreciate that the minister has moved this amendment. This is very much the basis around the origins of my moving this legislation a decade ago. I accept the minister's assurance that this was inadvertent. I have my own view in that I think it reflected a bit of the sloppiness of the directions that were coming from the proponents in the other place but, ultimately, the reality is that the very good discussions that I have had with the minister and, I must say, with Professor John Williams, about the ways in which we can correct this have brought us to the point we are at now. I am very grateful that the minister has moved that amendment. I support the amendment and commend it to all other members.

The Hon. T.A. FRANKS: I rise briefly to indicate that the Greens will be supporting this amendment and commend the government for working with the Hon. John Dawkins to ensure that those very people for whom he fought so hard, to ensure that they could avail themselves of surrogacy in this state, are protected into the future.

The Hon. K.L. VINCENT: I indicate that I will support the amendment, given that it brings the bill closer to some of its original intent. May I also ask a question of the minister. It is a question that I think I asked him a few weeks ago when we met about this bill but I do not recall getting a definitive response. If he could consider it now, if possible, in the spirit of trying to make sure that we are covering everyone possible: would the inability to carry a child to term also include a woman who might technically be able to get pregnant under certain circumstances and carry a child but is not able to get pregnant through intercourse due to conditions such as vaginismus or pelvic floor hyperactivity, which means a woman is unable to or has limited ability to have penetrative sex?

The Hon. I.K. HUNTER: My advice is that, yes, it would. The language that was used in the drafting of this legislation was intended to cover the full gamut of situations but, because it did not explicitly lay out and use the language of the existing legislation, the Hon. Mr Dawkins and I concurred that we should put that example of that language back in. However, in the case that the Hon. Ms Vincent is contemplating, my advice is that it would certainly be covered.

The Hon. P. MALINAUSKAS: I apologise in advance if my ignorance or misinterpretation of this has got the better of me in respect of the intent of this particular amendment. I would like to know if are there any consequences of this amendment regarding the access of surrogacy or assisted reproductive technology to single mothers or single people generally.

The Hon. I.K. HUNTER: My answer is in three parts. The first part is that this is just putting back what currently exists in the act. It is currently there. It is not adding in any new provision. What is currently in place is being reinforced by putting the language of the existing act into this bill. Secondly, my understanding is that to access surrogacy arrangements you have to be a couple, so it would not apply to single people, and that is what we are dealing with here—surrogacy. In terms of the broader question about ART, as I said in the earlier part of the debate, single women can now access ART if they are medically infertile.

The Hon. P. MALINAUSKAS: I appreciate the minister's remarks, and they make sense. I guess I am looking for some guidance here because my understanding is that, and representations have been made to me, during the course of proceedings in the lower house amendments were made to what is currently the law but essentially at the consequence of depriving single people access to surrogacy or ART.

The Hon. I.K. HUNTER: Just surrogacy.

The Hon. P. MALINAUSKAS: Sorry?

The Hon. I.K. HUNTER: Just surrogacy.

The Hon. P. MALINAUSKAS: Just surrogacy.

The Hon. S.G. Wade: It is in the bill.

The Hon. P. MALINAUSKAS: Does this undermine that?

The Hon. I.K. HUNTER: My advice is not at all. Again, this is the current legislation. We are taking the language from the current legislation, which the Hon. Mr Dawkins brought in, and popping it into this act in an abundance of caution and clarity. Surrogacy is only accessible, on my advice—and it is in the bill, as the Hon. Mr Wade said—to couples. This does not change that in any way whatsoever.

The Hon. P. MALINAUSKAS: Okay, that is helpful. Again, for the sake of an abundance of clarity, what is the minister's position in regard to this change in the context of the amendments that were made in the lower house which were aimed to deprive access to surrogacy or ART by single people?

The Hon. I.K. HUNTER: I need to repeat what I just said: surrogacy is available only to couples.

The Hon. P. MALINAUSKAS: Currently.

The Hon. I.K. HUNTER: Currently, and no action of this amendment will change that.

The Hon. P. MALINAUSKAS: But there was an amendment in the lower house that—

Members interjecting:

The Hon. S.G. WADE: I make the point that the amendment in the lower house meant that that portion of the bill would never make it into the act, so I think the minister is correct to tell us that under the current law this medical service is available only to couples. In the future, it will only be available to couples. What this bill does is broaden the range of couples to whom it is available.

The Hon. I.K. HUNTER: I agree with the Hon. Mr Wade on almost every point except the last one. I do not think it does broaden it. I think the words we had in the bill would have covered all situations. The Hon. Mr Dawkins felt otherwise, so out of an abundance of caution I used the existing language. That does nothing whatsoever to change the availability of the legislation to single people.

The Hon. S.G. WADE: Sorry, I meant the effect of the bill overall, not this particular amendment. Just by way of history, the minister was not rushing to put this in. In fact, the minister intended to reassure the council by words on the record and he was happy to take the risk with the courts, so to speak. The Hon. John Dawkins, with my encouragement, agreed with the minister that it would be good to have it in the legislation. Just to clarify some of the comments the minister made yesterday, that was not a reflection on this particular executive, but a reflection of a long-standing tradition of parliaments to trust no executive.

The Hon. J.S.L. DAWKINS: I will be brief, but I want to reassure the Hon. Mr Malinauskas that the legislation is quite clear about who is eligible, and single people are not eligible. But can I go back to the history of this. The Hon. Ms Lensink and I, along with staff representing other members, had a briefing from the minister and a range of officials from various government departments about the four bills. There was an excellent briefing from a representative of the Department of the Premier and Cabinet about this bill.

However, I do remember the words I used, in that I said I did not want to ask a silly question, but I needed to ask it just to ensure that the people who—I used the example of Ms Kerry Faggotter, who came to me originally. She is capable of becoming pregnant but she cannot carry a child to term; there are other women who can probably carry a child to term but it would be medically dangerous for them to do so. I wanted to make sure that those categories of women were still included in the definition of infertility that we had installed in the original legislation. I asked the question, and on the day, the minister and his adviser were of the view that that was covered.

To his great credit, the minister rang me the following afternoon—I remember where I was when he rang me—and told me that the good work, as a follow-up to my question, came up with the information that it was not covered and so he would draft an amendment. He did that very quickly; however, subsequently, we had some conversations about whether we could put a statement in Hansard. We had a meeting with Professor Williams, who subsequently came up with some words.

Ultimately, I was of the view that we were better off to have an amendment. I looked at the amendment that the minister had drafted and was prepared to move that, but subsequently our discussions agreed upon the position that it would be even better if the minister moved it himself. I hope that explains the situation to the Hon. Mr Malinauskas and others. I commend the amendment once again.

Amendment carried; clause as amended passed.

Remaining clause (10) and title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (16:58): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 14

Noes 3

Majority 11

Third reading thus carried; bill passed.