Statutes Amendment (Surrogacy Eligibility) Bill

Committee Stage

In committee.

(Continued from 6 December 2016.)

New clauses 3A, 3B and 3C.

The CHAIR: The Hon. Mr Hood, what is your intention?

The Hon. D.G.E. HOOD: I thought I might explain to the chamber where we are at with all this. My impression, from the discussion we had yesterday, was that the Hon. Ms Franks and a few other members were open to supporting the amendments I moved—one primary amendment that I moved—but had some discomfort with some phrases, including 'religious beliefs'. I am sure members will recall that we had a discussion about the term 'religious beliefs' in the amendment I moved. I indicated to the chamber that I was happy for that to be removed because it was not my specific intention that it was ever to be put in, to be frank; it was just how the drafting returned from parliamentary counsel, and that is no criticism of them.

I moved an amendment to my amendment to remove the term 'religious beliefs', and that has been filed this morning as [Hood-2], which everyone would have copies of now. That amendment removes the term 'religious beliefs' and nothing more than that. I will let the Hon. Ms Franks explain her amendment in a moment, but I have since been informed that I cannot amend my amendment because I had already moved my amendment. You can amend your amendment if it has not been moved but, as I understand it, I cannot amend it because I had moved it.

Therefore, we have had to file a third set of Hood amendments, which contains exactly the same amendment as the original one but without the words 'religious beliefs'. It is as simple as that. Is that clear to everyone? It is fairly straightforward. I seek leave to withdraw [Hood-1].

Leave granted; amendment withdrawn.

The Hon. I.K. HUNTER: Whilst we are waiting for those amendments to be drafted and tabled, I might take a moment of the chamber's time to put on the record some further information that arises from our debate yesterday in answer to a question asked by the Hon. Mr Hood, and also in relation to a further question asked outside the chamber but which I might as well share with the chamber. If I could go to exemptions under the Sex Discrimination Act 1984, which I think the Hon. Mr Lucas wanted me to pursue, I can advise that Australian jurisdictions were granted an exemption under the commonwealth Sex Discrimination Act.

The exemption was provided under regulations, which would be removed from 2013. At that time, the commonwealth provided a 12-month extension for states and territories to address the removal of the exemption or to request any specific exemptions that they believed were required. This was extended a couple of times, I am advised, but was not extended beyond 31 July 2016. I am advised by AGD that South Australia did not request any specific exemptions.

I seek leave to table a copy of a letter from the commonwealth Attorney-General, Senator George Brandis, which confirms that no further exemption beyond 31 July 2016 applies to South Australia with respect to the Sex Discrimination Act.

Leave granted.

The Hon. I.K. HUNTER: In the absence of any exemption, my advice is that South Australia is now subject to this act and any potential claims of discrimination brought against it. Given the risk that the Hood amendments, however they come forward now, may be inconsistent with the Sex Discrimination Act, it is possible that South Australia could request a specific exemption. However, I am advised that granting this exemption would be entirely up to the commonwealth.

I am also advised that, during previous discussions, it did not appear that there was much appetite to make specific exemptions. Therefore, I think the risk remains that the Hon. Dennis Hood's amendments, which are coming, could be found to be inconsistent with the Sex Discrimination Act. I referred to the South Australian Law Reform Institute yesterday. Their initial audit report of September 2015, on page 10, noted:

There is a degree of urgency in relation to many of the areas covered by this Report as South Australia is currently subject to an exemption by the Commonwealth in respect of the Sex Discrimination Act 1984. This exemption is due to expire on 31 July 2016.

I think it was the Hon. Mr Hood who asked me some questions about statistics relating to surrogacy. The following data has been provided from Births, Deaths and Marriages regarding surrogacy orders registered with their office: in 2013-14, two orders; in 2014-15, one order; in 2015-16, one order; and in 2016-17, for the year to date, five orders.

In relation to a question asked outside the chamber relating to a child born within a surrogacy arrangement finding out the identity of donor sperm, I am advised that the Births, Deaths and Marriages Registration Act 1996 sets out how a child who has been born under a surrogacy arrangement can find out information about the person who provided the semen and the ovum that resulted in their birth. The child's birth registration must include all particulars of the identity of the biological parents of the child. This is set out in section 14 of the BDM act.

Section 22A, titled 'Surrogacy orders', then outlines how a child who has turned 18 years of age can then find out the information of their birth registration, including details of their biological parentage, even if subsequent orders relating to legal parentage have been made. I can provide the chamber further advice about information coming back to government in relation to one provider, Repromed. This is what they say:

Repromed will continue to abide by any legislation which is passed through Parliament. Repromed will continue to positively advocate for fertility treatment for South Australians regardless of their gender identity, marital status or if they are in a same sex relationship.

Mr Chairman, if the Hon. Mr Hood's amendments are ready, perhaps he could move them now.

The Hon. D.G.E. HOOD: We have gone through this in enough detail yesterday. I move:

Amendment No 1 [Hood–3]—

Page 2, after line 11—Before clause 4 insert:

3A—Amendment of section 3—Interpretation

Section 3—after the definition of recognised surrogacy agreement insert:

registered objector—see section 8(3).

3B—Amendment of section 6—Eligibility for registration

Section 6—after its present contents (now to be designated as subsection (1)) insert:

(2) The fact that an applicant for registration has a moral or religious objection to the provision of assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, or marital status is not, of itself, grounds for finding that a person is not fit and proper to be registered.

3C—Amendment of section 8—Registration

(1) Section 8(2)—after paragraph (b) insert:

(ab) if the person notifies the Minister that the person has a moral or religious objection to the provision of assisted reproductive treatment to another on the basis of the other's sexual orientation or gender identity, or marital status—that fact; and

(2) Section 8—after subsection (2) insert:

(3) A person referred to in subsection (2)(ab) may, for the purposes of this or any other Act, be referred to as a registered objector.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–3]—

Amendment to Amendment No 1 [Hood-3]—Inserted clause 3B—Delete 'moral or'

Amendment No 2 [Franks–3]—

Amendment to Amendment No 1 [Hood-3]—Inserted clause 3C(1)—Delete 'moral or'

Amendment No 3 [Franks–3]—

Amendment to Amendment No 1 [Hood-3]—Inserted clause 3C(2)—

After inserted subsection (3) insert:

(4) The Minister must publish the Register on a website maintained by the Minister for the purpose.

The intent of these amendments is to amend the amendments put by the Hon. Dennis Hood. His proposed new clause 3B reads:

3B—Amendment of section 6—Eligibility for registration

Section 6—after its present contents (now to be designated as subsection (1)) insert:

(2) The fact that an applicant for registration has a moral or religious objection…

The words 'The fact that an applicant for registration has a moral or religious objection' will be amended to delete the words 'moral or', so that it will read, 'The fact that an applicant for registration has a religious objection' only.

In making this amendment, I am cognisant of a few things. The AMA's own code of ethics provides for moral issues and gives guidance for medical professionals, particularly doctors, with its Code of Ethics 2004, revised 2006, which states, under the heading 'The Doctor and the Patient':

p. When a personal moral judgement or religious belief alone prevents you from recommending some form of therapy, inform your patient so that they may seek care elsewhere.

I think the word 'moral' in the Hon. Dennis Hood's amendment is a bridge too far. While I understand the reason for a religious objection, I think a moral objection is too loose a wording. I am aware that the Fair Work Act 1994, with regard to conscientious objection, is restricted to religious belief; the Education Act 1972 is restricted to religious belief in terms of conscientious grounds for exemptions; and medical termination of pregnancy under the Criminal Law Consolidation Act 1935 is, again, restricted to religious grounds for that objection by the person who is providing the service.

Further, my amendment No. 3 [Franks-3] will insert into the Hood amendment subsection (4), which provides, 'The minister must publish the Register on a website maintained by the Minister for the purpose.' Where a person is to be a registered objector, that information is provided to the minister. The minister publishing that information will mean that somebody seeking an ART service will be able to know, prior to approaching a professional, what the status of that person is with regard to their objection, and therefore give clarity to those people seeking assisted reproductive technologies and save them from going through that process just to be rejected by the provider. In fact, it is a reasonable provision, and I think that people in quite a vulnerable position who are seeking quite a personal service should be afforded that respect and courtesy, let alone those human rights.

The Hon. D.G.E. HOOD: Perhaps it might assist the chamber if I indicate that we will not be opposing the Hon. Ms Franks' amendments. I think we canvassed to some degree in the chamber yesterday that it is obviously a very personal thing, the sorts of issues that we are dealing with here, and that it would be a very difficult and undesirable situation if a same-sex couple approached a particular clinic and found out into the process, that is, well after the commencement of the process, that the particular doctor or nurse concerned had a religious objection. I think that would be unreasonable and unfair for those individuals, so we will not be opposing the amendments.

The Hon. S.G. WADE: I want to better understand the relevance of the commonwealth law. If I am correct, the minister yesterday referred to section 116 of the commonwealth constitution, which provides that commonwealth legislation overrides state legislation where that legislation is inconsistent. Is that actually the situation here? The equal opportunity legislation of each jurisdiction is significantly different; they are not identical. To that extent they are inconsistent, and as far as I know that section 116 issue has not come into play.

The Hon. I.K. HUNTER: My advice is it is section 109. Did you say 116?

The Hon. S.G. Wade: Yes, in the commonwealth constitution.

The Hon. I.K. HUNTER: We will go back and check on that. I think it was 109. My advice is we would have to check the specific legislation in the Sex Discrimination Act to see if there is any provision that allows for an exemption for religious beliefs in relation to ART. I do not have that advice presently before me, but if there is not, then, yes, there is potentially that opportunity to have inconsistent legislation.

The Hon. S.G. WADE: In the absence of further advice, I will assume that what we are faced with here is not a constitutional invalidity issue but a commonwealth law that purports to apply to the state and its agencies, and that we are currently operating under an exemption under a commonwealth law that has been removed.

I reiterate what I said yesterday, that I support this legislation. I think it is in the best interests of children that as wide a range as possible of ART comes under the act. Having said that, the right of same-sex couples, in particular, to access ART is not inhibited by some ART providers not being willing to provide services in circumstances which offend their religious beliefs. Freedoms and rights constantly interplay and at times we have to balance them.

I think the Hon. Dennis Hood's amendment particularly addresses a concern in relation to a monopoly provider, for example the right of a service provider not to provide a service to a person on the basis of whatever discriminatory criteria they might identify. It might be more limited than that of a service community where there is a large number of providers. Admittedly, in South Australia, we have only two ART providers. However, I stress that this right is not available to the organisation: it is available, as I understand it, to each individual provider. Within Repromed there may be a limited number of practitioners who would, in certain circumstances, seek this protection.

As a Liberal, I am very keen to do the best I can to appropriately balance rights. This amendment may not be perfect, but as I preached, dare I say, to the Hon. Mark Parnell in recent weeks, we are in a bicameral system and there may well be an opportunity to improve the amendment between the two houses or it may be that the amendment is not possible in the context of the commonwealth constitution or the commonwealth Sex Discrimination Act. For me, religious and other freedoms are so important that I would like to keep my foot in the door.

The Hon. P. MALINAUSKAS: Having not taken the opportunity to articulate my position on this particular legislation during the second reading stage, I want to clarify my position now in the context of the Hon. Mr Hood's amendments.

As I articulated in the previous debate, I have spent a fair bit of time and effort, as I am sure all members have, contemplating my position with respect to this bill. What I struggle with, at its core, is the fact that no matter which way I vote on this issue (or each of us votes on this issue), in my assessment, we are making a decision to deprive someone of something. That is not easy. That is not particularly enjoyable.

If one were to vote in a way that opposed providing access to things like ART to lesbian couples, for instance, that is making a conscious decision to deprive them of the ability to raise their own children in the world. That is a significant thing to deprive someone of. Having recently enjoyed the experience of becoming a parent, it is the greatest responsibility of all, it is a true blessing, and to deprive someone of that is a significant decision to make.

Equally, I find it a tough decision to deprive a child, who is currently voiceless, of a mother or father. That is a huge call. Proponents of these reforms, in response to that challenge, often say, 'Sure, in today's day and age, today's society, kids are being deprived of a mother or father all the time, for a whole range of reasons.' They could be born into a family that does not have a loving marriage or relationship. They could be born into a family with an abusive father or an appalling mother. They could be born into a family that has been struck down by tragedy, resulting in a woman becoming a widow.

There is a whole range of circumstances in society generally that deprive the child of a mother or father—that is true—but for me that in and of itself is not a very strong argument; in fact, I think it is an incredibly weak argument. To cite an unfortunate circumstance in life as somehow a justification for another unfortunate circumstance I think is flawed logic. We have to acknowledge that this has another degree of complexity than the adoption bill because what the parliament is asked to do here is to explicitly sanction an act, which would be a deliberate and conscious act, to deprive a child of being raised by either a mother or father. That is a huge call—that is huge call and one that does not sit well with me at all.

Having said that, in trying to rationalise a decision model to arrive at a view I ask myself a number of different things: firstly, what is in the best interests of the child? As I articulated earlier, I can entirely understand and appreciate and in the past have supported the view that it is always in the best interests of the child to have both a mother and a father. However, I am of the view that it is also true that two mothers or two fathers can provide a loving relationship for a child to be brought up in. On that basis, I ask: who has the moral authority to make this decision? As I articulated earlier, I think ultimately that has to be the parents themselves, rather than a forum or a body such as this one.

My inclination is to support this legislation in the hope that all parents who are making decisions about bringing a child into the world do so in the knowledge that having multiple influences in their life—in the case of lesbians, for instance, which I think this bill particularly speaks to, that is having a father figure in their life, ideally the biological father—would be a positive. I have contemplated how one might structure amendments that would stipulate that that would be mandated, although it starts to become an incredibly difficult exercise to stipulate or mandate that a biological father will play a particular role in their life. If that were simple, then that legislation would have been brought into parliaments across the world a long time ago in respect of fathers in a heterosexual relationship.

I am satisfied that the legislation and the bill provide, as the minister articulated earlier, for a child to have access to their biological father. I am satisfied that an appropriate arrangement is in place that allows for a child to have access to their biological father. I am not sure how that could reasonably be improved. On balance, I am inclined to support the bill. However—and this now goes to the Hon. Mr Hood's amendments—I am extremely concerned, to say the least, about the prospect that someone would be deprived of the ability to exercise their own conscience in the delivery of such services.

My assessment is that those people who are articulating and advocating for the types of reform we have been debating today and over the last few days do so in the name of liberty; they do so in the name of choice. I see the merit of that, so much so that I have been persuaded to support the bill on the basis of allowing people to exercise their own judgement and choice, but to somehow argue for that and then simultaneously argue against the Hood amendments, which would in and of itself deprive someone of exercising their own liberty, I see as nothing other than absolute appalling, rank hypocrisy. In my view, in the context of all these debates, that is often easy to point out, I have to say.

To make a decision in the pursuit of liberty and freedom of choice and then argue simultaneously that someone who is, in their own judgement, exercising their own conscience should be deprived of the opportunity to do that, particularly on a question as sacrosanct and paramount as the creation of life, is nothing short of completely appalling—completely appalling. It is a demonstration of rank hypocrisy.

I, for one, will be wholeheartedly supporting the Hon. Mr Hood's amendments in the cause and in the name of the very issues people have argued for in the context of pursuing surrogacy. I believe in the legitimacy of people being able to exercise their own freedoms and their own conscience in the context of religion or any other moral judgement that person might arrive at, which is why I wholeheartedly support the Hon. Mr Hood's amendments and certainly encourage all members to support them accordingly in the pursuit of liberty of religion.

The Hon. A.L. McLACHLAN: For the benefit of the committee, I will be supporting the amendments of Family First as amended by the Hon. Tammy Franks. I find the amendments of merit, and there is much in what the previous two speakers said that I agree with. For the benefit of the committee, I assume that after we make these amendments we will be travelling fairly quickly to the end of the committee stage, and I indicate that I will be supporting the bill.

The approach I have taken in relation to this bill and the other bills we have dealt with today is that the state itself should be blind to the sexuality of individuals as they apply for any benefit or as the law applies to those individuals. Similarly, that right must be balanced against individuals. We all live life through individual experience and in accordance with our conscience, particularly if we have religious beliefs. I apply a similar test, maybe not identical to that of the Hon. Mr Malinauskas but a similar test, and that is where I will land.

The Hon. I.K. HUNTER: I will, of course, be supporting the Hon. Tammy Franks' amendment, not with a great deal of enthusiasm I must say, but it does temper the Hood amendment somewhat. However, I will be opposing the Hon. Dennis Hood's amendment, and I will tell the chamber why.

In this instance, we are talking about the provision of services and allowing the denial of services to an individual because of the perceived characteristic of that person. Today, we are talking about the perceived characteristic being the sexuality of that person or perhaps their marital status, and we think, today in this chamber, that it is okay to talk about that—to deny someone services based on their perceived characteristics, their sexuality or perhaps their marital status.

But I posit this question: if that is okay, why is it not okay to discriminate against someone in this situation on the basis of their race? Why is it not okay to discriminate against the provision of service to someone on the basis of their nationality, or their gender, or because of their religious beliefs? That is the road we travel down here. That is why we have achieved today and yesterday, some great successes, in removing discrimination from the face of statute.

When we start to say that the provision of a service to an individual is dependent on a perceived characteristic of that individual, then we are travelling down the road we have been travelling down for 50 years of denying people their rights to access services, whatever that service is. Today, we are talking about ART. Yes, I accept that in some people's minds there is a difference with this issue. I absolutely accept that because of the particular characteristics of what the service is doing: it is providing the ability of a couple or an individual to become pregnant.

However, I still do not resile from the position that we are making a decision, if the Hon. Mr Hood's amendment is to be supported, that we will okay discrimination against a person in this place in statute on the basis of a perceived characteristic. That is what you are doing if you vote for this amendment. I cannot do that.

The Hon. P. MALINAUSKAS: I might take the opportunity to respond to that because the honourable minister asked: why do we not discriminate against people on the basis of race or nationality or ethnicity or anything along those lines? To me, the answer to that question is very simple—because here we are dealing with something that is far more fundamental. We are dealing with the creation of a new life and the circumstances under which that child will be raised.

That is a fundamental question and it is a departure from the absolute undeniable reality that, as it will always stand, every child will have a biological father and mother. To depart from that reality is a big step for some people, and I think people of reasonable and good intent can arrive at a conclusion that it is in the best interests of the child to have both a mother and a father.

People might disagree with that assessment, but they should be able to exercise their right to arrive at that judgement and live their life accordingly. To deprive them of their ability to exercise that judgement is, as I stated earlier, completely hypocritical for those people who genuinely believe in the capacity of people to choose. To act otherwise is to discriminate against their ability to live their life and conduct their life in accordance with their own beliefs, religious or otherwise. That in and of itself is an act of discrimination.

At the core of this amendment, in my view, is: what is the purpose of this bill? Is the purpose of this bill to bestow upon a group of people in society currently who do not have the ability to raise a child under the current legislative framework, or is it to impose the will of a group of people upon others? If this bill is genuinely about giving lesbian couples the capacity to enjoy the privileges of parenthood, then this amendment does not offend anybody, but if this amendment is about imposing upon others a view of the world that you do not agree with, then I think that is shown up in the context of how people vote in this amendment.

I do not believe in imposing a particular view of the world on those people who have a different view, which is why I will be supporting the Hon. Mr Hood's amendments, and those people who do believe in liberty and who do believe in choice should support the Hon. Mr Hood's amendments.

The Hon. D.G.E. HOOD: I will add to that for the clarity of the chamber. Members may well be aware, but in case members are not, my third amendment does actually specify that, should a registered objector (a doctor, typically, or maybe a nurse) decide that they do not want to perform the procedure for one reason or another, under my amendments they are compelled—they have no choice—to refer them to someone who will. They will not miss out; it is just that they will not be doing it personally.

Progress reported; committee to sit again.

Sitting suspended from 13:02 to 14:16.