Bills

Assisted Reproductive Treatment (Review Recommendations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 29 April 2020.)

The Hon. S.G. WADE (Minister for Health and Wellbeing) (18:06): I rise on behalf of the government on the Assisted Reproductive Treatment (Review Recommendations) Amendment Bill 2020, introduced into the Legislative Council by the Hon. Connie Bonaros. As has been canvassed on several locations in recent times in this place, a statutory review of the Assisted Reproductive Treatment Act 1988 was conducted by Professor Sonia Allan and tabled in parliament on 11 April 2017, during the term of the previous Labor government.

The review highlighted the need for the establishment of a donor conception register (DCR) in South Australia and recommended that the DCR should be operated by births, deaths and marriages (BDM) within the Attorney-General's Department as the mainstream provider for information about births. The review highlighted that many people who were conceived using sperm, eggs or a complete embryo from a donor did not have ready access to information about their donors and therefore their genetic heritage.

If the donation occurred after 2004, the donor-conceived person is able to access identifying information from the clinic where they were conceived once they turn 18. This requirement is mandated by the National Health and Medical Research Council's ethical guidelines on the use of assisted reproductive technology, which has the status of law in South Australia.

The previous government made no announcements or commitments following the tabling of the Allan report, nor did they do anything to resolve this issue in the 16 years they were in government. However, the Marshall Liberal government has taken action. During the passage of the Surrogacy Bill 2019, the government accepted an amendment that has the effect of mandating the establishment of a DCR by November 2021. This is an acknowledgement by the government of the seriousness of the issue and the need to deliver a solution for people who were donor conceived prior to 2004.

This bill is similar to a bill the honourable member introduced in 2018, which was subsequently withdrawn in the House of Assembly. The primary intent of the bill is to place responsibility for the establishment and operation of a DCR with the registrar of births, deaths and marriages. The bill seeks to transfer the responsibility of the minister under the Assisted Reproductive Treatment Act to the registrar of BDM, which deals with the establishment and operations of the DCR.

The government continues to support a donor conception register and is delivering on that commitment, but the government does not support the model in this bill. In our view, the honourable member has not rectified problems with the previous bill. In particular, she has not included provisions which would enable information about donors to be provided when the donor-conceived person was born prior to 2004. This would require a change to the confidentiality provisions under section 18 of the act.

After 2004, donors were not allowed to donate unless they were prepared to have identifying information about themselves shared with the person conceived. In the absence of provisions which would enable consent to disclose information to be overridden where consent cannot be obtained from the donor, no information can be provided to the donor-conceived person.

Demand for a DCR is highest amongst the group of people born before 2004, as they have the most difficulty obtaining information. People born after 2004 are able to seek identifying information about their donors from the clinic that helped their parents conceive. It is also respectfully the view of the government that there are other deficiencies of the bill and this bill will not be supported by the government. The bill does not reflect a complete understanding of the range of provisions that will need to be included in the act prior to a DCR becoming operational.

The government is still working on the design of a donor-conceived register. The principle that the welfare of the child born as a result of ART is of paramount importance, as enshrined in section 4 of the ART Act, will underpin the development and operation of the register. There are three critical components to the register: the database, the support services and the inclusion of donor information on birth certificates. As Minister for Health and Wellbeing, my department and I are in discussions with the Attorney-General and her department in assessing the options and developing a model.

It is noteworthy that recent changes to the Adoption Act support the provision of retrospective access to identifying information about donors as the principles apply. Parallels are drawn between adoptions and donor conception both in the review report and through the Victorian legislative changes. Similar psychosocial issues arise. South Australia provides adopted adults with unqualified access retrospectively to their original birth record, regardless of previous assurances of anonymity to the biological parent. In this way, the parliament has indicated its willingness to legislate on these matters respectively. The adoptions and the Victorian system provide a model for retrospective access.

The proposed policy framework that would govern the register, with the provision of support services, will mitigate potential perceived harm caused by releasing information. In conclusion, while the government does not support this bill, we continue to take this issue very seriously and will continue to work diligently to deliver a register.

The Hon. E.S. BOURKE (18:12): I rise to indicate I will be the lead speaker for the opposition and that the opposition will be supporting this bill. In doing so, I would like to thank the Hon. Ms Bonaros for not only introducing this bill but for her ongoing advocacy for reproductive rights. As the Hon. Ms Bonaros has stated, the amendments in this bill arise from a review of the legislation undertaken by Associate Professor Sonia Allan OAM, commissioned by the former Labor government.

This is the second time these amendments have been presented to the council, with their initial introduction in late 2018 also receiving the support of the opposition. In February of last year, in response to the opposition seeking her feedback on the initial legislation, Associate Professor Allan expressed disappointment that her review recommendations had not yet been progressed under the Marshall Liberal government. In her response to the shadow minister for health, Associate Professor Allan noted that in her review:

I stated such matters needed to be addressed as a matter of priority.

Some two years later, it would be more than beyond the time to introduce them…I cannot stress to you enough the disappointment that will ensue if this opportunity is lost.

The current government's lack of follow-through…has been disappointing to say the least.

I really would like to see the rest of Parliament seize the opportunity to make them act to finally serve the interests of donor-conceived people, their families, and donors, who have been waiting so long for the establishment of the donor-conception register.

Frustratingly, despite the support of the opposition and the endorsement of Dr Allan, the government knocked back the legislation late last year and appear to be doing the same with this private member's bill.

It is now some 3½ years since Associate Professor Allan handed down her review recommendations. As Ms Bonaros highlighted in her second reading speech, South Australians remain in search of a missing piece of their family puzzle. This bill is one of the remaining pieces missing for many South Australians. Prior to the government's blatant refusal to support the 2018 bill, the opposition had cohosted a forum with SA-Best where donor-conceived people generously shared their stories. Donor-conceived people were extremely hopeful of the legislation's passage after years of waiting for change, and it was disappointing that the government did dash these hopes, with no real excuse offered for doing so.

Thankfully, late last year SA-Best managed to secure amendments to the Surrogacy Act, requiring a donor conception register to be established within two years of the passage of those amendments. While this was a positive step, one I welcomed and was pleased to support, the additional amendments from the original 2018 bill remained. These amendments include practical steps to put the health and welfare of donor-conceived people at the forefront and to ensure that records related to the donor conception are made available.

Medical science has made great strides in understanding genetics and the importance of a person's family medical history. It cannot be considered fair to deprive an individual of what could be crucial information for their medical treatment simply because they are donor conceived. People need to be equipped with all the best tools when they are confronted with medical life challenges, and any information that helps solve medical stories—stories that can help save lives—should be obtainable.

This information, which we know is so important to the wellbeing of an affected individual, is so often unavailable due to the lack of access to donor conception records. It is reasonable to expect donor information to be appropriately documented and protected, therefore allowing it to be available to those who want or need to access it. The opposition is also supportive of the proposed changes to the birth certificate, including in this version of the bill, allowing for the option to list a donor as a child's father on their certificate.

These recommendations, guided by Associate Professor Allan's review, are seeking to make a substantive change to the industry in response to the legitimate concerns of the affected community. I reiterate the opposition's full and ongoing support for these amendments to be legislated and for those South Australians calling for change to finally be heard. It is our past that ultimately influences our future. We need to give South Australians the tools and the keys to their past, so they, too, know their future.

The Hon. C. BONAROS (18:17): I thank the Hon. Ms Bourke and the Minister for Health and Wellbeing for their contributions today and for the very logical points the Hon. Ms Bourke just made in relation to why this bill is needed. It would appear that sometimes we all have to be dragged to the table kicking and squealing in order to get something through this place, and that was certainly the case last year when we saw the first raft of amendments to this bill during the Surrogacy Bill debate.

This is absolutely the next step, if you like, to the changes we need to agree to and should have agreed to last year when this bill was debated. The current bill has been on the agenda since May of this year—that is the second iteration of the bill. It is now October, and not one conversation has been had with me regarding any improvements to the bill.

The minister has pointed out some apparent shortcomings that he sees in this bill. My response to the minister is this: Associate Professor Allan has indicated what the most important provisions in one of these bills is, and they are precisely the provisions that I have ensured are incorporated into this bill.

The provisions the minister says are lacking from this bill are the ones that are obviously more contentious. We did not seek to legislate for the release of confidential information and we did not seek to disclose anonymous donor information without consent, because there are other means of dealing with those issues—via regulation or amendments to the bill.

The ball was firmly in the government's court, and they had the ability between May and now to have those discussions with us. Instead of doing that, they chose to point out what they, and they alone, view as shortcomings to this bill. I can tell you that those shortcomings do not reflect the views of Associate Professor Allan, who we worked with very closely in terms of the design of this bill. In fact, this bill reflects the most important measures that need to be implemented to ensure that the records the Hon. Ms Bourke referred to are preserved.

They are the last pieces of the puzzle, as I have said previously, that we need to ensure are not lost. There are hundreds of boxes of those pieces of puzzle sitting in various locations in SA, and we should be doing absolutely everything to protect them. The longer we take to pass this legislation in this place, the more at risk we are of losing those, and the more we open up those individuals who are seeking access to their biological background, their genetic background, from never having access to that material. That is what is at risk here.

The minister says that the government continues to work on this issue. I would like to know when it is that we are going to actually see something from the minister and from the government that addresses this issue once and for all. There is no question that we are going to have a register; we have passed those provisions. I implore the government to join in the conversations that we are having and see this bill through to its fruition, to ensure that all those individuals who have come to this place or who have attended forums, who are begging and pleading, have access to records that make up the other part of who they are. They know half of their being, and the other half they have no idea about.

I absolutely implore the minister to see sense and to support measures that are aimed at doing just that, measures that 100 per cent reflect the views of Associate Professor Allan and the recommendations that she made some 3½ years ago. They do include the health and welfare of any child. They do include giving the option for a child's genetic father to be recognised on their birth certificate as a donor rather than an unknown person and some minor changes in relation to ensuring that the register in place is maintained by the registrar and not the minister.

I cannot emphasise enough the importance of this piece of legislation, and I indicate again that I will continue to lobby on this most important issue because I have given my word to all those families who I have met with, who are waiting very patiently for their puzzle to be solved once and for all.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. R.I. LUCAS: I am advised by my colleague, the Minister for Health, that the government pro forma was prepared to support the second reading, but for the reasons he has outlined the government will not be supporting the third reading. Given the lateness of the hour and in recognition of the numbers in the chamber, I indicate the government's position at the third reading. I will not be proposing to divide, given the lateness of the hour, but I just want to place on the record, on behalf of the minister, his advice that we will be opposing the third reading.

Clause passed.

Remaining clauses (2 to 9) and title passed.

Bill reported without amendment.

Third Reading

The Hon. C. BONAROS (18:25): I move:

That this bill be now read a third time.

Bill read a third time and passed.