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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2008-10-16 Daily Xml
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (ARTIFICIAL FERTILISATION) AMENDMENT BILL

Introduction and First Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:03): Obtained leave and introduced a bill for an act to amend the Reproductive Technology (Clinical Practices) Act 1988. Read a first time.

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:03): I move:

That this bill be now read a second time.

It is with some pride that I bring this bill to the parliament, to amend the Reproductive Technology (Clinical Practices) Act of 1988. Those of us who have been around for a reasonable time will recall the heady debates of the 1980s, essentially starting at the beginning of that decade and culminating in this legislation. It was at the time of the plight of young couples, in particular, who planned to have a family but were unable to conceive or carry full-time pregnancies, and who were offered a scientific relief measure for that opportunity to be explored.

It was controversial at the time. The debate raged around the question of having scientists interfering with God, and these were very heated times. I was the parent of two young children at the time, having had the privilege of parenthood without the trauma of experiencing what some other families experience, namely, the deprivation of the opportunity to have naturally conceived children born without assistance, and the despair they face if there is a future without children of their union.

As controversial as it was, I was in a position where I could ask myself, if I had a sister or other close family member who could not conceive, whether I would be generous enough to say, 'Well, this is something where we ought to be able to assist.' The legislators of the time said, 'Yes; we should do that. We should help people in this situation but, if we are going to offer reproductive technology techniques and procedures as a means to assist these families, then we must do it in a highly restricted way.' The process by which they decided to do that was to have the Reproductive Technology Act to regulate the use of the reproductive technology and research involving experimentation with human reproductive material.

It set up a structure that required the licensing of any entity that was to undertake this work. It set up restrictions on the types of procedures and experimentation that could be done, and it restricted access by members of the public to those procedures by those licensed and authorised entities by imposing certain conditions. The most significant prerequisite was that a person had to be infertile—or, in the case of a couple, one of them had to be infertile—to access the technology of the day.

There have been advances in relation to both conception and the carrying of children that have enabled us to use other techniques without using reproductive technology as it is outlined here, that is, fertilisation procedures that involve the harvesting of gametes—ovum or sperm—and all of the things that go to making the embryo in the test tube. There are now other procedures, such as medication and the like, that help and, obviously, where they are more accessible, they are made available, but the strict regime surrounding this procedure has been maintained, and I think it has been maintained for good reason. I commend those who have worked in South Australia in the industry of assisting thousands of couples to be able to fulfil the dream of parenthood that so many others have been able to enjoy.

Recently, a young woman's case came to my attention. I mention Sheree Blake, because her case has been in the public arena. She came to my attention via my son, who was then a journalist for Channel 7. He said, 'Mum, there's a real problem. I've got this case that's come to me and I don't understand why this lady can't use the sperm of her deceased husband which is currently being stored at Flinders.' I investigated the matter and looked at the legal position to try to understand what appeared to be on the face of it this peculiarity where the couple had both been fertile, and one had died. I would have thought that dead was pretty infertile, so I had a look at this to identify the problem.

Currently the situation under the legislation is that the state fertility clinics and the GPs can offer that assisted reproductive technology medicine only to a woman who is infertile and/or whose husband is infertile but, of course in this case, there is another factor. The Reproductive Technology Act, under section 13, requires a licence for the artificial fertilisation procedures, and such licences are subject to, first, conditions defining the kinds of artificial fertilisation procedures authorised by licence—that is the restriction on what procedures can actually be done—and, secondly, their licence is conditional upon preventing the application of AFPs except for the benefit of married couples in the following circumstances: where either the husband or wife or both appear to be infertile or where there appears to be a risk that a genetic defect would be transmitted to a child conceived naturally. So they are the two very restricted circumstances in which a couple can line up to have access to an artificial fertilisation procedure to assist in the conception in this case.

There are also guidelines that are prepared and that are applicable here in respect of the posthumous harvesting and use of sperm. In particular, they require that if sperm are taken from a male he has to have given consent—and there are regulations that require the consent procedures; notice in writing, etc.—and, secondly, the recipient must meet the criteria for the eligibility of infertility treatment. In other words, we have to go back to the process to say: are one or both of them infertile?

In this case, what happened was that, tragically, Sheree and Lee Blake had to face, some years ago, the fact that Lee had been diagnosed with leukaemia and from which he tragically subsequently passed away. But, in the meantime, he was advised and he undertook a process where his sperm were harvested, with his consent, placed in liquid nitrogen and held secure and safe at the Flinders Reproductive Medicine Unit; and that is where they remain. Indeed, to keep those sperm in security, safely, was to, at least in the first instance, ensure that there would be uncontaminated sperm available for their use together once his chemotherapy treatment had been completed.

Tragically, in this case, he did not survive this illness and he passed away, but we have all the ingredients: we have the desire of a young couple to have a child; we have their action, with the consent of the husband, to have the sperm placed in storage—it cost them $200 a year to keep it stored. I am told anecdotally through the media, of which Elissa Doherty of the Sunday Mail has been very conscientious in covering this story and giving life to the plight of this young widow—that their story continues, in that, having placed the sperm in storage, after he passed away she was confronted with the distressing news that because she did not fit into the qualifications of this act—that is, she and her husband had each been fertile—she was not eligible to be able to have access to the sperm to complete the conception and then be able to have the children.

That is the tragedy that she was faced with, as if it was not bad enough, having nursed her husband through this illness and treatment and then to be faced with this horror situation. She had two choices: she could go to New South Wales, where the legislation would enable her to have access to this procedure, to enable that to occur. Presumably the sperm would have to be sent over to New South Wales and she would need to go to New South Wales and undertake treatment for a considerable period of time. It is not just simply a one procedure process, and she would have to spend some months living in New South Wales to facilitate the long and painstaking procedure that needs to be undertaken to secure the conception and obviously to monitor her during the outcome.

It is something that she considered, as I understand it, but at the first instance, she had sought that there be some consideration by those who make the decisions—the government, the reproductive council, which provides an annual report (and its authority and responsibilities are set out in the act) and they provide an annual report to this parliament and to us in opposition—to seek some remedy and some relief from her distressing circumstances. That is the history of the matter. Obviously, it has its genesis in the plight of one case, but when we look at these things we have to make assessments on the basis that, if we change legislation, it will provide for others. Will there be unforeseen outcomes?

One of the reasons I have requested that this bill be drafted in the narrowest of terms—that is, to include the additional provision that the only new circumstance that would comply with the conditions on the licence—is to specifically add the words 'for the benefit of a woman (whether infertile or not) whose husband has died'. We have added that third thing. The fertile and genetic defect clauses are in the act, and we are adding the special circumstance that it would be 'for the benefit of a woman (whether infertile or not) whose husband has died'. That is how narrow the terms of this legislation are.

People have spoken publicly about other significant areas of reform which they think are important in respect of the Reproductive Technology Act. Reverend Dr Andrew Dutney from the School of Theology at Flinders University is a former member of the council. I understand that he has spoken publicly to suggest that the technology and community standards have changed and it would be meritorious to get rid of the act altogether; that is, to repeal it. He says that the new safeguards in relation to this are adequate at the national level in the codes and ethics and national accrediting body procedures which are now in operation (since the advent of this legislation). He says that they would be adequate to deal with this matter and that we could repeal the whole act.

The Attorney-General has made public statements on this matter inviting caution in opening and amending this legislation. I have read his material. I am very pleased to consider his view, but, in my assessment, in relation to this issue, given the narrowness in which we have drafted this bill, it does not invite the concerns he has raised. I commend the bill for consideration by each member. The opposition's position is that this is a matter of conscious; that is, we do not have a party position on bills of this nature. We have decided that it will be for each member to determine what they see as important in a contemporary assessment of what they understand in order to deal with the humane consideration of families in this situation.

Debate adjourned on motion of Mrs Geraghty.

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