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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (PROHIBITION OF HUMAN CLONING FOR REPRODUCTION AND REGULATION OF RESEARCH INVOLVING HUMAN EMBRYOS) BILL

Committee Stage

In committee.

(Continued from 29 October 2008. Page 673.)

Clause 7.

The CHAIR: Member for Newland, am I anticipating you in thinking that you are seeking leave to withdraw the amendment you moved yesterday?

Mr KENYON: Yes, I do seek leave.

Leave granted; amendment withdrawn.

Mr KENYON: I move:

Page 6, lines 13 and 14 [inserted section 13]—

Delete 'for a period of more than 14 days, excluding any period when development is suspended'.

These amendments are substantially the same as the amendment I moved yesterday; in fact, the first one is exactly the same, and it has a number of consequential effects. I find it difficult to say more than I said yesterday. I find the idea of human and animal hybrid embryos repugnant. I know that there are currently tests available for checking sperm, which is the stated purpose. I cannot support the creation of hybrid embryos simply for the testing of sperm, when there is another test available that does not involve that. Also, I certainly do not support those embryos being held for periods of up to 14 days.

The CHAIR: I want to clarify something with the member for Newland to make the proceedings clear. I understand that amendment No. 2 is your position in the event that amendment No. 1 fails; is that the case?

Mr KENYON: Yes, that is correct.

The CHAIR: Do you seek the indulgence of the committee to consider No. 1 separately so that it can be dealt with, and then we can move to No. 2 if necessary?

Mr KENYON: Thank you. I do, indeed, seek that indulgence.

The CHAIR: If that is acceptable to members of the committee, we will proceed in that manner.

The Hon. J.D. HILL: Madam Chair, we reached this point last night. Fortunately, we have had some time, which has allowed both the government and the movers of this amendment to consider the consequences of the amendment. Can I explain the government's position in relation to the amendment moved by the member for Newland.

What the member is proposing would, in effect, prohibit the creation and use of hybrid embryos for any reason. I do not support this amendment. The government believes—or, rather, I believe; I guess it is not a government matter—that it is important that hybrid embryos be able to be created and used for testing sperm quality.

The reason for this is that male infertility is rising and sperm quality is falling. Currently, the processes involved in testing sperm quality are undertaken by either one of two means. The first is by observation, that is, looking at it (it is put under a microscope to see if it looks okay, and I guess those who are expert in looking at sperm under microscopes can make a judgment) or, secondly, it is tested to see whether there is any damage to its DNA. Even if this looks okay, there is still a chance that there are other problems with the sperm that would not make it strong enough to penetrate an egg.

The reason for wanting to test sperm is to see whether it is able to penetrate a woman's egg. If the sperm is not robust enough to fertilise an egg in simple IVF treatments (that treatment is the introduction of many sperm into the same dish as an egg), a woman will need to go through other cycles of egg harvesting and try her luck using what is known as intracytoplasmic sperm injection (ICSI). This is when one sperm is introduced directly into an egg. If the sperm is not strong and healthy enough to fertilise the egg, the woman has to go through another cycle and then try again, and so on and so forth, until success is reached or the woman gives up.

Compared to traditional IVF, performing ICSI (which is very effective) is significantly more time-consuming, labour-intensive and expensive. So, it is not performed by default but, rather, only when there are clinical indicators. Current clinical indicators—that is, bad quality sperm—are largely realised in hindsight from failed fertilisation attempts. So, allowing the creation of hybrid embryos for testing sperm quality will allow better testing, more effective treatment allocation and greater success rates and, I believe, should be supported.

The essence of that is that this is a means by which the quality of the sperm is tested. It allows the doctors or those involved in the IVF process to ensure that there is a minimum number of IVF cycles that a woman has to go through. So, it is saving in terms of resources but it is also saving in terms of the emotional experience that the woman has to go through, because if you maximise the chance of becoming pregnant you minimise the number of cycles of IVF treatment that a woman would have to go through. I think that, from a human point of view, it is a worthy addition.

The member for Newland and the member for Playford last night hit upon a problem with the legislation, and I acknowledge that. It is a problem not only with our legislation but with all the legislation that has been passed through other jurisdictions, as I understand it, because there is an apparent conflict in one section of the legislation. I refer to clause 7, page 6, lines 13 and 14. There is a section that provides that a hybrid can be maintained for 14 days, including any period when development is suspended. That is certainly not the intention of the legislation, and I acknowledge the error that the members have picked up.

The member for Playford has indicated if this original amendment fails he will introduce another amendment which will fix that particular problem, and I indicate to the house that I will support his second amendment, should he get a chance to move it.

As I understand it, the second amendment will remove those words which should not be there and substitute 'that has undergone the first mitotic division'. That, I understand, habitually happens around 24 hours. That would make the test and the law consistent with the intention and consistent with what I said yesterday, that is, the procedure can only be done for testing sperm and will only last until the first mitotic division, which is about 24 hours, which is what I indicated yesterday.

So I commend the members for finding this problem with the legislation. I indicate to them that I will advise my colleagues in other jurisdictions about the matter and suggest to them they might like to consider a similar amendment to the second amendment we are considering here today.

The other thing I should point out to the house is there is a note in the legislation which gives some information to legislators about the intentions of the act. The advice I have is that the note has no administrative force and is a clerical matter. Parliamentary counsel, on my request, will remove it from the legislation. That will help clarify the matter, also. I gather that we do not need to move that: it will just be removed by that instruction.

As I say, I support the second of the amendments indicated, I do not support the first, and I will follow up with other jurisdictions the issues that have been brought to light by the assiduous investigation of the legislation by the members for Newland and Playford.

The CHAIR: I crave the indulgence of the committee for a moment. We have an unusual situation in that the amendment that I understand is referred to that the minister would accept is not the second amendment but rather amendment No. 1 on sheet No. 2. The complication, procedurally, is that both amendments seek the deletion of the same material. The difference is that the amendment on sheet No. 2 then seeks a substitution. There is some concern from the table officers that, once we have ruled out a deletion, if that is the way the vote goes, we cannot then rule it in. I know the opinion of the Speaker but I am getting other advice from the table officers, so I will consult for a minute

The Hon. J.J. SNELLING: Might I suggest a possible solution to the quandary and, that is, with the member for Newland's permission, amendment No. 2 standing in his name, referred to as Kenyon (2), be moved by me; and, when putting the questions at the end of the debate on this clause, you put Kenyon (1) first and, if Kenyon (1) is successful, I will withdraw the amendment.

The CHAIR: Indeed, member for Playford, I agree that does solve the quandary.

The Hon. J.J. SNELLING: I move:

Page 6, lines 13 and 14 [inserted section 13]—

Delete 'for a period of more than 14 days, excluding any period when development is suspended' and substitute:

that has undergone the first mitotic division

I move this amendment. However, I point out that the member for Newland's amendment is my preferred option. The member for Newland's amendment seeks to remove from the legislation the ability to licence for the creation of any animal-human hybrid for whatever reason. This amendment seeks to makes the legislation conform with what the minister was explaining was the intention when we were in committee yesterday; that is, for these animal-human hybrids to be created only for the purposes of determining the viability of sperm. This amendment is a fallback in the event that the amendment moved by the member for Newland fails.

Last night I outlined my reasons for supporting a complete prohibition on the creation of animal-human hybrids. I would add that I do not think there is a distinction between 24 hours and 14 days. Once you have created an animal-human hybrid you have created an animal-human hybrid. The question is how long you allow that animal-human hybrid to develop. I do not think there is any ethical significance in allowing that embryo to develop for either 24 hours or 14 days. It is the creation of the animal-human hybrid which is intrinsically wrong and will always be intrinsically wrong, for whatever reason.

No matter how noble our intentions might be, the creation of animal-human hybrids is contrary to the inherent dignity of all members of the human family—and that extends to human embryos. I move this amendment, realising that it is a least worse outcome. I thank the minister for his cooperation and the speed with which he looked at the issues we raised last night and for being accommodating in making the legislation conform with what he said were the intentions of the legislation.

Ms CHAPMAN: I understand there are two amendments before the committee, one from the member for Newland and one from the member for Playford. While I do not wish to dwell on the procedural aspects, I note what I saw to be a ruling as a result of the Clerk's advice that you would not be able to accept amendment No. 2. I do not agree with that. I place on the record that I think it is quite different and that they should be dealt with separately. For the purposes of the exercise, I do not wish to dwell on that, but just place it on the record for future debates on these matters when it may be much more contentious.

I oppose the amendment of the member for Newland, largely for the reasons that have already been outlined by the minister. I agree with him that this is an important aspect. It underwent a very thorough examination during the inquiry which preceded this legislation both in the commonwealth and in other states. It has probably been one of the most controversial aspects and it has come to us in a much more restricted form. It is consistent with that recommendation but restricted in the sense that there has not been a further allowance of any other proposals which were under consideration in the inquiry.

I say that it is important. It is important for testing. Anything that will assist couples to have children—and that is one of the purposes of identifying the validity, viability and quality of sperm—has to be considered seriously. However, in this instance, a procedure which would mean women having to undertake painful, painstaking, prolonged and repeated procedures is something that also needs to be taken into consideration. To ensure that we relieve women from undergoing these procedures in these circumstances is meritorious. One of the reasons why I support the government's position is that it will allow this testing to be done.

It is important to remember that the whole reason we are dealing with whether a licensed operator can implement a certain technology is that we start with the fundamental base requirement; that is, that we do not hurt, offend or kill embryos. Obviously we have gone into the debate about the creation of embryos. We started that debate nearly 30 years ago, and we have dealt with that. We have strictly applied processes which are only to be implemented for the purposes of using those embryos. In the course of doing that, we had a prohibition on the destruction of embryos. We have returned to the argument of whether we will allow the creation of these types of embryos. It is a new model, obviously a hybrid, but it still causes considerable offence. Some for the old reasons and some for new reasons, but it still causes offence to people. However, it is one in which I see merit in relation to dealing with the quality of sperm.

I must say that, today I heard the minister say—and this is the first time I have heard of this—that, apparently, the number and quality of sperm is diminishing. I have not seen any data on that. I am not sure whether that corresponds with the quality and number of men who might be diminishing. Perhaps it is only confined to sperm. I have no reason to doubt the minister's information. That of itself might be a concern, because I think we already have many more women than we have men in South Australia. However, if the sperm are on the demise, then we could be in some serious trouble. That is all the more reason why we need to ensure that the sperm which, ultimately, are used for the purposes of IVF procedures especially are in good condition, robust and are able to undertake the challenge for which they are employed. That is my position in relation to the amendment moved by the member for Newland.

I now turn to the amendment proposed by the member for Playford. In this regard, I am not sure that I entirely understand the basis for this amendment. I heard the minister say that this has come about as a result of identifying an inconsistency in the bill. I listened to argument. In fact, he seemed to put the argument more than the member for Playford. However, having to listened to his argument that it resolves an inconsistency, I looked at the bill quickly, and I am not sure that it is necessary. It may be that there is an effort on behalf of the minister to try to give some little morsel to those who are dissenting from this bill by giving them some credit for highlighting and identifying some possible inconsistency. I would put it as high as that. I think that the bill is clear.

However, the member for Playford is presenting the argument that this is the second best, to restrict it on the basis that we define this as prohibitive after the first mitotic division. As I say, I am not certain that that is necessary. I accept, for the purposes of this debate, that it will not do any harm to introduce it, other than the fact that, if we could have consistent legislation around the country, it may require other ministers for health, or those who move these bills in other states, to revisit this so that we maintain consistency.

On the face of it, I do not see it as offending any capacity for the whole legislation to be implemented. But, in South Australia, if it has the effect of doing more than what it currently does, or, in fact, it reduces the opportunity to use it other than for testing purposes past that mitotic division, if I am right, it will not make a scrap of difference. In any event, it may require placing it on the agenda or matters of business in other states for them to resolve.

Personally, I will not be opposing the second amendment. I confirm that, on all these issues, they remain for the opposition a matter of conscience for each of the members; so, I certainly cannot present an opposition position on this.

The CHAIR: I will just confirm that my opinion is the same as that of the deputy leader. However, given that there was some uncertainty about it, and that a way out was provided, I want to make the remarks for the record that this should not be regarded as a precedent for procedural purposes. The member for Playford.

The Hon. J.J. SNELLING: The deputy leader is being a bit of a wet blanket on my minor victory here and said that the Minister for Health is simply throwing a morsel. I would like to—

Ms Chapman interjecting:

The Hon. J.J. SNELLING: It may be a morsel, but it is nonetheless a significant morsel. Just so the deputy leader understands the import of this amendment, the minister has explained to the committee that the intention of the legislation is to allow for the creation of hybrid embryos up to only the first mitotic division, and that is for the purposes of assessing sperm quality for artificial reproductive technology. The legislation does not reflect that. If the deputy leader has a look at the legislation, she will see that section 13, page 6, provides:

Offence—developing a hybrid embryo

A person commits an offence if the person intentionally develops a hybrid embryo for a period of more than 14 days, excluding any period when development is suspended.

That makes it quite clear that the offence is applicable only to a person who allows a hybrid embryo to continue its development beyond 14 days. The amendment, which I have moved, removes that 14-day qualifier so that it reflects the original intention of the legislation (page 13, paragraph (f)), which addresses the creation of hybrid embryos up to the first mitotic division. There is an inconsistency in the legislation. In one section, it talks about how person might have applied for it (page 13, paragraph (f)), which addresses licensing and restricts this practice up to the first mitotic division, that is, 24 hours.

In clause 13, under 'offence', it allows for developing a hybrid embryo. It restricts the offence of developing a hybrid embryo to only beyond 14 days. That is what the second amendment moved in my name seeks to achieve. I can assure the deputy leader that this is not just window-dressing; that this actually is important in terms of the legislation reflecting the intention of the parliament. Whilst I accept that I am in the minority in my belief that there should be no creation of hybrid embryos, I do not think that the majority of members of the house would be comfortable with the creation of hybrid embryos for any period longer than that. So, if the amendment standing in the name of the member for Newland fails—which is my preferred amendment—I will support the second amendment standing in my name.

The committee divided on Mr Kenyon's amendment:

AYES (15)
Atkinson, M.J. Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Kenyon, T.R. (teller)
Koutsantonis, T. Maywald, K.A. O'Brien, M.F.
Pederick, A.S. Piccolo, T. Rau, J.R.
Simmons, L.A. Snelling, J.J. Venning, I.H.
NOES (24)
Bedford, F.E. Bignell, L.W. Caica, P.
Chapman, V.A. Ciccarello, V. Conlon, P.F.
Foley, K.O. Fox, C.C. Geraghty, R.K.
Hanna, K. Hill, J.D. (teller) Key, S.W.
McFetridge, D. Penfold, E.M. Pisoni, D.G.
Portolesi, G. Rankine, J.M. Rann, M.D.
Redmond, I.M. Stevens, L. Weatherill, J.W.
White, P.L. Williams, M.R. Wright, M.J.
PAIRS (4)
Hamilton-Smith, M.L.J. Breuer, L.R.
Pengilly, M. Lomax-Smith, J.D.

Majority of 9 for the noes.

Mr Kenyon's amendment thus negatived; the Hon. J.J. Snelling's amendment carried.

Mr KENYON: I would like briefly to thank the minister for the way this has been handled. Sometimes these things can get acrimonious but this has not been that way. I feel it is a somewhat pyrrhic victory and I feel a little melancholy, but I will take it as we have it and move along. The rest of my amendments were consequential on the amendment that was lost.

Clause as amended passed.

Clauses 8 to 22 passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (16:40): I move:

That this bill be now read a third time.

The house divided on the third reading:

AYES (25)
Bedford, F.E. Bignell, L.W. Caica, P.
Chapman, V.A. Ciccarello, V. Conlon, P.F.
Foley, K.O. Fox, C.C. Geraghty, R.K.
Hill, J.D. (teller) Kerin, R.G. Key, S.W.
McFetridge, D. Penfold, E.M. Pisoni, D.G.
Portolesi, G. Rankine, J.M. Rann, M.D.
Redmond, I.M. Stevens, L. Thompson, M.G.
Weatherill, J.W. White, P.L. Williams, M.R.
Wright, M.J.
NOES (14)
Atkinson, M.J. Evans, I.F. Goldsworthy, M.R.
Griffiths, S.P. Gunn, G.M. Kenyon, T.R.
Koutsantonis, T. Maywald, K.A. O'Brien, M.F.
Pederick, A.S. (teller) Piccolo, T. Rau, J.R.
Simmons, L.A. Venning, I.H.
PAIRS (4)
Breuer, L.R. Hamilton-Smith, M.L.J.
Lomax-Smith, J.D. Pengilly, M.

Majority of 11 for the ayes.

Third reading thus carried.

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