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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 November 2008. Page 1119.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (11:52): I rise to indicate that a number of opposition members will speak on this bill. The Liberal Party has determined that this will be a bill upon which we will not have a party position. That is sometimes known in other parties as a conscience vote. We in the Liberal Party, of course, have a conscious vote on every bill; the question is whether, in addition to that, we have a party position. We are one of the few parties that actually gives members permission to dissent and, of course, to record that. So, we have a rule that members of the party may vote in any way they wish; all they have to do is give notice to the party of their intent and have it recorded if there is to be a party position.

As I have said, we have decided that there will not be a party position on this bill. For my part, I indicate that I will be supporting the bill. I think there are a number of aspects that need the attention of the government. If we had had a little more time for the discussion of some of these aspects, and the consultation process, I may have been alerted to some deficiencies in the bill a little earlier. Information that came to hand late last week did not give me time to consider the preparation of amendments. I will comment on some aspects of the bill that I think are important for the government to address to make it contemporary and make it operate effectively.

Notice has also been given to me of the government's intention to move an amendment to clause 7—to delete 'woman' and substitute 'person'. I indicate that, whilst I will refer to that a bit later, I will be supporting that amendment.

I will start by bringing to the attention of the house one of the principal reasons that we are here debating this bill. For me, there is another important reason which persuades me to seek the hasty progress of this bill, that is, the opportunity to legalise the harvesting of sperm and to assist reproductive technology to enable a widow to use that sperm to have children after the death of her husband—what is otherwise now known in this chamber as the Sheree Blake case. The opportunity for Ms Blake to utilise her deceased husband's sperm for the purposes of creating life in the form of an embryo and giving birth to a child is an opportunity that we want to give her.

It is very sad that the government should have opposed the bill that I introduced last year to facilitate this very thing happening. The result of rejecting that measure—on the basis that it wanted to undertake a more comprehensive review of the Reproductive Technology (Clinical Practices) Act 1988—has a direct impact on Ms Blake. If that bill had passed last year, she would have had the opportunity to have a baby this year (2009), and that would be something that would be given to her as a choice.

I introduced the bill on 26 November, and it was subsequently rejected. Even if this bill goes through in the next few weeks, with the counselling obligations under the national guidelines involving Ms Blake's accessibility to the genetic material, the reality is that it will be near impossible for her to actually qualify and have an opportunity to have a baby this year. She is sentenced to a waiting period that will prevent her from having a baby before 2010. Why? Because the government wanted the glory of being able to come to her rescue and provide this amendment. It could have passed our bill and dealt with all these other important issues here and now, without subjecting Ms Blake to that unreasonable and unfair delay.

The primary reason we are here now is to deal with what is described by the government in its second reading explanation as a sort of modernising and providing a new structure for the registration of the practice of assisted reproductive technology. There is a fleeting reference in the minister's second reading explanation as to why we are dealing with this measure, bearing in mind that the current act is non-compliant with national competition principles. Whilst the minister refers to that, he gives no explanation as to what has actually happened, and I wish to do so because this is an important matter.

At the 2001 COAG meeting an agreement was reached that would remedy the current impasse, involving an assessment that the current regime is inconsistent with national competition policy. The government came to office in 2002, and it has done nothing to deal with this issue for some 7½ years until the introduction of this legislation. That is shameful, especially because the government has the privilege of continuing to attend the Council of Australian Governments (COAG) meetings. It has been on the agenda and it has been required to be acted on, yet the government has not done anything about it until the introduction of this bill on 26 November 2008. I think that is shameful for a number of reasons.

First, I corresponded with the Australian Competition and Consumer Commission in October last year when I was considering the Reproductive Technology (Clinical Practices) Act 1988 and whether it was compliant. I wrote to the ACCC requesting that it consider the issue of the conditions of licence. Section 13(2) of the act provides for the—

Mr VENNING: I have a point of order, sir. There is far too much noise.

The SPEAKER: I do not think the noise level is unacceptably high. The deputy leader seems to be managing admirably. The Deputy Leader of the Opposition.

Ms CHAPMAN: Thank you, Mr Speaker; and I am pleased to have you present in this debate because this is an important matter. When I wrote to the Australian Competition and Consumer Commission about what appeared to be, on the face of it, a breach of competition policy, I find that I am right, but we had to go through a somewhat arduous process to get to this point. I want to explain the circumstances to the house.

I wrote to the Australian Competition and Consumer Commission, pointing out that the licence which had been provided must go (at that time in 1988) to the University of Adelaide, Queen Elizabeth Hospital, Flinders University, Flinders Medical Centre and Repromed Pty Ltd. It then imposed licensing requirements in that no artificial fertilisation procedure could be carried out except with that licence—and that is well known in the act. The minister, who had carriage of any granting of future licences, was prohibited from granting a further licence except in certain circumstances. Section 13(2)(a) provided:

The commission must not grant a licence unless it is satisfied—

(a) that the licence is necessary to fulfil a genuine and substantial social need that cannot be adequately met by existing licensees.

I raised this issue with the ACCC, and my question was whether it was in breach of national competition policy. I received a letter dated 23 October 2008—which, incidentally, pre-dates the introduction of the bill before the house—from Mr Brian Cassidy, Chief Executive Officer of the ACCC. The letter states:

I note your concern that since the introduction of the RTCP Act in 1988, no new licences for the use of reproductive technology have been issued.

It then refers to other matters I have raised in my letter. His letter continues:

As you would likely be aware, the ACCC is responsible for the enforcement of the Trade Practices Act 1974. Section 2B of the act provides for the application of the act to state and territory governments insofar as they carry on a business. However, section 2C of the act provides guidance as to what activities do not amount to carrying on a business, including

(b) granting, refusing to grant, revoking, suspending or varying licences (whether or not they are subject to the conditions).

For this reason, your concerns are unlikely to raise issues under the act and therefore not a matter that the ACCC is able to pursue further.

However, he goes on to say that it may be in breach of the National Competition Policy, but the National Competition Council had been set up as a policy advisory body to oversee the implementation, and he referred me on to that body. It was generous of him to provide that to me, I felt. In due course I forwarded the material on to the National Competition Council, and on 7 November I received a letter from the National Competition Council, which states:

Unfortunately the NCC's role with respect to National Competition Policy ended in 2007. Our role is now limited to advising on issues relating to access to monopoly infrastructure. To the extent that the issue you raise is one that might be addressed through application of National Competition Policy (NCP) the most appropriate body to deal with your inquiry is the COAG Reform Council. That council was established by the Council of Australian Governments to assist it in regard to the National Reform Agenda, including continuation of NCP reforms. I am sorry to have to redirect your [etc.]...

And, again, I get sent off to the COAG Reform Council; and, remember, COAG is the Council of Australian Governments, a participating member of which is this government. I sent it on, having said, 'Here is this council,' and I then get a letter from the Council of Australian Governments. Obviously, our government knows about this because it has been under some agreement terms to implement this since the COAG agreement of 2001, and it has done nothing about it. Here is what the Council of Australian Governments Reform Council had to say in its letter to me dated 22 December 2008. This letter is forwarded by Mary Ann O'Loughlin, Executive Councillor and Head of Secretariat, who states:

The CRC does not presently have within its remit any program of systematic review of specific legislation that is similar to the 1995 National Competition Policy process.

She goes on to say:

COAG has not referred this plan to the CRC for monitoring at this stage but it may do so in the future. Should such a referral be made, your concerns regarding the Reproductive Technology (Clinical Practices) Act 1988 (SA) will be an input for the CRC Secretariat's consideration.

And, wait for it—the letter goes on to say:

In South Australia, the responsibility for the commitments in the COAG Regulatory Reform Plan lies with both the cabinet office within the Department of the Premier and Cabinet and the Competitiveness Council, which has a secretariat in the Department of Trade and Economic Development. I have forwarded a copy of your correspondence to both organisations for their consideration.

Well, talk about Caesar reviewing Caesar! It would probably come as no surprise to the house that, in the last three months, I have not had any response from either of those agencies—the Department of the Premier and Cabinet or the Competitiveness Council, which is somewhere within the Department of Trade and Economic Development. I say to the house that here we have an agreement between governments to carry out the legislative reform that is necessary to ensure that there are no breaches of National Competition Policy, and, even though it is a participating member of COAG, nothing has happened by this government year after year.

Then, when we get to the correspondence to find out who is responsible for this, the ACCC says, 'It's not us. We're not responsible.' We then go to the National Competition Policy, which says, 'Well, we've had our authority taken away. It's nothing to do with us anymore.' We go off then, of course, to the COAG Reform Council, which is supposed to have this job to do all these things, and it says, 'Look, we're not responsible, because these people back in government haven't referred it to us yet.' Well, I do not blame that council directly, I simply say, 'Talk about a merry-go-round of people,' all of whom say they are not responsible, and the finger points directly back to the Premier and the Minister for Trade who have direct responsibility for making sure these things happen.

So, I find it scandalous that the government should come into the house and introduce a bill, which is meritorious in itself but which has been overdue for the whole lifetime of this government, and try to dress it up, as it is now doing, on the basis that we need to modernise the bill. What a furphy, what a red herring, when it comes to the real reason this has to be dealt with. It is typical of this government with its spin to come in and say, 'We have to modernise this.'

It has had annual reports from the SA council (which is about to be abolished in this bill), which tables reports every year in this house and another place, telling the government over and again the things that need to be reformed, remedied, added to and fixed. In particular, I refer to this issue in relation to competition. In the meantime, for another seven years we have had a duopoly continue in this state, which has been the exclusive domain of two providers.

I make absolutely no reflection on either of the two licensed providers in this state; in fact, they have made an extraordinary contribution to research and to the joy of many people in this state who have had the opportunity of treatment, which has resulted in their having a child. I would never take that away from them. They have done a great job. They have done a lot of other things in their remit within their licence, but that has been a magnificent contribution.

I have said before that this original act came into being in 1998. I had had young children by that stage and I had many friends who were having difficulty having children. As controversial as this legislation was back in the 1980s—it took years to pass—it was welcomed, and personally I felt that it was a step forward. The two current licensees have made an outstanding contribution to this state and continue to do so. The company trading as Repromed is in my electorate, and I am proud of that. I often say that the people in Bragg are either in residence, in retail or in Repromed, it is such a significant player in business, health and community involvement and it has an extensive workforce in my electorate and I will continue to support its being with us. So, the government has been dragging the chain.

Let me address the issues that have been specifically covered in this bill. The government says—and I agree—that the amendments will update the 1998 act. IVF was a controversial new area of biomedical science back in the 1980s, and members in the parliament at the time did not have to comply with a party position on the legislation. Ultimately it passed, and it now needs to be reviewed and upgraded, and this bill primarily does that.

Apart from its being legislation that is non-compliant with national competition principles, a number of other things have happened in the past 21 years that make this legislation quite outdated. One is that now parts of this act are inconsistent with national standards and guidelines. Other events that have occurred relate to the advance of other amendments in other jurisdictions, which mean that we are extremely limited in South Australia as to what circumstances have to prevail for one to be eligible for assisted reproductive technology, so we often have what is called reproductive tourism, that is, people going interstate to be able to access what may be perceived as a broader or more lenient definition to be eligible for assisted reproductive technology.

No clearer example would be the one of Ms Blake, who could have elected to travel interstate to have the procedure, but it would have meant months and months of living interstate and also the costs and stress of being alone after making a very significant decision on her part. Why should she have to if, in fact, the provisions of our own laws in South Australia could easily be remedied to facilitate her having that, and it should rightly occur?

Other limitations include the inability to accommodate new treatments. The 1988 legislation was created at a time when the opportunity for in-vitro fertilisation and other techniques were very much more embryonic, pardon the pun. Certainly it was a new science, and we have many more technologies now which are frustrated in being able to be applied as a result of their not being accommodated in the current definitions.

Then, of course, there are legal barriers to donor registration schemes. All these things, quite rightly, have been reviewed, and that review has been quite extensive. I should say that South Australia, Victoria, Western Australia and New South Wales have newer legislation regulating assisted reproductive treatment (ART), and other jurisdictions are not impeded by limiting old legislation, because they are already regulated by the National Accreditation and Licensing Scheme and the NHMRC ethical guidelines.

The South Australian council annual report—that is, the body which is like a watchdog over all of this and which reports to this parliament annually—reveals that a number of these changes have been recommended for many years. Some other recommendations which have been taken up but not necessarily covered in this legislation, or recommended, but which are issues that have come onto the plate of the SA council raise questions such as whether donors should be able to direct their gametes on the basis of race, sex, marital status, religion and so on without contravening the anti-discrimination act.

For those who might think that this is something that should be allowed, the SA council has reported to this parliament that it recommends against this occurring. This would be a situation where someone would say, 'I will only donate my sperm or egg for the purposes of reproductive material that is used for someone who is of a particular race, is Catholic, or only in a situation where the couple is married.' These are the sorts of things which the council recommended would not be appropriate.

If people are—and I say this genuinely—good enough to donate material which they know can be used in the production of embryos down the track and they make that donation, I commend them for doing that, because some of that genetic material is very important in giving people the opportunity to have children or to be able to secure the conception and the creation of an embryo. They are given the opportunity to be able to bring that life together (as such) to ensure that they may have a child.

I say that may well be an appropriate recommendation from the SA council. In any event, it does not show up in this bill. It has also looked at the use of ART to produce saviour siblings and fertility preservation. That is the question of preserving gametes for a healthy individual to have their children later in life. This is an issue they have discussed, and they raise it as a question. This bill does not specifically provide for people to be able to do that, that is, for someone at 18 years to think, 'I want to have a fun life. I want to preserve my eggs to be able to create embryos in 30 or 40 years' time. I don't want to be tied down with children now, so I'm going to travel the world and when I'm 50 I'll come back and have a family.'

This is what we call lifestyle babies, when people do not want the inconvenience of interrupting their lives with child rearing while they are taking up other pursuits in life. Certainly, that is not recommended in this bill; but I note when we come to one of the pieces of legislation which expands the basis upon which you may have access to ART (in relation to infectious disease)—and the minister has covered this in his second reading contribution—it does specifically state that it is not intended for people to be able to harvest this material and have babies later in life. Moreover, it specifically rejects that notion.

Another area that was looked at was the question of regulating non-commercial, medically-indicated gestational surrogacy, including whether surrogacy, parentage and donation conception should be recorded on birth certificates. This is another area which challenges a number of people, and it has been the subject of other bills in another place. The Hon. John Dawkins touched on this type of issue and raised it with the Social Development Committee of parliament when it considered this. They are challenging areas. I understand that there is some anticipated surrogacy legislation to come from the government, and we are yet to see that.

This is another issue which the SA council, in its service to South Australia over the last 21 years, has had on its agenda, and it has considered these hard issues and made recommendations—which have, sadly, largely been ignored. I thank the council for the service it has given. In saying that, I particularly wish to record my appreciation of the efforts of those who have been members of the council over that 21 years. It probably would be unfair if I were to simply refer to those who are currently retiring, and it is fair to say that those people who have given their time—for relatively little remuneration, I might say—have been well regarded. Many of them have been seniors in the field being considered, that is, the bioscientific area, and been directly involved in reproductive technology as part of their professional and working lives.

There have also been a number of others—paediatric forensic physicians, lawyers, former politicians (Martyn Evans springs to mind), researchers and consumer representatives—who have not been directly involved in the industry. Not surprisingly, we have often seen people who have been nominated by heads of churches because of the ethical aspects that are often taken to the barrier when it comes to decisions or recommendations that they make to us here in the parliament when we consider any new legislation.

Let me refer to the aspects of the bill as they have been outlined in the order they appear in the bill. One is the renaming of the act: for obvious reasons, we now need to differentiate between assisted reproductive technology and previous reproductive technology, so I totally support the renaming. There is the updating of the terms, such as artificial fertilisation procedures changing to ART, and that is of course to make it consistent with the other jurisdictions and for the reasons I have already espoused. There is the best interests of the child clause, which has been around for a long time and is not unique to this legislation. The bill proposes that that be retained and, the government says, strengthened and extended, but I am not sure whether it is strengthened. If anything, I think it waters down 'the best interests of the child', because if other people are added into it, by implication, the primary focus is not given to the child any more. However, I think that, for the reasons that have been espoused, that is reasonable.

The bill also proposes to take into account the welfare of the woman undergoing the treatment. For obvious reasons, the government has foreshadowed an amendment (which I fully support) that 'woman' be changed to 'person' because, clearly, there are procedures now available to men which may be to enhance their fertility or to be able to undertake a procedure that is within this legislation. I believe that, in that circumstance, it is reasonable that the 'person' undergoing the treatment rather than the 'woman' undergoing the treatment is more appropriate, and I certainly will support that amendment.

With respect to compliance with the national regulatory scheme, what has happened over the past 21 years is that there has been a slow but important and considered development of the NHMRC (the national body responsible for this) ethical guidelines, which in many ways supersedes a number of aspects of the current legislation. The guidelines cover everything from unacceptable and prohibited practices to the use and storage of gametes and embryos, posthumous use, donor conception, surrogacy, record keeping and the like. A huge tranche of guidelines has now been developed and evolved, as I said, in what I believe to be a considered and timely manner, which has now superseded the need for a number of the state-based regulations.

Where there is an overlap, whichever jurisdiction takes responsibility for it—and I do not have any view that it necessarily has to be the national body, but because the national body in this area has developed national guidelines that now apply we do not want to have a situation in South Australia where inconsistency causes any kind of dilemma for the applicants of this service.

I have referred in some detail to the removal of the anti-competition licensing conditions, and I do not think that needs any elaboration. I will look forward to welcoming in South Australia, because we have extraordinary expertise in this area, others who may qualify and who will have the opportunity to open their laboratories and clinical services in this important area. I think it is a significant area, which in the future will become more and more important, and we ought to be able to offer this service to people coming to Australia from overseas, just as they currently do, to have leading edge surgical treatment—for example, craniofacial surgery.

I wish to refer to the overall process of replacing state licensing with state registration—so, instead of licensing organisations that have permission under certain conditions to operate the services to use the procedures to carry out this area of work, moving that to the people within it having the registration process. For example, instead of Repromed having a licence, the professional people within it, subject to their being a fit and proper person, will be eligible to be registered. They will have to hold certain qualifications: they will have to be accredited and have a certain licence themselves, in the sense of academic capacity. Once they are registered, they individually take that responsibility.

I now raise an issue that the minister may wish to look at during the course of this debate. It has been brought to my attention that a technical amendment will be required because schedule 1 of the bill indicates that in transition current persons can continue. That, we presume, makes provision for people employed at Repromed, for example, to be able to continue as part of a transition clause. The fact is that only clinics currently have licences, and there are no persons currently who have licences and who, therefore, could continue. If it meant that those who are currently employed (using Repromed as the example) should automatically be registered in some way, then I would support that. However, it just seems to me that the wording is such that this aspect will need some amendment.

I now come to the dissolution of the SA Council on Reproductive Technology. Having thanked the council for the work that it has done over 21 years, the government is saying that it is no longer needed. It has set up the national structures to establish the codes of ethical clinical practice and research, etc., and the council really no longer has a direct purpose in this area. Its function should continue only as a health advisory council and, therefore, the government has proposed in this bill to dissolve the SA council and, in due course, by ministerial appointment, to establish a health advisory council. As the name indicates, it will have an advisory role principally to the minister and government.

I think it is important that that role continues. Personally, I still think that it is a matter which is significantly controversial and it will continue to be pushed up to the barriers of controversy with future treatments and technologies that come before us. More particularly, it will involve the right or opportunity for people to have access to them. In terms of ethics and the challenges that people will have on morality and access to certain procedures, I do not think that this issue will go away. Personally, I think that they are a valuable group of people who could consider issues as they arise, and it will be important for them to have the capacity to report to parliament.

Under the government's proposal, one can only assume (and hope) that if a controversial issue arises the people concerned will be sent the relevant material and asked to provide a report back to the minister, and that the minister will have the option of providing that information to the parliament if he or she sees fit. With the disbanding of the SA council I record my hope that current and future ministers will ensure that the value of having such a diverse and experienced council—assuming that people of the same calibre will be reinstated in this health advisory council—will be recognised, that this body will still be a first port of call when it comes to assessing these matters, and that members of this house, now and in the future, will have access to their valuable advice.

The next issue, which is probably one of the most controversial in the personal representations that have been made to me, is the question of marital requirement. It is a bit of a chestnut. People who take the view that only married couples should have access to ART are usually the same people who think that only married couples should be able to adopt a child, and who believe that various other restrictions should apply. It is not a rare or unique comment made in the community. There are people who make a genuine and considered judgment and who take a moral stand with the view that ART, which is a very expensive medical procedure, should be available only to married couples.

This bill proposes to confirm in legislation that, in fact, it is also available to any women—or men, for that matter—who are infertile, regardless of their marital status, sex or sexuality. I simply say that it confirms that legislatively, because the reality is that, in the Supreme Court case of Pearce in 1996, the act that is to be repealed by the bill currently before us came under scrutiny, and it was determined by the court that it must be read down in accordance with the Sex Discrimination Act.

The Sex Discrimination Act basically says that you are not allowed to discriminate against people based on marital status, sex or sexuality and the like and, therefore, for 12 years, we have had a situation where, if the applicant is infertile, then irrespective of their marital status, etc., they are eligible, at least, to seek ART procedures.

I accept that it will still be a challenge for some people, but it is not for me. I think that it is a matter that, in this day and age, we do need to recognise just as, within a few weeks, many states and jurisdictions within Australia will implement de facto property legislation by vesting it in the jurisdiction of the Family Court of Australia.

I mention this because, over the last 20 years, most states and territories have recognised personal relationships between people of the same or opposite sex who have cohabited or have an intimate relationship—that is, have a personal commitment to each other. For some bizarre reason, South Australia is not signing up to this. In a few weeks' time, all the other states will be signing up to this except South Australia.

I suppose the answer to that will lie with the Attorney-General and, no doubt, he will explain to us, in due course, why on earth he is not doing something about this. Nevertheless, this legislation marks not only what the actual legal position is as a result of Pearce's case but also it will put to rest in the legislative form what is the reality.

The next matter is the question of medical practitioners and other health professionals being allowed to provide assisted insemination. At the moment, doctors carry out this process and this legislation proposes that a nurse, for example, with suitable experience and qualification, with the minister's approval—that is, authorised by the minister to do so—will be able to carry out these procedures.

It will not have to be just doctors undertaking this procedure: we propose to introduce others. I have had this debate many times in this chamber, and there is no question that there are examples of situations where someone with another training background is perfectly capable of undertaking the duties that have otherwise been exclusive to the primary group. We have had lots of examples of this, and the consistent position of the opposition—and I still maintain this—has been that it is fine to expand the number of health professionals to do things as long as they have adequate and appropriate training and qualification to do it.

In other words, you would not have to be a medically-trained general practitioner with a basic medicine degree out of the University of Adelaide to qualify to do this, but if nurses or psychologists or other health professionals—or, indeed, scientists—are going to be approved to be able to do this, it will have to be demonstrated that there has been adequate training in this area of expertise.

One aspect that needs to be looked at in extending this is to ensure that there is full coverage of not just the top scientists and medicos in the organisations, because they are not the only registered people, but also all these other health professionals. If they are given permission to do this, they should also have to be registered. A registration process is not just to keep an eye on who is actually doing these procedures in the clinical sense (and bear in mind that fees are paid for the service and that there are professional standards to which they should adhere); they also take responsibility. We need to know who they are.

One of the penalties that can apply for failing to comply with a condition, to keep up a certain standard or do a certain level of retraining has always been that the sabre can fall; that is, the registration can be suspended or completely withdrawn, the result of which is exclusion from the right to operate in that profession. Teachers and nurses, everyone in these sorts of professionally recognised areas of health, education and other areas where there is a registration procedure, can be struck off if they do not behave. I am not picking on teachers or nurses here; lawyers are in this category as well, as are accountants.

There are certain registration processes that mean that you lose your ticket to practise if you breach the rules, and that has been the instrument of discipline and standards that has commonly been employed. I simply say that it is important for the minister to consider this and, if he does not think it is meritorious, then I may look at this being presented in another place—that all those who have the capacity to provide assisted insemination and these other techniques are also required to be registered.

Another aspect that may be controversial for some people is extending access to assisted reproductive technology if one of the parties has a serious infection. At the moment you can line up to have ART if you are infertile or if there is serious risk of your passing on a genetic condition (particularly a genetic defect). This bill proposes to extend that to serious infections, and the most obvious, of course, is the HIV virus. However, there are other serious infective conditions which would apply, and I think that is reasonable in circumstances where someone having intercourse with their partner could seriously contaminate that party and/or possibly have some deleterious effect on the development of the foetus or child or even risk their contracting the condition as well. So I wholeheartedly support that initiative.

I have referred to the posthumous use of sperm. I have no doubt that Sheree Blake and others have suffered the situation where they have been ineligible for access to their dead partner's sperm because they were not actually infertile. I suppose some would say, 'Bad luck. She can go and repartner and have a child to someone else. She's fertile, so why should she have access to this?' The situation is clear to me, in any event: if a couple has decided that this is an option they wish to take and it is important to them, if they make the plans, have the counselling and undertake the harvesting of the genetic material, sperm or whatever is to be stored, and if it follows all the processes with the consent in writing, etc., then, frankly, this option ought to be available to them.

I personally know of two other cases where two males had treatment for cancer but both died. They had stored sperm for future use. In both cases the widow has not taken up the option of using the sperm, that is, take it interstate to have it implanted. In one case, there was a question about whether the widow (who would have qualified) was, in fact, infertile. Both made a conscious decision not to pursue that option.

Is that not fair? Is that not exactly what we want: a situation where widows have a choice? They can make a rational and clear decision—whether or not they have had any children by their deceased partner—not to pursue the option of bringing a child (or another child) into the world on their own. That is a decision that we want them to have the right to make, not we as fellow human beings saying that we are going to preclude them from that. As I said before, I am keen for this bill to go through in the hope that Ms Blake and others in her position will not have to suffer the same indignity and delay that they have to date.

There is a question of access to ART for future infertility. There are already some opportunities to do this, but this will allow a party to store sperm or eggs when they face the risk of future infertility because of cancer treatment. As I have said before—and this is important—it must be a medical condition or disease that is defined in the regulations. I have not seen those yet, and frequently we do not see the draft legislation. However, it must be clear that there is a specific medical condition rather than just getting old. That is important to us.

I come to the donor conception register. This is important because, again, the government has been dragging the chain on this. In 2005 the Social Development Committee investigated the lack of access to identifying information about gamete or embryo donors. A classic example of the reason for this is to make sure that sisters do not inadvertently marry brothers as a result of unidentified donated material and later conceive children with that donated material. Not only would it potentially break the law under the marriage act to be in a relationship which is prohibited, it would also prevent children being born from incestuous relationships, and thus prevent the potential defects and deformities that may flow. All those laws have been set up for good reason.

In 2005, the Social Development Committee felt that a donor conception register was something that needed to be investigated. Nothing happened. In 2007, the Social Development Committee again recommended that people who are conceived through a donor program have access to information about their genetic heritage if they request it.

The bill provides that South Australia participate in the donor registration program as approved by the minister. He may set up his own register. That whole section of the bill where the minister establishes his own state register is couched in terms of 'may', as I understand it. I think the minister made it clear in his second reading speech that he expects the national register to be put in place soon, and that South Australia, like other jurisdictions, will have access to it. Again, there is not much point in duplicating it if that occurs. If it does not occur, because of some hold-up or whatever the problem may be, then under this bill we will be giving him the power to set that up, and that will be an important initiative.

On this issue, I raise another matter that was brought to my attention by the IVF Directors Group of Australia, a body which represents all of the IVF licensed facilities in Australia. A number operate in Australia; we have two here and several are in the other jurisdictions. This group came to me late last week to advise of its concerns, although, overall, it endorses the legislation so that South Australia catches up with this.

I want to raise a concern that group had, which I have discussed with a number of other senior people in the opposition, and we have considered the directors' group recommendation that there be a regulation for the no-fee providers of insemination. The no-fee providers are the do-it-yourself home job, colloquially known as the turkey baster option, and it has other unsavoury descriptions. I think you get the gist of it: instead of going to a registered clinic, people decide that they will harvest their own sperm and insert it into a female party with some instrument—

Mrs Redmond: By a squeezer.

Ms CHAPMAN: Yes, a squeezer, puffer; you name it. This is the do-it-yourself, home job. I think everyone has the idea. The fact is that it goes on. As some of my colleagues, including the member for Heysen, have said: we will not be able to stop this; it is not illegal for people to do this, just as we cannot stop people having sex.

Mrs Redmond: We did think about a tax.

Ms CHAPMAN: One of my colleagues, the member for Unley, suggested that taxing sex might be a good way of managing this. We will not be making him treasurer, that's for sure. However, this question of how we protect individuals in this process is serious. We must do the same thing that a donor register does for legitimate fee-paying organisations and enterprises. That is, we must protect against illegal relationships and prohibited activity, including servicing of underage persons and the like. We need to consider how we do that in order to protect someone who, ultimately, may be a child of this do-it-yourself union or may be the carrier of a child produced out of this procedure.

In summary, the directors' group was suggesting that a regulation be introduced, but that would be very difficult to police, because you would then have a process which incurs some sort of fine if you did not register this. I hate to think of all the defences that would be raised by people. I think a reasonable way of going forward on this, which could be considered by the government, is to facilitate, at least, an application procedure where someone who had been impregnated, say, as a result of some home service—and I do not mean natural intercourse but the turkey baster process—has an opportunity to register that by application. It would not be obligatory, because we could not—

The Hon. J.D. Hill interjecting:

Ms CHAPMAN: No; I am just simply saying that it is the same as when somebody signs a form when they make a donation. They can say, 'I am John Hill' when, in fact, they are somebody else, so there are all sorts of processes. I suppose we are looking at—

The Hon. J.D. Hill: A voluntary basis.

Ms CHAPMAN: If a voluntary application process was added to this where the applicant could do it by declaration, signed by the alleged other donor, one could reasonably assume that those who are genuine in wanting to make sure that the offspring do not fall into a potentially dangerous category in the future would willingly provide this. They would not be rushing to register just to give you a false name; they would actually be wanting to, unless somebody came in and said that this donor sperm is from Elvis and he signed this in Nashville. There is an opportunity for people to come forward and look at that issue. I think I have at least an indication from the minister that that is something he will look at.

The second aspect relates to the prohibition of gametes or embryos being taken out of the state. The objective is to stop people in, say, South Australia operating a business which harvests the eggs or sperm, and then throwing them into a frozen container and transporting them to Sydney and selling them off, and the people of South Australia then having to travel to Sydney to access clinical and laboratory services.

I do not want to hold up the passage of the bill, but I understand that there is a provision in the Victorian legislation which prevents any of this genetic material from being taken out of the state. There is some argument that a condition of being granted a licence, given that people move to and fro, is that a clinic had to provide laboratory and clinical services, the principal reason being to ensure that experts located here in South Australia are not lured to another state.

My understanding is that Victoria is worried about this issue; they think that Sydney is pretty avaricious when it comes to taking expertise from other states. So, Victoria prohibits transfer of the material out of that state. However, there is this other option of looking at full laboratory and clinical services, and I think that is something that could be considered.

In summary, I support the bill and I will support the government's foreshadowed amendment, which I think is being put on file in the name of the Minister for Health. I think schedule 1 needs to be looked at, as well as transitional registration. All medical, laboratory and nursing personnel who are able to carry out these procedures, bearing in mind that it will be a much more expanded group, should be registered, as should also the clinic in operation, so that impositions can be placed on it if this other aspect to which I have referred is considered. The matter of 'do it yourself' insemination processes to avoid inbreeding and private arrangements or abuse within prohibited relationships is something that could be looked at by the government with a view to providing an 'opt in' process.

Finally, I think it would be preferable to prohibit gametes and embryos being taken out of the state, although I acknowledge a condition obligation of having to provide full laboratory and clinical services to maintain the skill level.

There are some other minor matters, including new conditions to be placed on registrants, including the safe and appropriate storage of records, which is something I welcome. There seems to be a large increase in penalties to be imposed. For example, I think the penalty for practising without a licence is to be increased from $10,000 to $120,000. There are a number of other penalties (including prison terms) associated with fines in the range of $2,000 to $10,000. On the face of it, they seem to be massive penalty increases but, given that this issue has not been reviewed for 21 years, I think they are reasonable. A safe, secure registration process will replace the licensing process, and it needs to be expanded to fully protect future consumers in what is an important and ever expanding area of services for men and women in our community. I commend the bill to the house.

Debate adjourned on motion of Mr Kenyon.


[Sitting suspended from 13:00 to 14:00]


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