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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-09-24 Daily Xml
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council’s amendments.

The Hon. J.D. HILL: I move:

That the Legislative Council's amendments be agreed to.

I thank members in the other place for their contributions to this legislation. The bill returns from the other place with three amendments. These three amendments are consequential and will not affect the original intention of the bill.

The first amendment, moved by the Hon. Dennis Hood, enshrines the welfare of the child as the fundamental principle of the act and the guiding principle of the provision of ART generally. Thanks to this amendment, the child's wellbeing is put above the desires of would-be parents or medical practitioners at all times, so we are happy to accept that.

The second amendment is one that I initiated and government members in the other place moved. It relates to consequential amendments to the Family Relationships Act 1975. As members would be aware, the bill allows for the posthumous use of sperm under limited circumstances. As a result, amendments were required to the Family Relationships Act to assign legal parentage to children born in these circumstances.

The Family Relationships Act assigns parentage for children conceived from a fertilisation procedure. The Family Relationships Act provides that, where a child is conceived using donor sperm, the donor is by definition not the father; instead, the husband/partner is recognised as the father by virtue of the relationship with the mother which is appropriate of course in the majority of cases.

However, where a husband or partner is deceased when the child is conceived, he is considered the donor and therefore not the legal father. If we were to proceed without that, that would go against the intentions of those who support posthumous donation. This obviously has implications for the child's inheritance and has other legal consequences.

The bill will now ensure that children born in these circumstances have legal clarity about their parentage. Should other cases arise which are not contemplated by the FR Act for children born with ART, the court—and in this case it is the Youth Court that deals with adoption orders—will have the power to make parentage orders with the agreement of both the mother and the sperm donor. This will give the court guidance on how to make decisions whereas, currently, it is left to the Supreme Court's discretion on how a parentage order decision is made.

I also take this opportunity to remind members that this amendment bill, with the inclusion of the two amendments I have outlined, is not a radical shift in policy. The amendment bill before us reflects nationally accepted clinical practices and, if passed, will bring South Australia's ART laws into the 21st century.

Access to treatment is still based on clinical need and is restricted to people who appear to be infertile or at risk of transmitting a genetic defect, but that now includes those at risk of passing on a serious condition such as HIV to a child conceived naturally. The bill will ensure that the regulation of ART in South Australia is responsive to emerging issues and improved treatments, thereby benefiting those in need of ART for safe family formation.

This matter has been before the parliament now for some considerable time. It has had plenty of consideration by both chambers, a lot of discussion in the media and among interested groups. As it is a conscience vote on both sides of both houses, it has really been considered by individual members of parliament quite closely, and I am very pleased that we are now coming to the conclusion of that process. The passage of this bill today will create a new regime for South Australia, which will give clarity to everyone who has an interest in this area.

Dr McFETRIDGE: The bill was introduced by the minister on 26 November 2008 and passed by the House of Assembly on 3 March 2009. It was passed with amendments by the Legislative Council on 8 September 2009, and we have just received these amendments here today. As the minister has said, it is a conscience vote so, whilst I am speaking in support of the amendments, it is up to my colleagues and other members of this house how they vote, but I would be very surprised if it does not receive the same level of support as it did before.

I will just explain some of the amendments by way of explanatory notes given to me by some of the Hon. Mr Hill's staff. I thank them for the briefing that I was able to have and pass on to my colleagues. This bill allows registered assisted reproductive treatment providers to provide treatment to a woman using her deceased partner's sperm under strict conditions and with the prior consent of the deceased man.

As a result, to clarify the legal parentage of children born in these circumstances, amendments are required to the Family Relationships act 1975. The Family Relationships Act, among other things, assigns parentage to children conceived from a medical procedure (Part 2A). The Family Relationships Act provides that, where a child is conceived using donor sperm, the donor is not the father by virtue of section 10D, even if the husband or partner is the donor. Instead, the husband or partner is recognised as the father by virtue of his relationship with the mother, which is appropriate in the majority of cases.

In cases where a husband or partner is deceased when the child was conceived, under the current Family Relationships Act, he would be considered the donor and therefore not the legal father. This has implications for the child's inheritance and has other legal consequences. The amendment replaces schedule 1 containing the transitional provisions and substitutes it with amendments to the Family Relationships Act 1975. The amendments that relate to the above circumstances make minor consequential amendments and gives the court the power to make parentage orders in cases not currently contemplated by the Family Relationships Act.

The first clause changes the title to reflect that it relates to children conceived through a fertilisation procedure. Currently, the title is 'conceived through a medical procedure'. However, assisted insemination is not always considered a medical procedure, especially if undertaken by a nurse practitioner or at home.

The second clause changes the definitions of ART in the Family Relationships Act to reflect the new definitions in the amended bill. The third clause provides for children born from fertilisation procedures carried out before the commencement of the amendment bill. This amendment would give children born before the commencement of this amendment, and their families, legal certainty about their parentage.

The fourth clause assigns paternity to the deceased sperm donor in the case of a child conceived using a man's sperm posthumously. This clause is required as a result of the amendment to allow for the posthumous use of sperm under (section 9(1)(c)(iv)) in the amended bill.

The fifth clause gives the Youth Court, which deals with adoption orders, the power to make parentage orders should other cases arise which are not contemplated by the Family Relationships Act. This clause gives the court guidance on how to make decisions, for example, by requiring the agreement of the sperm donor and the mother, whereas currently it is left to the Supreme Court's discretion on how a parentage order decision should be made.

Part 2 relates to the original transitional provisions and is a technical drafting issue. This amendment replaces the schedule which currently contains these provisions, so it needs to be repeated.

As a result of this amendment, this morning I moved the adjournment of the surrogacy bill that has been in this place for around 4½ years. I hope to have that put through, as a result of some tidying up, after this bill has been passed and that it goes through the house before the end of the parliamentary term.

Ms CHAPMAN: I indicate that I will also be supporting the amendments passed in another place. I welcome the return of this bill. It has a long history, as indicated by colleagues today. I remind the committee of my disappointment at the rejection by the government of the bill that I introduced in the middle of last year to remedy a particular case that was very public last year. The government insisted, some months later, on introducing this bill with much more comprehensive reform, but it incorporates the difficulty of ensuring that a widow has the opportunity to use the sperm of a deceased husband.

The direct consequence is that it is now September 2009. I do not make criticism of the passage of the bill, because it was a much more comprehensive bill and it needed to consider a whole lot of other factors, many of which were in urgent need of reform, and we have commended the government for dealing with them. What is disappointing is that, in an attempt to ensure it gets some accolades for dealing with the issue of posthumous application of sperm, it should hold up that other case. Sadly, that particular family has had to wait until this year to have the opportunity, if the widow still elects to proceed, to use the sperm.

I also note the federal government's budget announcement that it will review the funding available for the provision of what we are now going to call 'assisted reproductive therapy'. That is appalling, and I am very concerned to hear that. It comes during the time that we have been debating this bill, and, although there has been some postponement of the final decision by the federal minister, Nicola Roxon, as to how much is to be cut from the benefit of people who have difficulty having children, it is of great concern. People do not choose to be infertile, and it is the wish of many who face that challenge that they have the opportunity to have a family.

I place on the record how deeply concerned I am at the federal government's announcement, which has come during the course of the debate of this bill, and which has been in another place until today. That is very concerning. I hope that the federal government understands what an outrageous imposition that will place on those families who want to have children, to experience the joy of children, but who may be prohibited from that because of the cost. I would certainly ask the government to review it.

Otherwise, the reproductive council in South Australia has been calling for these important reforms for many years, and I, at that time representing the opposition, as indicated by my colleague the new opposition spokesperson for health, indicated it was a conscience vote. There are aspects of this bill that have the full endorsement of our party.

There is just one other minor technical matter. It is important that we remedy this issue, by the amendments, to register the deceased party on the birth certificate. That is terrific, but it should be clear on the record that this does not obviate the obligation of the new partner or husband of the widow who may elect to use the sperm posthumously of her deceased husband.

Notwithstanding what we are proposing to amend in the state legislation, the Family Law Act, which deals with the question of obligations in respect of children from guardianship to financial support, irrespective of the marital status of their parents, does place a secondary obligation on another set of people; namely, step-parents, new partners, and where a child is ordinarily resident in a household involving that new partnership, they may well be called upon to make provision for financial support and, in addition, have entitlements to guardianship and contact.

It is important that the parliament understands that, whilst we are trying to recognise the significance of the opportunity to register the original donor on the birth certificate, meritorious as it is, it will not relieve other new parties from their obligations under the act or curtail the entitlements and eligibility which they will receive under the federal legislation. With those few words, I indicate that I will support the final passage of this bill and welcome its return.

Ms CICCARELLO: I will be very brief. I have already spoken on this bill at length in March this year. I am delighted that, even though it has travelled a tortuous path through both houses to where we are today, we have an updated piece of legislation which ensures that assisted reproductive treatment in South Australia is progressive and relevant. I am equally delighted that Sheree Blake is in the chamber today and can be witness to this final battle in her war to be able to access the semen of her deceased husband, Lee. I am thrilled that my efforts have helped my two good friends' wishes finally come to fruition and look forward to the day when I am able to meet, as Sheree put it once, 'a little Blakey'.

The Hon. J.D. HILL: I am very pleased to say the final thing. All I wish to do is thank all members for their contribution and, of course, all the officers for their help. It has been a long process. Matters which are conscience votes for the parliament are more interesting in some ways to deal with, but they are more complex. We worked our way through all those issues over the year or so that it has been before the parliament and I am very pleased it is now coming to an end. I thank all members for their contribution.

Motion carried.

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