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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (SURROGACY) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 26 March 2009. Page 2110.)

The Hon. J.D. HILL (Kaurna—Minister for Health, Minister for the Southern Suburbs, Minister Assisting the Premier in the Arts) (10:52): This matter has been before this parliament and on the Notice Paper for some considerable time. Before I get to the amendments and the substance of the bill, I want to make one clarification. The government has been accused of deliberately delaying this matter because of some sort of pandering to the religious right. Can I just say that is not the case.

I have been trying to work with the Hon. John Dawkins from another place for some time in order to get a consensus about how we should proceed with this bill. If we could have reached that consensus two years ago we would have dealt with the matter two years ago. I am pleased to say that we now have a consensus. The member for Morphett has indicated to me that the amendments that I will move will be supported by him. Of course, this is a conscience vote. At least he and I have agreed on a way forward which seems to be quite sensible.

The Hon. R.B. Such: It's a bit like the Yalta agreement.

The Hon. J.D. HILL: That's right. As the member for Fisher says it is a bit like the Yalta agreement. This has not been delayed for any external reason other than my desire to ensure that it is complementary to other legislation and it is practical. I can go through some of the reasons that I considered the original version, which was passed by the other house and referred to us, was impractical. Fortunately, we now have agreement on those matters, at least between the member for Morphett and me. I am happy to proceed and support the bill, once it has been amended.

In terms of the substance of the legislation, this sets up a system to allow the legal processes to be consistent in South Australia with those in New South Wales; that is, if a woman and a man use a surrogate to produce a child, that child with the consent of the birthing mother can become registered as the child of the couple for whom the surrogacy occurred.

I understand that at present there is an anomaly. If someone were to go to New South Wales where it is legal for surrogacy to occur, they could have a child and the child would be registered on the birth certificate as the natural child of that couple in New South Wales but in South Australia they would not be. Obviously that creates legal problems and confusion. It would be best, I think, if ultimately we had a common Australian national system so there would be clarity across the board so that your child is your child in every state, not just in some jurisdictions. But at least we can have clarity in our state.

There is nothing illegal about a couple having a child with another person using natural means. Currently, what is prevented, of course, is for that child to have on their birth certificate the couple who created the surrogacy arrangement. This bill creates legal certainty and provides a mechanism by which this can happen with fairness. I would emphasise that if the birthing mother chooses to keep the child there is nothing that anyone can do to prevent that happening. This is not putting pressure on or causing a birthing mother to give up a child, to have a child taken away from her. It is the birthing mother's child until time elapses and by virtually doing nothing she has exercised her options.

Essentially, a woman who takes on the role as a surrogate is acting in a charitable way to assist a couple who cannot naturally produce to have a family. I imagine that it is an incredibly emotional and intense thing for a woman to do, and there must be some leeway if she changes her mind for her to keep the child. I cannot imagine that happening in many circumstances—in fact, I cannot imagine these provisions being used in many circumstances—but we have to allow for the fact that if a child is produced through a surrogacy the birthing mother retains the right for a period of time to change her mind. Of course, this would be hard on other parties, but it seems to be the only humane way in which to deal with this issue. It is a small price to pay for the privilege that will be created, I hope, by the parliament.

I do not have any other general points to make at this stage. This is a conscience vote for members, and each of us will have to examine our own conscience as to how we feel about this, but it is consistent with other provisions we have on our statute books to assist families have children through means which are not traditional or natural. We have in-vitro fertilisation systems, and this is consistent with that approach to allow people—who for whatever reason are unable to have children—to produce a family. It cannot be done for reward or profit and that distinguishes our jurisdiction, and Australian jurisdictions generally, from other places in the world: it can be done only as an act of charity by the surrogate mother.

I commend the bill to the house. I am very happy that the member for Morphett and I have reached a consensus and I encourage others to join that consensus today.

Dr McFETRIDGE (Morphett) (10:59): I thank the minister for his cooperation. There is a series of amendments, and I thank ministerial staff for their cooperation in this matter. I pay particular tribute to the Hon. John Dawkins and Mrs Kerry Faggotter who have worked on this matter for a number of years. This is a good day. This week we saw the handing back of the Maralinga Tjarutja lands. It was the right thing to do and, again, this is the right thing to do. It is not very often that this house can rise above all the political games which are often played in here and do something which is a just and humanitarian act. I thank all those who have participated in reaching this stage, particularly the Hon. John Dawkins, Mrs Kerry Faggotter and the minister. I wish the bill a speedy passage.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clause 2.

Dr McFETRIDGE: Madam Chair, is it permissible to move all my amendments en bloc? They have been agreed to between the minister and I.

The CHAIR: With the agreement of the committee, I will allow the member for Morphett to speak to the package of amendments in relation to the first amendment, and I will allow general discussion and questions about the package of amendments in relation to the first amendment and, hopefully, that will enable us to proceed very mechanically through the rest of the amendments.

Dr McFETRIDGE: I move:

Page 3, line 5—Delete '3 months' and substitute: 12 months

The reason for these amendments has been brought to light because I think they are all technical amendments due to the changes that have been put through with other bills that overlap and intertwine with this bill before the house today. There is no philosophical issue here that I am aware of; all these amendments are technical.

Mr RAU: I have a question, and I am not fussy whether it is the member for Morphett or the minister who might assist me. My first question is whether section 10HB(13) encapsulates the substance of the material and whether the rest are provisions that give effect to that.

Dr McFETRIDGE: I am more than happy to defer to the minister's adviser.

Mr RAU: Some of these provisions are administrative, in the sense that they achieve a purpose for registration and counselling, etc., but then there is the operative provision, which does something which changes the law, in terms of the registration process, from what it is now to something different. My question is whether, first, I am correct in understanding that they are the two categories into which these amendments fall; and, secondly, if I am correct, is the substantive provision contained in section 10HB(13)?

The Hon. J.D. HILL: As I understand it (and I repeat that this is not my legislation—I am attempting to make it workable), the provision in section 10HB(13) is the mechanism by which a child's parentage is determined, and that is really up to the court to work through, based on whatever evidence is provided. I think there are a number of scenarios that might occur, so the court would be guided by the legislation, where a surrogacy agreement was in place, as to how that would occur. I suppose that provision is in place to make sure that somebody is not falsely pressured or that unfairness does not enter into it.

Mr RAU: Assuming this legislation is passed, I understand the legislation has no effect on a person's capacity to enter into a surrogacy arrangement here in South Australia, and that would be no more or less legal after this than it is now. Therefore, what we are talking about is not the legality of the arrangement, it is the way in which the outcome of that arrangement is recorded in the official records. Is that correct?

The Hon. J.D. HILL: I am not sure that a surrogacy agreement is legal. It is possibly not illegal at the moment; that is, two people could enter a private arrangement with somebody, but the child that is born of that has whatever parentage that the current law would say is the case. This allows a legal surrogacy arrangement to be entered into. There is a process that all parties would have to go through which involves counselling and a statutory kind of mechanism to make sure that everybody's interests were being properly considered. It can only occur, under the amendments that I will move, after three years of a relationship. It is akin to adoption, I suppose.

I have to express a fact. My children are my adopted children. They were my wife's children, and I went through a process of adopting them after we had been together for five years, which is what the provisions were then. I have been through this. We had to get counselling. The children had to be separately counselled, I had to be counselled, my wife had to be counselled, we had to go to court, and the judge then determined whether or not I was a fit and proper person, that everybody was happy with it. So I know what it is like. I have been through the process.

The Hon. R.B. Such: What was the judge's decision?

The Hon. J.D. HILL: Well, the judge reserved his judgment. The judge was fine. In fact, it was a terrific process in the end, because when we went to court it was more by way of a celebration. All of the measures had been agreed to. I had to have a police check. It was a very long process. So it was not something that was done in a peremptory way. It was done in such a way to make sure that everybody was okay. I guess it is a similar kind of provision. I did misinform you: the Family Relationships Act now does make surrogacy arrangements illegal.

Mr Rau: This would make them legal.

The Hon. J.D. HILL: This would make them legal, yes.

Mr RAU: So, the effect of this is to make legal something which is presently illegal. I guess my last question is this: assuming that these activities or this process were to remain illegal, is there any reason why the adoption process could not be employed to achieve a similar outcome, as a matter of law, not necessarily as a matter of convenience?

The Hon. J.D. HILL: This, of course, is a reasonable question. Those who are advocates of this—and I support them—are saying that the genetic material, which is used to produce a child, is that of persons A and B; person C holds the baby, so they want a form of parentage which is akin to that which they would have had if the child had been delivered by person A rather than person C. As I understand it, adoption laws are what have to be employed now. If a couple here went to Sydney and had a child through a surrogacy agreement, which is legal in that state—

Mr Rau interjecting:

The CHAIR: Order! Member for Enfield, please stand so that this debate goes on the mike.

Mr RAU: Sorry. These points are significant if we are going to flesh this out. The minister has said that the genetic material of A and B is combined and delivered by C. I accept that in that circumstance the child is genetically, clearly, the child of A and B, but as I read this legislation it contemplates other scenarios as well. Those scenarios might be that the child is a product of the genetic material of A plus X and delivered by C, or it might even be X and Y and delivered by C. That is a very different matter. Can the minister address those points?

The Hon. J.D. HILL: I understand that; you are correct. Let me finish my first point and then I will get to that point. The point I was making is that if A and B's genetic material is used and the child is delivered by person C, in New South Wales surrogacy is legal. A couple from Adelaide can go to Sydney, have the child, and that child would then be registered as the natural child of persons A and B in New South Wales. They come to South Australia and it is not so registered, so they have to be adopted in South Australia, as I understand it, which creates a legal difficulty for that person for the rest of their lives, that they are adopted in multiple states and they are illegal in another state. In part, the legislation will create a consistency there. That would also apply if A and B use genetic material from X and A or B or X and Y and used person C, or, indeed, use genetic material from A and C, and the child was delivered by C, as I understand it.

However, that is very much akin to the legislative provisions we have in place now with in vitro fertilisation. A and B may be infertile, can go and get material, as I understand it, from other parties, and A carries the child, but the genetic material is not A's, and yet on the birth certificate person A and person B are considered to be the natural parents of that child. So this makes it consistent. It is really the mechanism by which that child is delivered.

The difference in this case is that there is another hurdle, and that is that there has to be a surrogacy agreement with counselling—you do that with IVF, there has to be counselling and so on—and, in addition, a court has to supervise the process. Whether or not the genetic material belonged to the putative parents directly, the judge would have to make sure that the woman carrying the child is not under any pressure and is in fact doing it of free will and it is in the best interests of all of the parties.

That is the difference. However, you are correct in that another way through it would be to use the adoption laws, and really that is currently what happens. That is one of the reasons why those who are advocating these changes are unhappy, because of the difficulties about the legal status of that person in different states.

The Hon. S.W. KEY: First, I would like to say that I think it is wonderful that we are finally discussing this legislation, and I would like to acknowledge the work done by the Hon. John Dawkins in getting the legislation here. I am also very pleased to see that the member for Morphett has taken up the cause for the opposition, and, obviously, it is particularly pleasing to see the minister in his capacity as the member for Kaurna making sure that this legislation is facilitated. Can the minister clarify what 'infertility' means in the bill and whether it includes only medical infertility?

The Hon. J.D. HILL: As I understand it, that is the only kind of infertility there is.

The Hon. S.W. KEY: Was consideration given to the Victorian assisted reproductive technology bill? I understand, from the advice that I received from the Hon. Ian Hunter in the other place, that it reviewed who should have access to surrogacy provisions, and was satisfied that the parents' sexuality or marital status were not the key determinants in children's interests but rather that it should be the quality of the relationships of the people who eventually parent the children born through the surrogacy process. In the consideration of support for this bill, was any thought put to what I am advised is the Victorian assisted reproductive technologies legislation?

Dr McFETRIDGE: It was considered but, at this stage, for the bill to be as broad reaching as that, we could not reach agreement with those who had been working on the bill in the other place. There are differing views on it, this particular bill does not address that matter, but it could be readdressed at some stage.

The Hon. S.W. KEY: I assume that the way the amendments are structured, as well as the legislation that we are considering, that same-sex couples would not have access to this provision—assuming it is passed.

Dr McFETRIDGE: That is correct.

Mr RAU: I am pursuing a matter that arose in an answer the minister gave a little while ago. He made the point, by way of comparison, that under the IVF legislation you could have an IVF child where both of the gametes were donated by people other than the parents, and therefore there would be no genetic connection between the offspring and the parents. He makes the point that the public record is already deficient in these circumstances in that it does not say who, in fact, are the genetic parents of that child.

Personally, I believe that is a worry because of the amount of unexplained genetic material, as this goes on and on. It is relevant not only to the individual born of that union but also to whoever they might ultimately decide they wish to spend the rest of their lives with, etc. It is not an insignificant matter. I do not want to cast any reflections on one of the Australian states and some of its smaller towns—we do not want to go there.

The other thing that I want to say in response to the minister is that, going back to the example of IVF with donated gametes, the difference with this situation is simply that, with IVF, the donated gametes are at least carried by one of the registered parents, and therefore there is no existing adult human being involved in the transaction. In this case, an additional person is inserted into the chain of events. That is, you have perhaps both sets of donated gametes, a surrogate who is not genetically related to the donor of either of the gametes carrying the child to term, and then the child being handed on to third parties.

Whilst it is analogous in the sense that there is no genetic relationship between the child and the people who, under this legislation, would be registered as the child's parents, another disassociated individual's life is intimately involved in that process. You have inserted another leg into the process. From my point of view it still has the difficulty that I think the present system creates, to some extent, in terms of unexplained genetic material and the inability of individuals to be able to identify where they come from, with all the attendant difficulties that come from that. I do not know whether anything can be said on that.

The Hon. J.D. HILL: The issue raised by the member is serious. In fact, when we introduced amendments to the IVF legislation earlier this year or late last year (I cannot remember exactly when) we changed the law regarding anyone using donated material. Sperm donors, who used to be a whole lot of medical students—they were the sperm donors to the state—now have to be registered; you cannot do it anonymously any longer. So that material is registered, and a person who has been born through that process has a right to access that register. It cannot be done anonymously any more.

The number of children born through IVF is quite vast; on average, there is one in every classroom in South Australia. So, there is a serious risk of what you are describing in relation to IVF. We now have a process in place so that we can track that. There are also limits on the number of donations that individuals can make. The difficulty is that we now have that in the formalised process, so we can track that pretty well, but all the informal donations that used to happen, particularly in relatively small communities where friendship groups would say, 'Go and get Bill to do it. He is always good,' creates difficulties because that is totally unregulated and unknown.

In comparison to this measure, the number of people who take use of the surrogacy provisions is a much smaller group than those who will take advantage of IVF. It will be a handful of people, if that, a year, so we are talking about a relatively small number of people. Generally, it will be those who are contributing their own genetic material—occasionally, it will be those who are contributing somebody else's—and, through the IVF process, we will know who they are and that can be monitored. I think there are sufficient safeguards and a very small likelihood of that happening.

The other point, of course, is that in the broader community a lot of males who are registered parents on certificates are not that, and we do not know who they are and we do not know who contributed the genetic material. Presumably, the mothers generally do, but not always, and who knows who has formed a relationship with somebody who has the same genetic material inadvertently? That is what happens in the broader community. We are talking about a very small sample with a whole range of provisions in place which will minimise the risk associated with issues of consanguinity to the point where it is almost infinitesimal.

The Hon. R.B. SUCH: This issue is of particular relevance to my wife and me because I have three children from my first marriage. My wife does not have any children. She wanted children and so did I. We went through the IVF process, which I can tell you is not a very pleasant experience—it is very challenging. What makes the scenario interesting is that my wife has an identical twin sister who was capable of carrying children. She had her own children. I guess you would put it in the realms now of the hypothetical.

My concerns and those of my wife, Lynette, would have been that, even though her identical twin sister may have been willing to carry a child for us, we did not believe in the end that she would be willing to hand it over. You could argue that the perfect parenting arrangement is for someone else to have your child, bring it up, and then you adopt them when they get to an age when they start to behave themselves. The issue is that it could have been the scenario for us because the genetic material would be identical, as far as I know in terms of genetics, because my wife has an identical twin sister who was capable of having a child for us. As I said, she probably would have kept it anyway, so we would have seen it on weekends.

Mr PICCOLO: A question, if I could, to the mover of the motion regarding one of the concerns I have about this bill. I understand where you have A and B who use C to carry their child, and where A and B (the commissioning parents) would be the registered parents. Ultimately, my understanding of surrogacy is that it is where women, for whatever reason, cannot carry a child but want a family so another woman acts as a proxy for the couple, and that makes sense; I do not have a problem with that. The issue I have is when you introduce another party into that. Why is there a need to introduce another X or Y party into that arrangement, as I understand the bill allows?

Dr McFETRIDGE: Thank you, member for Light. My understanding is that what you have put is very similar to what the member for Enfield has put in that you can have donations from other sources but, once again, you are getting into the realms of IVF and adoption legislation. This legislation is aimed at allowing the genetic parents or the donors of genetic material (in this case, the woman who cannot bear a child and the husband or partner) then to donate that material and have in vitro fertilisation and that embryo is then put into that third willing partner and, from then, their baby is registered on the birth certificate without going through all the adoption processes as the child of the donating couple. If there is genetic material from a fourth party, that is when it overlaps into the IVF legislation and the adoption legislation. I think that is covered in other areas. Perhaps the minister could address that.

Mr PICCOLO: I am not sure my question has actually been answered. If my understanding of the bill is incorrect, that will help with clarification. My understanding is that this bill allows, potentially, a fourth or fifth party to be part of an arrangement which should, in essence, have only three parties: A and B plus C. My question is: why is there a need for a fourth or fifth party given that surrogacy is about party C?

The Hon. J.D. HILL: Let me try to answer that, if I can. Let us imagine a couple. For example, a woman who is born without a womb and has no ovaries—she can neither produce eggs or carry a child—and a man with whom she lives or to whom she is married who is infertile. There is no sperm and no egg so, if they want to have a child, they cannot carry it themselves and they cannot produce the genetic material to produce a child, so they go to a surrogate. They would, in fact, if you like, go to three volunteers: someone to donate the egg—and that could be the surrogate themselves or it could be another person; it might be a sister, to take the case of the member for Fisher—someone to donate the sperm and someone to carry the baby.

So, it is possible that there could be five people involved, but the general principles are the same. The commissioning parents want to have a child; they do not have the capacity themselves to produce a child through normal or natural means, so they seek assistance. If the woman had a womb which allowed her to carry the child, she could go through the IVF process. If she cannot do that—and we are talking about hypothetical situations; these would be fairly rare circumstances, but they might occur—she would then be able to go to another party to carry the child for her, and then the processes would kick in as to a determination by the courts in terms of the birth certificate.

The processes are clear; it just kind of thinks through all of the options. This legislation does not do it, but I suppose that, at some future stage, taking cell tissues from the commissioning parents might be possible, and some sort of reproductive process might occur through using their genetic material, but that is not what this legislation does.

Mr PICCOLO: I thank the minister for that clarification. In the bill, how is a fourth or fifth party then recognised? How would they be recognised in the process legally, if at all?

The Hon. J.D. HILL: In the same way that they are through the IVF process, that is, sometimes they would be anonymous volunteers and sometimes they would be family friends. There would be a whole range of ways that people would obtain that material. There is a register kept by the IVF of who has provided that material. So, when the child that is produced becomes old enough and wants to know, in particular, about the history of their family and the conditions that might prevail in that particular family, that will be available to them, as I understand it.

Mr KENYON: First, just while we are on the member for Light's questions, it seems to me that what the bill is trying to achieve could almost already be done under the adoption laws. My understanding of it is limited, but I do not understand why you would not just go through a straight adoption process, where someone would have a baby and you would just adopt it.

Dr McFETRIDGE: That is right; that is what has to happen at the moment: you have to adopt your own child. I think that is a completely unacceptable position to be in. I think it is a humanitarian act, if nothing else, to allow the genetic parents of a child not to have to adopt their own child. That is what this bill is all about. That is what is happening all over Australia, if not all around the world.

The Hon. J.D. HILL: Just by way of a bit of extra information for the benefit of the member for Newland, under the existing IVF legislation, only an infertile woman can get access to IVF. The surrogate mother would have to be infertile. So, you could not use the IVF legislation if you were to use someone who was fertile as your surrogate. So, there is a technical issue there.

Mr KENYON: Just taking up the member for Morphett's point and referring specifically to the member for Light's questions, in the case that he was suggesting, there did not seem to be any genetic material from the parents at all. It was actually genetic material from a third and perhaps a fourth person—he said in the case of a third or fourth person, other than the two people who are seeking to have a child. It just seems like—for want of a better term—window-dressing in a way. The actual reality is that the genetic material of two other people has been used to create a baby for the first couple.

Dr McFETRIDGE: That is correct, but the issue here is that this legislation is just completing the whole spectrum that is covered under the IVF, reproductive technology and adoption legislation that we already have. This allows people to enter into a surrogacy arrangement without any money being exchanged and no-one being coerced. It will be very rare circumstances where other than the two people who, for some reason, are unable to bear a child of their own have to use a surrogate. To go even further and then have to use a fourth party would be extremely rare.

As I say, this legislation covers that whole spectrum of those circumstances to allow that couple who do want to have a baby using a surrogate to not then have to adopt that child. As I say, this is happening all over Australia and all over the world now.

Mr KENYON: I make the point that, just because it has happened in other places is not necessarily a good argument for it to happen anywhere else, but, be that as it may. Is there any way that these agreements are enforceable? In the event that the surrogate mother who is to give birth to the child decides not to have the child, is there any ability under this bill to go to court to enforce the contract (and, again, I use that term advisedly), recover costs or anything like that?

Dr McFETRIDGE: The minister did cover that in his second reading contribution. The answer is no.

The CHAIR: The question is that amendment No. 1 moved by the member for Morphett—

Mr Kenyon interjecting:

The CHAIR: I am sorry, member for Newland, I thought you had finished.

Mr KENYON: No, I was too late getting up. I apologise.

The Hon. R.B. Such interjecting:

The CHAIR: I have indicated that I will be flexible with debate at this stage. However, I will not allow extended questions to take over the time. The member for Newland.

Mr KENYON: I will be brief with the indulgence of the committee. It is my fault, I did not make a second reading contribution. However, if I may, I will make a very brief point. My opposition to this and other bills that we have done this year is that increasingly we are legislating to commodify children. Suddenly we have a right to children. People say, 'We have a right to children.' My personal view is that basically we have no rights to children: we have all responsibility. My objection to this bill is that it continues the process of the commodification of children, and that is something that sits very uneasily with me. I thank the committee for its indulgence.

Amendment carried; clause as amended passed.

Clause 3 passed.

Clause 4.

Dr McFETRIDGE: I move:

Page 3, lines 10 to 17—Delete clause 4

Amendment carried; clause deleted.

Clause 5 passed.

Clause 6.

Dr McFETRIDGE: I move:

Page 3, lines 23 and 24—Delete clause 6

Amendment carried; clause deleted.

Clauses 7 to 11 passed.

Clause 12.

Dr McFETRIDGE: I move:

Page 4, after line 21 [clause 12, inserted section 10HA(1)]—Insert:

Fertilisation procedure has the same meaning as in Part 2A;

Amendment carried.

Dr McFETRIDGE: I move:

Page 4, lines 32 to 34 [clause 12, inserted section 10HA(1), definition of lawyer's certificate, (b)]—Delete paragraph (b)

Amendment carried.

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

Page 5, lines 1 and 2 [clause 12, inserted section 10HA(1), definition of marriage relationship]—Delete the definition

This amendment makes the marriage relationship consistent with the Family Relationships Act. This is a technical amendment and does not substantively affect the clause. It is one that parliamentary counsel has recommended.

Amendment carried.

Dr McFETRIDGE: I move:

Page 5, line 11 [clause 12, inserted section 10HA(2)(a)(ii)]—Delete 'or' and substitute 'and'

Amendment carried.

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

Page 5, lines 21 to 24 [clause 12, inserted section 10HA(2)(b)(iii)]—Delete subparagraph (iii) and substitute:

(iii) the commissioning parents—

(A) are legally married; or.

(B) have cohabited continuously together as de facto husband and wife—

for the period of three years immediately preceding the date of the agreement; or.

for periods aggregating not less than three years during the period of four years immediately preceding the date of the agreement.

This amendment fixes up the issues in relation to the Family Relationships Act. The bill before us provides that commissioning parents should have cohabited together in a marriage relationship for a period of five years. Under the Family Relationships Act the domestic partner relationship is one where a couple has lived together for a continuous period of three years or three years over a four-year time span. Really, it is just making it consistent with that legislation.

Amendment carried.

Dr McFETRIDGE: I move:

Page 5, after line 26 [clause 12, inserted section 10HA(2)(b)] —After subparagraph (iv) insert:

(iva) either—

(A) the female commissioning parent is, or appears to be, infertile; or

(B) there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to the female commissioning parent;

Amendment carried.

Dr McFETRIDGE: I move:

Page 5, lines 27 to 31 [clause 12, inserted section 10HA(2)(b)(v)]—Delete subparagraph (v) and substitute:

(v) the surrogate mother has been assessed by and approved as a surrogate by a counselling service—

(A) that—

is accredited for the purposes of this subparagraph in accordance with the regulations; and

is independent of a person who is registered under Part 3 of the Assisted Reproductive Technology Act 1988; and

(B) in accordance with any relevant guidelines published by the National Health and Medical Research Council; and

(C) in accordance with any other requirement that may be prescribed by the regulations for the purposes of this subparagraph;

The Hon. J.D. HILL: I move to amend the amendment as follows:

Inserted subparagraph (v)(A)—Delete subsubparagraph (A) and substitute:

(A) that is accredited for the purposes of this subparagraph in accordance with the regulations; and

This relates to the independent counsellors. As I understand it, the provisions in the Dawkins bill, as it came to this house, would have created some technical problems in that there would not have been people in that category. This is a different way of allowing the same outcome, by allowing access to those who work for IVF organisations, as I understand it.

Amendment to amendment carried; amendment as amended carried.

Dr McFETRIDGE: I move:

Page 6, lines 30 to 44 [clause 12, inserted section 10HA(3)]—Delete subsection (3)

Amendment carried.

Dr McFETRIDGE: I move:

Page 7, lines 1 to 12 [clause 12, inserted section 10HA(4)]—Delete subsection (4) and substitute:

(4) For the purposes of subsection (2)(b)(vi), a certificate complies with the requirements of this subsection if—

(a) the certificate is issued by a counselling service—

(i) that is accredited for the purposes of this subparagraph in accordance with the regulations; and

(ii) that is independent of a person who is registered under Part 3 of the Assisted Reproductive Technology Act 1988; and

(b) the certificate states—

(i) that the person to whom it relates has received counselling—

(A) individually; and

(B) if the person is married, or is 1 of the commissioning parents—as a couple,

about personal and psychological issues that may arise in connection with a surrogacy arrangement; and

(ii) that, in the opinion of the counsellor who undertook the counselling, the proposed recognised surrogacy agreement would not jeopardise the welfare of any child born as a result of the pregnancy that forms the subject of the agreement.

The Hon. J.D. HILL: I move to amend the amendment as follows:

Inserted subsection (4)(a)—Delete paragraph (a) and substitute:

(a) the certificate is issued by a counselling service that is accredited for the purposes of this subsection in accordance with the regulations; and

This is subsequent to the amendment that I have already spoken to.

Amendment to amendment carried; amendment as amended carried.

Dr McFETRIDGE: I move:

Page 8—

Line 16 [clause 12, inserted section 10HB(1), definition of birth parent, (b)]—After 'Act' insert: (the birth father)

Line 35 [clause 12, inserted section 10HB(5)]—Delete '6 weeks' and substitute: 4 weeks

Page 9—

Line 4 [clause 12, inserted section 10HB(7)]—Delete 'both birth parents' and substitute: the surrogate mother

Line 5 [clause 12, inserted section 10HB(7)]—Delete 'agree' and substitute: agrees

Lines 7 to 11 [clause 12, inserted section 10HB(8)]—Delete subsection (8) and substitute:

(8) However, the Court may dispense with the requirement under subsection (7)—

(a) if satisfied that the surrogate mother is dead or incapacitated; or

(b) if satisfied that the applicants cannot contact the surrogate mother after making reasonable inquiries; or

(c) in any other circumstances prescribed by the regulations.

After line 36 [clause 12, inserted section 10HB(9)]—After paragraph (c) insert:

(d) any submission made to the Court by, or on behalf of, the birth father.

Page 10, lines 12 to 22 [clause 12, inserted section 10HB(14)]—Delete subsection (14) and substitute:

(14) In the making of an order under this section in relation to a child, the child has as his or her name such name as the Court, on the application of either or both of the commissioning parents, approves in the order.

Amendments carried; clause as amended passed.

Clauses 13 to 15 passed.

New clause 15A.

Dr McFETRIDGE: I move:

Page 14, after line 17—After clause 15 insert:

15A—Insertion of section 15

After section 14 insert:

15—Regulations

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.

(2) Without limiting the generality of subsection (1), the regulations may—

(a) make provisions of a savings or transitional nature consequent on the amendment of this Act by another Act or the commencement of specified regulations under this Act;

(b) incorporate or operate by reference to a specified code or standard as in force at a specified time or as in force from time to time;

(c) fix fees to be paid in respect of any matter under this Act and regulate the recovery, refund, waiver or reduction of such fees;

(d) impose a penalty, not exceeding a fine of $10,000, for contravention of, or non-compliance with, a regulation;

(e) fix expiation fees, not exceeding $315, for alleged offences against the regulations.

(3) The regulations may—

(a) be of general application or limited application;

(b) make different provision according to the matters or circumstances to which they are expressed to apply;

(c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister.

(4) If a code or standard is referred to or incorporated in the regulations—

(a) a copy of the code or standard must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and

(b) evidence of the contents of the code or standard may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code or standard.

New clause inserted.

Clauses 16 to 19 passed.

Part 4.

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

Heading to Part 4, page 16, lines 14 and 15—Delete 'Reproductive Technology (Clinical Practices) Act 1988' and substitute:

Assisted Reproductive Technology Act 1988

This takes account of the fact that the name of the legislation has changed as a result of other matters that have been before the house.

Amendment carried.

Clause 20 passed.

New clause 20A.

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

Page 16, after line 19—Insert:

20A—Amendment of section 9—Conditions of registration

Section 9(1)(c)—after subparagraph (iv) insert:

(iva) for the purposes of a recognised surrogacy agreement;

New clause inserted.

Clause 21.

Dr McFETRIDGE: I move:

Page 16, lines 20 to 28—Delete clause 21

Amendment carried; clause deleted.

Clause 22.

Dr McFETRIDGE: I move:

Page 16, lines 29 to 33—Delete clause 22

Amendment carried; clause deleted.

Schedule 1.

Dr McFETRIDGE: I move:

Page 17—

Line 5 [Schedule 1 clause 1(1)]—Delete 'under' and substitute:

as defined by

Lines 7 to 16 [Schedule 1 clause 1(2)]—Delete subclause (2) and substitute:

(2) Subject to this clause, if the Court, on application under this clause, is satisfied that in the circumstances of the particular case it would be an appropriate course of action for the Court to exercise the powers conferred by this clause, the Court may determine that a surrogacy contract entered into before the commencement of this clause should have effect as a recognised surrogacy agreement under section 10HA of the Family Relationships Act 1975 (as enacted by this Act), despite the operation of Part 2B of that Act.

After line 40—After paragraph (d) insert:

and

(e) the Court may make any other related order as it thinks fit.

Page 18, lines 1 to 5 [Schedule 1 clause 2]—Delete clause 2

Amendments carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

Dr McFETRIDGE (Morphett) (11:52): I move:

That this bill be now read a third time.

The house divided on the third reading:

AYES (31)
Bignell, L.W. Breuer, L.R. Brock, G.G.
Caica, P. Chapman, V.A. Ciccarello, V.
Evans, I.F. Foley, K.O. Geraghty, R.K.
Griffiths, S.P. Hamilton-Smith, M.L.J. Hill, J.D.
Key, S.W. Lomax-Smith, J.D. McFetridge, D. (teller)
O'Brien, M.F. Pederick, A.S. Penfold, E.M.
Pengilly, M. Piccolo, T. Pisoni, D.G.
Portolesi, G. Rankine, J.M. Rann, M.D.
Redmond, I.M. Stevens, L. Such, R.B.
Venning, I.H. Weatherill, J.W. Williams, M.R.
Wright, M.J.
NOES (7)
Atkinson, M.J. Gunn, G.M. Kenyon, T.R. (teller)
Koutsantonis, A. Maywald, K.A. McEwen, R.J.
Rau, J.R.

Majority of 24 for the ayes.

Third reading thus carried.

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