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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-08-30 Daily Xml
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Bills

Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill

Introduction and First Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (15:35): Obtained leave and introduced a bill for an act to amend the Assisted Reproductive Treatment Act 1988 and to make related amendments to the Births, Deaths and Marriages Registration Act 1996, the Family Relationships Act 1975 and the Surrogacy Act 2019. Read a first time.

Second Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (15:36): I move:

That this bill be now read a second time.

There are two main purposes of the bill. Firstly, the bill seeks to legalise the posthumous use of an ovum or embryo in similar circumstances to what is already permitted in respect of posthumous use of sperm. Secondly, the bill will enhance the operation of the Donor Conception Register that records information in relation to children born through the donated human reproductive material by allowing donor conception participants access to certain types of information, overturning the historical preservation of anonymity of donors.

In both cases, the bill moves to modernise legislation in line with evolving community expectations, empower individuals and extend fairer access to important information and technology. In relation to the posthumous use of human reproductive material, the bill seeks to amend the ART Act to allow for the posthumous use of an ovum or embryo. Posthumous use of human reproductive material is only permitted under strict conditions, including the deceased having consented to the use of their material posthumously prior to their death and for the partner seeking to use the deceased's material having lived in a genuine domestic relationship with the deceased prior to their death.

In its current form, the ART Act only allows for the posthumous use of sperm, and this amendment would make the act equitable for men whose partner had died and for same-sex couples. This amendment will bring South Australia in line with Victoria and New South Wales.

In conjunction with this amendment, the bill will make consequential amendments to the Family Relationships Act 1975 and the Surrogacy Act 2019. These amendments will ensure the Family Relationships Act 1975 recognises the deceased person as the parent where children are born from ova or embryos used posthumously and ensures the Surrogacy Act 2019 enables parentage of a child born as a result of a lawful surrogacy agreement to be transferred to a deceased person whose material or an embryo created from their material was used.

In relation to the Donor Conception Register, the practice of using donated human reproductive material to conceive a child has helped many people to have children who otherwise may not have been able to. However, this practice of assisted reproductive treatment also has a history veiled in secrecy, with donors previously being guaranteed lifelong anonymity and parents encouraged not to tell their child the truth of their conception, meaning that many donor-conceived people may not know they were conceived using donated gametes or may not be able to identify their genetic parent.

It is now widely accepted that the knowledge of one's heritage and genetic link plays a significant role in the development of a person's identity and self-esteem. Indeed, the Assisted Reproductive Treatment Act 1988 (ART Act) recognises that the welfare of a child born as a consequence of ART must be treated as being of paramount importance, and this fundamental principle is supported in practice by government and regulatory authorities.

In 2004, the National Health and Medical Research Council changed the ethical guidelines with which fertility clinics must comply to prohibit clinics from taking donations of human reproductive material unless the donor consents to release their identifying information to any person born as a result of their donation.

In 2011, the commonwealth government's Legal and Constitutional Affairs Reference Senate Committee released a report which supported donor conceived individuals having the right for information about their biological heritage, In 2017, Professor Sonia Allan, a highly respected academic in the field of ART and donor conception, conducted the state government's review of the ART Act and recommended that South Australia retrospectively provide donor-conceived people with access to identifying information about donors. That was, of course, six years ago that that report was released.

Recognising these shifts in views, South Australia established a Donor Conception Register in November 2021 in accordance with the amendments to the ART Act, as moved by the Hon. Connie Bonaros MLC in 2019, and I recognise the work of the Hon. Connie Bonaros, as well as that of the Hon. Frank Pangallo and the member for Light in the house in advocating for these amendments over a long period of time.

The Donor Conception Register in its current form holds information about donors of human reproductive material, the recipients of this material and any person who is born as a result of the donated material. Having this information held in a government register ensures these details are centrally and securely recorded.

This bill seeks to amend the ART Act to enable the Donor Conception Register to function retrospectively and enable safe and supported access to the information it holds by parties to a donor conception. In doing so, South Australia will be only one of a handful of jurisdictions across the world and only the second jurisdiction in our country to legislate the retrospective disclosure of a donor's identifying information.

A retrospective register means people conceived through donor conception, irrespective of when they were born, will be able to access information about their genetic parentage. Where information is verified, the identity of their genetic parent or parents—the donor—will be disclosed. This accords a donor-conceived person with the same right to genetic familial information as those conceived without the use of donated material.

The idea of releasing a person's highly sensitive personal information without their consent is divisive and contrary to usual privacy laws and principles. It is recognised that historically donors made altruistic donations on the understanding that their identity would remain anonymous.

Importantly, the amendments do not require any donor to have contact with their donor-conceived offspring, and protections against unwanted contact of a certain threshold already exist in other legislation, such as the Intervention Orders (Prevention of Abuse Act 2009), should it be necessary.

The government has not taken the decision to legislate a retrospective donor conception register lightly and has sought expert input and consulted with those the register will impact the most to ensure the model proposed for South Australia is workable and allows disclosure of personal information in a safe, respectful and ethical way.

There is already a precedent for revoking anonymity in our state. The South Australian parliament, being the last state to do so, passed changes in legislation reflective of this very policy position when it passed the Adoption (Review) Amendment Bill in2017 and removed the information veto system, which allowed parties to an adoption to retain privacy.

Similar changes were also passed in Victoria in 2015, when the Victorian parliament passed the Assisted Reproductive Treatment Further Amendment Bill to give donor-conceived people the right to identifying information about their genetic parent regardless of when they were born.

The rise of at-home DNA testing, such as Ancestry DNA, has also contributed to ending donor anonymity. We have heard stories from donors of being found by their donor conceived offspring in this way, despite the donor not being registered with a DNA matching service.

With your leave, sir, and that of the house, I seek to have the remainder of my second reading explanation and the explanation of clauses inserted into Hansard without my reading them.

Leave granted.

An international survey in 2020 of 481 donor conceived people across 15 countries found 78% of respondents had found their donor through commercial DNA testing sites. Eighty percent of those attempted to contact the donor and likely had none of the systems, support and assurances that would be present under the proposed regulatory system for South Australia.

Donor conceived people are rightfully fearful of unknowingly forming relationships with someone who may turn out to be their genetic half-sibling. Donors may provide multiple donations and with Adelaide's population size it is not improbable that genetic siblings may attend the same school or university or socialise in the same circles with no knowledge of their genetic connection.

Enabling regulated access to information held in the register will help donor conceived people and donors to safely learn about their genetic heritage and provide a way to respectfully seek contact with each other should both parties be open to it. The register will also enable the voluntary sharing of health and medical information between genetic relatives without forced contact.

Regulations will detail the access principles that apply to each party to a donor conception. All donor conceived people will have the right to access identifying information about their genetic parent(s) upon turning 18 years of age, regardless of when they were born.

The disclosure of identifying information in all other genetic relationships on the register will only be provided with the consent of the person whom the information pertains to. Consent would not be required for the non-identifying information about a person to be disclosed to their genetic relatives.

The register contains information about parties to a donor conception where the treatment and birth registration occurred in South Australia. Linkages with the South Australian Births, Deaths and Marriages registers will verify information held by the donor conception register and I thank the Attorney-General and the Registrar for their ongoing support of this.

Every effort is being made to upload historical donor information into the donor conception register, however the register will unfortunately not contain all the information that donor conceived people may seek, particularly where it relates to a donor conception prior to 2004. Routine practices prior to this time meant that, in an effort to preserve anonymity, some records were destroyed, or identities redacted. Whilst we cannot rectify the effects of these past practices, those impacted can be confident that all available information would be retained by the register going forward.

Providing access to the register has the ability to significantly impact the lives of donors, donor-conceived persons, their families and biological relatives. Recognising the particular impacts that may be felt by the pre-2004 donors, the Government will make important counselling and intermediary support services available to this group.

Parties to a donor conception from late 2004 onwards, continue to have access to the counselling and support services already provided by fertility clinics under the requirements of the National Health and Medical Research Council Ethical guidelines.

Key provisions in the Bill include:

The introduction of an offence to give false or misleading information to the Donor Conception Register. This is proposed to help ensure the accuracy of the information in the register and to deter those who would seek to corrupt the integrity of the register.

A provision to limit the right to access information in certain circumstances where the disclosure would be an unjustifiable intrusion of privacy, or the disclosure would give rise to a serious risk to life or safety.

A provision to allow the Minister for Health and Wellbeing to authorise disclosure where necessary if the Minister is satisfied that the disclosure is necessary to protect the health, safety or welfare of any person.

An enabling provision to ensure that any third party involved in the register's operation (such as the contracted support service provider) is authorised to access the Donor Conception Register to perform necessary functions and to contact persons who are participants to the Donor Conception Register.

A provision to ensure any person in possession of records or documents relating to the provision of ART (whether before or after the amendments commence) must keep those records or information in accordance with the regulations.

A provision to allow the Minister for Health and Wellbeing to authorise the transfer of donor conception records where a registered provider changes ownership, is wound up, or ceases to operate in South Australia.

A provision limiting the liability for Government, registered providers and any person engaged in the administration of the ART Act in relation to release of information from the Donor Conception Register.

Amendments to confidentiality provisions to remove the prohibition on disclosing the identity of a donor, with the exception of those engaged in the administration of the ART Act where information may only be disclosed in accordance with the ART Act.

Consequential amendments are also proposed to the Births, Deaths and Marriages Registration Act 1996 to reinstate provisions to require donor information to be recorded in the birth register and provide options for the birth certificates of donor conceived people.

These amendments would also help capture information about private donor arrangements where donor conception occurs outside of a clinic setting, enabling equitable provisions for people conceived this way.

It is this Government's view that the Bill before the Parliament strikes a balance between upholding a child's welfare as paramount with safe and respectful disclosure of donor identities in a regulated environment.

I would like to thank the many people who have contributed submissions and shared their stories to the 2017 Review of the South Australian ART Act and to the public consultations on this Bill in 2021 and 2022.

I sincerely hope the passage of this Bill will go some way to rectifying past practices and contributes to an accepting and transparent culture for all parties to a donor conception from this point forward.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Assisted Reproductive Treatment Act 1988

3—Amendment of section 9—Conditions of registration

This clause provides for the use of human reproductive material from deceased donors in certain circumstances.

4—Insertion of section 14A

This clause inserts a new section providing for the Register provisions to apply to assisted reproductive treatment provided before commencement of the Part.

5—Amendment of section 15—Donor conception register

Section 15 is amended:

to clarify the obligations under that section;

to provide for the inclusion of additional information on the register;

to give the Minister discretions to authorise the disclosure of information contained in the register in certain circumstances and to refuse to disclose information in the register in certain circumstances (the latter determination being subject to a right of review);

to allow a person engaged in connection with the administration of the Part to disclose information contained in the register in certain urgent circumstances;

to allow any person (not being a registered provider of assisted reproductive treatment) to provide information of a prescribed kind for inclusion in the register;

to oblige registered providers of assisted reproductive treatment to provide the Minister with information required by the Minister for inclusion in the register in the manner and form determined by the Minister.

6—Insertion of sections 15A, 15B, 15C and 15D

This clause inserts new sections as follows:

15A—Authorisation of entities

The Minister may authorise an entity to carry out certain functions under this section.

15B—Notice requiring provision of information etc

The Minister may, by notice, require a person or a public authority to provide the Minister with information. It is an offence for a person to refuse or fail to comply with a notice (without reasonable excuse) or to knowingly or recklessly provide false or misleading information to the Minister. The maximum penalty is $10,000. The Minister may also require the Registrar of Births, Deaths and Marriages to provide information, or specified kinds of information, in relation to donors recorded in the Register under the Births, Deaths and Marriages Registration Act 1996.

15C—Freedom of Information Act 1991 does not apply

The register and other documents held for the purposes of this Part that relate to a particular person are not subject to access under the Freedom of Information Act 1991.

15D—Liability

A registered provider of assisted reproductive treatment or other person required or permitted to provide information under this Part does not incur any civil or criminal liability in respect of providing that information.

7—Amendment of section 16—Record keeping

This clause makes a number of amendments relating to record keeping. Under proposed section 16(2a), a person who is in possession of documents relating to the provision of assisted reproductive treatment must keep the documents in accordance with the regulations. The maximum penalty for contravention is $50,000. The proposed provisions also allow the Minister to authorise a transfer of records to another person and makes it an offence to fail to comply with any conditions imposed on such an authorisation. This provision also has a maximum penalty of $50,000.

8—Amendment of section 18—Confidentiality

This clause clarifies the confidentiality requirements in the Act.

Schedule 1—Related amendments

Part 1—Amendment of Births, Deaths and Marriages Registration Act 1996

1—Amendment of section 4—Interpretation

This clause inserts new definitions of donor and donor conception for the purposes of the measure. For the purposes of this Act, donor conception means conception of a child by any insemination procedure involving a donor and is not limited to assisted reproductive treatment within the meaning of the Assisted Reproductive Treatment Act 1988.

2—Amendment of section 14—How to have the birth of a child registered

This clause amends section 14 to require a birth registration statement for a child born as a result of donor conception to state that fact and include particulars of the identity (if known) of the donor.

3—Amendment of section 18—Alteration of details of parentage after registration of birth

This clause makes a minor related amendment to section 18.

4—Amendment of section 46—Issue of certificate

This clause contains requirements relating to the issue of a birth certificate in a case where the Register indicates that a person was born as a result of donor conception.

Part 2—Amendment of Family Relationships Act 1975

5—Amendment of section 10C—Rules relating to parentage

This clause makes amendments to the rules relating to parentage to deal with the situation where a woman becomes pregnant as a result of a fertilisation procedure using an ovum from, or an embryo created by using an ovum from, the woman's deceased spouse or partner.

Part 3—Amendment of Surrogacy Act 2019

6—Amendment of section 4—Interpretation

This clause inserts a definition of human reproductive material.

7—Amendment of section 18—Court may make orders as to parentage of child born as a result of lawful surrogacy agreement

This clause makes amendments to allow orders to be made where human reproductive material used in relation to a relevant lawful surrogacy agreement came from a person who has died.

8—Amendment of section 19—Court may revoke order under section 18

This clause is consequential to clause 7.

9—Amendment of section 21—Court to notify Registrar of Births, Deaths and Marriages

This clause is consequential to clauses 7 and 8.

Debate adjourned on motion of Hon. J.A.W. Gardner.

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