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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2024-02-20 Daily Xml
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Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 February 2024.)

Mr TEAGUE (Heysen) (11:30): I take the opportunity to join with the shadow minister for health and those on this side of the house in expressing our support for the bill that is, of course, the subject of a long-running and thoroughgoing consideration by government and, I think it is fair to say, has involved the opportunity for the opposition to consider the field very thoroughly. I will come in a moment to the very thoughtful input that has been provided by those leading participants in assisting with what have really been ongoing advances in assisted reproductive treatment over the course of now two and more generations.

It is a bill that is really heading us into territory that it is high time we were in. It involves a reflection on what in many ways we have learned over the course of particularly the last 20 years or so, back to 2004 or the early 2000s. It also is a reflection of the changing technology and what is possible to achieve and, in a way, the combination of those two things in terms of the evolving community expectations—in some ways, the change from one set of what might have been considered virtuous circumstances at one point, decades ago, to what we now consider to be the most ethical, the most robust and the best-practice means of proceeding into the future.

The nature of this subject matter—traversing over, in some cases, a long history, and then setting a course for how we will as a community conduct ourselves into the future—means that there is an important consideration of changes that are made going forward that affect the past, the retrospectivity of what we are considering, at least an important part in relation to the bill. I will come to that as well in a moment.

For those who have participated in the debate, we are clear that the reforms that are the subject of the bill cover really four main areas. Firstly, it is to legislate the posthumous use of an ovum or embryo, which will bring us into line with what is already provided for in terms of the posthumous use of sperm. Secondly, it will expand on the permission that will be available to donor-conceived people to access information about the donor. I will come back to that in a moment, but of course that is work that was very much conducted under the former Liberal government and it continues with that work.

Thirdly, the bill will legislate to overturn what has been the historical anonymity of donors. I mentioned a moment ago that it was 20 years ago—it was going back to 2004—when we had a key change in overturning the historical anonymity of donors. The bill will importantly open a new door and it will apply itself to those circumstances that have applied at least up until 2004.

In that regard, it is important to note that, up until that time, there was no option but to donate on an anonymous basis. As I said at the outset, what was regarded as best practice or virtuous 20 and more years ago is now no longer regarded inevitably as a virtuous or only way forward. We have heard the compelling voices of those who have been personally affected by what was a set of circumstances in place at least more than 20 years ago.

Fourthly, the bill makes important provision for changes to the register—changes to the Births, Deaths and Marriages Registration Act 1996—and that will have the effect of allowing the inclusion of donor details on a birth certificate to the effect that going forward that will happen with a minimum of fuss and with the assistance of the register and that is a good thing as we go forward.

I will address briefly the first of those matters—the legislating for the posthumous use of an ovum or embryo. This is an area where the law actually currently contains a prohibition, therefore we are charting new ground to set out those circumstances in which the human reproductive material may be used posthumously and not limited only to sperm.

The question of legislating the posthumous use of reproductive material is something that has been the subject of thoughtful engagement, including by those clinical specialists who are functioning day to day in this field. I just want to highlight and recognise that in this area it is important that we, as legislators, are responding to those in the community who have lived and experienced being the provider of reproductive material, the beneficiaries of donor-assisted reproductive treatment, and the life experience in terms of identifying who those individuals are.

It is important, too, that we recognise that we are legislating in a space of extraordinary expert clinical development, which, although we have all become well familiar over recent decades, we ought bear in mind is brought along and advanced by the extraordinary innovative work of specialist clinicians. I am very glad that those at Repromed, and the medical and research staff who are leading advances in this area at Monash IVF, have been engaged. I think it is important that we are continuing to be as closely connected with those medical specialists as we legislate because I think this is unlikely to be the last occasion that we will be reforming what is possible in terms of the sharing of information, and also facilitating what is possible in terms of what medical science is capable of achieving.

The Monash IVF Group had, I know, considerable and thoughtful input into the scope of the legislation on this occasion and, in a variety of ways, has pointed to the future in terms of what further reform may be possible. I cite just one example in terms of this question of the posthumous collection and use of reproductive material. It is an area that we see some reform on the subject of this bill, but there is clearly a way that is pointed in terms of what might in future be compelling further reform to deal with the broad range of circumstances in which both posthumous use and posthumous collection are needing to be considered.

I note the reference in the not so terribly recent times to the Supreme Court's consideration of the posthumous collection of reproductive material and, given what medical science can achieve, the path that has needed to be covered—we know because the court has been asked to determine—and therefore what might be ahead of us in terms of the future consideration of matters, including that. I recognise and thank those expert clinical specialists for the work that they do, and I hope that we keep them very much at the fore of how we are legislating for best practice, what feedback about developments they are able to bring.

Secondly, as I have said, the former Liberal government had done considerable work in the provision of permission, facilitation of donor-conceived people being able to access information about their donor and providing the legislative compulsion, if you like, for clinics to be in a position to respond to changes, and that requires the maintenance of records so that information can be provided in an orderly way in accordance with the law.

That is backed by some significant penalties in relation to the failure to keep records because, as I have said in relation to the historical anonymity of donors, this was once a matter about which there was no alternative, so the approach to these things changes over time. Where there is good cause for a change of approach, it is necessary that there be, as far as practicably possible, the capacity to make arrangements in terms of information sharing, and in order to do that records need to be obtained. It is important enough that there are significant penalties to apply for the failure to do so.

As we know, not quite 20 years ago the National Health and Medical Research Council implemented significant new guidelines that removed the capacity for a sperm donor to remain anonymous, and that was applied therefore in every state except, as I understand it, the state of Victoria, which had about seven years prior to that already removed anonymity completely.

The capacity to make the change and to make it meaningful is facilitated, as I have said, by those historical records having been kept, and we know that University of Adelaide has maintained records of fertility treatment that have been provided by Repromed going back around 50 years. There is no formal process under this bill for any donor who provided human reproductive material prior to 2004 to object to the disclosure of their personal information. In terms of dealing with the retrospective nature, therefore, of the change, it is important that we—and we will address the amendment in the course of the committee—apply, as a matter of principle, the capacity to engage in that process.

We understand and anticipate that there will be a high if not comprehensive participation, with the result that the change, applying in that way retrospectively, will achieve an even greater level of confidence in the community. I look forward to the opportunity to consider, to debate and advance amendment in the course of the committee shortly.

The update to the register I will leave for others. It is an important reform and it will ensure that those important details, contributing as they do to an individual's identity, are appropriately recorded on the register. With those words, I commend the bill and look forward to the committee process.

S.E. ANDREWS (Gibson) (11:51): The Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill 2023 seeks to modernise legislation in line with evolving community expectations, empower individuals and extend fairer access to important information and technology. Unfortunately, the joys and challenges of parenthood are not naturally available to all adults in South Australia. Therefore, it is important that we have a safe, robust and progressive assisted reproductive treatment and donor conception process in South Australia.

I understand the anxiety and distress that parents face when they are informed they are unable to conceive and may have to seek IVF treatment. It is appropriate that, when hopeful parents and donors are entering the process, they are fully aware. This bill will specifically look at the rights of donors and those born as a result of donated material. It is important that both parties in the process have rights and it is therefore appropriate to introduce legislative reforms to provide a person who is born as a result of donated material with the ability to access information about their donor.

This bill seeks to enhance the operation of the Donor Conception Register that records information in relation to people born through the use of donated human reproductive material by allowing donor conception participants access to certain types of information, overturning the historical preservation of anonymity of donors. The bill also 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. I will return to this later, but this is, once again, a Labor government delivering in relation to equality for all.

In 2017, highly regarded academic in the field of assisted reproductive treatment and donor conception, Professor Sonia Allan, conducted the state government's review of the Assisted Reproductive Treatment Act, a piece of work initiated by the previous Labor government. Professor Allan's recommendations included the establishment of a donor conception register in South Australia, and providing donor-conceived people, aged 18 years and over, the right to access identifying information about their donors.

Recognising changing views, South Australia established the Donor Conception Register in November 2021 in accordance with amendments to the Assisted Reproductive Treatment Act, as moved by the Hon. Connie Bonaros in the other place in 2019. The register currently holds information on donors, the recipient parent of this donated human reproductive material, and any person who is born as a result of the donated material.

This bill seeks to enable the Donor Conception Register to function retrospectively and enable safe as well as supported access to the information that it holds. South Australia will join jurisdictions including Victoria, New South Wales and Western Australia which all have donor conception registers available to donor-conceived people, providing information for these South Australians about their donors and allowing connection, if desired, by both parties.

Additionally, South Australia will also follow Victoria in legislating the retrospective disclosure of a donor's identifying information for donors prior to 2004. This additional information will allow donor-conceived people to access information about their donor irrespective of when they were born. Where the information is verified, the identity of the donor will be disclosed, providing donor-conceived people the right to their genetic parentage. I acknowledge that historical donors made donations on the understanding they would remain anonymous. However, it is important to note these amendments place no requirement on any donor to have contact with their donor-conceived offspring, but they do provide the option.

As with all legislative changes of this magnitude, the government has given careful consideration to legislate a retrospective donor conception register. The government has sought expert input and has undertaken extensive consultation with those whom this legislation will impact, including the donor conception community and our state's fertility clinics, as well as stakeholders across Australia. The state government's consultation included the SA donor conception reference group and national advocacy group, Donor Conceived Australia, who supported the development of this bill and helped ensure the model proposed for South Australia is workable and allows disclosure of personal information in a safe, respectful and ethical way.

The Labor government notes the increased access and use of at-home DNA testing and services, including AncestryDNA, which have contributed to donor-conceived people being able to find out the identity of their donor. However, this approach does not provide the systems, support and assurances that will be present under the proposed regulatory system for South Australia. In recognising the particular impacts that may be felt by pre-2004 donors, the government will make important counselling and intermediary support services available to this group. Therefore, I endorse these changes to our legislation in South Australia.

The second aspect of this bill brings equality to the posthumous use of human reproductive material, which is currently restricted to the posthumous use of sperm. The amendment included in this bill will make the legislation equitable for men whose female partner has died and for same-sex couples. As one would expect, strict conditions apply to the use of posthumous human reproductive material, including the deceased having consented to the use of their material prior to their death and the partner seeking to use the deceased's material having lived in a genuine domestic relationship with the deceased prior to their death.

These conditions are, obviously, very important to respect the rights of the deceased to have control over their body and their human reproductive material and, additionally, their right to decide on who at least one parent of their child is, including that they are someone with whom they were in a genuine domestic relationship—which, we hope, had a foundation of love and shared values and outlook. This amendment would also bring South Australia in line with Victoria and New South Wales, the other jurisdictions that allow posthumous use of reproductive material.

The amendments to the Assisted Reproductive Treatment Act, and consequential amendments to the Births, Deaths and Marriages Registration Act, the Family Relationships Act and the Surrogacy Act, are proposed to:

provide donor-conceived people aged over 18 years, regardless of when they were born, with access to information about their genetic parent—the donor;

ensure the effective operation of the Donor Conception Register;

provide donor-conceived people with options for the inclusion of donor information on birth certificates; and

provide gender equity for the posthumous use of human reproductive material when certain conditions are met.

In summary, this government recognises how important it is for all donor-conceived people to have access to information about their genetic heritage. It not only plays a significant role in the development of a person's identity and sense of self but also enables them to access important medical and genetic information. It is the Malinauskas government's view that this bill strikes a balance between upholding a person's welfare as paramount, and safe and respectful disclosure of donor identities in a regulated environment. I commend this bill to the house.

The Hon. A. PICCOLO (Light) (11:59): I rise to speak in support of this bill. My remarks will be mainly regarding the Donor Conception Register. Before I make some comments on why I think this is a good bill and why it should be supported, I would like to provide a bit of a time line on the issue of donor conception in this state.

At the outset, I would like to thank Damian Adams, who provided me the information for this time line. Damian and his support group have been working on this issue for many years—in fact, many decades. I think it is appropriate, given this bill is now before us, that people fully understand the depth of emotion involved in this issue and what this bill means to a lot of people like Damian, the support group and others who they represent.

I will give a bit of a potted history, only because if I go through each entry that Damian has provided me with I would use up my 20 minutes quite easily and I would probably need more, because it has a long history, but I think that some parts need to be put on the record.

In terms of this issue of assisted reproductive technology it starts in 1988 with the Assisted Reproductive Treatment Act of South Australia allowing offspring the ability to access non-identifying information. That is where the journey, if you like, starts for some people. In December 2000, the South Australian Council on Reproductive Technology recommends to the Minister for Human Services that the code of ethical practice be changed to reflect the now generally held consensus that donor-conceived offspring should have access to identifying information on their donors. That was December 2000 and we are now in February 2024, so it has been a long journey for a lot of people.

During 2004-05, Damian Adams begins lobbying, including correspondence with the then health minister, on trying to get changes to the bill. The minister did advise that the health department was considering a register and proposal in the not-too-distant future. In March 2005, the donor-conceived support group and Damian Adams write to the federal people—in fact, the chair of the human rights subcommittee—seeking clarification and support, with advocacy for a national register for people who are born through donor conception. The committee basically says their role is to educate rather than advocate so they would not be extending their role beyond that.

Undeterred, Damian writes to the health minister at the state level, who advises that funding priorities do not allow for the register to be implemented at this time—that is back in 2005. Again in 2005, Damian rights to the Hon. Tony Abbott MP, federal Minister for Health, seeking assistance from the federal government and, sadly, gets the response that the Australian government is not currently planning to act at a national level.

In 2006, the donor conception group meets with advisors to then Minister for Health, the Hon. John Hill, to see what his views and that of the government of the time are. Sadly, the matter did not progress that far. In 2006, Damian writes to a number of MPs, including Independent member the Hon. Bob Such, who was a supporter of what they are seeking to do.

In 2007, Damian writes to the federal Attorney-General, Philip Ruddock, and the South Australian Attorney-General seeking changes to donor conception and a register. The Donor Conception Support Group then travel to Sydney to meet with the federal Attorney-General to discuss the issue of a national donor conception register, because clearly a national register is the best outcome, given that people can be the product of donations in one state or jurisdiction but conceived in another. So a national register would be best but, failing that, state-based registers are worthy as well, particularly if state-based registers are in unison with other states.

In 2009, a donor conception register bill, the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Bill 2009, is passed and supported by then Minister for Health Jack Snelling. In 2009, the Donor Conception Support Group of Australia travel to Canberra for a meeting with then Senator Trish Crossin to discuss the possibility of a federal inquiry.

In 2010, Damian travels to Melbourne to present evidence before the Senate Legal and Constitutional Affairs References Committee. He also makes a submission to the Victorian Parliament's Law Reform Committee on access to information by donor-conceived people.

In 2011, the then Senate committee recommends that all donor-conceived people have access to knowledge of the donor and their siblings and that if a national donor conception register is not achieved the committee recommended that each state and territory should put their own in place, and that is what is happening now. Fast-forward to 2015, Damian meets with the then shadow attorney-general, Vickie Chapman, and I have my first meeting with the donor conceived support group and also Damian, and that is when I was briefed on the issues involved.

A few months later, the first Australia-wide conference of donor-conceived people was held in Melbourne, which I attended and where I learnt about and got a better idea of the issues involved but also the experience of donor-conceived people and the difficulties in their lives in lacking information about who their father is, both from a medical point of view and an identity point of view. That conference was very successful and also provided a great deal of momentum right across the country to seek changes to the laws required.

Fast-forward to January 2017 and Professor Sonia Allan's report. Professor Sonia Allan was commissioned by the then Minister for Health, Jack Snelling. She was a speaker at the conference in Melbourne, and she was highly recommended as a person to inquire into this matter. The minister commissioned the inquiry and Professor Allan's report made a whole range of recommendations to which the government then tabled the response some months later, indicating that a register would be created in South Australia but also looking at the possibility of providing identifying information about donors.

A number of other meetings took place, and then in late 2017 the donor support group met with the then Minister for Health, now the Premier, who indicated that he was very keen to get some of the recommendations from that report put into place. Then unfortunately, in 2018, we lost government. Since 2018, while some things have happened on the key issue of the register and the key issue of providing an opportunity for donor-conceived people to get identifying information, it was put on the backburner and nothing happened for four years.

Late during the period when we were in opposition, the donor conceived support group met with myself and the now Minister for Health, the Hon. Chris Picton, who indicated that if we were to win government we would revisit this matter with a greater deal of empathy for the lives and experiences of people who are donor conceived. In 2019, there were some changes to the legislation as a result of a private member's bill moved by the Hon. Connie Bonaros in the other place and which my party, the Labor Pary, supported.

Undeterred, Damian Adams and seven other Australian donor-conceived people attended and presented at the United Nations in Geneva on the 30th anniversary of the UN Convention on the Rights of the Child. The UN Convention on the Rights of the Child make it very clear that children have rights to information about their biological and also their cultural history.

In March 2022, just prior to the state election, the now Premier met with the donor conceived support group and made it very clear that if we won the March election we would introduce and support a bill to give effect to some of the recommendations in Professor Allan's report, in particular enabling donor-conceived people to access identifying information about themselves—where it exists, it is important to say. Unfortunately, because of the history of this issue, not all that information may be available, but it is important to do that. In terms of the timeline, on 30 August 2023 the now health minister tabled this bill in parliament, which was gratefully welcomed by the donor-conceived community.

That is a bit of a potted history of where we are at. I did that deliberately because this is not just some thought bubble by this minister or by a group of people: this matter has been debated, looked into, inquired about and investigated at length. In the meantime, we have a group of people in our community who just want to know who they are. It is simple: they just want to know who they are, and part of that is knowing where they come from. That is important.

If you need to understand that, just look at the amount of money people spend with organisations such as Ancestry and others to find out their biological origins. It is important to people's identity, and it is important to people's cultural understanding of who they are. It is also important in terms of their own personal health. The reality is that we are a product of our history, and it is important that this group of people know their history.

The community has moved on, and I do not think the concerns raised by the opposition in this current debate are shared by many people. I accept that some people will not be happy with this decision but my view, overwhelmingly, is that if the rights of the child are paramount then they are paramount, and we actually make those rights paramount by law. That is what this bill seeks to do.

The child had no say in how they were conceived, the child had no say in what information was available to them or not. In my opinion, the child now does have a right to have that information available to them.

The opposition states they will bring balance to this bill by changing that provision where, if I remember correctly, prior to 2004 people who did not previously have identifying information, that that should remain secret, for lack of a better word. That does not provide balance to this: that actually guts this bill, and removes an important provision. Providing balance means you can tweak or enhance a bill; you do not enhance the intentions of this bill, the intentions of the donor-conceived support group, or the rightful aspirations of those people born through donor conception to know who they are.

In fact, we would be going backwards in some ways, because this bill makes it very clear that this is now possible. If we were to support the Liberal opposition's amendment to take that away we would be dragging the carpet out from underneath their feet and forcing these people to fall to the ground once again. It would be a cruel act to inflict on them.

In terms of supporting the bill, I mentioned earlier that Professor Sonia Allan was commissioned by then minister the Hon. Jack Snelling to produce a report on this matter. She is a highly credentialled professor, highly regarded in both health and the law, and she undertook extensive consultation on this matter. Professor Allan produced a very substantive but also very thoughtful report, and provided some very practical advice on what needs to be done to address this. One of the key recommendations was that, subject to appropriate mechanisms, donor-conceived people have access to identifying information.

The register I mentioned currently holds information on donors, the recipient parent of the donated human reproductive materials, and any person born as a result of the donated material. The bill seeks to enable the donor conception register to function retrospectively. I understand why some people may have some anguish about it being retrospective, but I think in this case the bill's retrospectivity is justified. It is justified because it actually corrects a wrong, which is imposed on a whole generation of children who are now, in the main, adults and who have children of their own. That is also important because it enables these adults to share their history with their children and grandchildren.

In doing so, South Australia will join jurisdictions including Victoria, New South Wales and Western Australia that all have donor conception registers available to donor-conceived people and will follow Victoria in legislating the retrospective disclosure of a donor's identifying information for donor prior to 2004. In this regard, while this is new ground for South Australia, it is not new ground for Australia. What we are doing is both practical and right. It is not some radical thought, but something which is worthy of support, and we would be following Victoria.

The bill will allow donor-conceived people to access information about their donor, irrespective of when they were born. Where the information is verified, the identity of the donor will be disclosed providing donor-conceived people with the right to their genetic parentage. It is recognised that historical donors made donations on the understanding they would remain anonymous. However, it is important to note that these amendments place no requirement on any donor to have contact with a donor-conceived offspring. I think that is an important safeguard in the current bill. That is where the balance is: the balance is in this bill already. The bill does not need to be amended to remove that balance.

The government has given careful consideration to legislate a retrospective donor conception register. The government has sought expert input and has undertaken extensive consultation with those this legislation will impact, including the donor-conceived community, our state's fertility clinics and stakeholders across Australia. This consultation has included the SA donor conception reference group and the national advocacy group Donor Conceived Australia who have supported the development of this bill and helped ensure the model proposed for South Australia is workable and allows disclosure of personal information in a safe, respectful and ethical manner.

I would like to reaffirm that this bill provides the proper process for this information to be provided with the proper supports. The alternative is people just keep searching or there is Ancestry.com and other similar things around the world where people find the information but there are no supports or safety nets. This bill provides a safety net and supports at the right time.

The increased access to and use of home DNA testing and services including AncestryDNA have also contributed to donor-conceived people being able to find out the identity of their donor. However, this approach does not provide the systems, support and assurances that would be present under the proposed regulatory system for South Australia.

As human beings, we love to get an understanding of how we fit into this world. We like to know who our parents are, who our grandparents are, our history and how we got to where we are today in our lives and experiences. That identity is important if you are born in Australia and it is also important for people born overseas, who migrate and who lose contact with families, and it is particularly important for people who do not have that clear historical connection because of the lack of information. This bill helps to ensure that information is available to this group of people.

In 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, which is a really important part of this bill. Through this bill we are getting the balance right. The reality is if people get information from other sources, there are no support mechanisms and there are more opportunities for conflict and emotional harm for both the donor and the donor-conceived child.

With those comments, I fully support this bill. I would like to thank the donor-conceived support group for their work. I would also like to thank the officers in the department with whom I have had a number of meetings, and also the donor group, who have worked cooperatively to understand both the lives of donor-conceived children and the legislative framework. I think this bill is the right response and has been achieved by extensive consultation and engagement with the people involved.

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (12:19): I think it was particularly apt to finish on the comments from the member for Light, who has been a passionate advocate for this legislation not just recently but for many, many years. I know he has taken great delight in this now being brought to the parliament and in the changes that he has helped to advocate for, if parliament so chooses to pass this legislation.

As the member for Light raised rightly in his contribution, this is about people's identity, which is fundamental to who people are. It is also fundamental to their health information. We have seen some worrying impacts on people's health around the country, where people have not had access to their health information. It is also happening at a time when technology is rapidly transforming anyway. We are seeing the advent of DNA testing leading to this happening in an uncontrolled way outside of our legislative frameworks and, hence, updating our legislation is appropriate when we see technology rapidly advancing ahead of it.

This has been discussed for some time, as you outlined, Deputy Speaker. This has been advocated for some time. It has taken a long, arduous road to get here, but I am thankful that we have got here. I want to pay tribute to the people who have made that occur, particularly the advocates from Donor Conceived Australia, without whom we would not be here and would not be debating this legislation. In particular, I thank Damian Adams from South Australia, who is the foremost advocate in this state, using his own personal experience in advocating on behalf of many other people in this state, as well as Aimee Shackleton at the national level. They have been passionate drivers for change for many, many years, and I thank them for their advocacy and also for being here with us today in the chamber as we see this debate.

I thank the members of the reference group who have contributed and helped support the development of this bill, including of course Donor Conceived Australia for their advocacy and support for the community. I want to thank the Hon. Connie Bonaros. Connie has been a significant advocate for this—as have you, Deputy Speaker—for many, many years. Her legislative amendments led to the creation of the donor conception register during the term of the previous parliament and the previous government, where we had seen progress slow on this development.

I also want to thank the Premier for his support. The report was released when the Premier was the health minister for a brief period of time back at the end of 2017, I believe. He saw the importance of making this change back then, and I know it is something he has raised with me both when we were in opposition and in government to make sure that the report was acted upon and implemented, as we are doing today.

I would also particularly like to thank the people from the department who have worked on this matter for many years as well, particularly Scott Hodges, Vicki Paynter and Chris Byron-Scott, and also Dylan from my office, who has been the adviser on this and helped bring it to this point.

The opposition broadly said that they were supportive, but they have moved an amendment which, in my view and the government's view, goes inherently against what we are trying to propose here. It is a legitimate argument that they are making of not supporting the changes that we are seeking to make. These are big changes that we are seeking to make, and they should not be taken lightly, but I would say very clearly—and I think it is the view of the donor community as well—that you cannot say that you support this legislation and then try to amend it to pull the guts out of it.

I think that is what we are seeing in these amendments that are being sought to be made. We will not be supporting them in this chamber nor in the other chamber, should they be sought to be moved, and we hope that they are not successful, because they go significantly against what we are trying to achieve and what we have seen has worked and operated successfully in Victoria for many years. I do not think that a case has been made for why such amendments should be moved, nor would they advance addressing the problem that we are trying to fix here.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mrs HURN: Minister, in relation to clause 3, section 9(1)(c)(iv)(B), I am hoping, for the purpose of the committee and the parliament, that you might be able to talk us through the current circumstances and the chain of events in relation to the donation of ova and embryos taken for the purposes of reproductive treatment and the destruction process, if you like, and how that will change should this bill pass.

The Hon. C.J. PICTON: This is in relation to the use of these materials, particularly through clinics. I am just wondering if the member for Schubert can specify exactly what the question she is asking is, because both myself and my adviser are not exactly sure what information she is seeking.

Mrs HURN: Not a problem. Again, I refer to clause 3, section 9(1)(c)(iv)(B), which provides:

(B) before the donor died, the donor consented to the use of the human reproductive material after their death in the provision of the proposed assisted reproductive treatment…

Something that has come up during the course of our conversations is in relation to the destruction of a donated egg. What is the process at the moment? If a female has frozen her eggs, at what point after she has passed away are they destroyed? How does that operate, and will that, and how will that, change after this bill is passed?

The Hon. C.J. PICTON: I thank the member for Schubert for her question. I think it was helpful to clarify her question. Essentially, the key thing is about consent. If consent has been given for the woman who has passed away who has donated previously, then that consent would then be there for the partner to take that up. If the consent was not there then, obviously, that would not be able to be used.

There is nothing, based on my advice, specifying the time at which that would be destroyed but, obviously, that would be for the provider—whether it be Repromed or somebody else—to work through in relation to the exact time frames. But the key thing is in relation to that consent which the legislation is making clear needs to be in place for that to be actively used.

Mrs HURN: Again, in relation to clause 3, amendment of section 9(1)(c)(iv)(C), where it notes that if the donor gave any directions in relation to the use of human reproductive material, will those directions have to be verbal; are they written; or how explicit does the direction need to be, to be given?

The Hon. C.J. PICTON: I am advised that this is one of a number of areas where there would be appropriate consents at the beginning of the fertility treatment through the fertility treatment provider, and we specify that that consent has to be provided. We do not specify the manner in which it is provided but the advice is that, essentially to make sure that the fertility providers have protected themselves to be able to prove that they have complied with this legislation, those providers in a practical sense make sure that they are written.

Mrs HURN: In relation to work that SA Health might do with reproductive clinic providers, like Repromed and others, could you talk us through at what point in the cycle will a female and her domestic partner be advised (obviously should the bill pass, which we assume it will) that they can utilise their eggs posthumously? Is this something that will be up to the individual clinic to determine or will there be guidelines provided by SA Health?

The Hon. C.J. PICTON: As the minister, I license the providers. Part of the licence conditions for the providers is that they must comply with the NHMRC guidelines in relation to ethical practices. Part of those guidelines are in relation to consent that would mandate a whole range of different consents that need to be provided, including discussion with the woman and her partner, if the case was appropriate, in relation to posthumous use, etc.

Mrs HURN: I want to ask a question in relation to a hypothetical, if you like: if a single female decides that they would like to freeze their eggs but they are not yet in a domestic relationship but, say, for instance, in two to three years' time they find themselves in a domestic relationship and they know that they have those frozen eggs, is it okay to enter into an agreement at that point, or does the agreement have to be at the time when the eggs are originally donated or frozen, if you like?

The Hon. C.J. PICTON: The advice I have is that consent would be updated constantly. So, essentially, you could go back and give your consent for that to occur if you later were to have a partner where you wanted to have that consent. The critical thing would be that at the point that there was to be any contemplation of use there would be active consent in place at that time.

Mr TEAGUE: Perhaps continuing that line, I would just draw attention to Repromed's feedback. The minister is no doubt aware, for the benefit of the committee, of the point that Repromed expresses specifically in relation to the section 9(1)(c)(iv) amendment at (B). Repromed says:

…part B requires that the donor or deceased person has consented to the use of the human reproductive material after their death in the provision of the proposed assisted reproductive treatment. In the medical field the word 'consented' is often viewed as formal written consent and therefore we would suggest that the wording be reviewed and better align with the NHMRC Ethical guidelines which allows for the posthumous use of gametes and embryos where the deceased person has left clearly expressed directions consenting to such use following their death.

In that context, I am looking at the ordinary reading of the amended provision. I mentioned in the course of my second reading contribution the silence that has been expressed as a concern, that Monash IVF has said might have been an opportunity to deal more expressly with this use of gametes collected posthumously without the genetic donor's consent.

The amendment in 9(1)(c)(iv) really brings the focus on to both time and form of consent. As I read it, (A) says human reproductive material was collected from a person who has died. That is not necessarily time specific. In (B), which the shadow minister has just been focusing on, before the donor died the donor consented to the use of human reproductive material after their death.

(A) does not seem to prevent the posthumous collection. (B) is expressed in fairly broad terms. Is it not possible that there is a question of evidence as to a partner coming along and saying, 'The consent was there. Go for it. Collect after death. The consent is there.' There is nothing terribly prescriptive about that form, and I hear the minister saying, 'Well, it's a matter of updating constantly.' Is that going to be something that ultimately a court will have to wrestle with, as to the existence of relevant consent or not in (B)?

The Hon. C.J. PICTON: It is a very fascinating area. The member raises the issue, as I understand it, in relation to posthumous extraction, which I understand is different from what we were just discussing with the member for Schubert. The advice that I have is that there have been cases of posthumous extraction that have occurred. They have been very rare, but they have occurred with permission of the courts.

We are not seeking to change the current legislation to make that either easier or more difficult. If there was to be a case of that again, then it would likely have to go through the courts for consideration as well. What is much more, we think, likely and foreseeable, and is also what we are trying to deal with, is in relation to where extraction has occurred while people are alive and consent has been offered, rather than these very rare cases where there has been court-approved extraction after death.

Mr TEAGUE: It is interesting and possibly rare to work through case examples, and I am just focused on what the legislation is actually saying. I wonder whether or not the legislation is permissive of such circumstances in a way that brings the focus onto what consent means rather than the time of extraction. It does not seem to me to draw a distinction on the face of it between live extraction and posthumous extraction in (A); all it does is to make express in (B) that consent is given before death. I am only asking the question.

Is it on one view possible that you might say, alright, well you have domestic partners, there is ongoing implied consent, including posthumous extraction and use? Might such things be expressed in a whole variety of different ways and routinely, much like one might anticipate arrangements such as a will before one dies? What are the circumstances that are going to flow, and is that something that might enter into more ordinary popular discourse in contemplation of those things?

Most illustrative of this in terms of the South Australian circumstances, now more than 10 years ago—and it is de-identified—are the decisions in Re H, AE (No.2) (2012) SASC 177 and Re H, AE (No.3) (2013) SASC 196. Those decisions were in relation to the facilitation of the collection in the first place posthumously and then, as I understand it, some pretty quick movement that was necessary to then make use of that reproductive material, and on we go. For the purposes of the legislation, I hear the minister saying that there is no endeavour in the legislation to change the arrangements for posthumous use. I have put the question already about how one might interpret (A) and therefore whether or not it really boils down to what consent means in (B).

The Hon. C.J. PICTON: I thank the member for Heysen. As always, he is up to date with his case law. The advice I have—

Mr Teague interjecting:

The Hon. C.J. PICTON: Well, I am trying to give you a compliment, Josh. As I understand it, there was clear consent in that case. It was in relation to a motorcycle accident and a death that occurred from that. There is nothing in what we are proposing here that gives an active power or right in terms of extraction after death. That would still have to go through the court process that the person referred to in the case law did, as mentioned by the member for Heysen. Of course, if that was to occur, then it talks through the situation in relation to consent. The understanding that I have is that a court would be very unlikely to grant the approval for extraction after death unless there was strong evidence of the consent as had occurred in relation to the case that the member for Heysen mentioned.

Mr TEAGUE: I always appreciate a compliment. In all seriousness, I am wanting to emphasise that I am not necessarily up to date with the case law. There may well be other examples more recent than this one. If it happens to be the best illustration of the issue, then good, we are on all fours about that. I think to square that away, my understanding is that in that case Justice Gray made findings about precisely the sort of circumstance that I have endeavoured to describe about a standing situation—that is, the court's making an observation that the applicant widow in that case and the deceased had decided to start a family and, but for his death, their attempts to do so would have continued. That does not seem to be at odds with the notion of consent on the face of the legislation.

Maybe it is entering into the realms of what might be tested, if the minister is saying it is not necessarily certain or it is not necessarily intended to chart new ground about either posthumous collection or defining what consent means. These things might remain very rare events and to be determined by the court. I guess the minister has already provided some sort of reflection on whether or not this becomes standard fare, to be more expressly considered by domestic partners who do have that intent and then the worst of circumstances happen, so that there is the possibility to not be charting such uncertainty in those worst possible circumstances, and urgency and so on.

I appreciate what the minister has observed. I suppose it might be that if we do want to be even more certain about what is to be involved in those posthumous circumstances, then it might be that more needs to be done or the courts might have more work to do.

The Hon. C.J. PICTON: I reiterate my previous comments and also note advice that this amendment is not seeking to do what the member is highlighting that he believes there may need to be further reform of. The advice that I have is if the member was contemplating that that needed to happen, then it would likely be an amendment to, I believe, the Transplantation and Anatomy Act, which is outside the scope of the bills that we are currently debating.

Clause passed.

Clause 4 passed.

Clause 5.

Mrs HURN: I move:

Amendment No 1 [Hurn–1]—

Page 4, after line 26 [clause 5(4)]—After inserted subsection (4d) insert:

(4e) Despite any other provision of this section, if—

(a) a donor provided human reproductive material for the purposes of assisted reproductive treatment on the basis that their identity would not be disclosed to any child born as a consequence of the treatment, or to any parent or guardian of such a child, without the donor's consent; and

(b) the donor—

(i) has given written notice to the Minister that they do not consent to having their identity so disclosed; or

(ii) has not received information from the Minister about the effect of this section and had a period of at least 3 months to consider whether or not to give the Minister such a notice; or

(iii) has died before receiving information from the Minister about the effect of this section,

the Minister must ensure that access is not provided to identifying information about the donor contained in the donor conception register.

Note—

Access may still be provided to information about the donor in the register (such as, for example, medical information) but the identifying information must be redacted or otherwise excluded.

My amendments are consequential, but I am just moving the first one. I think it is important to flesh out the thinking behind the opposition putting forward this amendment. I think we should acknowledge in the house that there are very different views, but we do not agree with the assertion that this fundamentally guts the purpose of this bill. Again, we very much acknowledge that there are different views, but as a principle retrospectivity is one that we on this side of the house do have concerns with.

We make it very, very clear that we are supportive wholeheartedly of the establishment of this register, that access to that information should be accessible for people who have been conceived as a result of a donor, but likewise the amendment that we are putting forward seeks to protect, if you like, the identity of those who donated explicitly on the assumption of anonymity pre-2004.

We are proposing that there is an option for those donors that they can choose not to release their identity. For the purposes of the amendment, which is of course the consequential one, we have identified identifying information to mean the donor's name, date of birth, place of birth, last known address and any donor code assigned to the donor. What is not up for debate or choice is medical information that will be released automatically.

I also note that in the YourSAy survey the government did throughout the process of this bill there were 10 donors who were interviewed or had the opportunity to share their view. We note that nine of those donated pre-2004; that is, they did so on the assumption of anonymity. Pleasingly, none of those nine had concerns with releasing their identifying information and we think that is fantastic and we hope that that would be extrapolated across anyone who donated pre-2004.

That is fantastic, but this proposal is about giving choice to the one person who may have donated who does not want their identifying information to be released. We acknowledge that there is a complete balance that has to be struck here and for some that balance in our amendment will never be met and that is why we have these types of debates. On this side of the house, the prime reason we are moving this amendment is because we have concerns about the principle of retrospectivity. These donors did so never assuming that their information would be made public. We think that the data behind it, the YourSAy survey, gives us confidence that for many people it will not be an issue, but let's give them the choice.

The Hon. C.J. PICTON: I indicate that the government will not be supporting this amendment or the other amendments moved by the opposition. As I noted in my second reading speech in my summing up remarks, in the government's view this really guts what we are trying to do in relation to this change in the legislation. The amendments proposed by the opposition have the effect of a permanently enshrined secrecy regarding the identity of the genetic parent of a donor-conceived person, compelling a donor-conceived person to live their entire life without knowing the name of the person who has contributed 50 per cent of their genetic make-up.

The intention of the bill is, in fact, the opposite. The bill proposes to expand the operation of the donor conception register to enable donor-conceived persons to access important information about donors. While the government recognises that anonymity practices were the norm up until 2004 in relation to donation of human reproductive material, society has moved away from this culture of secrecy, recognising the benefits to donor-conceived persons in knowing who their genetic parents are.

Importantly, we recognise—and we have heard from donor-conceived people—that the benefits of being informed of the identity of one's genetic parents is about more than just having access to medical information. There are psychosocial benefits through the fulfilment of identity and a sense of equality and non-discrimination in being able to identify one's genetic parents.

We recognise, of course, that there is a level of unfairness put upon those pre-2004 donors who wish to continue to remain anonymous; however, these views must be balanced against the interests of donor-conceived persons who have had no input into how they were conceived and have no control over the information they can access.

To amend the bill as proposed by the opposition would be to establish a subset of individuals in society who are forever prohibited under legislation from obtaining information identifying their genetic parent. This is not consistent with the principles of fairness and equality or with the intent of the ART Act and the bill. It is also not consistent with the law for adopted persons under the Adoption Act 1988, whereby, upon turning 18 years of age, an adopted person can obtain information identifying their birth parents.

I would like to highlight some of the safeguards that we have in relation to this bill. The amendments by this bill are furtherance of the fundamental principles of the ART Act that the welfare of any child as a consequence of ART, including through donor conception, is to be treated as being of paramount importance.

The bill is about empowering donor-conceived persons to access important information about themselves, whether it be information about genetic predispositions or medical conditions to which they may be susceptible or information about their genetic parent, enabling a donor-conceived person to have a full sense of identity and not forcing them to carry on through life not being aware of their genetic heritage.

Information about donors will not be available through the register to the world at large. Only a donor-conceived person connected to the donor will have access to identifying information about a donor. There is no obligation on a donor to establish or maintain contact of any form or ongoing relationship with a donor-conceived person, if that is the wish of the donor.

The register will also allow for all donor participants to make their contact preferences known, including where a donor does not wish to be contacted by donor-conceived persons. A similar contact preference system has operated in Victoria since 2017 when Victorian laws were changed to retrospectively remove anonymity, and the experience has been positive. There have not been any known breaches of these contact preferences in the seven years that this has operated in Victoria. I think that is an important point for us to make.

Government-funded support will also be offered to pre-2004 donors and their families who wish to access counselling and family linking services to assist with navigating the impacts of opening up of the register. Where a pre-2004 donor is linked to a donor-conceived person, the donor-conceived person will not be provided with identifying information for three months, allowing the donor time to consider accessing support services. For all of these reasons, the government cannot support these amendments put forward by the opposition.

Mr TEAGUE: I will add some words in terms of the principle that I would endeavour to address in the course of the second reading without traversing the detail of the amendment, and here we are in the committee appropriately doing so. I very much support the amendments moved by the shadow minister for health. It is done in terms of the application of principle in circumstances where we are dealing with discrete personal identifying information, and we do not have a perfect analogy to either adoption or to the provision of health and other medical information that, of course, is not the subject of the amendment.

There are two principles here, and one is very much at the heart of the reform that all of us following the debate would hold close and that is that we are moving together as a community into a space that is different to one that was regarded as virtuous only 20 years ago. You might be talking about vanishingly few individual cases—it might be a small number—but even more importantly is the upside of engaging those affected individuals, bringing them along as it were. We understand that the vast majority will happily participate in the sharing of the information and will be glad to chart that course, and doing so they then add legitimacy to the reform.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.

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