HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-02-13 Daily Xml
Contents
Pdf Xml

STATUTES AMENDMENT (SURROGACY) BILL

Introduction and First Reading

The Hon. J.S.L. DAWKINS (16:47): Obtained leave and introduced a bill for an act to amend the Family Relationships Act 1975, the Births, Deaths and Marriages Registration Act 1996 and the Reproductive Technology (Clinical Practices) Act 1988. Read a first time.

Second Reading

The Hon. J.S.L. DAWKINS (16:47): I move:

That this bill be now read a second time.

On 21 June 2006, I introduced the Statutes Amendment (Surrogacy) Bill 2006 to facilitate what is known as altruistic gestational surrogacy. Most members in this chamber would be well aware of that, although I understand that the Hon. Mr Darley is new to this and I will endeavour to explain it as well as I can, without labouring the point.

I have been working for several years now with a number of female constituents who are unable to carry children, even though they can become pregnant. One of the constituents, Kerry Faggotter, now has a son due to the willingness of her cousin to be a surrogate mother of the child, who has the genetics of both Kerry and her husband Clive. This surrogacy was carried out interstate as such practices are illegal in South Australia. Under the bill, the opportunity for surrogacy would apply only to heterosexual couples either in a marriage relationship or a de facto relationship that was considered under the law in this state to be the same as a marriage relationship. The people in that relationship would benefit from the wishes of a family member who had had children, and no money would change hands under such an agreement.

The bill also addressed the current situation where the biological mother is not recognised on the child's birth certificate. One only has to sit down with people in that situation to learn about the difficulties that causes parents, particularly where the child has the parents' genetics, but because there is an absence of the name on the birth certificate it causes all sorts of problems when going on an aeroplane trip interstate or overseas if the child is under a certain age and does not have that person's name on their birth certificate, or for the practice of enrolling at a preschool or kindergarten.

Following a referral from the Legislative Council in September 2006, the bill progressed through the Social Development Committee, which recommended that the state government prepare a bill legalising gestational surrogacy and making necessary changes to birth certificate arrangements. Despite the committee's overall recommendation to the government, I am concerned about the prospect of further delays. Following a 14-month process through the committee, it has been almost three months since the committee reported and to my knowledge there has not yet been a response from the government. So, I have decided to reintroduce my bill in an amended form.

The bill I introduce today includes the following amendments to the original bill: first, removing the requirement that the surrogate mother must have already given birth to a child; secondly, removing the idea that the effect of an order under the scheme is the same as an adoption order under the Adoption Act 1988 and replacing it with provisions about the effect of an order. I refer to new sections 10HB(13) and 10HD and new part 3, 'Amendment of Births Deaths and Marriages Registration Act 1996'.

The amendments to this bill also include amendments to the Births, Deaths and Marriages Act 1996 to deal with access to information in the register, which was an issue raised by the select committee report. Also included is a power to discharge an order in limited circumstances, and I refer to new section 10HC, which reflects part of the proposed Western Australian scheme. It also alters the amendments to the Reproductive Technology (Clinical Practices) Act 1988 to address a comment in the select committee's report about the validity of the current provisions of that act. It also includes a scheme that would allow the court to recognise certain agreements entered into before the legislation is enacted as valid and effectual surrogacy agreements under the bill, and I refer to schedule 1.

It is important to recognise that I have retained the provision that this legislation would be available only to heterosexual couples who are married or those in a de facto relationship that is recognised by the law of this state as the same as a marriage. I have resisted the suggestion in the committee's report that legalised surrogacy in this state be made available to individuals. Certainly, I think most of us (not all) would agree that, if it is to be available, it should be for couples.

I would like to note the work of the Social Development Committee and all who contributed throughout the hearings. I made some comments about that late last year when I spoke to the noting of the report, but I sincerely acknowledge the work of the members and staff of the committee and, as I said, all the people who gave evidence, because I think the report is a considerable study into this issue. I congratulate the chairman, the Hon. Mr Hunter, and the members and staff for producing that body of work, because it has a lot of information about all the complex issues that have affected the people who are experiencing these difficulties in having children.

This matter remains a conscience issue for members of the Liberal Party. I respect the decision of the party room enormously, because it is one of those conscience issues that we in our party hold dear, and I respect the views of a range of my colleagues. However, I must say that, wherever I go, there is strong general support across the community for assisting people who have great difficulty in having their own children, particularly those who can access a loving family member who is prepared to be a surrogate mother. I think we should treasure the fact that people are prepared to do that for their loved ones.

I pay tribute here to the sincerity of those people who have been so passionate about developing the law in this state and across the country in relation to surrogacy. I noted in my speech in November that one of the witnesses commented to the Social Development Committee that they were prepared to come along and talk about their insides. I think that is a wonderful comment because, let's face it, how many of us are prepared to go and give evidence to a parliamentary committee and talk about the problems inside our body? Some of these people were prepared to do that.

I think that shows the level to which they see that we should make sensible changes to the legislation in this state. I think that the preparedness of those people to come along and give evidence as they did only added to that body of work that was prepared by the committee, which I think can be an excellent reference for people who are interested in the whole gamut of reproductive technology issues and the advances that have occurred in the past 20 to 25 years or so.

That brings me to my own personal experiences. My youngest child will be 25 this year, but it seems like only yesterday that my wife and I were experiencing considerable trouble in having our second child. We had planned to have our second child two years after the first, but that did not happen, and we had all sorts of intrusive testing and other things that one would not normally experience in one's life when we were in our 20s. This was before the days of IVF, but we still went through all sorts of tests to try to see a way in which we could have another child. Ultimately, we gave up and my wife went back to work, and 12 months later it happened.

The Hon. D.W. Ridgway: You just relaxed a little bit.

The Hon. J.S.L. DAWKINS: Yes.

The Hon. T.J. Stephens interjecting:

The Hon. J.S.L. DAWKINS: I beg your pardon? I will not go into that. I think that experience—and, as I said, that is 25 years ago—allows me to understand the trauma that these people go through.

People who have been married for any length of time and who have not had any children are beset with people asking, 'When are you going to have a baby?' It is a very difficult situation, and I feel very much for them. Our situation was very much at the small end compared with the situation which a lot of people I have met have had to deal with over many years. It is a great tribute to those who are prepared to be public, and Kerry and Clive Faggotter have been prepared to put themselves into the public spectrum. I pay tribute to them and those who have done far more behind the scenes to support them, to give evidence to the committee and to do other things.

We need to examine the fact that there are people in this state who would like to benefit from surrogacy. I stress the fact that we talk about surrogacy that will not involve any money changing hands, other than simple expenses. The cost of going interstate for the testing and going interstate during the pregnancy is a terrific burden on some people, and it has made it impossible for some people to access it. That is why it should be available to them in South Australia.

I will not delay the chamber to any great length. If any member wishes to get more information about this bill, the speech I made on 21 June 2006 is available in Hansard and explains it in greater detail. I commend the bill to the council. I hope that the government introduces a bill in the near future (as has been suggested). I have been here long enough to know that the hope of a government bill being introduced in the short term is a forlorn one.

The people who have been waiting have already endured a 14-month committee stage and it has been another three months since the committee reported. I urge members of the council to support my bill so that it can go to the lower house, which will test the will of the government to do something about this issue. I commend the bill to all members. I seek to leave to incorporate the explanation of clauses into Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

The measure will come into operation 3 months after assent. This period will provide an opportunity for any necessary regulations to be prepared and promulgated, and for any necessary administrative arrangements to be put in place.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Family Relationships Act 1975

4—Amendment of section 5—Interpretation

This is a consequential amendment. The definition of fertilisation procedure currently found in section 10A of the Act will now also be relevant for the purposes of proposed new Division 3 of Part 2B of the Act. It is therefore necessary to include the definition under section 5.

5—Amendment of section 10—Saving provision

The saving provision in section 10 of the Act confirms that the determination of the status of a child under Part 2 of the Act does not affect the operation of a law that may provide for a subsequent change in the status of the child. A consequential amendment must therefore be made to make reference to the consequences of an order under proposed new Division 3 of Part 2B of the Act.

6—Amendment of section 10A—Interpretation

This is a consequential amendment (see clause 4).

7—Amendment of section 10B—Application of Part

This amendment includes another provision in the nature of a saving provision by confirming that the operation of Part 2A of the Act does not affect the operation of another law that may provide for a subsequent change in the status of a child (as that status relates to the mother or father of the child).

8—Insertion of heading

A new form of surrogacy arrangement is to be recognised under Part 2B of the Act. Such a surrogacy arrangement may have lawful operation. It is therefore necessary to divide Part 2B of the Act into a number of divisions.

9—Amendment of section 10F—Interpretation

A new form of surrogacy arrangement is to be recognised under the law of the State. For the purposes of the law, these arrangements will need to be in the form of recognised surrogacy agreements, as described in proposed new section 10HA.

10—Insertion of heading

The existing provisions as to the illegality of certain surrogacy agreements will now appear in a particular division of Part 2B.

11—Amendment of section 10G—Illegality of surrogacy and procuration contracts

The existing provisions as to the illegality of surrogacy agreements will not apply to recognised surrogacy agreements.

12—Insertion of new Division

A new form of surrogacy arrangement is to be recognised under the law of the State.

New section 10HA sets out the criteria that will apply with respect to these arrangements, which will need to satisfy the requirements for a recognised surrogacy agreement, being an agreement—

(a) under which a woman (the surrogate mother) agrees—

(i) to become pregnant or to seek to become pregnant; and

(ii) to surrender custody of, or rights in relation to, a child born as a result of the pregnancy to 2 other persons (the commissioning parents); and

(b) in relation to which the following conditions are satisfied:

(i) the parties to the agreement are—

(A) the surrogate mother and, if she is a married woman, her husband; and

(B) the commissioning parents,

and no other person;

(ii) all parties to the agreement are at least 18 years old;

(iii) the commissioning parents have cohabited continuously together in a marriage relationship for the period of 5 years immediately preceding the date of the agreement;

(iv) the commissioning parents are domiciled in this State;

(v) the surrogate mother is a prescribed relative of at least 1 of the commissioning parents, or has a certificate issued by the Minister in relation to the proposal that she act as a surrogate mother for the commissioning parents;

(vi) the surrogate mother and both commissioning parents each have a certificate issued by a counselling service that complies with specified requirements;

(vii) the agreement states that the parties intend—

(A) that the pregnancy is to be achieved by the use of a fertilisation procedure carried out in this State; and

(B) that at least 1 of the commissioning parents will provide human reproductive material with respect to creating an embryo for the purposes of the pregnancy, unless the commissioning parents have a certificate issued by a medical practitioner that certifies that this is not appropriate from a medical perspective;

(viii) the agreement states that no valuable consideration is payable under, or in respect of, the agreement, other than for expenses connected with—

(A) a pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or

(B) the birth or care of a child born as a result of that pregnancy; or

(C) counselling or medical services provided in connection with the agreement (including after the birth of a child); or

(D) legal services provided in connection with the agreement (including after the birth of a child); or

(E) any other matter prescribed by the regulations;

(ix) the agreement states that the parties intend that the commissioning parents will apply for an order under proposed new section 10HB after the child is born.

In addition, it will be necessary for the agreement to be set out in writing and the signatures of each party attested by a lawyer's certificate.

New section 10HB allows an application to be made to a judge of the Youth Court of South Australia to give effect to the terms of a recognised surrogacy agreement after the birth of a child.

An application will only be able to be made if the child is between the ages of 6 weeks and 6 months. In deciding an application under this section, the welfare of the child will be the paramount consideration. The Court will be able to require that any party provide an assessment from a counselling service before deciding whether to make an application under this section.

New section 10HC will allow the Court to discharge an order in special circumstances.

Special provision is also made in relation to the register of births under new section 10HD.

New section 10HE will provide that the record of court proceedings must be kept confidential.

New section 10HF provides that orders cannot be subject to appeal or review.

New section 10HG will allow a judge of the Youth Court to address a situation where there has been a failure to comply with a requirement of this new Division but the Court is satisfied that in the circumstances it would be just and appropriate to dispense with the requirement.

Section 10HH allows the relevant Minister to delegate his or her functions or powers for the purposes of the new Division.

13—Insertion of heading

14—Amendment of section 13—Confidentiality of proceedings

15—Amendment of section 14—Claim under this Act may be brought in the course of other proceedings

These are consequential amendments.

Part 3—Amendment of Births, Deaths and Marriages Registration Act 1996

16—Amendment of section 4—Definitions

17—Insertion of Part 3 Division 6

18—Insertion of section 29A

19—Insertion of section 49A

These amendments provide for surrogacy orders to have effect under the Act.

Part 4—Amendment of Reproductive Technology (Clinical Practices) Act 1988

20—Amendment of section 3—Interpretation

It will be necessary to make provision for recognised surrogacy agreements under the Act.

21—Amendment of section 10—Functions of Council

The code of ethical practice will need to take into account the use of artificial fertilisation procedures to give effect to recognised surrogacy agreements.

22—Section 13—Licence required for artificial fertilisation procedures

A licence under the Act will extend to the ability to carry out procedures for the purposes of recognised surrogacy agreements.

Schedule 1—Transitional provision

1—Transitional provision

Provision is to be made to recognise the effect of certain kinds of existing agreements.

Any changes to regulations under the Reproductive Technology (Clinical Practices) Act 1988 will need to come into operation when this measure is brought into operation (despite the provisions of section 20(4) of that Act).

Debate adjourned on motion of Hon. I.K. Hunter.

PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT