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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-05 Daily Xml
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STATUTES AMENDMENT (SURROGACY) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 February 2008. Page 1665.)

The Hon. S.G. WADE (16:07): I rise to support the second reading of this bill. There are two primary forms of surrogacy: one is what is referred to as traditional surrogacy, where a surrogate mother carries a child for another person. Traditional surrogacy does not normally rely on the use of reproductive technology. Following the birth of the child the surrogate mother relinquishes the care of the child to the commissioning parents. Over recent decades reproductive technology has advanced significantly and it is now possible for an egg to be borne by a woman other than the woman who generated it.

Gestational surrogacy is where, using reproductive technology, a surrogate mother carries a child for another person. In most cases the commissioning parents provide both the sperm and the eggs. Gestational surrogacy is particularly useful for women who are unable to conceive due to the absence of a uterus, women who suffer from uterine abnormalities or for whom carrying a child would present a serious risk to their own health.

Gestational surrogacy highlights, in my mind, the fact that there are at least three bonds of parentage: first, genetic, the link that parents have with their child in that their own genetic material has come together to form the genetic material of the child; secondly, childbearing and birth, the gift of a mother providing the nourishing and protecting environment which enables a foetus to grow; and, thirdly, nurturing, the love, care and support provided by parents as a child grows and develops.

Most parenting relationships integrate all three elements, but they are not inextricable. For example, adoptive parents provide nurturing but not the other two elements. Gestational surrogacy, for its part, normally involves two of these three elements: a couple provide their own genetic material, a woman beyond the couple bears and births the child and the couple provides a family environment in which the child grows.

A key issue in considering gestational surrogacy is whether childbearing and birth are so integral to the parenting role that without them a person should not be regarded as a parent. In my view, a person should be regarded as a parent even if they are not involved in childbearing and birth. Where they are separated, the issue arises as to who is to be recognised at law as having the primary parenting role and the care and responsibility for the child's welfare. Then society needs to determine the limits, if any, that it wants to put around the use of gestational surrogacy or the access to reproductive technology which facilitates surrogacy.

Gestational surrogacy is not illegal per se in this state. However, the strict criteria that surrounds its practice, coupled with legislative ambiguity, make it all but impossible to legally perform. This bill seeks to make the law clear and make gestational surrogacy clearly legal. The origins of the bill highlight the capacity of members of this chamber to advocate for their constituents and to take on issues which impact people across the state and which may not generate a critical mass sufficient to gain the attention of members of the other place.

In this case, the Hon. John Dawkins has been working for several years with a number of female constituents who are unable to carry children: some have undertaken surrogacy interstate and some aspire to do so in South Australia. I commend the Hon. John Dawkins for his advocacy on this issue. He has raised the issue and has gone to considerable effort to prepare not one but two private members' bills. He has provided ongoing support to people who have undertaken—or wish to undertake—gestational surrogacy, even to the extent of providing support for these people as they come to appear before the committee on gestational surrogacy.

The first bill—the Statutes Amendment (Surrogacy) Bill 2006—was introduced in the Legislative Council by the Hon. John Dawkins on 21 June 2006. Under that bill, gestational surrogacy would be allowed to heterosexual couples in either a marriage relationship or a recognised de facto relationship. The surrogate would need to be a family member who had had children, and no money would change hands.

The bill also addressed the current situation where the biological mother is not recognised on the child's birth certificate. On 27 September 2006, on the motion of the Hon. Ian Hunter, the bill was withdrawn and referred to the Social Development Committee to inquire into and report on the issue of gestational surrogacy. As a member of the Social Development Committee, I was involved in this reference, and I would like to acknowledge the work of the committee and pay tribute to its members: first to our chair, the Hon. Ian Hunter, who ably and sensitively chaired the committee and worked to expeditiously address the reference, and provided sound leadership towards consensus. I acknowledge the work of other members of the committee and also of the committee staff for their contribution: Robyn Schutte, Sue Markotic and Cynthia Gray.

The committee was fortunate to have a range of quality submissions and witnesses. In particular, I would like to acknowledge two groups of witnesses: first, those former or prospective users of surrogacy who gave the committee a personal perspective. Their accounts, often deeply personal, helped us to understand the issues facing the committee in more than a technical or legal sense. Secondly, I would like to pay tribute to a group of witnesses from Christian organisations. While their ethical opposition to surrogacy did not persuade the committee to oppose surrogacy, their exposition of the issues involved ensured that the issues received the detailed consideration they deserved. Also, I found their involvement very helpful in supporting the committee as it sought to give primacy to the interests of children of future surrogacy arrangements.

The committee was informed of the work being done at a national level by the Standing Committee of Attorneys-General in considering the possibility of introducing consistent surrogacy laws across all Australian states and territories. In the end, the committee recommended that the state prepare a bill legalising gestational surrogacy and making necessary changes to birth certificate arrangements. This private member's bill is before us today because the Hon. John Dawkins, in effect, dissents from that recommendation. According to his second reading speech, he does so on the grounds that already there has been enough delay. This is not mere scepticism. The Hon. John Dawkins is far from being the most cynical member of this chamber, but he is an experienced member. Based on that experience, he has formed the view that waiting for the government will result in unnecessary delay.

Following years of advocacy, the honourable member has been patient to await the outcome of what proved to be a 14-month committee process. It is now almost four months since the committee reported and, to my knowledge, there has not yet been a response from the government. The Hon. John Dawkins was assured that we would have a bill by early in the new year but, as notice was not given today, the first opportunity for such a bill to be tabled will be in April—hardly the new year. The new year is slipping away, and the balance of the year will slip on behind it.

In that context, the Hon. John Dawkins has decided to introduce this bill. It differs from his original bill in that, first, the bill removes the requirement that the surrogate mother must have already given birth to a child. Secondly, the bill removes the idea that the effect of an order under the scheme is the same as an adoption order under the Adoption Act 1988 and replaces it with provisions about the effects of an order. The bill also differs from the first bill in that it deals with access to information on the register, which was an issue raised by the select committee.

The bill retains the provision that the legislation would be available only to heterosexual couples who are married or in a recognised de facto relationship. The committee noted that both the Pearce and McBain cases, in which South Australian and Victorian legislation restricted assisted reproductive technology to married couples, was found to be invalid and came to the conclusion that the committee did not support the restriction of gestational surrogacy based on discriminatory criteria. The Hon. John Dawkins clearly is confident that his bill will not offend anti-discrimination legislation. As the bill progresses the council will need to clarify the situation in that regard. In committee I look forward to detailed consideration of the provisions of the bill in light of the recommendations of the committee and other information available.

In considering the bill and seeking to support commissioning parents to access gestational surrogacy, I will strive to maintain the paramountcy of the interests of the children, specifically the interests of children born as a result of gestational surrogacy procedures and their treatment in terms of birth certificates and access to genetic information. At this second reading stage of the bill, however, the questions before us are much simpler.

In my view, there are two key questions each of us as members of this council need to ask in deciding to give the bill detailed consideration in committee. First, should gestational surrogacy be available in South Australia? Secondly, if so, is it helpful for South Australia to make laws for gestational surrogacy in anticipation of foreshadowed or possible nationally consistent laws? If we say yes to the these questions, we should support the second reading of the bill. If the majority of the council says yes to both questions, South Australia will have a regime in place much sooner than it otherwise would. If it ends up being superseded by a national scheme some years hence, at least in the meantime South Australian men and women would have had the opportunity to access this service in their own state. If the majority says yes to both these questions, SCAG will have the views of this parliament as it seeks to develop a national regime.

The Western Australian parliament has enacted legislation. Recently the Victorian Law Reform Commission developed a detailed proposal. There would be value in having a South Australian voice and a parliamentary voice in the form of this bill. If the majority of the council says no to the first question, that is, that it does not support gestational surrogacy, the second question does not arise and we could save the Attorney-General the time and trouble of engaging in the SCAG process.

In summary, whether or not members support the concept of gestational surrogacy, I urge them to support the second reading of the bill so that it can progress and these issues can be further clarified. I support the second reading. I believe the bill provides a workable base on which to build a South Australian scheme.

Debate adjourned on motion of Hon. J. Gazzola.

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