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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-06-18 Daily Xml
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STATUTES AMENDMENT (SURROGACY) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 9 April. Page 2370.)

The Hon. M. PARNELL (20:48): The Greens support this bill, which provides appropriate recognition and protection for children and other parties involved in what is known as altruistic gestational surrogacy. This is a situation where a woman carries and bears a child not directly related to her for another person or couple. It is a relatively recent development involving the use of invitro fertilisation. Generally it is used by women who may or may not be able to conceive, but who cannot carry a child to full term due to a medical condition or serious risk to health.

I acknowledge the work done on this issue by the Hon. John Dawkins and also the representations made to me and other members by Kerry and Clive Faggoter, whose personal circumstances have very much informed our need for this legislation. This bill has also been scrutinised by the Social Development Committee, and I note that the committee, having examined all the evidence relating to legal parentage, has concluded that the current situation is untenable and there is an urgent need for legislation to be enacted to ensure a better process is in place for commissioning parents to be legally recognised as the parents of their biological child.

At present, the situation is one of confusion, embarrassment and injustice, since the law does not adequately acknowledge the true parents of the child, for example, on the child's birth certificate. Having stated the Greens support for the bill, I now need to address the amendments foreshadowed by the Hon. Ian Hunter. These amendments seek to widen the scope of the legislation to 'domestic partners', rather than the narrower qualifying term being persons who 'have cohabited continuously together in a marriage relationship for the period of five years'.

Under the honourable member's amendment, this legislation would be available to same sex couples. The Greens support this amendment, although I understand that the likelihood of its use would be very much lower in the case of same sex couples than in heterosexual relationships. The Greens support this amendment, which we believe is consistent with the approach that we took earlier in the term of this parliament to remove from the South Australian statute books all references to discrimination on the grounds of sexual relationships. So, it makes sense to remove it now.

However, having said that, if the amendment fails, I will support the bill in its current form. It is not the ideal outcome to be passing legislation that does not treat heterosexual and same sex couples the same. However, on balance, I prefer that approach to taking a dog in a manger approach, if you like, or throwing the baby out with the bath water is another analogy. We still have much more to do in the area of equality for same sex couples, including legislation to legalise same sex marriages, which the Greens support. But for now, focusing on the narrower terms of this bill, the Greens are happy to support the legislation in relation to gestational surrogacy.

The Hon. T.J. STEPHENS (20:51): I think it is important that I state my position. I will be very brief. I support the Hon. John Dawkins and his bill. Members would know that I am a reasonably conservative sort of fellow and it is a fair shift for me to support the Hon. John Dawkins and this particular bill, but—

The Hon. J.S.L. Dawkins: I'm pretty conservative.

The Hon. T.J. STEPHENS: Of course. I say that I have been privileged enough to meet face-to-face a number of people who are actually affected by this particular bill. I have been moved by them. I understand how genuine these people are. I have done some things in my life I am proud of and some things maybe I am not so proud of, but one of the greatest privileges for me is to be a father and have the pleasure of children. It is for those reasons that I am inclined to support the bill. I am not really inclined to support the bill in any form other than that which the Hon. John Dawkins has moved. I have probably moved further than I would have anticipated some time ago. With those few words, members know exactly where I stand on this issue.

The Hon. J.M. GAZZOLA (20:53): I support the bill as proposed to be amended by the Hon. Ian Hunter. However, I cannot support the bill in its unamended form. I support the proposed amended bill in that it will ensure legislation consistent with state and commonwealth anti-discrimination legislation, as endorsed by the Social Development Committee in its excellent report, 'Inquiry into Gestational Surrogacy' tabled in the council on 13 November 2007. With those brief words, I urge all members to support the amended bill.

The Hon. B.V. FINNIGAN (20:54): The Standing Committee of Attorneys-General is considering the matter of surrogacy from a national viewpoint, with a view to coming up with nationally consistent legislation. That is the right approach to take and arising from that I expect a bill will come before us in the not too distant future. I will make a more considered contribution on the matter at that time, but will briefly put on record my views on this bill.

There are three issues in relation to surrogacy: first, whether or not the state should allow gestational surrogacy and facilitate that happening through the state health system (I have the gravest philosophical and moral reservations about that happening); secondly, whether or not the state should enforce surrogacy agreements (and again it would be an extraordinary step for the parliament to take to give courts the power to remove children from their birth mothers for the sake of enforcing a surrogacy agreement, however well intentioned and however much we feel for the people affected); and, thirdly, the legal issues that arise out of the offspring of gestational surrogacy that may happen in this jurisdiction, if the bill allows it, or in other jurisdictions. There are issues to be worked through there and I am sympathetic to the problems that arise. It would be better if a bill addressed those issues separately.

On the basis of what I have said, I have serious reservations about the bill sufficient that I will vote against it and will oppose the amendments moved by the Hon. Mr Hunter. I appreciate that the proponents of the bill are hesitant to rely on the vagaries of the national process and how long that might take, but on balance we should as a parliament generally err on the side of caution when it comes to taking what I see as the fairly major steps that this bill provides. For those reasons I oppose the bill.

The Hon. G.E. GAGO (Minister for Environment and Conservation, Minister for Mental Health and Substance Abuse, Minister Assisting the Minister for Health) (20:57): I commend the honourable member for his commitment to the issues related to surrogacy, gestational surrogacy in particular. I will only speak briefly, but would like to put a few things on the record. I acknowledge the work of the Social Development Committee, chaired by the Hon. Ian Hunter, who prepared an excellent report on this issue. Perhaps the most significant issue covered by this bill is that it allows the commissioning parents to be recognised on the birth certificate of their child. Currently I understand that the surrogate mother appears on the birth certificate, meaning that the commissioning parents have to adopt their own child. Allowing the parents to be recognised by law is a needed improvement to the Family Relationships Act and one that I support. It is a significant step forward in the recognition of a child's genetic parents and removes a needless bureaucratic barrier to recognising a child's familial relationships.

The structure of families continues to change in our society, and I am sure that members here, regardless of their position on this bill, would agree that the most important thing is for children to be raised amongst those who love and care for them. I believe this bill will help society to recognise and value a committed family unit that has come about through surrogacy. However, we need to be inclusive of all caring family relationships in modern society, and valuing loving relationships is the best set of values we can teach our children. I will therefore support the amendments put forward by the Hon. Mr Hunter to overcome the discriminatory provisions of the bill. The definition of a couple who can take part in surrogacy under this bill does not reflect the growing community attitude that people in a same sex relationship deserve the same rights as heterosexual couples. I recognise that these social issues are often difficult for this place to deal with and I commend all members for their genuine and considered contribution to the debate. I support the bill.

The Hon. I.K. HUNTER (20:59): I do not propose to take a lot of the chamber's time in my comments on the second reading. I direct members who have an interest to my tabling speech of November last year or directly to the report of the Social Development Committee. I take the opportunity to commend the Hon. John Dawkins for bringing the matter to the attention of the parliament. It was my hope that we would see government legislation that was nationally consistent, but I understand the Standing Committee of Attorneys-General has not yet been able to expedite the matter.

I understand therefore why the Hon. Mr Dawkins is bringing the matter to a vote, but this presents me with some problems. From my perspective the bill is not ideal; it has some issues to do with requirements on cohabitation periods and issues dealing with the level of counselling required and it also includes discriminatory provisions, provisions that restrict the operation of this bill to heterosexual couples only, and people will not be surprised that I have a problem with that.

That brings me to the three amendments I will be moving. I understand that I have support from six honourable members for the first two amendments, and the Hon. Mr Dawkins has indicated that he will not oppose the third amendment. Obviously, with only seven voting for my amendments, they will probably not get up, which brings me to a really big problem because I want to see this bill succeed.

I think it is time we had legislation enabling gestational surrogacy in this state. However, I am compelled to say that I cannot, in conscience (as this is a conscience vote) vote for a bill that seeks to again incorporate into legislation provisions that discriminate against gays and lesbians: I cannot, in all conscience, vote for such a provision. So, I will be voting for the amendments but, if they are not successful, I will not be voting for the bill. I hasten to say that I have no expectation that my colleagues who have indicated support for my amendments will follow my example: this is a position that I take alone.

However, I do want to read into the record a few brief comments from the inquiry, which may assist members in making up their mind about some of the issues I have raised in relation to the amendments I will be moving. The committee's report into gestational surrogacy states:

While the South Australian Reproductive Technology Council recommended legalising non-commercial gestational surrogacy, it expressed a number of reservations about the proposed Statutes Amendment (Surrogacy) Bill [the original bill]. In its written submission, the Council questioned why the Bill included a requirement for continuous cohabitation in a marriage relationship for a period of five years.

According to the Council this requirement is not only inconsistent with the Reproductive Technology Act 1988; it also contravenes the Commonwealth Sex Discrimination Act 1984. If the intention of the cohabitation requirement is an attempt to deal with concerns about the family environment into which a child is born, the South Australian Reproductive Technology Council argues that the current principle that underpins the Reproductive Technology Act...stipulating that the best interests of the child born as a consequence of an artificial fertilisation procedure must be treated as paramount, [that] is adequate for this purpose.

Furthermore, the council argued that because those who participate in reproductive technology treatment need to undergo a mandated counselling process and sign a statutory declaration in relation to any past criminal behaviour...this serves to further demonstrate the likelihood of a positive outcome more so than a requirement regarding continuous cohabitation of five years.

The concluding remarks of the report are as follows:

The Committee has heard no evidence to suggest that either marital status or sexual preference can predict whether or not an individual will be a good parent. The Committee does not support the restriction of surrogacy based on discriminatory criteria. As noted, both South Australian and Victorian legislation restricting access to assisted reproductive technology to married woman has been deemed discriminatory.

I support the second reading of the bill, and I seek the support of honourable members for my amendments. On the presumption that this bill will pass, I congratulate again the Hon. Mr Dawkins on his achievement with this bill being passed. I suggest to members of the council that they, too, vote for the bill, but I cannot.

The Hon. R.D. LAWSON (21:04): I begin by commending the Hon. John Dawkins for his longstanding commitment to this bill and the underlying subject; he has been most persistent and is to be commended for it. I commend also the Social Development Committee, whose inquiry into gestational surrogacy resulted in a comprehensive report, which was tabled in November last year, and I commend to the parliament that report.

I have been most concerned about the moral and philosophical aspects of surrogacy, not only commercial surrogacy but altruistic surrogacy as well, and I note the objections to it that are recorded in the report of the inquiry of the Social Development Committee.

I should put one argument out of play immediately because it has not had much affect on me. I recognise that, in most other Australian jurisdictions, altruistic gestational surrogacy is permitted, subject to various conditions. It is suggested by some of the proponents of this bill that, because surrogacy is allowed in other states, we ought to allow it here because, if we do not allow it here, South Australian couples who seek to avail themselves of surrogacy services will simply go across the border and obtain them there.

I do not believe that should be a serious consideration for us here. We have to make a decision of this parliament as to whether this is appropriate for South Australia and be prepared to stand up for our own philosophical and moral principles on that matter. So, notwithstanding the fact that surrogacy of this kind is available in other states, I believe we here ought make a decision of our own.

I have been most impressed by coverage of some of the issues in a book by Bishop Tom Frame, a well known Australian cleric and commentator, entitled Children on Demand: The Ethics of Defying Nature, which was published earlier this year. In the chapter entitled 'The perils of surrogacy: compassion and commercialism', Tom Frame describes some of the issues. He says, at page 149:

Surrogacy potentially creates three types of mothers: genetic, gestational and social; and two types of fathers: genetic and social. A single child could have as many as five known parents: its genetic mother and father (the man and woman who provided the gametes), its social mother and father (the man and woman who will raise the child), and its surrogate mother (the woman who brought the child to birth).

The simple statement that a child might have five known parents creates moral dilemmas that are worth examining if one is truly interested in the welfare of children. Frame comments that gestational surrogacy is becoming increasingly attractive but then poses this question:

But what of the moral, social and emotional costs to those involved, particularly the surrogate and the child? Might this be a situation in which society should not encourage a person to carry another's burden?

All members of parliament, and people in the community generally, have every sympathy with those married couples who wish to have a child but who, for various medical reasons, are unable to do so. There is no doubt that they have our every sympathy, and I certainly have sympathy for them.

However, the question one has to ask oneself is: what of the child who is born of such procedures? Is it not the interest of that child that must be the paramount consideration of parliament? If parliament allows such children to be brought into existence, we should not be concerned so much with the interests and desires, hopes and aspirations of the parents but with those of the child. What of the child who has, as Frame mentions, five persons who can be called their parents? At page 151, Frame continues:

There are a number of practical and philosophical objections to altruistic surrogacy. They begin with concerns for the welfare of the surrogate mother. In many instances, the surrogate will be a sibling motivated by compassion to assist someone she loves. The first case of successful surrogacy in Australia was reported on 23 May 1988, after Linda Kirkman gave birth to Alice, the genetic child of her older sister, Maggie, who was unable to carry a child. Maggie provided the egg, which was fertilised with donor sperm because her husband was infertile. But a sibling is not always available as a potential surrogate, and it requires an especially close non-filial relationship for one woman to be willing to bear the child of another.

One must also consider that no surrogate, however altruistic, can possibly know how she will feel once the child is born and she is required to relinquish 'her' baby. This makes the likelihood of informed consent highly problematic. As Susan Dodds and Karen Jones, two philosophers working in the areas of feminism and bioethics at the University of Wollongong, explain:

'No two women experience pregnancy in quite the same way, and the same woman can experience different pregnancies differently...Thus, how can a woman give fully informed consent to part with a child she will have felt growing and developing inside her, that she will have given form to through her body, before she knows the feelings these experiences will have produced?'

He continues:

It is clearly a heart-wrenching experience for the surrogate, with many women declaring that they did not know how difficult it would be to 'give away' the child they had carried inside their bodies for nine months. They were, after all, 'their children'. Without the protection and nourishment provided by their wombs, the children would not exist. The child owes its existence to the surrogate. This might explain evidence which suggests that a slightly disproportionate number of surrogates have either had an abortion, or relinquished a child for 'adoption' and subsequently deal with the undischarged feelings of guilt or remorse by acting as a surrogate.

Frame continues:

In my view, surrogacy does play down and minimise the importance of gestation to parenthood. Experience makes plain the essential link between them. The woman who bears the child is the child's mother for a period of nine months. There is no other means of describing surrogacy than motherhood. The surrogate mother's whole being is oriented towards a child that will be born only to be relinquished. Additionally, the law regards the woman who gives birth as the child's legal mother. However much we might try, the biological cannot be separated from the relational.

He refers to the Australian ethicist, Peter Singer, who (not surprisingly to those who know his work) is in favour of surrogacy. Singer says that surrogates would 'get over' their experience. Frame quotes Singer as stating:

The surrogate who receives an IVF embryo has no genetic relationship to the child she carries. Attachment may still of course occur, but it is plausible to suppose that the lasting effects of separation will be less severe when the surrogate has no reason to think of the child as 'her' child, but rather the child [she] 'looked after' for nine months of its life.

Frame continues:

The evidence overwhelmingly suggests quite the contrary. Women are deeply affected by surrogacy and very few are willing even to think about serving as a surrogate a second time should they be asked.

I realise that I am stretching the patience of the council by quoting extensively from Frame, but I think that he very clearly articulates some of the issues in a way that is pertinent to this debate today. He cites an American lawyer, Anita Stuhmcke, who insists that 'altruistic surrogacy is more exploitative than commercial surrogacy'. She believes that the experience of family dynamics may make it impossible for the surrogate to keep the child if she so desires.

Frame mentions Elizabeth Kane, America's first legal surrogate mother. She became an advocate with the National Coalition Against Surrogacy after she gave birth in November 1981. She insists that 'the transferring of one woman's pain to another woman is not the solution in any society' to infertility and regards surrogacy as 'reproductive prostitution'. One might presume that she was not well prepared emotionally for the experience, and one might possibly conclude that she would be rejected today as a potential surrogate. I acknowledge here that there are provisions for counselling and certification which are designed to overcome that particular difficulty in the honourable member's bill.

I notice that one of the important elements—I think the mover of this bill sees it as an important protection—is that a surrogate mother under this regime can only be a mother, step-sister, sister or first cousin of the woman who may provide genetic material for the child. I gather that the reason for that particular provision is to reduce the possibility of disputes when the child is born about whether it ought to be relinquished. Presumably, if your mother or your sister has decided to be a surrogate, they will not renege on the deal, as it were, at the end.

That, of itself, does raise an issue, because it is likely in the ordinary course of events that, throughout the child's life, it will have an ongoing relationship with its mother as well as its surrogate mother. It is interesting to see—and Frame mentions this—that Senator Conroy, I think it is, a prominent Australian, had a surrogate child with his wife. He explained, I think admirably, that the reason they chose not a friend or a relation but some third-party surrogate was in order to avoid the possibility of the child having feelings towards its maternal mother—its actual mother—and its surrogate mother. Rather, they chose somebody who would have no ongoing relationship with the child.

Anyone who has had the pleasure of having a teenage daughter might well recognise the sorts of conflicts that can arise between a teenage daughter and her mother. If on every Christmas occasion and every birthday occasion that child is present not only with its mother but also with the surrogate mother, the possibility of conflicting loyalties, conflicting feelings and difficulties would arise. For that very reason, Conroy chose someone else. But under the regime now proposed in South Australia—but not applicable in other places—you would be allowed to employ a mother, a sister, etc. as the surrogate. That is a matter I intend to pursue during the committee stage, and I am sure that the mover will be able to provide some answers.

I think it is also important to recognise that, whilst this is a very important issue for those involved, according to the report of the Social Development Committee, gestational surrogacy—whilst it occurs in some other places—is not a terribly common occurrence. Some might see this as a relevant consideration and some might see it as not relevant. Even if only one child were able to be born by surrogacy, that would be sufficient to require us to change the law.

The committee reports that, for example, in a place like the United Kingdom—a country of some 65 million people—only about 35 IVF surrogacy procedures are performed each year. I have looked at a number of the theological objections to IVF. I think they are better described as denominational objections. Some people are opposed to IVF procedures generally. They are philosophically opposed. They believe that IVF is unnatural, it is wrong and it is not appropriate and, because they come from that particular position, they are opposed to surrogacy.

IVF is a necessary element of the sort of surrogacy we are talking about. Therefore, people oppose surrogacy because they oppose IVF. I do not happen to oppose IVF; I am entirely supportive of it. I think that medical developments in relation to reproductive technology are entirely beneficial. I support them. I think they have been a wonderful example of medical technology. So, I certainly do not come to this debate with any opposition to IVF procedures, but I do have, and have had, serious concerns which I think Frame appropriately articulates in relation to the general topic of surrogacy.

Notwithstanding, however, the concerns I have and my belief that the current bill is a little too narrow in limiting surrogacy to the circumstances which I earlier described about having a mother who is related to the persons providing the genetic material, I will be supporting the second reading of this bill. I think a number of matters really do have to be explored during the committee stage. They are rather technical issues, but they are important issues, and I look forward to the committee stage so that I can receive assurances or perhaps move amendments to overcome some of the difficulties which arise.

I will highlight one of them as an example. The issue in surrogacy is that once the child is born there has to be an application made to the court. There has to be an agreement beforehand. The agreement has to have been certified by a lawyer that the parties were not induced to enter into the agreement by some form of coercion. But then, when the matter gets to court, the question that the court has to decide, according to the bill, is that the welfare of the child must be regarded as the paramount consideration. That was not the issue when the agreement was entered into.

The agreement that is entered into—no doubt for the noblest of motives—is an agreement that is for the benefit of the adult parties. When the court gets to make an order based upon the welfare of the child as the paramount consideration, I think that is almost an impossible test to ask a court to apply, because the court will have before it the parties who have entered into an agreement and it will be in their interests to ensure that the agreement is enforced and that people are held to the promises they have made.

There might be some circumstances where, for example, the parents have become drug addicts or drunks or one has died or there has been a divorce, or there might be some other issue, but in the ordinary course, leaving those things aside, I think it is almost window dressing to suggest that in the ordinary course a court is then determining the welfare of the child. What the court will be doing is enforcing an agreement that was entered into. There are a number of those other technical issues which I will be very happy to pursue in committee.

The Hon. CARMEL ZOLLO (Minister for Emergency Services, Minister for Correctional Services, Minister for Road Safety, Minister Assisting the Minister for Multicultural Affairs) (21:24): As this matter is a conscience vote I would like to place my views on the record. I commend the Hon. John Dawkins for his genuine sincerity, but I place on the record that I am unable to support his bill and I will not be supporting your amendment, Mr Acting President.

The Hon. Bernie Finnigan, I believe, has already articulated what my sentiments are. I do share his concerns, which are, briefly, first, whether or not the state should allow surrogacy, and I too have moral and social reservations; secondly, whether the state should enforce surrogacy agreements; and, thirdly, the legal issues that may arise out of the offspring of surrogacy. As was mentioned also, we will see federal legislation before all the parliaments, I suspect, and I think the debate is best had at that level.

Again, I appreciate the commitment of the Hon. John Dawkins but I am unable to support his bill. Whilst I am on my feet, the Hon. Paul Holloway has indicated to me that he will be supporting the bill but will not be supporting your amendment, Mr Acting President.

The Hon. D.G.E. HOOD (21:26): I think it will come as no surprise, given my dissenting remarks to the report that the Social Development Committee made (as I was a member of that committee), that Family First will oppose the bill presented by the Hon. Mr Dawkins. I had intended to list a whole range of reasons for that—in fact, I have them here before me—but the truth is that they have been highlighted quite well, both by the Hon. Mr Finnigan and especially by the Hon. Mr Lawson, who outlined, in fact, in one case, the exact quote I was going to use. So, that, I think, puts our position forward.

To put it in simple terms, Family First's opposition to surrogacy really comes down to the issue of what is in the best interests of the child. People will debate this, and I accept that, but fundamentally, as far as we are concerned, surrogacy is an arrangement that is in the best interests of the adults concerned, not the child. If I can just quote from article 3 of the Convention of the Rights of the Child, it states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

I am not suggesting that those adults do not enter that agreement with what they perceive to be the best interests of the child at heart but, again as the Hon. Mr Lawson outlined very succinctly, the truth is that there are many unforeseen circumstances in these very complex arrangements. Human emotions are, at times, uncontrollable for all of us, particularly when it comes to our children.

As a new father myself, I can certainly vouch for the level of emotion that one has for one's child, and I can foresee many difficult circumstances arising from surrogacy arrangements in the future. That is not to say that some of them will not go well: it may be the case that they do, and it may even be the case that the majority of them do, but in good conscience—and I speak for myself and for the Hon. Andrew Evans, having discussed the matter with him at length—we do not feel that we can support a bill which could potentially see difficulties arise for children down the track.

I will paint one very obvious example. Again, the Hon. Mr Lawson gave a few very succinct examples, but one that really jumps out at me, and it is almost too obvious, is a situation, as is proposed under this bill, where a family has possession (if you like) of the child from the surrogate mother, and those two women are sisters. You can imagine the child (let us say it is a girl), when she is about 13 or 14 and reaching those difficult years, has conflict with her parents, which is certainly not uncommon at that age. We can imagine that, if she has a real falling out with her mother (the woman she lives with) and if she has a good relationship with her birth mother, she may decide that she is the mother she really wants to live with. That is a real possibility.

It would be a terribly difficult thing for the parents involved, not to mention the child. I think it is not parliament's role to intervene in those sorts of things. These situations are incredibly difficult, and I think the emotion involved would be overwhelming. So, for that reason, and for the reasons outlined by the Hon. Mr Lawson and all of those potential problems down the track, Family First opposes the bill.

Turning to the amendments put forward by yourself, Mr Acting President, I am sure you will not be surprised to hear that Family First also opposes the amendments. There is a variety of reasons for that but perhaps I can quote from a recent submission to the Commonwealth Human Rights and Equal Opportunities Commission by Dr Robert Pollnitz. He warned about the implications for children in the gay parenting debate. He noted:

By its implication that marriage between a man and a woman has lost its special value, we believe that the inquiry fails to respect the best interests of our Australian children. My views on this issue are shaped by over 30 years' experience as a specialist doctor caring for children. Throughout this time I have observed that children develop best, both physically and emotionally, when they are reared in a stable heterosexual, two-parent family. Without criticising single parents or making judgments about people's situations or experiences, when families fracture we see large increases in health problems, emotional imbalances, learning disorders, defiant behaviours, drug use, sexual promiscuity and criminality.

He went on to say:

Studies show that gay and lesbian relationships are often unstable. While lesbian unions tend to last longer, a 1990 study found that 50 per cent of lesbian couples break up after less than six years.

Of course, that is not true of all couples, and I am not suggesting that it is. However, the primary consideration here has to be the welfare of the child and we certainly will not be endorsing a situation that does not put that as the paramount consideration.

To bring it down to a very simple level (and this is perhaps an easy illustration or one that makes sense to me) if we make the claim that two dads, for example, can raise a child as effectively as a mother and a father, then I think we undervalue the role that women play as mothers in the rearing of children. In my own experience I observe my wife with my beautiful daughter, and she is terrific with her. Again, that is not to say that some gay couples would not be able to achieve that, but the research indicates that it is difficult, on average. Again, if we have two mothers raising a child then the truth is that that undervalues the role that fathers play in raising children.

I guess what I am saying is that the ideal model is a mother and a father. That is not always true even in heterosexual relationships and I accept that. However, as a legislative body that should be the standard that we aim for in all cases. As an absolute minimum we should be aiming for the welfare of the child to be paramount in all of our deliberations. Again, that is why we will be opposing the amendments.

The Hon. C.V. SCHAEFER (21:33): I was not going to speak, but it looks like I am now. Given that it is a conscience bill I suppose I should put my position. I do not have the science that my colleague alongside me does but I will not be supporting this bill or the amendments. I have great sympathy for parents who have difficulty in conceiving and carrying their own children but, to be quite frank, and in a very unscientific way, I find the idea of carrying my daughter's child or my daughter carrying her sister's child quite repugnant and I cannot support this legislation.

The Hon. R.I. LUCAS (21:34): I must admit that I found this particular legislation one of the most difficult that I have confronted in my parliamentary career, in terms of finally arriving at a position. I can genuinely say that, as I stand here tonight, I have still not resolved a final position in relation to the legislation. I have listened with interest to all of the contributions from members, both this evening and earlier.

I followed with some interest the contribution from my colleague the Hon. Mr Lawson and I must confess, as I listened to his argument, I thought he was opposing the legislation. At this stage, he has indicated that his position is support for the second reading, and it is for him to determine his position, obviously, through the committee and remaining stages. I found myself influenced by the views of the Hon. Mr Lawson on the legislation.

In commenting on some of the issues that the Hon. Mr Lawson and, indeed, the Hon. Mr Hood raised, there are two specific examples. The Hon. Mr Lawson raised the point, I think based on the learned author he quoted (Frame), that some children under this particular procedure might have five parents in the future. However, the reality is that at the moment I can think of family circumstances where a particular child has, at a relatively young age, had one mother and three fathers, as the mother has married three times.

The problems that the Hon. Mr Lawson's author potentially identifies are in relation to the child and conflicting pools. I think it is fair to say that some children, in current circumstances, already confront those sorts of problems. The learned author may well argue: well, why add to it?—and we can have a circular argument in relation to those issues. At the moment there are children in families where circumstances are such that they have a pool between a significant number of parents, more than what many of us would support as being ideal—which is obviously two parents. If you did have a 13-year-old daughter who had difficulty with her mother, the circumstances identified by the Hon. Mr Hood were if the daughter found some affinity with the surrogate mother (in this case, the sister). One could also argue that there are possibly some positives in that, in that the daughter would have someone other than her mother to turn to, rather than turning to the streets (as we know can sometimes occur) or to the wonderful advice that other 13 year old girls can give in terms of what she ought to do.

A 13 year old might think that their mother is the worst person in the world—that she does not understand them, that she does everything she can to make their life difficult and they therefore ought to turn somewhere else. Someone else in their life who loves them and to whom they can turn could hopefully, in an ideal world, encourage them to see that their mother does love them and, after a period of disputation (however long that might be), could encourage reconciliation.

Clearly there are circumstances where young people can hate their mother or father, or both of them in equal measure, but some are lucky to have uncles or aunties, or grandmas or grandpas more often these days, who end up looking after them. I understand the arguments the Hon. Mr Hood and the Hon. Mr Lawson quote from the learned author, but I think one can also mount arguments on the other side in relation to these matters. So, whilst I do understand I do not see them as being determining issues.

I enter the debate on this issue a product of my conservative Catholic upbringing. I am still a believer, and I understand the very academic (I thought) position put on behalf of the Catholic Church to the Social Development Committee, which opposed what is proposed here. However, as the Hon. Mr Hood and others said in their contributions, ultimately we ought to be guided in this issue by what is in the best interests of the child. As I said, as I stand here tonight I have not finally resolved my position. I am a product of my upbringing and I am naturally uncomfortable with this; 20 or even 10 years ago I could not imagine myself even contemplating supporting this legislation. However, having listened to the arguments from the Hon. Mr Dawkins and others who support this, as well as those of the opponents, I am contemplating support for the legislation.

I am uncomfortable with the proposition that the Hon. Caroline Schaefer made in her short and succinct contribution, that of the notion of a woman's mother carrying the child, and I guess that is an issue I will have to reconcile in my own mind before I finally determine a position on the legislation. I intend to support the second reading of the legislation; however, I reserve my position on the committee stage.

We are aware of amendments to be moved by the Hon. Mr Hunter, and I am indebted to the 623 people who emailed me between 1 o'clock and 9.30 this evening to put their points of view on those amendments. I have to be honest and say that I have not read each and every one—

An honourable member interjecting:

The Hon. R.I. LUCAS: Well, the ones I have read so far do not seem to support it. However, I have to be honest; I have not opened them all and there may be some who come in strongly towards the end who support it. I did note that there was one from Rob Lawson urging me to oppose the amendments, but I hasten to say that it was not the Hon. Rob Lawson—

The Hon. T.J. Stephens: It wasn't 'the' Rob Lawson.

The Hon. R.I. LUCAS: It was not 'the' Hon. Rob Lawson; it was another Rob Lawson. So, I am indebted to those 623 people who took the trouble to email me between 1 o'clock and 9.30. There may well be more as I return to my office this evening.

The Hon. Mr Lawson indicated that he will be questioning the Hon. Mr Dawkins during the committee stage and may well move amendments. Given the flavour of the Hon. Mr Lawson's second reading contribution, I will be interested in the amendments he may be moving. I will consider them, and will reserve my position for the third reading.

The PRESIDENT: There are no further speakers. Being a conscience issue I will declare which way I would vote had I a casting or deliberative vote. I believe that having children is the most rewarding and wonderful experience one can have; at times it is also one of the most costly, so I remind those people who are thinking of having them that that can be a little bit of the downside. However, having been blessed with four children and six grandchildren so far—with more to come, I hope—I cannot possibly deny this wonderful experience to others. Therefore, I totally support the bill.

The Hon. J.S.L. DAWKINS (21:45): I do not intend to delay the council too long in my summing up. I thank all members who have made a contribution and others who have put their views to me either by way of a colleague or privately. I am honoured by the fact that 16 members of this chamber, other than me, have contributed to this debate. I hold dearly the sincerity in which everyone has contributed to this bill. This is the first time for some considerable time in this chamber that every member has had a conscience vote. I am not quite sure of the last time the Labor Party had one, but it is some time ago, anyway. I am grateful for the fact that Labor Party members were able to secure a conscience vote on this issue.

I also think that the debate has been handled in a way that makes me proud to be a member of the Legislative Council. The manner in which people have gone about dealing with me over this issue has been excellent and, in many cases, people have been quite clear in the way they feel about this issue. No-one has played any games with me over it, and I am grateful for that.

In relation to the first two amendments to be moved by the Hon. Mr Hunter, it might not surprise members of this chamber, given the make-up of the two bills that I have had in this chamber, that I will not be supporting them. I do respect the sincerity in which the honourable member has moved them and the position he has outlined this evening, but it is my view that we should be retaining the provisions that I have always had in the bill in relation to the people who will be eligible to have altruistic gestational surrogacy.

It is two years next week since I first introduced the bill into this place. It is much longer since I first started working on the issue. I think it is something like 3½ years. It is two years since the first bill was introduced in June 2006. We all know that it was referred to the Social Development Committee on the motion of the Hon. Mr Hunter, with my agreement, in September 2006; and subsequently that report commenced in February last year and a report was brought down in November last year. I have said previously in this place that, while I did not agree with every essence of the report produced by the Social Development Committee, it was a significant body of work on the subject. I thank all members and staff of that committee for the work they did in that regard.

The report was brought down in November and noted in this chamber. The government response took a little while. I think it was about 4½ months after the report came down. Certainly, the government has indicated its wish to be part of the Standing Committee of Attorney-Generals combined move to prepare uniform legislation. I think at the time the Hon. Mr Hunter thought I was a bit of a cynic when he said that he thought there would be a government bill in the council early in the new year and I did not believe him. I think he is starting to realise that I have been in here a little longer and I know that governments of both flavours take a fair while to develop these things. I would be delighted if eventually there is uniform legislation across this country, but I can see that we will be a long time getting all the Attorney-Generals in this country to develop legislation and to get to the table, and that is why I wanted to continue with this bill.

I will make a few closing comments. A number of comments have been made about various scenarios or situations that could occur with children born through a surrogacy arrangement. The Hon. Mr Stephens and you, sir, have emphasised the great delight and the privilege that it is to be a parent. I think those of us who have that privilege should never underestimate it. There are people in the community who have gone through extraordinary hardship in their life because they have not been able to be a parent. This measure allows that to happen to people who have a deep commitment to having a child. I know that people are concerned about the rights of the child and that this is all about the parents. The reality is that these are people who deeply want to have a child and give that child everything they could possibly give them. I think we should never overlook that.

We must not overlook the fact that, under this legislation, with respect to the people who will assist a couple to have their own child, I have prescribed it very narrowly: the Hon. Mr Lawson is quite right. However, I have done so because those people are the ones who want to give that gift to that couple, and they are loved ones. People talk about surrogate mothers being deeply affected. I think the Hon. Mr Lawson quoted Bishop Frame about surrogate mothers being deeply affected. I think they are deeply affected—and in the right way, in most cases. I know of several instances where the connection between the child and the surrogate mother is very strong, and I would support that. I think that is the way it should be.

We have heard suggestions that there could be a problem later in life with teenagers, with another mother, so to speak, on the scene. However, this situation and other matters that have been raised can equally happen with respect to children who are naturally born. There could quite easily be a situation similar to what the Hon. Mr Hood raised. I think he gave the example of a young female teenager who has some problem with her mother and goes to the auntie who carried her. That could happen whether the auntie carried her or not; it could happen with any naturally born child. I think that, with respect to a lot of the issues that have been raised, we have to realise that these things happen in normal situations where people have children without undergoing any of these procedures.

I have mentioned this before, but more than 25 years ago when my wife and I had a little girl we wanted to have a second child, and we had a lot of difficulty. We went through a prolonged period (this was before IVF) of undergoing all the intrusive testing and being told when we should have sexual relations, and so on. No-one understands that until they go through it. The people who in more recent times have had to undergo IVF or surrogacy procedures experience that much more than we ever did.

Subsequently, we were lucky to have a second child—and that second child is now nearly 25 and bigger than I am. However, the reality is that my wife and I both remember the intrusion and interference in our lives that we experienced when we were trying to have a second child. However, that would pale into insignificance with what the people who undergo IVF treatment or surrogacy arrangements have to go through, and I think we should never underestimate that.

Again, I endorse this bill. It may not be a perfect bill, but when we think I have had to develop this bill with the help of the passionate supporters of surrogacy in the community, Mrs Kerry Faggotter in particular, and with the resources of parliamentary counsel and my staff, it is a good bill and one that I commend to members. I thank members for the way in which they have conducted themselves in their relationship with me, even if they do not agree with where this bill is headed. I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A. BRESSINGTON: I will be brief, as I was in my seconding reading contribution. I point out the concerns that have been raised over this bill by some members, which I find quite interesting. I am not invalidating any person's views or concerns in this chamber. However, I remember when I was becoming a parent my father told me that anyone can be a parent but that not everyone can be a mother or a father.

While we are talking about people who are desperately wanting to have children and are prepared to go through the processes that are needed, either IVF or surrogacy, it really is not our place to legislate against that because reproduction and survival of the race is a natural urge. Some women do not get that urge, and that is fine, but if and when they do and then cannot carry through with carrying the child or falling pregnant, as the Hon. John Dawkins mentioned they go through terrible emotional strife and depression. As I said on the WorkCover legislation, we are here to work for the true welfare of the people of this state. Although this is a terribly emotional debate we are having, it is necessary.

The Hon. Rob Lawson mentioned that, should there be conflict later with the surrogate mother and the parents and it goes to court, what would be in the best interests of the child. We have thousands of cases in this state at the moment where the best interests of the child cannot be defined, as federal governments Liberal and Labor have refused to create a definition of 'best interests of a child', so why are we concentrating on that particular aspect of this for this surrogacy bill? We have situations raging around us at the moment where families are breaking down and children are at risk and nobody is bothering to define 'best interests of a child'. So, why specifically would that be so different for surrogate children?

I am not saying that we do not need a definition of 'best interests of the child' because we do, but why is that particular issue brought up around the surrogacy bill when nobody even wants to discuss that on family law issues or child protection issues that are happening right here right now. The what ifs of what might happen to these children, as the Hon. John Dawkins said, are no different to what may happen and what probably does happen to most children in those rebellious teenage years.

I think we are probably getting a little bit too precious about the welfare or best interests of surrogate children having five parents. My children had four parents. Four out of five of them have turned out fine, thank you very much. The one that did not turn out fine certainly was not because she had four parents; it was because life happens. In Africa the saying is that it takes a village to raise a child. We do not have enough of that in Australia at the moment. We are becoming a very 'me-ism' society. We are becoming separated from our extended family and anything we do that can pull a family together in order to keep it close and keep it there to protect our children and provide them with a safe, warm, loving and nurturing environment cannot be bad.

As to the conflict that was raised between the surrogate mother, the birth mother and a teenage child, as the Hon. Rob Lucas said, is it so bad that a child would run to the person who is his or her surrogate mother for support, love and a safe environment when there is conflict in the family? Or do they go to someone on the street? So often we hear about children who are lured away from their family because of conflict, who are taking up with people who probably do not have the best interests of that child at heart, and there is not a great deal that parents can do about that.

Just to share a story: my cousins adopted a child born out of wedlock and that child grew up around the adopting mother and the natural mother, and the relationship between all three of them was healthy. It was supportive and there was no conflict of interest between the parents. We are underestimating the emotional intelligence of women who agree to be surrogate mothers and the emotional reasons why women would agree to be a surrogate mother. I think we are certainly underestimating women's strength in being able to hand over a child to a loving, happy family member, knowing that at any time they can have contact with that child and provide it with the support it needs as a member of the extended family.

As far as IVF goes, we have men out there who have fathered 200 or 300 children. Those children do not know that they are related. They do not know who their natural father is. What future do those children have? If we are going to go into the what ifs and the futures of this, we are not going to know whether we have sisters marrying brothers or brothers and cousins marrying each other. That is a far more complex issue than altruistic surrogacy (gestational surrogacy) that we are debating here right now. I remember with the IVF debate that we had all of these major concerns about genetic deformities and all the rest of it. Really, there has been no proof of that. In concluding my remarks, I support the bill and the title of the bill.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.D. LAWSON: I have a question for the mover about the definition of 'fertilisation procedure' and its relationship to the general scheme of this act. 'Fertilisation procedure' is defined as artificial insemination; fertilising a human ovum outside the body and transferring it into the body; or transferring unfertilised human ovum into the body for the purpose of fertilisation within the body. The contents of the agreement must be that the pregnancy is to be achieved by the use of a fertilisation procedure, and these seem to be all what one might term artificial insemination-type or IVF procedures.

The report of the Social Development Committee referred to traditional surrogacy (which is said to have been around for hundreds of years), namely, where the man who desires to have the child (presumably with the wife) simply impregnates the surrogate-to-be by natural sexual intercourse. If couples want to engage in that form of traditional surrogacy, is any authorisation provided by this legislation for that type of surrogacy?

The Hon. J.S.L. DAWKINS: The answer to that question is no. As we know (and we talked about this earlier tonight) it is quite clear that this legislation is based around the use of the necessary technology, which has been developed over a number of years, to allow the surrogacy to take place. Certainly, under no circumstances are we allowing such a situation as the honourable member has described to take place. I know some people say that this is not a reason to introduce a bill, but I think we all know that there are places in the world where this has occurred, and it has been so throughout history; the Hon. Sandra Kanck has on a couple of occasions put it in Hansard. The Social Development Committee heard evidence of practices in some areas of the South Pacific Island where that is exactly what happens. In what I would call our civilised society, we do not believe in that practice, and my strong belief is that this bill does not allow that.

The Hon. R.D. LAWSON: I suppose the next question is: if it does not allow it, why should it not allow it? What is especially morally reprehensible about the natural practice of surrogacy as opposed to the artificial practice of it?

The Hon. J.S.L. DAWKINS: The first thing I want to say to that is that the people I have had the pleasure of knowing throughout the years I have been advancing this debate have made it quite clear that they do not wish to have a sexual relationship with the surrogate mother; the father does not want that to happen, and the commissioning mother does not want that to happen. Let us face it: those things can and have been done, and they have been done outside the law and people do not know about them. The Hon. Ms Bressington has referred to that sort of arrangement, where we do not quite know who belongs to whom. Part of this legislation is about trying to make this as tight as possible.

I referred to that earlier in relation to the fact that I want, except under special dispensation, the surrogate mother always to be a close relative, and I just reiterate the fact that all of the people who I have had experience in dealing with who have been in a situation similar to Mrs Kerry Faggotter have no wish to have a natural conception.

The Hon. SANDRA KANCK: I would just make a comment that, looking at the legislation, I would think that although it is not actually set out saying that it would or would not be the case that when you look at some of the definitions, it almost excludes it because in clause 12 (the new 10HA) it describes the surrogacy agreement as requiring the surrogate mother to be a prescribed relative of at least one of the commissioning parents or to have a certificate issued under subsection (3).

A prescribed relative is in turn described as a mother, sister, stepsister, or first cousin, so I think you would be talking about incest in some instances if that were to be considered, which I believe is against the law anyhow.

The Hon. R.D. LAWSON: Not necessarily. Obviously, a father-to-be and the sister of his spouse would not be an incestuous relationship, and obviously more remote relationships as well.

The Hon. J.S.L. DAWKINS: If I could just add to that, all I can say is that, of all the people that I have dealt with who are supportive of this bill, no-one has ever suggested that that is the way they want to go, and I really want to assure the Hon. Mr Lawson that I do not believe that that is an issue.

The Hon. R.D. LAWSON: I am really asking these questions for the point of information, but obviously we are not legislating for the particular people who contacted the Hon. John Dawkins. This is legislation that will apply to people who might have the noblest of motives and those who might not have noble motives, but who might wish to avail themselves of the legislation. I do not think when we have an act coming in which will have public application, we can say, 'Well, the people who actually gave me this idea wouldn't ever do such a thing.'

I think the mover and others have put on the record their notion of whether the act would cover that form of issue, that is, traditional surrogacy, but I move on to another related topic. The report of the Social Development Committee on page 17, not in relation to traditional surrogacy but in relation to artificial insemination, states:

Artificial insemination—where the sperm is placed into a woman's genital tract by a non-coital method—is 'neither new nor high tech'. Research suggests it has been practised for well over a century and 'can be performed without medical assistance involving a simple turkey baster'.

That is artificial insemination, and the fertilisation procedure that is defined in this act includes artificial insemination. Presumably it includes the type of artificial insemination described in the report as well as medically-supervised fertilisation procedure. Does the mover accept that that form of artificial insemination might be the subject of a surrogacy agreement?

The Hon. J.S.L. DAWKINS: I thank the honourable member for pursuing these issues, and I think it is important that we do so. No, I do not believe that, because I do not believe that that would come under the various acts that we are amending here but, in relation to artificial insemination—and I know the member talks about the ways in which that has been practised—my limited knowledge tells me that those forms of artificial insemination while sometimes successful, the great majority of times are not successful.

Some 33 years ago, I was trained to artificially inseminate cows. I recall the instruction, and you have to know what you are doing to inseminate a cow. I am not saying that it is the same with a woman, but the reality is that it is the same principle. The fact that I succeeded in getting a cow to have a calf was something of which I have always been proud.

The Hon. R.I. Lucas interjecting:

The Hon. J.S.L. DAWKINS: It was actually black and white—and I am not a Port Adelaide supporter! To be serious, the point I am trying to make is that, while it may well be possible to artificially inseminate a woman through the non-sophisticated methods to which I think the honourable member refers, the success rate is far lower than when those involved are properly trained to perform the procedure.

The Hon. A. BRESSINGTON: I just make the point that the methods the Hon. Rob Lawson refers to happen now, regardless of this legislation. Turkey basters and other means of do it-yourself type procedures will not be encouraged by this legislation, and they certainly will not be stopped by it. I believe that it is way beyond the means of this bill to try either to police or predict whether those practices will be more or less predominant as a result, but that is not really the debate we are having about the surrogacy bill.

I know of many gay women who have used a turkey baster, and some have been successful. Although it might be not pleasant for some people to think about or contemplate that it happens, it does. This bill will not change that one way or the other.

The Hon. R.D. LAWSON: I am certainly pleased to hear the Hon. Ann Bressington's assurance that these practices are happening in South Australia. The only point I make is that, when this bill is passed, it will be possible to have what is called a 'recognised surrogacy agreement' in relation to such a practice. At the moment you are not able to do so, and certain consequences follow from the capacity to have such an agreement.

It seems to me that, based on what I have heard in relation to this discussion, as 'fertilisation procedure' includes artificial insemination, and as a 'recognised surrogacy agreement' is defined as an agreement which 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 honourable members have assured me that that includes the turkey baster method, 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...

I did not understand that that actually would include the provision of sperm by the intended father for use in a turkey baster. What is being suggested is, indeed, that would be so, and it is possible that this method can be used in a recognised surrogacy agreement.

The Hon. R.I. LUCAS: The Hon. Mr Lawson might choose not to answer, and that is entirely his wish. Having listened to his question on traditional surrogacy, I am interested to know, as a learned QC, what is his view in relation to the definition of whether or not traditional surrogacy is legally allowable under the legislation before us.

The Hon. R.D. LAWSON: I agree with the Hon. John Dawkins that it is not contemplated, because the definition of fertilisation procedure does not appear to include natural intercourse.

Clause passed.

Clauses 5 to 11 passed.

Clause 12.

The Hon. I.K. HUNTER: I move:

Page 5—

Lines 1 and 2 [clause 12, inserted section of 10HA(1), definition of marriage relationship]—

Delete the definition

Lines 21 to 23 [clause 12, inserted section 10HA(2)(b)(iii)]—

Delete 'have cohabitated continuously together in a marriage relationship for the period of five years' and substitute:

where domestic partners (within the meaning of section 11A and whether or not declared as such under section 11B)

These amendments go to the heart of my concerns with this bill. They are to delete the phrase 'marriage relationship' and replace the cohabitation line with a provision that will bring this bill into consistency with the domestic partnership legislation, which we passed last year. It is my contention that there can be no valid reason for reintroducing a provision in the legislation to prohibit homosexual couples from accessing this bill, notwithstanding the fact that they probably never will.

If one understands the situation that we are facing, it is highly unlikely that two women in a relationship will both be medically infertile. It is possible to contemplate it, but I think it would be a highly unlikely situation. In addition, in regards to a gay male couple, they will probably never avail themselves of this provision. A gay male couple generally uses traditional surrogacy methods and will not be able to enter into a surrogacy agreement through this process either.

I am not seeking to amend this clause because I want to make these provisions available to homosexual couples: I am seeking to no longer set up a process in this house where we put into legislation provisions that discriminate against people on the basis of their sexuality. That is the basis of my two amendments.

The Hon. J.S.L. DAWKINS: I reiterate that I respect the views of the Hon. Mr Hunter in moving this amendment. However, in both bills I have consistently maintained the position that this bill is designed to assist those heterosexual couples in a significantly long relationship who have significant difficulties—in fact, no luck whatsoever—in being able to have a child naturally. I respectfully disagree with the member in relation to the fact that he and some others may think that it is a discriminatory measure, because I am designing this for a certain group of people who have been under great stress.

I take note of the recommendation of the Social Development Committee, but it is my view, and the view of others who have a passionate interest in this bill, that it should remain as it is. In recent times, I have given more thought to that, and I think the honourable member understands that. However, I remain committed to the bill as it stands and, for that reason, I oppose both amendments moved by the Hon. Mr Hunter.

The Hon. J.M.A. LENSINK: I also rise to state that I will oppose this particular amendment, and I endorse the comments of the Hon. John Dawkins as a proponent of this bill. The representation that I have received, which I found very compelling, is from heterosexual couples who have sought assistance through this particular bill. The Hon. Ian Hunter referred to deleting the definition of 'marriage relationship', and I am mindful of the fact that the definitions in the relationships bill, of which I was obviously a very strong supporter, sought to replace the definitions of 'de facto' and 'spouse' with 'domestic partner'. Personally, I feel that the recognition of marriage is a very important part of our social fabric and, together with the Lion of Hartley, the Hon. Joe Scalzi, we sought to ensure that the word 'spouse' was retained in the legislation.

I have had no representation from gay and lesbian couples in relation to this particular issue. It is not worth tanking this bill. I think it is a separate issue and therefore ought to be determined on a separate basis.

The Hon. A. BRESSINGTON: I rise to indicate that I will be supporting the amendment of the Hon. Ian Hunter, and I do so probably in a different frame of mind than I would have been in maybe 15 years ago. I also was raised as a good Catholic girl.

Members interjecting:

The Hon. A. BRESSINGTON: Hey, what do you think I am doing here? Anyway, that was my background. But as life has progressed and I have been exposed to many different scenarios that just happen, I have come to believe that, whether or not a person makes a good parent does not necessarily depend on gender. We are all products of our life experiences. We are all products of our upbringing and the values that we have been brought up with. In our teenage years, we often rebel against the values of our parents just because that is what teenagers do. That is our process for forming our own views and opinions based on our very own life experiences.

I have seen many gay couples who make exceptional parents. I have seen gay couples who have struggled to be able to have a child because of legislative restrictions, and you know what? They feel the same pain, they suffer the same emotional distress and they go through the same deep depression that a heterosexual person does when craving and wanting a child. We could get into the whole argument about what is in the best interests of the children, or is this about parents? Which comes first, the chicken or the egg? If you want a child, you want a child, and you will go to the ends of the earth to have one.

Gay and lesbian couples have children. Gay and lesbian couples are now inseminated and they travel interstate to have the procedure done. If they cannot afford to do that, they do it in perhaps not the most scientific and hygienic circumstances.

I think that as a parliament we are here, as I said before, to legislate in the true welfare of the people of this state. We are not here to make moral judgment. We are not here to bring—I would not think—our values based on our individual life experiences into this place to form legislation. We are here to ensure that the people of this state are well served by the decisions that we make. Over the past 2½ years I have seen legislation passed in this place that has inflicted pain and distress on the people of this state. I think that, if we are going to take the high moral ground about whether or not gay and lesbian couples should be included in this bill, we all need to cast our mind back to not so long ago and look at the decisions that we made about families and about how families would be impacted by the decisions that we made in this place, and maybe take a step back from our high moral ground and think again.

I support the amendments of the Hon. Ian Hunter for many reasons, and I know that there are many people out there who will be probably quite angry and quite shocked that I would do this based on my stand on illicit drugs, but I see this as two different things. I do not see the choice to use illicit drugs as a moral choice. They do harm. I have never known anybody who has desperately wanted a child and achieved that outcome to be harmed by that experience.

The Hon. S.G. WADE: I was wondering whether I could ask a question of the mover of the amendment and, in fact, the mover of the bill may also want to comment from his perspective. I just wondered on what basis the mover of the amendment considers that the bill, as it stands, is discriminatory and, if it is discriminatory, what would be the consequences for the operation of the bill. Similarly, I put the same question to the mover of the act. In other words, if the act as it stands is discriminatory, what might the consequences be to the operation of the bill?

The Hon. I.K. HUNTER: I thank the honourable member for his question. I think I made it quite plain that my view of the discriminatory provisions is that the bill restricts the services offered under this bill to people in a married relationship and that is defined as being married, or—

The Hon. S.G. WADE: Sorry; I was asking whether either the mover of the amendment or the mover of the bill have legal advice or parliamentary counsel advice. I do not know whether it is appropriate to refer to that, but on what legal basis do we feel that this will be discriminatory and, if it is discriminatory, what would be the consequences? Could it be challenged? Could it be declared invalid by a court?

The Hon. I.K. HUNTER: I think I have alluded to the fact that parliamentary counsel do not usually give that sort of advice, and they certainly have not in this case. However, the Hon. Mr Wade was a member of our Social Development Committee. He also heard evidence about I think it was the McBain challenge in the High Court and the Pearce challenge (I think Pearce was from South Australian and McBain was from Victoria, from memory), and those challenges overturned certain laws on the basis of marriage, I think.

It is possible, but you could only go that far I think as a layperson (the Hon. Mr Lawson might be able to help us there), to conclude that passing the bill without my amendments may also leave the act open to challenge, but that, of course, would depend on someone taking up that challenge through the court system.

The Hon. J.S.L. DAWKINS: I will respond briefly. I understand the comments that were made in the Social Development Committee report, and I think both the Hon. Mr Hunter and I referred to it in noting that report. I note that I emphasised the fact that he has said 'may', and I understand the fact that that may be the case and, as the Hon. Mr Hunter indicates, someone may want to challenge that. I believe that the bill is appropriate as I have put it forward, and I do not believe that it is unconstitutional as it stands. I respect the views of people who may have a concern about it, but I think I have made it pretty clear why I want it to be in that form. I thank the honourable member for his question.

The Hon. SANDRA KANCK: It is very clear, and we see it almost on a daily basis in our newspapers, that the quality of parenting of a child has nothing to do either with sex or sexuality. Just this morning many of us would have been horrified with the story about the Brisbane mother and her estranged husband who simply allowed their twins to die by not feeding them. It seems almost beyond comprehension.

What this bill is about is parents who really want to have a child and, from my perspective, therefore, it matters not whether that parent is either gay or straight. What I am concerned about is the fact that the Hon. Mr Hunter has, in a sense, boxed himself in by saying that if his amendments do not get up that he will not support the bill. I would ask him to reconsider that position.

There are things about this bill that I am not 100 per cent supportive of. For instance, I do not like the prescriptive part of the bill that says that the surrogate mother has to be a prescribed relative or have a certificate issued. I think it could be much more broad-ranging than that, but that is not going to be enough to have me vote against the bill. I think that when we get legislation we look at it first of all and say: 'Is the principle a good idea?' I think in this case making surrogacy legal in some form or another is a good idea.

From there you move to: 'Okay, I might not like this bit so I will amend it.' If your amendment does not get up you are still left with the principle that the bill is a good bill and, therefore, you support it. I like to remind people from time to time of an example of where that intransigence of 'my amendment has to get up or the bill will not get my support' leads us.

I think it was in 1970 that legislation came before parliament for prostitution law reform. There was one clause that was particularly controversial. The Women's Electoral Lobby, in particular, lobbied on that clause and the amendment it wanted did not get up. The consequence was that pressure was put on members to vote against the bill—and in this case we had a speaker who had a casting vote and the pressure was on him to vote against the bill—because of that one clause.

There was a belief that new legislation would be introduced very quickly. It did not happen, and a quarter of a century later we still have the same prostitution legislation in place as was in place at that time. I understand the point of the very strong emotional involvement that the Hon. Mr Hunter has in regard to this amendment, but I think he would be doing himself a disservice if he was seen to vote against a bill that, at its heart, has good intentions.

The Hon. I.K. HUNTER: I thank the Hon. Sandra Kanck for that contribution. She probably will not be surprised to know that indeed I have struggled with this dilemma. I have not gone into it in great detail with her, but I have with the Hon. Mr Dawkins. For me there are two competing principles. As I have said in my second reading contribution, yes; I do strongly empathise with those people who want to have a child, who cannot and who need to avail themselves of these provisions that are offered under the Gestational Surrogacy Bill. However, I also struggle with the position, having lived with discrimination all my life.

For me to stand up here today and say, 'I will make an exception and say that in this circumstance I will allow, by my support, discrimination to be enshrined in the legislation once again that discriminates against gays and lesbians', I think would be betraying my conscience and some of the people who put me here today. I would love to be able to support a bill which did not discriminate against gays and lesbians but allowed gestational surrogacy, but I certainly cannot support a bill that enshrines in the legislation discrimination once again.

We fought that battle and won it, and I do not want to retreat. I understand other members will have a different emphasis in terms of their decision about this—members who wish to support my amendments and also the bill. As I said earlier, I do not require my colleagues who have indicated support for my amendments to follow me down this line and reject the bill. That is a matter for their conscience, but I in conscience cannot.

The committee divided on the amendments:

AYES (5)

Bressington, A. Gazzola, J.M. Hunter, I.K. (teller)
Kanck, S.M. Parnell, M.

NOES (12)

Darley, J.A. Dawkins, J.S.L. (teller) Evans, A.L.
Finnigan, B.V. Hood, D.G.E. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Schaefer, C.V.
Stephens, T.J. Wade, S.G. Zollo, C.

PAIRS (4)

Wortley, R.P. Holloway, P.
Gago, G.E. Ridgway, D.W.


Majority of 7 for the noes.

Amendments thus negatived.

The CHAIRMAN: The next amendment to clause 12 is No. 3 of the Hon. Mr Hunter.

The Hon. R.D. LAWSON: I have some questions before that amendment on this same clause. Is it appropriate to put them now or after the honourable member moves his amendment? I am in your hands, Mr Chairman.

The CHAIRMAN: The honourable member might have some questions on the amendment. Perhaps we will get the Hon. Mr Hunter to move his amendment.

The Hon. I.K. HUNTER: I move:

Page 7, after line 12 [clause 12, inserted section 10HA]—

After subsection (4) insert:

(4a) Without limiting any other kind of counselling that person may seek, the counselling contemplated by subsections (2)(b)(vi) and (4)(b) must be consistent with—

(a) any guidelines related to such counselling published by the Australian and New Zealand Infertility Counsellors Association; and

(b) any relevant guidelines published by the National Health and Medical Research Council.

Very simply, this amendment seeks to strengthen the provisions relating to counselling to ensure that the counselling is consistent with the guidelines already in use for IVF treatments by reproductive technology laboratories and clinics.

The Hon. J.S.L. DAWKINS: I have researched the bodies that are incorporated in this amendment, and I have satisfied myself that this amendment will strengthen the counselling procedures. I was of the view that it was strong enough, but, with the assistance of my staff, I have checked as much as possible. You cannot get a lot of information from one body unless you are a member of it. However, it is a strengthening of the provision and a strengthening, perhaps, of the hurdles that we put people through. For that reason, I will be supporting this amendment.

The Hon. R.D. LAWSON: I note that the mover will be supporting the amendment. I have no particular problem with it, but I do remind the committee that this counselling service is required to issue a certificate. The certificate is that the person to whom it relates has received counselling about the personal and psychological issues that may arise in connection with the surrogacy arrangement. So, it is a fairly limited certificate about personal and psychological fitness. I notice from its report that the Social Development Committee considered not only that evidence from one area (which I will come to) but also it suggested there ought be more requirements merely than a certificate from a counselling service. Page 62 of the report states:

The South Australian Council on Reproductive Technology stated that surrogacy should only be allowed in instances where the commissioning parents needed access to assisted reproductive technology because of the medical indications. According to the council, eligibility should also be based on a thorough assessment of the child's best interests. For example, the commissioning parents would be ineligible if either partner had been found guilty of a sexual offence involving a child or had a child permanently removed from their guardianship other than by adoption.

What was there being argued and is referred to is a requirement not merely of psychological fitness to be a parent but also to be of good character. I cannot see in these certification procedures (it may be that they are there and I have missed them) any requirement about the criminal fitness, if I might use that expression, of the commissioning parents. I wonder whether the mover could indicate whether there is any such requirement, or is it envisaged that there will be regulations which will impose requirements of that kind, because there are provisions in the bill which say that other requirements prescribed by regulation must be complied with?

The Hon. I.K. HUNTER: Perhaps I could assist the committee in relation to the Hon. Mr Lawson's question. He is quite right: the counselling that is referred to in my amendment is certainly about the psychological fitness of people to become parents through this process. However, there are other requirements under the IVF program which mean that the ethicists—and Mr Wade might be able to correct me here—have to assess the counsellor's certificate, as well as other material, and make their own recommendation about whether the commissioning parents and the surrogate should proceed through the process. So, that is a separate process to the one I am referring to in this amendment.

The Hon. J.S.L. DAWKINS: My understanding is very similar to that of the Hon. Mr Hunter. In relation to the question asked by the Hon. Mr Lawson about the aspect of criminality, I know he referred to some criminality perhaps in relation to a sexual offence. I am not sure whether he specifically meant that. I am not sure that we are going to stop someone who has had a criminal offence in their career that is nothing to do with sex at a later time becoming involved with surrogacy. I am not sure that we need to go that far. Certainly I would have some concerns about someone who had a sexual offence in their background.

I go back to the fact of the hurdles that we are putting people through. I know those who have been through those hurdles in other jurisdictions would tell you that they are significant hurdles to jump, and they are made to give a very strong demonstration that they are fit to enter into such an arrangement. The reason I support the amendment is that I believe that this adds another hurdle, and certainly one that should be jumped by people who are going to undertake a surrogacy arrangement.

The Hon. T.J. STEPHENS: I would like to ask a question of the mover of the amendment. What are the cost implications of this extra counselling? Are we going to make it prohibitive to people who are not wealthy or who do not have disposable income? Parenting is not necessarily just about money, and I hope it is not going to make it too prohibitive for some.

The Hon. I.K. HUNTER: I have to advise the Hon. Mr Stephens that, in fact, this whole process is prohibitively expensive and, in the current situation, commissioning parents who want to have a child are spending $50,000 up to $100,000 to engage in this process. By having this legislation passed—and I am probably speaking on behalf of the Hon. Mr Dawkins—we will reduce the cost of that process quite significantly, but it will still be of the order of $15,000 and perhaps $25,000 to go through this process, perhaps several times. I do not believe the counselling would add too many layers of expense to this. In fact, the counselling in this amendment is counselling that people who go through the IVF program must go through anyway.

The Hon. J.S.L. DAWKINS: I respect the question from the Hon. Mr Stephens, because I know he has become aware over a period of time of the significant costs that people have had to incur to undertake surrogacy. I think the Hon. Mr Hunter referred to this; that is, one of the things that the passage of this bill will reduce in the way of cost for those people is that they will no longer have to go interstate. All the testing and all the regular things that you have to do in such a pregnancy can be done in Adelaide, rather than having to fly interstate.

The Hon. R.D. LAWSON: I do thank the members who have responded to my question about the suggestion in the Social Development Committee report about criminal ineligibility for participation. I suppose the comment ought to be made that we have just excluded by statute same sex couples from participating in this procedure, but we have no similar prohibition against persons who have been found guilty of sexual offences involving children, or even violence against children or child destruction and so on, and certainly no explicit prohibition, although it is possible that the regulations might do that. I draw to the attention of another place that is perhaps one issue that ought be more closely examined whilst the bill passes through the parliament.

The Hon. S.G. WADE: I agree with the honourable member that this issue might be considered between the houses. The Hon. Mr Hunter referred to the committee report and the codes of clinical practice. In that context, I do note that, in the Reproductive Technology Code of Ethical Clinical Practice Regulations 1995, there is a requirement that a statutory declaration be signed by both parties stating that neither spouse is as at the time of the signing of the declaration subject to a term of imprisonment in this state or elsewhere, or to outstanding charges for an offence for which imprisonment may be imposed on conviction; that neither spouse has been found guilty in this state or elsewhere of a sexual offence involving a child; whether either spouse has been found guilty in this state or elsewhere of an offence involving violence; and whether either spouse has had a child permanently removed from his or her guardianship under acts or laws of this state or any other place.

Subject to that being confirmed as being operative, as I understand the practice of the clinics, to be able to offer a service to a couple in this situation, a clinic would have that statutory declaration before them, and it would not only deal with sexual offences but a range of other matters.

The Hon. R.D. LAWSON: I thank the honourable member for that comment. I do have another comment on another topic but still under this same clause. The definition of 'prescribed relative' means 'mother, sister, stepsister or first cousin'. I have previously commented on this, and so have other members during the second reading debate, as well as during the committee stage. My question to the mover is: can he inform the committee of the situation in other states where gestational surrogacy is permitted? Are there similar restrictions on the relationship of the surrogate mother to the commissioned parents?

The Hon. J.S.L. DAWKINS: The honourable member raises a relevant topic. I cannot recall which jurisdiction. I think there was one jurisdiction, and it may have been overseas, that certainly had similar restrictions.

The Hon. I.K. HUNTER: Israel.

The Hon. J.S.L. DAWKINS: I thank the Hon. Mr Hunter. I am of the view (and so were others who are in favour of this bill being enacted) that such a provision would strengthen and tighten the bill, and reduce the risk of some of the problems that were suggested could happen with such an act. I should remind the committee that the bill also incorporates that the minister can give a special dispensation if there is no close relative available who is either able or willing to perform the surrogacy. That does enable the minister to allow a close friend or someone else who wishes to give that loving gift to the couple.

The Hon. R.D. LAWSON: I think the point I was making earlier about the undesirability of so restricted a class of surrogates is rather confirmed by the fact that no local jurisdiction can be pointed to where a similar restriction applies, and that Israel was the only country identified (as it was identified by the Hon. Ian Hunter), which does tend to suggest to me that we are being too restrictive. Notwithstanding that, I do not propose to move the deletion of that clause.

The Hon. Mr Dawkins referred to the fact that the minister can authorise a person who is not a prescribed relative. I notice, however, that section 10HH allows the minister to delegate that particular power to virtually anyone he likes. That is on page 13 of the bill: the minister may delegate a function or power to virtually anyone. I must say that what looks like a fairly tight requirement may not, in fact, be very tight at all, given that power of delegation.

The Hon. J.S.L. DAWKINS: My understanding (and I remember when we drafted this) is that it be not so tightly held that only the minister could do it and that a senior member of the minister's department could use that delegation to allow such a dispensation to be made in the case of perhaps the minister being unavailable or unable to do so. I personally do not think it is an irregular thing and it may well be that it is consistent with other delegations in many other acts.

The Hon. S.G. WADE: I wonder whether the member has considered an officer other than a parliamentarian or a political person playing this role. I am reminded of the controversy at the federal level in relation to RU486, when a minister holds a public office which may conflict with his or her personal moral views, or may be perceived to conflict with his or her personal moral views. It may either put the officer in an invidious position or undermine the operation of the act. I wonder whether it might be possible even to have a person from the South Australian Reproductive Technology Council as the person who makes that sort of certificate.

The Hon. J.S.L. DAWKINS: Other alternatives were considered, but in my view the Minister for Families and Communities, which I think is under this section, is the person most appropriate to make that decision and to take any advice from his or her department as is necessary.

The Hon. R.D. LAWSON: Just taking that point a little further, I must say I do agree with the Hon. Mr Wade. Bearing in mind that all of the mercurial decisions in this particular act are vested in the Youth Court I would have thought that was the most appropriate place where dispensation ought to be obtained. The courts have powers to allow people to marry and make all sorts of adoption and other orders. In fact, indeed, it is the Youth Court that makes adoption orders. I would have thought that was the appropriate body to judicially decide issues of this kind. Notwithstanding the views of some who might think there are delusional and daft magistrates, there might be some who think there are delusional and daft ministers.

Amendment carried; clause as amended passed.

Clause 13 passed.

Clause 14.

The Hon. J.S.L. DAWKINS: I move:

Page 14

Lines 2 and 3—Delete subclause (1) and substitute:

(1) Section 13(4)(a)(i)—Delete 'by the court' and substitute:

by a court

(1a) Section 13(4)(a)(i)—Delete 'of the court' and substitute:

of the court

Line 4—Delete '(2)' and substitute:

(4)(b)(i)

These amendments tidy up some minor clerical errors that were made in the bill, and I seek the support of the committee to correct those.

The Hon. R.D. LAWSON: I have a general question in relation to the registration procedure. After an application and an order are made, will the birth certificate disclose the full genetic particulars of the child or will it reveal only the deemed parents of the child?

The Hon. J.S.L. DAWKINS: The bill covers the situation where the birth certificate will detail the commissioning parents and the genetic parents. I think the committee would understand that in a lot of these situations the commissioning parents are the genetic parents of the child anyway. None of these details would be available to the child until they were

Amendments carried; clause as amended passed.

Remaining clauses (15 to 22), schedule and title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

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