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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-05 Daily Xml
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STATUTES AMENDMENT (PROHIBITION OF HUMAN CLONING FOR REPRODUCTION AND REGULATION OF RESEARCH INVOLVING HUMAN EMBRYOS) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 March 2009. Page 1525.)

The Hon. DAVID WINDERLICH (16:10): I indicate my support for this bill. I am not supporting this bill because it is in line with current federal legislation and because most other states have supported it. They could all be wrong. In other cases, such as in some aspects of the terrorism laws of recent years, I believe that other jurisdictions were wrong. I am not supporting this bill because we can assume that we can trust our research and medical community—we cannot. Our research institutions and universities are awash with corporate money, and their priorities are increasingly driven by those of the corporations, not the public good.

History is full of atrocities and abuses conducted by the finest and most highly-trained professionals. The British Medical Association has even published a book, Medicine Betrayed—The Participation of Doctors in Human Rights Abuses, which documents the participation of doctors in withholding treatment in the torture of suspects or in conducting experiments without consent. Between 1963 and 1971, for example, the testicles of hundreds of prisoners in Washington State in Oregon were irradiated without their consent to see what dose would sterilise them. It is not that doctors or scientists are particularly immoral; it is that they are often in situations of great power or subject to the temptation of making a reputation (and increasingly these days a fortune) and therefore scrutiny and transparency are vital; and tighter regulation has grown over recent decades, as reflected in the National Health and Medical Research Council's guidelines.

I do not believe that the research will necessarily transform the health of millions of people. It might, but it is more likely to help a small number of lucky people in rich countries such as ours. Nonetheless, they are deserving of that help, and therefore we should facilitate research that will help that minority if we can.

I am supporting this bill for two reasons: first, when I think of this technology I think not just of Dolly, which, as the Hon. Ian Hunter has pointed out, was a different process—replication of an entire organism and not just a cell. I think also of Polly, the child whose diabetes or muscular dystrophy could be helped by the treatments that emerge from this research.

I am supporting this bill because I do not believe that human embryos generated in the way they will be under this research can reasonably be seen as human beings. The Hon. Ian Hunter cited Dr Lawrence Goldstein, Professor of Cellular and Molecular Medicine at the University of California. I will repeat that quote, as follows:

The embryos in question are simple clusters or balls of cells that have been generated within a dish in a lab, have never before been in a woman's body and are thus not pregnancies or foetuses. Such embryos are at a developmental stage before any organs, such as the heart or nervous systems, are formed and are capable of being frozen or thawed—not typical attributes of people as most of us would define them.

There can be something disturbing about the idea of growing cells and replacement organs, but then some people are disturbed about the idea of having the organ of a dead person transplanted into their body or having the parts of a pig in a valve in their heart. There are many potentially disturbing things about medicine if we look into them all. There are valid moral issues to debate, there are sensible questions to ask and there are risks that unethical research will occur. But there is also the chance of giving chronically ill or severely disabled people a new lease on life, and that is why I will support this legislation.

The Hon. S.G. WADE (16:14): I indicate that, while I will support the second reading of the bill, I am not inclined to support the third reading at this stage. While I do not object to the main thrust of the bill, I do have specific concerns about the proposal for human animal hybrids. In addressing this bill I will make some introductory remarks on my understanding of our responsibilities in the face of assertions that we have a duty to legislate in accordance with the nationally consistent legislative regime. I indicate that, while I consider this parliament should give respectful consideration to the views of the commonwealth and other parliaments of Australia, it is not appropriate that we effectively delegate our responsibilities for the law of South Australia to any parliament or group of parliaments.

Similarly, I am extremely uncomfortable delegating decision making to the Council of Australian Governments, especially on matters with a significant moral or value-based element. On the one hand, parliaments do not delegate law making to our local executive, so why would we delegate law making to a committee of executive members from across Australia? On the other hand, COAG is basically the pinnacle of the bureaucratic structures in Australia. We should be cautious in delegating our authority to unelected officials.

I appreciate that there is often value in consistency between the laws of jurisdictions. In this context I think it is noteworthy that pro-cloning jurisdictions were threatening to abandon national consistency in 2006 when the tide was against them in COAG but re affirmed national consistency in 2007 when the tide was with them. In summary, I consider that this parliament needs to look at this bill on its own merits and not feel bound by the decisions of other parliaments.

Continuing on the theme of the role of parliament, I turn now to the appropriate role of parliament in relation to overseeing and authorising scientific research. I am of the view that it is appropriate for parliamentarians, on behalf of the wider community, to legally prescribe the acceptable limits of scientific activity, taking into account what is morally acceptable. However, within that range it is not for parliamentarians to decide whether a particular area of scientific research is more promising than any other. Hence, I will not engage in a debate as to whether induced pluripotent stem cells offer greater scientific prospects than embryonic stem cell research, and that therefore embryonic stem cell research should be banned.

In terms of private funds, people should feel free to assess where they want to invest their research resources within the scope of legally permitted research. In terms of public funds, Australia has a set of independent advisory councils appointed by democratically elected governments to advise on the investment of public research funds, again within the scope of legally permitted research. The question for this parliament is whether embryonic stem cell and iPS research are within the scope of morally permissible research, and to legislate accordingly. Assessments of scientific worth, in my view, are not for us. It is not for parliament to pick winners in science.

I turn now to consider the limits of scientific research. South Australian law currently prohibits all forms of human cloning and the creation of a human embryo for purposes other than creating a pregnancy in a woman. It does, however, allow for certain types of research on embryos that are excess to the treatment of infertility, provided such practices are authorised under a licence.

This bill seeks to legalise some forms of human cloning, to lift some prohibitions on embryo research and to allow for practices that create and destroy human embryos. Central to this debate is the moral status of the human embryo. The scientific and religious communities have been the two most active elements of our community engaged in this debate. A significant proportion, although not all, of the religious communities of Australia, including the majority Christian community, are of the view that an embryo attains the moral state of a human from the moment of conception. However, this perspective remains contentious.

In the laws of this state, parliament has decided not to protect human embryos from conception. I consider that parliament is reflecting the consensus of the South Australian community in that approach. I note that the prohibition in this bill on the development in the laboratory of either research or reproductive embryos beyond 14 days will remain. In my view there is a community consensus to allow embryonic stem cell work in the early stages of cell development, and that consensus is consistent with the parliament and community's approach to similar issues.

In a pluralist community, and on an issue that does not lend itself to clear moral absolutes, I do not consider it appropriate to prohibit research cloning. The Lockhart committee considered that the higher the potential benefits of activity the greater the need for ethical objections to be of a high level and widely accepted in order to prevent that activity. Conversely, where benefits are not yet established, or where there is widespread and deeply-held community objection, prohibition through the legal system may be justified. I agree.

On the same basis, I am very uncomfortable with the proposal to create hybrid embryos by the fertilisation of an animal egg by human sperm. I appreciate that the use of such embryos under this bill is proposed to be limited, but I am concerned about even this limited use. Creating human/animal hybrids may diminish human dignity and blur the moral boundaries and the distinction between humans and hybrids. To use the converse of the Lockhart review general argument, I suggest that the greater the potential risks of an activity, such as hybrid embryos, the greater the need for ethical clarity to be of a high level and that that view be widely accepted in the community in order to prevent that activity. I do not think that we have the ethical clarity in relation to hybrid embryos for that practice to proceed.

In conclusion, I want to celebrate hope. Scientific advances in biotechnology research have raised hopes that it may be possible to cure numerous conditions and diseases which involve tissue degeneration—conditions such as Parkinson's, Alzheimer's, spinal cord injury, stroke, burns, heart disease, type 1 diabetes, osteoarthritis, rheumatoid arthritis, muscular dystrophy and liver disease.

As shadow minister for disability, I am excited about the prospects of reducing disability in our community. I think that it is important for the scientific community to be careful not to overstate the benefits of therapeutic cloning so as not to create disappointment for those who are not able to benefit from it, just as the opponents of cloning need to avoid overstating what iPS technology can offer.

I indicate that I look forward to the committee stage of the bill, and I would indicate my thanks to the Parliament Research Library, in particular, for its publications on this matter. I appreciate that we are not likely to finish the second reading debate tonight, and I look forward to the continuation of the debate in due course.

The Hon. R.D. LAWSON (16:21): Consideration of this bill would, in my conscience, have been a relatively easy matter prior to the announcement, in November 2007, that Professors Yamanaka and Thomson had devised a method of turning human skin cells into embryonic stem cells without having to make or destroy an embryo.

Prior to this widely-acclaimed discovery, I would have been prepared to support the use of embryonic stem cells for medical research subject to the safeguards which are included in the regime which currently applies under commonwealth laws—or laws which have been adopted in the ACT and all states excepting as yet this state and Western Australia—and these safeguards are contained in this bill.

Two personal experiences contributed to that decision. First, I remember attending a celebration at the Adelaide Zoo on 25 July 1999 as an official guest. It was the 21st anniversary of the birth of Louise Brown, the first child who was born by in vitro fertilisation. As I was preparing to go to the function, I wondered to myself how many people would actually attend such an event. I suspected that there would be only a few.

I thought that people might be embarrassed to publicly proclaim their recourse to treatment. I suppose I thought that parents might not want to burden their children with knowledge that their conception was not effected in the natural manner. However, that was not so; there were hundreds of people in attendance. It was a wonderful occasion: so many happy children, so many happy parents. Professor Rob Norman was given a hero's welcome.

This event reinforced for me an understanding of the great joy of parenthood, especially for those who previously experienced the agony of believing that they were unable to have children. I remember wondering at the time why it was that some Christian doctrine was opposed to IVF (as it was then called), and I will return to that subject a little later in this contribution.

I think we ought to remember for the purposes of today's debate that all those children at the celebration at the zoo and hundreds and, indeed, thousands of other children in Australia were born as a result of artificially-created embryos. They are all the result of a process by which embryos are created. Some are implanted, and some develop to full term and result in a birth. Many more do not come to term. Many are surplus to requirements and are destroyed.

I do not agree with the notion that those who are unable to have children should accept that this is God's will and they should accept their lot. I do not agree with that view just as I do not agree that a medical intervention such as a blood transfusion should be refused because it could or might alter the natural course of events ordained by God. I do believe in medical intervention.

My conscience does not lead me to support conclusions to the contrary, but I accept that the conscience of many others may lead them to different conclusions. Others are entitled to their belief, and I respect them. However, I do believe that no legislation should be enacted that has the effect of requiring—and I emphasise requiring—people to act against their conscience. I endorse the sentiment attributed to Voltaire, namely, that, whilst I may not agree with the views of others, I will defend their right to hold and express those views.

In relation to that last point, I should say in passing that this law (the bill presently before us) does not require any research or anyone else to act against their conscience. The effect of this law, if passed, is that South Australian scientists cannot exercise options they might have in accordance with their conscience.

The second personal experience that influenced my approach to the issue of the current bill occurred when the Legislative Review Committee undertook an inquiry into the code of research practice, which was made under the Reproductive Technology Act 1988. This is a matter with some considerable background history and does require some explanation, so I seek the council's indulgence while I outline that history very briefly. The purpose of the Reproductive Technology Act 1988 was expressed in its long title, as follows:

An act to regulate the use of reproductive technology and research involving experimentation with human reproductive material.

That act was extensively amended in 2003, and it is now called the Reproductive Technology (Clinical Practices) Act. Other provisions are found now in the Research Involving Human Embryos Act 2003. The 1988 act established the South Australian Council of Reproductive Technology, which still exists, although I see the government has before the house currently a bill to abolish it. One of the functions of that council is to formulate and keep under review a code of ethical practice to govern, amongst other things, research involving experimentation with human reproductive material.

The act required that a code of ethical practice should be promulgated in the form of regulations. Unlike most regulations, these regulations could not be disallowed by parliament after they came into operation. They could not even come into operation until after parliament had an opportunity to disallow them. Section 20(4) of the 1988 act provided that the code of practice would take effect at the expiration of a period when the regulations were laid before both houses and no notice of disallowance had been given in either house.

Formulating a code of ethical practice took the council a long time. The act came into operation in two stages, the last of which was 31 July 1989, but the regulations containing the codes of practices (there were two actually, one a clinical code and one a research code) were not promulgated until October 1995, more than six years later.

The Legislative Review Committee undertook an inquiry into the regulations, and it heard evidence. I then occupied the seat now occupied in that committee with great distinction by the Hon. John Gazzola. The Hon. Paul Holloway was a member of the committee and will remember these events. The member for Torrens, Robyn Geraghty, was also a member. I think that we are the only current members who were also members at that time.

One difficulty the regulations had to confront, and the council had to confront, in order to have its code of practice passed was a provision that had been inserted into the act during parliamentary debate. Section 14(2)(b) provided that any research involving experimentation with human reproductive material must be subject to the condition that prohibits any research that may 'be detrimental to the embryo'. The principal opponent of the regulations was Dr John Fleming, a Roman Catholic priest, who was also at that stage the director of the Southern Cross Bioethics Institute. He argued that various procedures that were authorised in the research code—including, for example, carrying out an embryo biopsy—may be detrimental to the embryo.

The contrary point of view was put by Father Laurence McNamara of the St Francis Xavier Seminary. Father McNamara was a Catholic priest who had been nominated to the Council of Reproductive Technology by the heads of churches in South Australia. As anyone who knows Dr Fleming will confirm, he pressed his case with great determination. Father McNamara, on the other hand, said that Dr Fleming took what he described as an integralist view. I will quote a passage of what Father McNamara said, which I think encapsulates what he was saying. He said:

Here is a physical embryo in its genetically unique state, and if you want to do anything that in some way alters its constitution—in other words, is invasive of its integrity—then you could say that the procedure is detrimental. That's a fairly conservative...view.

On Father McNamara's view:

...apart from observational research, you could do nothing to an embryo. You thereby exclude whole lots of what we would call basically invasive research.

Father McNamara said he preferred the developmental approach, as follows:

...shifted the focus from physical integrity to developmental integrity. I think that gives the rationale of why a person such as John Fleming or those who might be more conservative in the pro-life position would take an integralist view.

In the event, the committee accepted Father McNamara's view and suggested that the code be agreed to, and it was.

The Legislative Review Committee inquiry was, to me, an introduction to some of the intricacies in this area. The difference between the views of the two Catholic priests suggested that these issues are not black and white, even amongst those who are members of the same faith tradition. As a result of that inquiry, I became more keenly aware of the hostility of some members of the Catholic Church to reproductive technology, which was then called in vitro fertilisation and which now comes under the general rubric of assisted reproductive technology (ART). I was referred to the Roman Catholic catechism, some paragraphs of which I think ought be put on the record. Paragraph 2376 states:

Techniques that entail the dissociation of husband and wife, by the intrusion of a person other than the couple (donation of sperm or ovum, surrogate uterus), are gravely immoral. These techniques (heterologous artificial insemination and fertilisation) infringe the child's right to be born of a father and mother known to him and bound to each other by marriage.

That paragraph deals with donor sperm or ovum. Paragraph 2377 deals with techniques involving only the married couple, and it states:

Techniques involving only the married couple...are perhaps less reprehensible, yet remain morally unacceptable. They disassociate the sexual act from the procreative act. The act which brings the child into existence is no longer an act by which two persons give themselves to one another, but one that 'entrusts the life and identity of the embryo into the power of doctors and biologists and establishes the domination of technology over the origin and destiny of the human person. Such a relationship of domination is in itself contrary to the dignity and equality that must be common to parents and children'.

So IVF is, in the language of the catechism, reprehensible—not as reprehensible as donor techniques, but morally unacceptable. Paragraph 2379 of the catechism states:

The Gospel shows that physical sterility is not an absolute evil. Spouses who still suffer from infertility after exhausting legitimate medical procedures should unite themselves with the Lord's Cross, the source of all spiritual fecundity. They can give expression to their generosity by adopting abandoned children or performing demanding services for others.

In order to ascertain the meaning of the expression 'morally unacceptable' in paragraph 277, I had to consult other material, in particular, an article 'IVF and Catholic Teaching' by Father Vincent Twomey of the Society of the Divine Word. Father Twomey is Emeritus Professor of Moral Theology at the Pontifical University Saint Patrick's College in Maynooth in Ireland. Father Twomey is a highly respected theologian. He undertook his doctorate under the supervision of Professor Joseph Ratzinger (now Pope Benedict XVI). Twomey is the author of a number of books, the most recent of which is the acclaimed study of Benedict XVI entitled The Conscience of our Age, A Theological Portrait published in 2007. So, when it comes to Catholic theology, Father Twomey knows what he is talking about. He writes:

Every step of [IVF] procedure has moral implications. Sperm, though it can be got by morally licit means, is usually got by masturbation, which is immoral. Because of the low success rate, the medical technicians seek to harvest a large number of ova or eggs through the dangerous procedure of super-ovulation, a hormonal treatment to make the woman produce more than one ovum in the cycle. Placing a woman in such a dangerous situation (some have died) is, itself, morally questionable and can only be justified by proportionate reason...Even if only one ovum were fertilised, it only has, at best, a 20 per cent chance of coming to term but in practice, with super-ovulation and the production of multiple embryos, less than 5 per cent of IVF embryos come to full term...In the [United Kingdom], only 35,000 children have been born despite producing 750,000 embryos.

Father Twomey continues:

Apart from these moral difficulties, the main moral objection is summed up in the title of a book by an Anglican theologian, Oliver O'Donovan, [entitled] Begotten or Made? Are children to be begotten by a married couple as a result of their mutual self-giving or are they to be made by technicians in a laboratory? If you examine the way God the Creator has designed our humanity, it becomes obvious that the only way a child should be conceived that is in keeping with its dignity is through the conjugal act of love.

So, that is the argument. In conscience, I do not agree with it. I do not agree with the proposition that 35,000 children born of IVF in the United Kingdom and the tens of thousands of others who are the products of these activities can be described as morally unacceptable or reprehensible.

I appreciate in this bill that we are dealing with issues that go well beyond simple assisted reproductive technology: we are now in the realm of using embryos for other research. However, when I read the speeches of those who opposed the commonwealth legislation, and some who have opposed this legislation in other states and here, it seems to me that their moral position is based upon a fundamental objection to human reproductive technology. In other words, most of those who opposed the commonwealth legislation were opposed to it even before they heard the name Yamanaka. The effect of his discovery is that opponents of this bill are now presented with what appears to be a more scientific justification of their position, so their opposition is really that there is another way to conduct this research and therefore the door to embryonic stem cell research should be closed.

This leads to the important question of the status of an embryo. If passed, this bill will allow what is called therapeutic cloning. That is, it will allow the creation of an embryo through somatic cell nuclear techniques, and it will allow embryonic stem cells to be obtained from these research embryos. The process of removing stem cells from the embryo destroys the embryo, and the main argument against allowing therapeutic cloning or embryonic stem cell research is based on the moral status of the embryo.

Dr Zoe Gill of our Parliament Research Library produced a research paper in September last year which was distributed to members, and I thank her for the efficient manner in which she assembled the material. The report refers extensively to the Lockhart report of 2005. The full title of that report is the Commonwealth Legislative Review Committee Report on the Prohibition of Human Cloning Act 2002 and the Research into Human Embryos Act 2002. Taken from the Lockhart report, Dr Gill's paper conveniently summarises the different forms of that argument concerning the embryo:

1. An embryo has the status of a human being or person.

2. An embryo has the status of a potential person.

3. An embryo has the status of a divine creation.

4. An embryo is a form of human life with intrinsic value.

As Dr Gill points out, one's understanding of the quality of an embryo would depend on one's religious or personal beliefs. She points out that 'allowing embryos to be the subject of research reduces them to a unit of commerce which is contrary to their moral status'. That is one argument. Dr Gill further points out that the Lockhart review argued that:

...research embryos are created without any expectation of becoming a human life and hence their destruction is no less justifiable than the destruction of embryos created for reproductive purposes, which is already allowed in regulated circumstances.

That is an important point to understand. Embryos are currently being created for reproductive purposes, they are used in regulated circumstances, they can be stored in particular circumstances and they can be destroyed in certain circumstances. The Lockhart report stated:

A further argument was that it is wrong to create human embryos to destroy them and extract stem cells. Human embryo clones are human embryos and, given the right environment for development, could develop into a human being. Furthermore, if such an embryo were implanted in the uterus of a woman to achieve a pregnancy, the individual so formed would certainly have the same status and rights as any other human being. However, the human embryo clone created to extract stem cells is not intended to be implanted, but is created as a cellular extension of the original subject. The [Lockhart] Committee therefore agreed with the many respondents who thought that the moral significance of such a cloned embryo is linked more closely to its potential for research to develop treatments for serious medical conditions, than its potential for human life.

The Lockhart review argued that it would be inconsistent to prohibit the production and destruction of research embryos when the production and destruction of excess ART embryos is already permissible. That follows from the following passage:

...to permit one (production and destruction of ART embryos) but not the other (production and destruction of nuclear transfer and other bioengineered embryos) would be inconsistent and appear to attach more importance to the treatment of infertility than to the treatment of other diseases and conditions that could be helped as a result of this activity.

I find these arguments compelling. Those who seek to prevent embryonic stem cell research but who are prepared to accept the use of embryos for reproductive medicine are, with the greatest respect, being inconsistent.

In short, my reason for supporting the Lockhart recommendations in the commonwealth act is simply that I have no conscientious objection to the current assisted reproductive technology regime that applies in South Australia. That regime already allows for the creation, storage and destruction of embryos. The production and destruction of a research embryo are not, in my view, dissimilar in the moral sense from the production and destruction of excess ART embryos, which are already permitted by legislation and widely accepted in our society.

I ought mention a couple of other points. Firstly, it has been urged upon us that we should pass this bill in order to ensure that we have national consistency. I do not agree that we must have uniform legislation in this or any other area, as a matter of fact. However, I believe that we have to consider the subject matter and, when it relates to medical research and where medical researchers and medical information pass across state and international boundaries (it is highly transmissible and researchers can easily move), it does seem to me to be rather futile to say that in South Australia we will not allow our researchers to undertake certain work but that they can do it over the border at Nelson, Portland, Mildura or anywhere east of there. Clearly, to a researcher who is interested in conducting this research, the effect of not passing this measure would be simply for them to move across the border and there, notwithstanding its immorality, as some see it, the research would go on.

The second point is that, whilst Professor Yamanaka's discoveries have been internationally acclaimed, the fact that a breakthrough has been made in one direction does not, it seems to me, mean that one must close the door on medical research along other lines. Members will forgive the pun in this context, but I do not believe that medical research should put all its eggs in one basket, nor do I believe that politicians, members of parliament, should close one door and force all researchers down one particular line.

I think it should not be forgotten that medical research in this area is still in its very early days, and Professor Yamanaka's research and techniques may not ultimately prove to be the panacea many of his supporters say they will be. Certainly, last year there was concern about the fact that the manipulation and stimulation of adult stem cells might cause tumours, and that is obviously a serious issue. However, as I will mention a little later, some are now saying that, as a result of more recent studies, that difficulty has been overcome.

I note from a submission made by the South Australian Department of Health that the New Scientist described embryonic stem cells, at that stage, as the gold standard against which induced pluripotent stem cells needed to be compared. I think that we are in the stage still of medical uncertainty. Perhaps I should summarise the Department of Health's argument, as follows:

iPSCs are at an early stage and their usefulness and safety is as yet unproven...Embryonic stem cell research is more advanced as recently achieved cures in animal models and human trials have been approved to commence in the United States...Thirdly, scientists advise that no avenue of research should be closed off at this early stage so SCNTs [that is, somatic cell nuclear techniques] should be legally permitted...amendments to the laws are required for infertility research which requires excess assisted reproductive medicine embryos...iPSCs cannot be used for this...Fifthly, a second national review of the laws will commence in December of 2009 at which time there may be greater clarity about the relative benefits of the different techniques.

I consider that those arguments, or certainly the substance of them, namely, that we are still in a state of uncertainty, have validity. I also ought to say that even if all the claims made by the opponents of this bill—namely, that Professor Yamanaka's new method is so demonstrably and provably superior—are supported, this legislation is really redundant. If Yamanaka's techniques are as good as they say, clearly, researchers will not bother going down the route they are permitted to go down under this legislation. This legislation does not actually open the door to create research embryos, but it leaves open the passage. This legislation does not open one door and close another: it leaves both doors open.

Professor Yamanaka has opened one door, and clearly we should leave that open, but I do not believe we should close the other. I have received communications from a great number of South Australian organisations and individuals, as have other members, I am sure. I received material from Family Voice Australia, and members will be familiar with the active interest that organisation takes in issues of this kind. I am certainly appreciative of that organisation's material, which is always presented in a way that is useful to members of parliament and which outlines clearly its position.

I do not agree with its position on this bill, but the latest letter I received from its state officer, David d'Lima, mentions the issue of cancer risk, which I mentioned a moment ago. He refers to a couple of recent reports which suggest that the cancer risk is no longer a problem for induced pluripotent stem cells. Again, with the greatest respect to Mr d'Lima, we are still in early stages, and a couple of articles published which indicate one way and which refute earlier research is hardly sufficient to enable legislators to act. The issue I want to extract from the letter is, I think, encapsulated in the following passage:

A vote against this bill would ensure that the current ban on human embryo cloning in South Australia remains in place to protect women from the risks of induced ovulation in the course of speculative research and to prevent human embryos being created only to be destroyed. Such a ban will not retard stem cell science, which is moving ahead rapidly without recourse to cloning. Human cloning is now a redundant technology that has been overtaken by events.

Those points effectively summarise in short-term the case against this bill. It is worth placing on record in apposition to those points about protecting women from the risks of induced ovulation in the course of speculative research, the women who are prepared to participate in these programs are, under our codes of practice, required to be volunteers. No-one is forced against their will to allow harvesting to take place within them. 'In the course of speculative research': most research is speculative, especially at the frontiers of medicine. The letter says, 'to prevent human embryos being created, only to be destroyed'. So many embryos now are being created and are being destroyed in the interests of reproductive health.

Reproductive health is important, but so too is advancing medical knowledge. I do not believe we can say, as is suggested in the letter, that human cloning is a redundant technology. If indeed it is a redundant technology, it will not be used and this legislation will have done no ill. However, all information I have been provided with suggests that it is far too soon to say that human cloning is a redundant technology. I believe it ought to be permitted to continue, and I will support the bill.

The Hon. B.V. FINNIGAN (16:57): We face a very important debate in considering this bill and whether or not the parliament ought to pass a bill which, for the first time, would allow the creation of human embryos for the purpose of destroying them and to do that through a process of cloning. Quite a few issues need to be considered by members in deciding whether or not to support the legislation. Some of the debate and discussion that have occurred about this bill have attempted to characterise the debate in terms which are perhaps a little too simple or which ignore some of the complex, ethical and scientific questions involved.

To my mind this is not a question of the merits of induced pluripotent stem cells and adult stem cells versus human embryonic stem cells. I do not see it purely as a debate about when human life begins or the status of the human embryo and I do not believe that is the key factor that will help most people make a decision in this debate. I do not see that this is a debate about whether South Australia should or should not be in step with a national regulatory regime. I do not see that as being the critical question at hand, although it is a factor we need to consider and I will address that, but most members have acknowledged that they do not consider it to be one of the principal factors that will determine how they will vote on this measure.

There are a lot of factors to consider in this debate and a lot of questions we as legislators need to address in coming to a position on this bill. We need to consider whether it is necessary scientifically and whether the potential research that is permitted under this bill is necessary, is likely to produce valuable results and is something we should sanction. We need to consider whether it is wise, ethical and the right thing to do to allow this sort of research and these ethical barriers to be crossed by introducing for the first time certain practices in relation to this sort of research.

Although I think it is a relatively secondary matter, we do need to consider whether we wish to be out of step with what most jurisdictions in Australia have done, and that is to pass legislation of this kind—noting, of course, that the Western Australian parliament elected to reject the bill and has not, to my knowledge, passed any legislation since.

So there are a lot of factors to consider and I think, to a large degree, there are a couple of central questions that we need to think about. To help frame what those questions ought to be and what we need to consider, I would like to refer to an interesting interview on the ABC's World Today on Tuesday 8 August 2006—so 2½ years ago now—which was in reference to the federal legislation that passed the federal parliament narrowly at that time and has been the basis of the legislation that has passed in other jurisdictions and is the basis of the legislation before us.

The interview was between the reporter, Eleanor Hall, and Professor Loane Skene. I am sure that many members will be aware from their research on this matter that Professor Skene was the chairperson of the Lockhart committee. The Lockhart review was chaired by the late John Lockhart AO QC. When, regrettably, Mr Lockhart passed away, Professor Skene became chairperson of the Lockhart committee and was playing a pretty pivotal role when the bill was considered in the federal parliament.

This interview took place quite early on—even, I think, before the major political parties had decided that they would afford their members a conscience vote on the matter. There are a couple of things that I think came out of this interview which, to me, characterise the central questions that we need to consider in this debate when we make a determination as to how we are going to vote on what is certainly important legislation.

The first question that I am drawing from this interview is, when it comes to the permitting of scientific research, whether we are obliged to consider it from a permissive point of view. Is it incumbent upon those who would wish to see this sort of research or these initiatives permitted to prove that those measures are required, or is it for those who oppose such a measure to indicate or to establish why it should not happen? Professor Loane Skene, in this interview in August 2006, said:

Genetic conditions are gradually becoming more understood and that's one of the advantages of this early research. So, the government is saying to the scientists—

that is, the scientists involved in the Lockhart review—

show us any evidence that you have, that you've actually achieved something. Our committee says, on the other hand, that it's for those who oppose the changes to the legislation to allow more scientific research on embryos, to show why it shouldn't be done.

Those are the words of Professor Loane Skene in this interview some 2½ years ago. To me, that is an interesting proposition: to suggest that it is up to those who oppose a particular field of scientific endeavour, a particular expansion of scientific processes and a particular broadening of ethical frameworks, to establish why it should not be done rather than for those who advocate such a thing to establish why it should be done.

I am not sure that that is a proposition that I wholeheartedly support: to say that it is for those who oppose changes to allow more research on embryos to show why it should not be done rather than the case being one where those who advocate such research need to establish why it is necessary.

One of the critical issues we need to face here in considering this measure is that, when it comes to expansion of scientific and ethical boundaries in this regard, should it be for those who might oppose it to establish why they oppose it or why it should not happen, rather than for those who advocate it to show why it should happen? I would think that, in the normal course of events, it is normally for those advocating for change and advocating for a measure to establish why it is necessary more than it is typical to expect those who oppose a measure to prove why it is not necessary.

The other issue, which is a fundamental ethical question, was brought out, in my view, in the interview with Loane Skene, that is, to look at the ethical question about whether it is justified to expand ethical boundaries across certain lines and to allow certain research we have not allowed before because of the potential promise for potential cures and the potential benefit to other human beings is so great, and that is certainly a fundamental ethical question we all face in this debate.

We are certainly able to talk a lot about the science, and I certainly will be talking quite a bit in my contribution about the various scientific approaches; in particular, I will argue the benefits of other fields of research, including induced pluripotent stem cells that do not involve the use of human embryos. That is certainly an important thing to consider.

However, ultimately, it is not simply about science. As some honourable members have said, we are not scientists, by and large; although some of us have scientific training. I frankly would not know an induced pluripotent stem cell or a human embryonic stem cell if I fell across one. If you sent me out to a laboratory to find out what they were doing, I would not have any idea, and I think most of us are probably in that position. Nonetheless, we are charged with the responsibility of making a judgment about whether this research should be permitted, whether it is in the state's interests, and whether it is not only in the interests of the current inhabitants of the state but future inhabitants as well.

In considering that question, we really do have to make some considerable ethical and moral judgments about where we find a balance between the potential achievements in advancing down the track of this sort of research against the potential harm; and the different ethical framework, the expansion of our understanding of what should be permitted in the name of allowing some progress in potential treatments. That is a very difficult question.

None of us want to see human suffering. We do not want to see children suffering from type 1 diabetes, and we do not want to see people suffering from Parkinson's disease, spinal cord injury and the things that are often mentioned in relation to the embryonic stem cell debate. However, at some point we do need to make a judgment about ends and means and at what point we find the balance.

As legislators and as guardians of the public good and, indeed, as the wider community, where do we find that balance between achieving good things and progressing medical science and potential treatment? What will be the cost to our ethical understanding and to the bedrock of what we consider to be fundamental rights and fundamental responsibilities to ourselves, to the future and, I guess, to humanity as a concept? Again, I want to draw on what Professor Loane Skene said in this interview. The interviewer said:

But the Health Minister Tony Abbott has said that there are some things that scientists should not do and that therapeutic cloning is one of them. Isn't his moral objection valid?

This, of course, was at a time when the Hon. Tony Abbott was the health minister and there was a lot of discussion about the Lockhart review and what that would result in, in terms of legislation, and whether it would be government bills or conscience bills, and so on. So, here Eleanor Hall said to Professor Loane Skene that some have said that there are some things that scientists should not do and that therapeutic cloning is one of them, and she asked whether that moral objection was valid. Professor Loane Skene said:

Yes, this is the sort of objection that we're getting from some people and my view on this is that if there were a cure, this objection would immediately be overwritten. You can imagine that if it were possible for us to treat spinal injuries and somebody is saying, I have a moral objection to you using this embryo, and we've got to remember that this is the science of the pin prick, so they are talking about the embryo in a way that they are saying this is a potential person. Can you imagine that somebody would be arguing that sort of moral right against the right of somebody else to get up and walk?

I think that, to some degree, that sums up the issues we have to consider here, because if we apply the principle that a cure to a debilitating disease and alleviating human suffering has to be our principal consideration—perhaps our only consideration—I think we ultimately come to the view that there is very little that cannot be permitted; there is very little that we do not or cannot consider ethical in that pursuit. I will address that matter at some length later in my contribution, or on the next occasion after I have sought leave to conclude.

It is often suggested that those who are opposing this legislation are conjuring up the spectre of mad scientists and half-breed hybrids running around, and all that sort of thing. However, I do not think that is the case. It is certainly not something that I have talked about. I can see the Hon. Mr Ridgway laughing; he is probably thinking that he thought I was already one of those.

To merely raise as an argument that we must consider the final ethical boundaries and we cannot take the view that anything ought to be permitted provided the outcome is good enough and is desirable and worthy is not to throw rationality out the window or to try to distort the debate; it is simply to accept that that is a fundamental question and issue here. That is something that I will address in my contribution, because I am certainly not suggesting that this legislation will throw open the floodgates to chimeras running around or that sort of thing, but it does for the first time allow the crossing of some very important ethical boundaries that we have not allowed before because we consider that the potential promise of what may result from that research is worth it.

That is ultimately a difficult question to answer, and I do not pretend that it is easy. I certainly do not pretend in any measure that it is easy for me to weigh up, with respect to scientists in a laboratory doing things about which I have almost no understanding, in terms of their scientific work, whether by stopping that I am preventing other people necessarily benefiting from a cure. That, of course, is a weighty decision to make. However, ultimately, we have to decide. We have to make an ethical judgment about where we find that balance and where we draw that line and, if we decide that the final outcome is desirable and worthy and a good thing, if we can see that people will be alleviated from suffering a debilitating disease, and that is the only consideration that we must ultimately take into account, I believe that takes us down a very dangerous road indeed.

I do not suggest that this legislation purely on its own takes us all the way down that road, but it does take us down to the first signpost. There can be no clearer indication to me of that than, when the parliament first passed the bill, I think, five years ago or six years ago to allow embryonic stem cell research, the very prohibition on human cloning was put into the title of the bill, so unanimous was the view that that was off the table.

No-one wanted cloning, no-one was talking about cloning, and I do not recall that there was really anyone advocating that it was something we needed to do. Here we are, a very few short years later, already trying to push that envelope to extend that boundary, and that is something we have to consider. That can be called the slippery slope argument, and that is often dismissed as scaremongering, but it is important that we are here already in a very short time, with the lure of miracle cures—which are enticing and desirable, and which all of us as human beings must want to see.

However, the lure of that can allow us to make ethical decisions and cross boundaries that we otherwise would not. We have to consider that very carefully because, having already taken some steps down that track, in a very short period of time, we are now being asked to take more. Personally, I would be quite astounded if there are not further requests and a move to further broaden the scientific boundaries in this area within a short period of time, whether or not this bill actually gets through.

I have quoted a couple of things from Professor Loane Skene in that interview which I think frame the debate for us in an important way, and that is: when we consider questions of science, where does the responsibility lie to establish whether or not it is in our best interests? Secondly, how do we consider that difficult dilemma of allowing things about which we might have reservations and about which we might have concerns because we believe that the ultimate objective and the ultimate potential is so promising? I would argue that, when we weigh up those questions of whether the bill is necessary and whether it is wise, we have to conclude that the cloning of human embryos is not necessary scientifically to advance this research and it is not wise. It is not ethical to allow that boundary to be crossed, whatever we hope may eventuate.

I think it would be helpful to begin with something of an overview of what this bill does. I know honourable members have considered it and I am sure all of us have a reasonable understanding of what we are being asked to vote for, but I think it is important when people are looking at these debates to be able to get a fairly clear and simple view of what we are being asked to do; and that can be difficult to discern, sometimes, when we have some very technical language. What this bill would do is allow the creation of embryos for research by means other than fertilisation. The bill would prohibit implantation or development of any embryo created in a laboratory for more than 14 days. This bill is a mirror of legislation that has passed in the federal jurisdiction and in all states except South Australia. There is an issue at hand—

The Hon. D.G.E. Hood: Not Western Australia.

The Hon. B.V. FINNIGAN: Not Western Australian; no, sorry—as to the fact that the South Australian act is no longer a corresponding act to the federal legislation, and that is a difficulty because it means we are out of step, and that does have potential consequences for those engaged in research pursuant to the existing legislation. So, I acknowledge that is a problem.

If we reject this bill, that is something that has to be addressed, but I certainly do not see that that is insurmountable. There are no South Australian licences to undertake human embryonic stem cell research, but this bill is intended to address some legal uncertainty for those who are not covered by the federal act. Many organisations and corporations, of course, are covered by the federal legislation and are not in need of anything we might do here, but there are some probably relatively limited examples where there seems to be some legal uncertainty which this legislation seeks to address.

Importantly, this legislation does retain the prohibition on human reproductive cloning, in the sense that you cannot create an embryo with a human egg and human sperm for the purposes of research, but using surplus assisted reproductive technology embryos remains permissible, as it was by the previous legislation. That is an important point to note: if we do not pass this bill it does not mean that if you are in favour of embryonic stem cell research you are bringing that to a halt, because that would continue.

This bill allows the creation of embryos for the purposes of research, even though it does prohibit implantation. Whether it is using a surplus assisted reproductive technology embryo or a created embryo, in both cases research is permitted only up to a 14 day point, but what this legislation does do (and this is an important point) is that for the first time it allows for the creation of embryos for research purposes, particularly through the process known as somatic cell nuclear transfer.

The purpose of creating embryos is to create human embryonic stem cells, not to create a human being who will be brought to full term, and that is why it is called therapeutic cloning, but it is important that that is still possible with a human embryo that has been generated by somatic cell nuclear transfer. That is something that I will wish to address in my contribution.

When it comes to the question of hybrid embryos, it remains prohibited under this legislation for a human embryo to be implanted in an animal, and the legislation does not allow chimeras, or hybrid embryos. However, there is one exception, which is to allow diagnostic tests for sperm quality, where human sperm can be combined with an animal egg and brought up to the second day, so basically it can exist for one day purely for the purposes of testing sperm quality.

Those are two very important points. I think the principal one is that this legislation allows the creation of somatic cell nuclear transfer embryos. They are human embryos; they do have the capacity to be brought to the fullness of life as we know it. This bill does not allow that, but it is important that we recognise that we are talking about human embryos, and we should not make too artificial a distinction between research embryos that are created not by combining an egg and sperm and human embryos which are the result of the combination of egg and sperm and which have become surplus after an IVF or assisted reproduction process.

There is a distinction to be made—an important one—but fundamentally we should not say that one has the potential to go on to become a human being and the other is a bunch of cells that some scientist is working on in a laboratory, because that too has the capacity to be brought to full term. It is important to note and consider that in weighing up our decision.

Also, hybrid embryos would be allowed under very limited circumstances for a very specific purpose, and it is important to note that. As I said earlier, I am not trying to raise the spectre of something that is not permitted by this legislation, but it is allowing an ethical boundary to be crossed that is important. They are two things that I will certainly be focusing on in my further contribution, because I think they are fundamental to what we have to consider in this debate.

Should we allow the creation of human embryos for the first time solely for the purpose of research and with the sole intention of their being destroyed? We have been allowed to use embryos for research that are surplus from assisted reproduction, but we have not been able to create human embryos for the sole purpose of research: those embryos created with the intent—indeed, the requirement—that they be destroyed. That is not something we have allowed for, and that is at the heart of this legislation, and it is something we need to weigh up very carefully.

Similarly, with the creation of hybrid embryos, I acknowledge that that is a relatively small step in this legislation. However, it again allows that ethical barrier to be crossed in the pursuit of a noble goal. I think that a fundamental question we need to weigh up when looking at this bill is: is the potential outcome and the potential good of cures and treatments for debilitating human diseases so important to us that we are prepared to cross ethical boundaries we have not before to create human embryos solely for research with the intention of destroying them? Will we allow human sperm and animal eggs to be combined if that will enable us to test the quality of that human sperm?

In one case, those things are about 14 days and the other only one day, so we are not suggesting that it is possible for those embryos to be implanted or brought to term in a woman. However, once we accept the principle that if the potential good is enough and that we ought to allow those things to happen, we place ourselves in a very invidious position where, in the future, we will struggle to find why we should stop somewhere else. If we allow ourselves to cross this line, what will be the rationale in the future not to cross a future line?

I indicate that I will be opposing the bill. I do not believe it is necessary, and I do not believe that it is the right thing to do. However, I wish to contribute further on some scientific matters and address some of the arguments that have been put by advocates of the bill. I seek leave to conclude my remarks later.

Leave granted; debate adjourned.

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