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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-17 Daily Xml
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 July 2009. Page 2949.)

The Hon. R.I. LUCAS (11:03): I support the second reading of the bill. One of the joys of having been in the chamber for a long time is that I was able to go back and recall my contributions on the original legislation in 1987 when the bill was first debated in order to refresh my memory and see whether or not, with the passage of years, some of my views had been confirmed and whether or not some of my views had changed. It is fair to say—I guess with many of us—that with the passage of time it has been a combination of both. In some respects, my own views and the views of society have moved on in relation to the complex and, at times, controversial issues that were canvassed in the original legislation more than 20 years ago. In some areas, the views I expressed at that time remain firmly held—

The PRESIDENT: Order! Members will take their caucus meetings outside.

The Hon. R.I. LUCAS: In looking at the 1987 debate, I note that some of the provisions that still exist in the legislation—and will remain in the legislation, even with the potential passage of this amending bill—were as a result of amendments that I moved in the original debate. In particular, I refer to what was the very controversial and vexed question at that stage of the confidentiality provision, which is clause 18 of this bill and which basically provides that a person 'cannot disclose the identity of a donor of human reproductive material except', and there are a number of exceptions, including 'with the consent given in the prescribed manner of the donor of the material'.

Going back over that debate, it was one of the most controversial aspects of the legislation at that time, and it remains controversial when one looks at the debate on this bill in the House of Assembly. This issue and the views of some members in relation to potential changes to the confidentiality provisions were key issues raised during their contributions to the debate. The other area which remains as part of the legislation is the issue in clause 20 of the current act relating to regulations.

Without going over the whole detail of it, the provision that I moved at that time—and it remains part of the legislation today—in essence, seeks to give this parliament greater authority over some of the changes, and that was to institute the requirement that a regulation must be considered by the parliament before it comes into law. Most regulations, of course, once proclaimed by the government become law. They can then be disallowed by the parliament; and you can then go through a process where the government can proclaim, again, a regulation and the parliament can, again, disallow it, and members will be aware of occasions in the past where that has occurred.

Because of the vexed nature of this legislation, there was a long debate at the time, and ultimately this council and the parliament accepted the notion that, because of the controversial nature of some of the issues, this parliament ought to retain some greater authority, some greater power and some greater oversight over the executive arm of government and the other administrative bodies that had been established to try to assist with the ethics of these practices. As I said, the parliament should have greater authority and oversight over those two elements of the decision making process, that is, the executive arm of government and the other administrative bodies that have been established by the executive arm of government to look at ethical issues.

In looking, as I said, at the debate (and I do not intend today to recreate or reproduce all the arguments of that time), it is fair to say that widely and wildly divergent views were expressed by members at that time. I would have to say that, on this occasion, there has been much less heat, fire and passion in the debate than there was 20 years ago. During the previous debate, for example, I and other members quoted at length from views that were expressed to us by the Catholic Church, the Lutheran Church, other church representatives, academics and interested parties.

It was an issue that, I guess, was new at the time and therefore attracted a number of submissions. I am not sure about other members, but, in relation to this bill, I have received very few submissions. I have certainly received no submissions at all from church or ethics groups. The Southern Cross Bioethics Institute often lobbies us and other commentators on issues like this. Again, I am not sure what the inbox or in-tray of other members has been like, but mine has been noticeably silent on the important issue.

The reality of that is that everyone is generally comfortable with the way this has operated over the past 20 years or so, and therefore there was no cause or need to put points of view or, perhaps sadly, many of these groups have lost interest in a range of these issues or, because it has attracted so little publicity, many of them might not have been aware of the particular changes. Anyway, be that as it may, we can only work with what we have. We have the legislation. I have indicated my support for the second reading of the bill.

At this stage, I am aware of only two amendments coming, not unexpectedly, from slightly divergent directions, that is, from the Hon. Mr Hood and the Hon. Mr Hunter. I am sure it is a comfort to both of them that, on this issue, they are coming from different directions rather than from the same direction. I understand well the issues raised by the Hon. Mr Hood because they were fundamental to the debate in the 1980s; that is, the paramount interest, the primary interest (whatever descriptive words you want to use) in the legislation should be in the interests of the child.

In this bill, the government is intending to change that and, in Mr Hood's view and in that of some others, dilute the primary target of the legislation as being in some way the interests of the child. The Hon. Mr Hood's amendment, in essence, I think is directed to returning us to the original intentions of the legislation. I indicate that, at this stage, I am sympathetic to the proposition put by the Hon. Mr Hood. I will listen to the arguments both for and against at the committee stage of the debate, but I flag that, at this stage, I am sympathetic to the position the Hon. Mr Hood is putting and, unless convinced otherwise, I would be supportive.

The Hon. Mr Hunter's amendment is more complicated. I must admit that I had to have a brief discussion with the Hon. Mr Hunter yesterday to understand exactly what is intended to be achieved by his proposed amendment. I will listen to the argument he puts. I would say that I would probably (although not unexpectedly for the Hon. Mr Hunter) start off from a position of potentially not supporting the amendment, but I am prepared to listen to the argument that will ensue at the committee stage.

It raises an interesting issue, because, going back to the 1987 debate, a huge amount of time was taken up at the committee stage with this whole issue of who should have access to what was then described as 'IVF treatment'. I guess 'morality' is too strong a word, from my viewpoint, anyway—it might be from others—but there are moral issues. There are also issues in relation to cost and which procedures ought to be subsidised or paid for by taxpayers in relation to access to what is medical treatment. There is a complex interrelationship between some of those factors, which, for a number of us, will need to be considered.

In that debate—essentially, the overwhelming view of the majority of members at the time was that it should be limited to married couples—I indicated that I supported access to it for married couples and putative spouses under the then definition of a putative spouse, which I think, in essence, was five years' cohabitation. A number of members, at that time, did not support the extension beyond married couples to putative spouses. Essentially, the overwhelming view was that it was to be available to married couples or, as I said, a male and a female in an ongoing de facto or putative spouse arrangement.

Our legislation, passed in 1987, was intended to achieve that. This is an interesting and illustrative point of what has occurred in the past 20 years. A number of members in both chambers have referred to the fact that, as a result of a court decision in 1996, the commonwealth sex discrimination act allowing access to IVF treatment (as it was then known) could not be restricted to married couples. I think it is informative to look at that.

I suspect—I cannot say categorically—that, when the commonwealth sex discrimination legislation was passed, no-one contemplated whether this would some time later override a clearly expressed intention of the state parliament of South Australia, that is, that it ought to be restricted to married couples. This is one of the issues that we need to consider and I know we debate on occasions, that is, the federal legislation potentially overriding a clearly expressed view of the representatives of the South Australian community, that is, the South Australian Parliament.

If, with the passage of time, the South Australian Parliament changes its view in 1996 or 2009, that is one thing. The South Australian Parliament votes on it and that is the case. What we saw in this case was parliament expressing a view in 1987 and then the commonwealth expressing a view in relation to the commonwealth sex discrimination legislation and, ultimately, a court decision saying that the commonwealth law overrides the state law. I must admit, I was not aware of this until more recent times, but the minister has indicated that, since 1996, as a result of that decision, IVF treatment (ART treatment, as it is referred to now) has been available to single persons. So, this legislation, in part, seeks to reflect that.

The Hon. Mr Hunter's amendment, as I understand it, goes further than his own minister was prepared to go. I think his own minister indicated he was prepared to move so far, but the Hon. Mr Hunter's amendment says that it does not go far enough and we need to extend it even further to another group of persons. As I said, I will listen to the Hon. Mr Hunter's explanation of that during the committee stage, but I indicate at this stage that I start from a position of probably not supporting it, and I would need to be convinced why we ought to extend its scope.

I do not intend to go through a detailed argument of the other provisions of the legislation. As I said, it has been noticeable that we have not really been strongly lobbied by very many individuals or groups in regard to this legislation. I support the second reading, and at this stage we will listen to the debate on the two amendments that have so far been flagged.

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (11:20): By way of concluding remarks I thank members for their contributions to this important bill. It is my understanding that members of this council will be exercising a conscience vote on this bill. For some members, assisted reproductive treatment raises some moral concerns, and for others it is accepted medical practice to assist people to have a family.

The bill proposes to amend and update the Reproductive Technology (Clinical Practices) Act 1988 to ensure that it meets the needs of South Australians requiring assisted reproductive treatment into the 21st century; it also ensures that assisted reproductive treatment services in South Australia are transparent and are provided responsibly and ethically. The welfare of the child will, in all cases, remain paramount, and I thank the Hon. Dennis Hood for his amendment.

This bill also proposes to allow for posthumous use of sperm by the surviving partner. I reassure members of the strict requirements under which this will be permitted. First, the sperm must have been collected prior to the man's death and, importantly, the man must have consented prior to his death to its posthumous use. The stored sperm can be used only by the deceased man's surviving female partner. There are also strict national ethical guidelines set by the National Health and Medical Research Council.

Clinics must comply with these guidelines as part of their registration under this bill and also as part of their national accreditation. The Minister for Health in the other place has already indicated that, for a small number of women who end up in these circumstances, few proceed with treatment. It is the case with Sheree Blake which highlighted the issues in the South Australian legislation; however, other South Australian women may have been in the same circumstance but, because they themselves were not considered infertile, treatment under South Australian law was not available.

These women were able to take their deceased husband's sperm interstate for treatment but were unable to obtain treatment in their home state. I stress the stringent requirements in this portion of the bill. I believe there are adequate protections within this proposal to ensure that the welfare of the child is paramount. The required counselling, as well as clinical ethics committee advice, would ensure that all the social, legal and psychological issues are explored and addressed prior to anyone having treatment.

The bill allows the decision of the couple, which is unlikely to have been reached lightly, to be fulfilled. It recognises the wish of the woman's husband or partner, that he had given specific consent for the use of his sperm after his death, and allows this express direction to be carried out. I take this opportunity to remind members that this amendment bill is not a radical shift in policy; these changes reflect nationally accepted clinical practice and, if passed, will bring South Australia's ART laws into the 21st century.

Access to treatment is still based on clinical need and is restricted to people who appear to be infertile or at risk of transmitting a genetic defect but now includes those at risk of passing on a serious condition such as HIV to a child conceived naturally. The bill will ensure that the regulation of ART in South Australia is responsive to emerging issues and will improve treatments, thereby benefiting those in need of ART for safe family formation. I commend the bill to the council.

Bill read a second time.

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