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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-07-16 Daily Xml
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 14 July 2009. Page 2821.)

The Hon. S.G. WADE (15:34): This bill amends and updates the Reproductive Technology (Clinical Practices) Act 1988. It is a fundamental principle of ethics that each human life has intrinsic worth and that the worth of that life should not be dealt with with regard to the interests of another rather than its own. The relevance of the issue of the rights of a child in assisted reproductive technology was highlighted for me in the recent inquiry by the Social Development Committee into gestational surrogacy. Under the heading 'In the best interests of the child', the committee's report states:

One of the central themes to emerge in submissions during the Inquiry was concern about the welfare of children born through surrogacy arrangements.

The committee considers that surrogacy arrangements must at all times give primacy to the welfare of the child. It does, however, also recognise that defining what is meant by this underlying principle is not an easy task. History suggests that this principle is not immutable; it can and does change. Moreover, it cannot be easily separated from the broader social and political context.

In the context of gestational surrogacy, the issue of the rights of the child, for example, came up in the context of the right of a person to know their genetic origins. The parentage provisions of the Family Relationships Act 1975 were designed to ensure that a couple treated for infertility who used donor reproductive material would be considered the legal parents of the child. Conversely, under those provisions it was contended that individuals who had donated reproductive material would not be legally recognised as the parents of any child born of their donated reproductive material. In other words, the legislation gave priority to protecting the interests of a couple seeking infertility treatment as well as the interests of the donor who had provided the reproductive material. The committee report stated:

The committee seeks to give primacy to the best interests of the child. The committee is particularly mindful that children should not be denied access to information regarding their genetic history or the circumstances of their birth. Likewise, the committee considers that the privacy of children born through gestational surrogacy arrangements should be protected and they should not have to disclose their surrogate birth status each time their birth certificate is presented.

I use that discussion as an example of how, in one set of relationships, one can have conflicting interests between people who are not, if you like, inherently adversaries. It is important that we recognise all the relevant interests in such a relationship, and it is my view that we should have particular regard to the rights of a child. The Australian Family Association stated this issue in particularly strong terms, as follows:

The plight of childless couples must not lead legislators into a rash decision to treat children as property.

The United Nations Convention on the Rights of the Child affirms the principle of the primacy of the rights of children. In article 3 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.

This principle has been reflected in the Reproductive Technology (Clinical Practices) Act 1988. Section 10 provides:

The welfare of any child to be born in consequence of an artificial fertilisation procedure must be treated as of paramount importance, and accepted as a fundamental principle, in the formulation of the code of ethical practice.

I am concerned that this bill seeks to remove that provision and proposes that the interests of the prospective parents be placed at the same level as those of the child. I do not deny that prospective mothers and fathers have rights and interests that should be respected and I would support them being recognised in the act so long as the right of the child is given primacy. However, in my view, we must continue to give priority to the impact on the child. If we do not make the child our priority, we tend towards regarding them as a commodity. On this basis, I support the amendment foreshadowed by the Hon. Dennis Hood.

I remind honourable members that this simply retains the principle of the primacy of the rights of the child which is in the current legislation. I also affirm that I share the view of the Social Development Committee when it said that the principle of the best interests of the child is not easy to define, nor is it immutable: it does change, including in the broader social and political context.

A key issue raised by this bill and which directly raises the issue of the best interests of the child is whether a person should be able to access assisted reproductive technology using the genetic material of a deceased partner. Some contributions suggest that, by definition, to allow a child to be conceived knowing that the father is dead would never be in the best interests of the child and should be prohibited at law. I do not share that view. I think it is conceivable that it may be in the best interests of a child to be born into a family even though their natural father may not be able to be present. By the same token, a mother-and-father-headed family may, in all the circumstances, not be in the best interests of a child. I think it is inappropriate that we seek to prohibit such possibilities in legislation, but I do express my strong conviction that assisted reproductive technology services should include appropriate assessment and counselling processes to ensure that the best interests of the child are considered.

In relation to the amendment put on file by the Hon. Ian Hunter, I look forward to hearing the honourable member's explanation at the second reading and committee stages, and I will consider that clause at greater length in the committee stage.

The Hon. CARMEL ZOLLO (15:40): My contribution will be brief. I support the general thrust of this bill; that is, the need to update the legislation so that it meets the needs of South Australians requiring assisted reproductive treatment into the 21st century and, in particular, to ensure that our legislation is consistent with a national regulatory scheme. The minister has already explained the legislation and I do not think it is necessary for me to repeat the explanations in the bill, but I want to place on the record that I do have a couple of concerns that relate to the best interests of the child.

I agree with the Hon. Dennis Hood that the best interests of the child should remain the paramount consideration, as is currently the case in law. I do not believe that enshrining in law that a deceased person's sperm can be used, as well as allowing IVF access irrespective of relational considerations, as has been flagged in an amendment of the Hon. Ian Hunter, is something that necessarily meets the best interests of the child.

Having said that, I would be the first to agree that there are very many happy and well-adjusted children who are brought up by single mothers, and no doubt some brought up by couples of the same sex in what can only be described as loving circumstances. However, I do not think we should resile from the fact that it is wrong to start with a premise that it is okay to purposely bring a child into the world knowing that they will not have a father; not because circumstances have dictated it to be the case, but purposely so. As this legislation requires a conscience vote, I will reserve my right to consider the amendments as they are put.

The Hon. I.K. HUNTER (15:42): I rise to voice my support for the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Bill 2008, and to indicate that I will be moving an amendment to the legislation, which I will outline presently. Our current laws date from 1988 and were created in a world where in-vitro fertilisation was a relatively new technology and where assisted reproductive treatment was an unusual way to form a family. Because this was a new technology when the act was written, the legislation was, by today's standards, overly cautious. A tentative approach was taken because the legislators of the day did not know what the technology might yield into the future.

However, science, technology and society have progressed in the past 20 years, and the controversies attached to in-vitro fertilisation in those early days seem largely inconceivable today (if members will excuse the pun). We all know of family, friends or colleagues who have accessed this technology to have their longed-for baby, and we now know that assisted reproductive technologies are not something that we need to be as cautious about, as is the old act.

As I have said, since that time technology and social values have changed, and it is therefore necessary for the legislation to similarly evolve to ensure that it reflects those changes. Likewise, changes at a national level mean that in the current circumstances there is some duplication in systems that can easily be removed for the ease of practitioners and consumers. Additionally, aspects of the legislation have been found to be in contravention of federal legislation and are no longer applied. So there are many reasons for updating this legislation.

Under the existing legislation there is a requirement that women accessing assisted reproductive technologies be married. This excluded not just unmarried women but all lesbians seeking treatment. However, in 1996 the South Australian Supreme Court found that this was contradictory to the commonwealth Sex Discrimination Act 1984, and, ever since, marital status or sexuality have not been used to determine whether women can access this technology. This current bill reflects that reality.

A national framework for ART was established in the mid 1990s, and this framework in parts overlapped with current state legislation and in some parts contradicts the current act. Reforming the act brings it into line with the national framework, and this bill is a very sensible step in making sure that the state and national objectives align. From a practitioner's viewpoint this bill represents a logical step and will mean that scientists and clinicians are working under only the one set of guidelines, simplifying their day-to-day work.

Further, the bill brings in aspects of current practice set by industry standards, showing a genuine reflection of industry practice, which is always desirable. Under this bill, the conditions for which invasive treatment will be allowed will be extended to situations where there is a risk of transmitting a serious disease or illness, where it was previously used only in instances where there was a risk of transmitting a genetic defect. This is another sound step and will be of particular importance to fathers, for example, with HIV. In such instances, 'sperm washing' is a very successful technique, ensuring that the virus is not transferred to the child.

Another sensible inclusion in the legislation is the provision for regular reviews. The current act has not been reviewed in more than 20 years and, as we see with the current legislation, that is too long to go without reappraisal. The heart of this bill—and what we must not forget in this debate—is about creating families. The welfare of the woman and of any subsequent children have been made the No.1 priority. Not all families can be formed in the usual way. Sometimes for a variety of reasons nature needs a hand to ensure that dreams of having a family can come true.

I am at a bit of a loss to understand why Family First has not embraced this provision: it does not diminish the focus on the interests of children in any way but rather adds into the equation the welfare of another necessarily crucial partner and participant in this process—that of the mother. Even though these families might be formed in ways that were unbelievable just a few decades ago, it does not make them any less valid or appreciated. In many of these cases the families created are so hard fought for that perhaps they are more appreciated and more valued, and who would want to deny someone the chance of bringing a child into the world in such circumstances? We see enough instances where children do not seem to be wanted; in cases where they are cherished we should be supporting their arrival. We should be making their way into the world easier for the families who will love them.

Partly to that end I will move to amend clause 8, page 6, lines 1 to 8 (the inserted section 9(1)(c)(i) and (ii)). I will move to delete subparagraphs (i) and (ii) and substitute the following new subparagraph:

(i) if, having regard to all the circumstances of a particular woman, the woman would be unlikely to become pregnant other than by assisted reproductive treatment;

The current provisions in this section determine that ART is accessible for a woman who is or appears to be infertile. Whilst no definition is given of infertility, it is generally given that this section refers to medical infertility only. That excludes single women and lesbians, who are unlikely to become pregnant by any other means but who are not medically infertile in the strict sense. This amendment would create a more encompassing piece of legislation, allowing ART to be accessible to a wider range of women.

As I understand it, in comparable legislation in New South Wales there are no restrictions on who can access this legislation. The South Australian proposed bill is much more restrictive, and in between there is the Victorian legislation that uses the wording that I will be substituting in my amendment. It mirrors the wording of the Victorian Assisted Reproductive Technologies Bill 2008. In his second reading speech, Victorian Attorney-General Rob Hulls referred back to the Victorian Law Reform Commission review of artificial reproductive technologies, which had underscored the Victorian legislation.

With reference to the women who would be included under this Victorian legislation, should my proposed amendments be accepted, he said:

The VLRC reviewed relevant research and was satisfied that parents' sexuality or marital status are not key determinants of children's best interests. Rather, it is the quality of relationships and processes within the families that determine outcomes for children.

As I said, after all it is all about creating loving families, and excluding single women or lesbians from these services in South Australia will not stop them accessing them. I again draw on Attorneys-General Hulls' comments in his second reading speech:

Some people who cannot access treatment in Victoria choose to travel interstate or overseas to places where the law does not prevent them obtaining treatment in a clinic. This leads to unnecessary expense and inconvenience for the parents concerned and may affect the child's opportunity to make contact with their donor in the future. Others elect to self-inseminate. This means that they do not have access to the benefits of medical checks and mandatory counselling that the clinic system provides.

My amendment is about safety. It means that women do not have to access unscreened donor semen to have a child, nor will they have to travel to New South Wales or Victoria to have their child. It applies to women regardless of their sexuality. Heterosexual or lesbian, why should a woman who wants to become pregnant be forced to seek a sperm donor outside of the ART system, which could provide her with some degree of confidence that the sperm she will be using does not confer genetic abnormalities and does not have the prospect of conferring disease down the track or, indeed, viral infections? What is the point of our passing legislation in this place that precludes a class of women from accessing ART in South Australia if they can get exactly the same service across the border in New South Wales or Victoria?

In summary, we need to be making sure that we are legislating for all South Australians, and ensuring that all South Australians are able to access the services they require in a non-discriminatory way to make their families. I am pleased to be supporting the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Bill and urge all members to do the same.

The Hon. C.V. SCHAEFER (15:51): My contribution will be brief. I find conscience bills both interesting and frustrating. They assume that many of us have skills and knowledge that we, in fact, do not have. We are expected to understand detailed technical and scientific explanations, without the assistance of what would normally be probably a quite feisty debate within our party room and the expertise that shadow ministers and ministers are able to obtain.

Having said that, I suppose it leads one to actually rely on conscience, which I think is a good thing. I think conscience is an indefinable thing. It is what we instinctively believe to be right or wrong as opposed to the programming that we receive, particularly as adults. This bill seeks to abolish the Reproductive Technology Council, abandon the code of ethical practice, change the principles of the act, change eligibility requirements for access to reproductive technology, authorise the creation of a prospective donor registry and allow the posthumous use of sperm in certain circumstances.

The difficulty I have is that it seems to me that science has long surpassed ethics. Scientists and science can do things now which exceed and surpass the basic tenets of humanity as we have learnt and known them. The other difficulty that I have is that this bill, in fact, mirrors the practice of the rest of Australia. So, by not passing it (if that were to be the case) we would be condemning people who wish to use this technology to travelling interstate away from their loved ones and spending extra money.

It fascinates me that we have to reach national standards for road safety, and yet something as difficult as this we pass without really giving it a great deal of thought. My example of technology surpassing ethics and the knowledge of the average person was in the news last week (I think) where British scientists have now created living sperm from stem cells. So, it seems to me that, if we continue to go down the path which embraces technology above that which we think is both human and humane, we do so perhaps at our peril as a society.

In-vitro fertilisation has been part of the accepted lifestyle, if you like, of South Australians for many years. It has been a great comfort to many people (some of whom we know) to be able to access in-vitro fertilisation in its various forms. However, it seems to me that this bill gives greater rights to—and I will quote from the act—'the person to whom assisted reproductive treatment is provided' than it gives to the welfare of the child who is created from this technology.

I am ill at ease with the concept that the rights of the adult are more important than the rights of the child. I am uncomfortable with the view that children are somehow a right of adults, whether they are married or not, whether they cohabit or not, whether there are two obvious parents or not—almost like fluffy toys. It is almost like saying, 'Well, I'm an adult and, therefore, I'm allowed to have a child.' I am not convinced that society is the better for embracing all of the technology that is available to it without very carefully looking at the ethics.

Article 7 of the United Nations Convention on the Rights of the Child states:

The child shall...have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

I think article 7 mitigates what this particular bill is requiring. As I say, I am uncomfortable with my decision and I am uncomfortable with having to make a decision, because I am fully aware that most of the bill simply reflects the practice of other states across the nation. However, I do not think that gives me the right to say, 'Well, it's happening everywhere else and, therefore, it's okay here.'

I have thought long and hard about this. We all had a letter from people, who are the product of in-vitro fertilisation and who are now adults, asking for the right to know who their donor father is. In the end, I agree that that should take place from now on. However, I have a fundamental belief that, if something was legal at the time that it happened, it should remain legal. I almost always do not believe in retrospectivity. I assume that there would have been a number of donors at that time who do not wish to be known and named. So, again, I cannot support that section of the act.

I probably will not vote against the second reading because, as I say, it merely reflects what is already happening. However, there will be clauses which, if they come to us, I will vote against. I will be supporting the Hon. Dennis Hood's amendment and I will, in the end, probably vote against the bill, but I must say that is very much up in the air for me at this stage. I am forced on this occasion, as I say, to follow what is probably more my instinct than my knowledge.

The Hon. DAVID WINDERLICH (16:00): I will be supporting the second reading of this bill, and I am broadly supportive of the bill as a whole although I am open to minor amendments. I think it is sensible, practical and compassionate legislation. These can be difficult areas and difficult discussions because they go to the heart of our deepest beliefs and feelings about love and family.

I do think the welfare of the child should be paramount in these considerations but, speaking as a heterosexual serial reproducer and a person who has been in a very long-term relationship, my perspective is that the welfare of children is dependent on the support given to parents and families and on the skills of parents and families. I do not think the details of reproduction and conception are actually critical to that.

The current legislation, the Reproductive Technology Act 1988, was pioneering legislation at a time when in vitro fertilisation was a very new area of biomedical science. A portion of this bill involves the modernisation of the regulation of this area of science that takes into account changes since that time, including the development of national accreditation, licensing and ethical guidelines.

The areas of this bill that I will comment on further include the expansion of this technology beyond married couples. The original act excluded infertile single women and lesbian couples. The current bill includes them by removing the marital requirement for assisted reproductive technology. I do understand that raising children is a lot of work and it is more work for one person than it is for two, but I do not think we should have a blanket exclusion that denies a single mother the right to have children.

There are times when a single parent, particularly one who goes through some of the thought and reflection involved in accessing this technology, would do a much better job than many married couples, and there are plenty of examples of dysfunctional married couples. I also believe that there are lesbian and homosexual couples that are capable of providing more love and stability and structure to a child than many heterosexual couples.

As I said, I do not think it is the details of the plumbing—the reproduction and conception—that are critical here. It is about the skills and resources of the parents; that is what we should focus on if the welfare of children is indeed our priority. I have emails from correspondents stating that they have been together for 10, 15 and 26 years relating how they want children or the expense and difficulty that they have had to go to in order to have children. I will read from one of those, as follows:

I am a parent in a same-sex family that was created despite South Australia's discriminatory legislation, and I am one of the lucky ones; I did not catch any diseases from a donor. Others are not so lucky. Our families will be created despite discrimination; it is up to you whether we do it with safety or with risk.

Correspondents have pointed out to me that South Australia is the last state to pass such legislation. Another correspondent highlighted the contradiction in our approach in this area—the exclusion of same-sex couples—and other legislation, saying:

...the state 'permits' and encourages me to be a foster carer to children within the alternative care system. However, the same state legislates against me in that I am not able to access reproductive technology. On one hand I am deemed a safe and fit parental figure for children with often extremely abusive and traumatic family lives with this abuse and trauma largely being inflicted by heterosexual parents. On the other hand the same state is sending a clear message that I am not an 'appropriate' person to bring a child into the world and so should not be allowed to access reproductive technology.

I find that quite a powerful illustration of the contradiction because it focuses on what I was saying before. The issue of the reproduction of the child outweighs what I think is the much more important question of the quality of care.

An earlier email that I read out referred to the risk of disease. The original act allowed the use of technology when there appeared to be a risk that a genetic defect would be transmitted to a child conceived naturally.

This bill would broaden the use of technology beyond the risk of genetic defect to include the risk of serious diseases or serious illness transmission. I have been contacted by a number of constituents who identified this as an important issue. They informed me that couples are being forced to travel interstate for treatment or they are undergoing backyard inseminations, in effect, with sperm that has not been screened for disease or genetic defects. One correspondent says:

I had my first child using donor sperm, and inseminating myself, with the support and professional advice of my doctor, but in future I would like to have access to safe, medical practices. I know of a number of female couples who have left the state in order to start a family. I think it's about time South Australia 'stepped up' and supported couples and families who would benefit from this bill being supported.

Another correspondent writes:

Under the current law these families have to either travel interstate every month for treatment or alternatively undergo risky procedures at home with donor sperm that has not been medically screened to rule out infectious diseases or genetic disorders. Such...do it yourself procedures may also lead to future custody cases if prior agreement between a donor and a recipient family breaks down. In short, these options potentially endanger the health of the mother and child, as well as putting enormous financial and emotional pressure on the family.

So, in effect, people will seek to have children through ART methods, and we can have either a backyard situation or a regulated one. The bill would also allow for the sperm of a male donor who has died to be used (if the donor had consented to the use of his semen) for the benefit of the woman who was living with the donor on a genuine domestic basis. Again, this is not an ideal situation. It seems a remote possibility, and it is psychologically complicated. The emotions around a child born in these circumstances would be bittersweet. However, this does happen.

Last year, I heard the Reverend Andrew Dutney, a wellknown theologian and media commentator, and a member of the South Australian Council on Reproductive Technology, describe situations just like this. Just because these situations are rare and difficult does not mean to me that they should be prohibited. Care needs to be taken and there needs to be strict regulations, counselling and time for reflection by the prospective parent, but I cannot really see that this kind of circumstance should be outlawed.

The bill enables access to ART for future infertility as a result of a medical condition, disease or medical treatment. Again, I think this is sensible. I think that some of the critics of this legislation identify concerns, which I share, about the risks of co-modifying life and scheduling things such as families and fitting them in around other things in your life. I have some difficulty with those notions, but the variety of circumstances under which people have children and begin families are very diverse. I do not think we can have a 'one size fits all' model that prohibits the use of compassionate discretion in terms of access to assisted reproductive technology.

This bill sets in train a process that will enable people to access information about their genetic parentage through a yet to be established donor registration program to be approved by the Minister for Health. Again, this is another very difficult area. I have an open mind on how we approach this. I think there are very strong competing interests. I am inclined to support it at this stage but, as I have said, I will listen to the arguments.

One correspondent has raised an issue, and I am not clear about whether the bill addresses it. It is to do with the relationship between the changes outlined in this bill and custody matters. In their email, the correspondent says:

When we began our family in 2008 with no fertility issues we were not able to access treatment and did not have the funds to travel interstate or the work flexibility. Therefore we used a known donor and used DIY. Since 2008 we have had 3 children now aged 10, 8 and 2 years. In 2006 our donor decided to change his mind and is now fighting us through the federal magistrates court to access to the children under the law amendment of 2006. He has so far walked in and has gained access every 2nd Saturday, separating our children (our daughter goes in the morning and our sons in the afternoon), our eldest son now is high risk for depression and is desperate for this to stop. The children have known their family all their lives to be two mums who have worked well in our community—school and social.

I have no idea of the rights and wrongs of this case, but it raises an important question about how these reforms might relate to custody issues. I feel we often deal with some unattractive legislation in this place. We have bills that are publicity stunts, bills that strip away rights or bills that play on and build on fears held in the community. This bill is complicated. It raises difficult questions, but it is practical, compassionate and sensible. I am struck by how it is the result of close listening to people and careful reflection about their real needs and emotions. It is the sort of legislation that suggests that parliament and politics have a useful, positive and enlightening role to play in life.

As I said before, these questions raise issues about our deepest beliefs about family, love and the forms they take, but I do not see this as in any way contradicting a priority on the welfare of children. The welfare of children is best addressed through the resources, support and skills of parents. It is not a matter for the details of reproduction and conception. I think we are confusing biology with sociology and, in terms of looking after our children, we must focus more on the sociological aspects: how families relate to each other and how well parents are supported and trained to do their job. If we really have fundamental concerns about the welfare of children in this context, they are probably best addressed in decision making through expanding counselling and so forth and not through blanket prohibitions on the ways in which people can form families.

The Hon. B.V. FINNIGAN (16:11): I rise to contribute briefly to the debate on the bill. This bill largely updates the practice of assisted reproductive technology in the state—or updates the legislation with practice, particularly in relation to some national guidelines that were developed to reflect judicial decisions. The bill envisages the abolition of the Reproductive Technology Advisory Council. I would like to place on record my appreciation of the many people who have served with distinction on that council over the years of its existence. As honourable members have indicated, this was a fairly complex and controversial area of medicine when it began, and the people who served on the council played an important role in guiding the ethics and practice of ART in this state.

I associate myself with the remarks made by my colleagues the Hon. Mrs Zollo and the Hon. Mrs Schaefer in relation to certain principles they think are fundamental when we look at this matter, namely, that the rights of the child ought to be paramount; that we have to ensure that children are not considered a right or commodity; and that it remains the ideal that children know both their parents. As honourable members have indicated, that is no reflection on the many fine single parents, same sex parents and those who may be raising a child where the father has died during gestation or not long afterwards.

There are many examples of loving families and very dedicated parents in all those circumstances, but we need to make an ethical judgment about the ideal that guides our legislation in this regard. There is no doubt that the question of the use of posthumous sperm is a very difficult one, in that there are people in that circumstance who want to reflect the love that they shared with their deceased partner through having a child, and it is very difficult to make a judgment about that. Again, I am not convinced that it is in the best interests of the child to have a predeceased father from the beginning. On that basis, I oppose that measure.

I support the amendment of the Hon. Mr Hood in relation to the wording regarding the rights of the child being paramount, and I oppose the amendment of the Hon. Mr Hunter in relation to expanding the use of this technology. I reserve my position in relation to the final bill, depending on how it shapes up in the committee stage.

Debate adjourned on motion of Hon. T.J. Stephens.

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