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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-08 Daily Xml
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REPRODUCTIVE TECHNOLOGY (CLINICAL PRACTICES) (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clauses 1 to 6 passed.

Clause 7.

The Hon. D.G.E. HOOD: I move:

Page 4, lines 3 to 9 [clause 7, inserted section 4A]—

Delete inserted section 4A and substitute:

4A—Welfare of child paramount

The welfare of any child to be born as a consequence of the provision of assisted reproductive treatment in accordance with this act must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of this act.

This amendment seeks to essentially bring the bill back to what it was prior to the introduction of the government's bill. I will read out a section of my proposed amendment as follows:

The welfare of any child to be born as a consequence of the provision of assisted reproductive treatment in accordance with this act must be treated as being of paramount importance, and accepted as a fundamental principle, in respect of the operation of this act.

The difference in the bill as it currently stands, as presented by the government, is that section 4A of the bill talks about both the person who is undergoing the reproductive treatment and the child being of fundamental importance. My amendment seeks to essentially hold the status quo; that is, maintain that the current situation is that the welfare of the child should be of paramount importance. That has been the case since we have had reproductive technology legislation.

There are a number of reasons for moving this amendment today. The first one is simply that I think whenever there is a change sought by a group, whether it be a government, as in this particular case, or any group, they need to make that case for change; that is, the onus is on those seeking the change. I do not believe that that test has been met in this particular case.

Where is the case for change in this instance? Why should the children no longer be considered the sole paramount consideration as my amendment proposes and, indeed, as the law is currently?

However, that is not the only reason I have moved this amendment today: there are a number of other reasons. The second reason is that, when an adult goes into any assisted reproductive technology process, they go into it with their eyes wide open; that is, as an adult, they understand what are the implications and consequences of their decision, and they have an opportunity to consider all the pros and cons and to make a decision based on that assessment. However, children often do not have that opportunity. In the case of assisted reproductive technology, they certainly do not have that opportunity.

Furthermore, if the act is amended in the way the government seeks, as the bill is presented we would see the actual proposal run contrary to a number of United Nations Conventions on the Rights of the Child. Indeed, article 3 of the United Nations Convention on the Rights of the Child 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.

Article 7 states:

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

Furthermore, section 60CA of the Family Law Act 1975 provides:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Section 60CC provides:

In determining what is in the child's best interests...The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both their parents.

Furthermore, section 4 of the Children's Protection Act 1993 requires that Families SA focus on:

the child's wellbeing and best interests as the paramount considerations.

There are a number of other bodies, as we have heard in this debate, including the United Nations itself, the commonwealth Family Law Act, the Children's Protection Act, etc., all of which state that the welfare of the child should be the primary consideration. That is the law as it currently stands. I do not believe that the case for change has been made in any way, shape or form—certainly not to my satisfaction. The question is: why should that be changed, and why should we include the welfare of the parents as being of equal and fundamental importance? I do not believe that should be the case, and for that reason I have moved this amendment to maintain the current situation, should this bill pass.

The Hon. G.E. GAGO: The government believes that this amendment makes a positive contribution to the bill. The government supports the amendment.

The Hon. S.G. WADE: Can the minister expand on the statement that the government believes it makes a positive contribution? What remedy is sought to be addressed by this amendment and what change will be produced.

The Hon. G.E. GAGO: I should correct what I have said. The government does not support this amendment. It is a conscience vote, so the government does not have a view. However, I indicate that I support this amendment.

The Hon. S.G. WADE: I was not asking the minister to comment on Mr Hood's amendment; I was asking the minister to comment on the clause which Mr Hood's amendment would knock out. Why did you include that clause?

The Hon. G.E. GAGO: This particular clause was included on the advice of the South Australian Council of Reproductive Technology that the welfare be extended to all parties. I have indicated that I support the Hon. Dennis Hood's amendment, which has the effect of emphasising the welfare of the child and does not diminish the entitlements or conditions of other parties. In that respect, it enhances the bill.

The Hon. CARMEL ZOLLO: As previously indicated in my short second reading contribution, I support the Hon. Dennis Hood's amendment, in that I believe it does put the best interests of the child first.

The Hon. D.G.E. HOOD: I thank the minister for her contribution and her position on that. I am grateful also to the Hon. Ms Zollo and others who have indicated their support, privately or at other times.

Amendment carried; clause as amended passed.

Clause 8.

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

Page 6, lines 1 to 8 [clause 8, inserted section 9(1)(c)(i) and (ii)]—Delete subparagraphs (i) and (ii) and substitute:

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

Essentially, the amendment is to change the requisite conditions for treatment at a South Australian clinic from that of medical infertility to a situation whereby in a doctor's opinion a woman is unlikely to fall pregnant without ART. I advise the chamber that this is essentially a direct lift from the Victorian legislation, albeit phrased in the superior language of the South Australian parliamentary counsel. The effect is to make the bill less restrictive so as to allow women who want access to donor sperm to have some confidence in that sperm not being able to cause a genetic defect or to pass on a viral infection.

I will not repeat my second reading speech, but I will summarise by saying this: the class of woman affected by my amendment, i.e., those not classified as medically infertile, have access to ART under similar legislation in Victoria, New South Wales and the ACT. If my amendment is not successful it will mean that these women will not be precluded from accessing sperm through clinics in other states but will be precluded from accessing that very same treatment in South Australia.

Women who want to become pregnant via ART will then either have to travel interstate for that treatment, at great cost and inconvenience, or be forced to use the old method of turkey baster insemination at home using sperm that they have obtained in some fashion, and that is, of course, sperm not screened by a clinic for genetic problems or, indeed, for the transmission of a virus.

I do not believe that we should be in the business of denying women the ability to use safe donor sperm in South Australian clinics which they could otherwise access interstate. I, for one, would much prefer to see that children born via insemination are free of possible genetic disorders or viruses, like HIV or Hep C, or that, in the alternative, women are not forced to travel interstate (frequently and expensively) to access this treatment.

Finally, the Hon. Mr Lucas made some comment in his second reading contribution, I think alluding to my foreshadowed amendment, about the cost of ART and the amount of public funds that are used in the provision of such a service.

My advice is that for infertile women the amount of public funding is substantial, but that has no bearing on my argument. My advice is that, for non-clinical circumstances, to which my amendment leads (that is, for women not considered medically infertile), that woman is responsible for the full cost of treatment, so my amendment would have no effect in terms of public funding of that treatment.

The Hon. G.E. GAGO: I support the Hon. Ian Hunter's amendment. I have a particular personal commitment to this amendment. The amendment removes the requirement that a woman must be clinically infertile in order to access ART. The amendment seeks to require that consideration be given to the individual circumstances of a woman seeking to access ART so that access is not based only on clinical (that is, medical) infertility.

The Hon. Mr Hunter's amendment makes it possible for single and lesbian women to access ART. I wholeheartedly support this approach, as does the commonwealth Sex Discrimination Act and other areas of Australia. I remind members that other Australian jurisdictions, including Victoria and Queensland, do not preclude the use of ART by single or lesbian women. As a former health care professional, I am committed to ensuring that women have access to safe, quality fertility and medical services. Currently, women wanting to have children and who cannot access ART may—and we are aware that at least some do—engage in unsafe practices in order to become pregnant. This should not occur, and it is very easily avoided.

This is a bill about making family life possible, and it is inequitable to exclude women who genuinely want children just because they do not conform to outdated ideas of what families should look like or who should be raising children, because they are the issues that are usually raised when debating the consequences of this provision.

There is no evidence that single parents and gay couples do not provide loving and nurturing homes for children. Australian research into single parenting tells us that single parent households are increasingly common. In fact, they are the fastest growing type of family in Australia. There is little evidence to support the assumption that children are disadvantaged emotionally by being raised by a sole parent. Indeed, research tell us that the quality of care received by a child matters far more than who provides it.

A study by the Urban Institute Think Tank and the Williams Institute at the UCLA School of Law concluded that gays and lesbians are a great untapped parenting resource, considering that 500,000 children are in foster care across the United States and an estimated 2 million gay, lesbian and bisexual people are interested in adopting.

The study, based on 2000 census data, states that same sex couples who are raising adopted children are more educated, older and have more economic resources than other adoptive parents. Past studies on how children fare with gay, lesbian and bisexual parents have found no negative consequences, according to the Urban Institute report. Others also note that there is no major difference in parenting or child development between families headed by lesbian or single heterosexual mothers.

A study by the American Academy of Pediatrics found that children who grow up with one or two gay or lesbian parents fare as well in emotional, cognitive, social and sexual functioning as do children whose parents are heterosexual and that a child's optimal development seems to be influenced more by the nature of the relationships and the interactions within the family unit than by the particular structural form that they take.

The American Psychological Association as well notes that three decades of research shows that children of gay and lesbian parents are just as mentally healthy as children with heterosexual parents. The USA National Longitudinal Lesbian Family Study was, I am told, the longest running study ever conducted on American lesbian families and was published last year.

The study followed planned lesbian families with children conceived by donor insemination since 1986. The study found that discrimination is more likely to harm children than the sexual orientation of their parents—a lesson for us all. Australian research supports this finding. This is obviously real food for thought.

We should not encourage discrimination of any kind. We should be working towards embracing and accepting all kinds of families. I remind members that in this place we recently passed amendments to the Equal Opportunity Act, and I think we all agreed then that discrimination was wrong; however, I believe that this bill, as it stands, allows for discrimination to occur. I am pleased to support the bill and the amendment of the Hon. Ian Hunter.

The Hon. S.G. WADE: I have a question for the minister about how the bill would operate if it were amended in the way in which the Hon. Mr Hunter suggests. In her second reading explanation, she said:

I stress the stringent requirements in this portion of the bill. I believe that 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 social, legal and psychological issues are explored and addressed prior to anyone having treatment.

Is a potential parent's suitability to be a parent assessed as part of the screening process for ART? Would an unsuitable set of parents be excluded from ART?

The Hon. G.E. GAGO: The short answer is yes to both questions: counselling, screening, etc. occur and unsuitable parents can be excluded. However, access to treatment is based on the proposed conditions of the bill, and clinics would not, as stated, be legally able to refuse someone on the ground of sexual orientation. So, it is consistent.

The Hon. S.G. WADE: I would like to take a different approach to that of the Hon. Ian Hunter and the Hon. Gail Gago. In my second reading contribution, I highlighted that, in considering this bill and the amendments to it, I was determined to give primacy to the welfare of the child. In this regard, I have had to balance two elements: first, I needed to consider the relevance of the family context of the commissioning parents to the interests of the child.

Some contributions suggest that, by definition, to allow a child to be conceived in a non-traditional family is not in the best interests of the child. As a Christian and a Liberal, I have profound respect for the traditional family, and I am old-fashioned enough to expect that, in most cases, a family headed by a mother and father is more likely to be in the best interests of the child.

However, I do not consider that, by definition, other family models cannot be in the best interests of the child. Therefore, I do not consider that non-traditional family models should be legislatively prescribed under this legislation. I reiterate my strong desire that assisted reproductive technology services should have high quality assessment and counselling support that can look out for the best interests of the child.

The second aspect in considering the best interests of the child in this bill and in this amendment is the risk of not providing children with the protections available under the ART framework under the bill. I am very concerned that children being conceived outside the framework of the bill are not being provided with a range of protections. For example, they would not be given the protection of the assessment and counselling services, they would not be given the protection of the full medical support of ART services and they would not be given the protection of screening to avoid the transmission of sexual diseases and genetic conditions.

There are family models I would find challenging but, particularly because they are challenging, I think it is important for the sake of the welfare of any children who might be conceived in these family models that these children have the protection of the act. Accordingly, on the ground of the interests of the children, I will be supporting the amendment of the Hon. Ian Hunter.

The Hon. D.G.E. HOOD: I will be opposing the amendment and I would like to make a couple of points about that. In the minister's second reading explanation she outlined the government's position on the bill, being a government bill in the first place, and said:

Access to treatment is still based on clinical need.

That is the intention of the bill and, obviously, as the Hon. Mr Hunter has himself said, this amendment will take the bill outside that scope and it will expand ART services to those who do not have a clinical need, as such—that is, they are not clinically infertile. That is the first reason to oppose the amendment—that is, it is not within the intention of the bill itself. I will read the Hon. Mr Hunter's amendment for members' interest. It states:

...if, having regard to all of the circumstances of a particular woman, the woman would be unlikely to become pregnant other than by assisted reproductive treatment—

meaning, of course, that she may not necessarily be infertile but there may be other facts which would mean that she would not have access to IVF services.

We have focused mainly on the lesbian issue in the debate so far: that is, should lesbians have access to IVF? The problem with the amendment, as I see it, is that it is not just about lesbian access to IVF: it is much broader than that. Potentially, for example, we could have a situation (some people may feel that this is an acceptable situation; others may not), certainly on my reading of this amendment, where women in prison could argue that their circumstances dictate that they would not normally be likely to become pregnant.

Should this amendment pass, they would then qualify for assisted reproductive technology services. We do not have conjugal visits in South Australia and, as a result of that, it is virtually impossible for a woman in prison (a convicted criminal) to become pregnant and, therefore, she would qualify—according to the advice I have been given and on my simple reading of this amendment—for assisted reproductive technology services under this amendment. The question is: is that what people want?

The list could go on and on. Potentially, we could have a situation where, because there is no age limit, very elderly women could seek reproductive technology treatment under this amendment. For those who think that is unlikely, I have a clipping here from the Mail Online of 14 July about a 72 year old woman in the UK who is accessing assisted reproductive technology treatment over there. Her reason for not falling pregnant by normal means is that she says she has never had a long-term relationship, so this would include people like her.

I have been advised that celibate people, for example, would qualify for assisted reproductive technology services under this amendment, or people who may consider themselves to be too busy for a relationship. It is a very wide net we are casting with this proposed amendment. I am not sure whether that is the intention of the mover but I am sure he will comment on that. However, I think the bill, as it currently stands, deals with a specific condition—and that is infertility. Somebody who is trying to have a child and is unable to have a child has a medical avenue to pursue in order to assist in that regard. However, this amendment casts the net very wide, indeed, and I will not be supporting it.

The Hon. CARMEL ZOLLO: I mentioned in my second reading speech that I did not believe the Hon. Ian Hunter's amendment would necessarily serve the best interests of the child. I have heard the debate thus far and I will not be able to support this amendment. It is a conscience vote, so I thought I should place that on the record.

The Hon. J.S.L. DAWKINS: The first thing I would like to observe in relation to the amendment is that the Hon. Mr Hunter is sincere and consistent in his wishes for this legislation (similar to what he wished to do with the altruistic gestational surrogacy measure that I have had in this chamber, and still have in the House of Assembly), so I give him great credit for that. However, I believe I have also been consistent in my views throughout that debate on issues such as this.

Like the Hon. Mr Hood, I think this bill is about technology to help people who are infertile. We should remember that the definition of infertility relates not just to people who cannot conceive naturally but to many others who can conceive naturally but cannot then carry the child. They are also regarded as infertile in the terminology used for this bill. Having made those remarks, I indicate that I cannot support the Hon. Mr Hunter's amendment.

The Hon. J.M.A. LENSINK: I will not be as eloquent as the people who have preceded me but I do see that this is an important health protection measure and, if we are to err on one side or the other, we should err toward the best interests of health for the child and the mother; therefore, I will support this amendment.

The Hon. A. BRESSINGTON: I indicate that I will be supporting this amendment. We seem to be living under the misconception that heterosexual couples have got all this right. We have a high divorce rate; we have abused children under the care of heterosexual parents; we have a myriad of social problems, all of which indicate that the best interests of the child are not going to be any further affected by extending reproductive technology to same-sex couples. I would like to remind members in this place that same-sex couples are becoming impregnated by most unhygienic and primitive means. We are talking about people's health and welfare and, as well as the best interests of the child, we should be taking into consideration the fact that these practices are going on now. We are using turkey basters, instead of medical technology with its safeguards.

I think this debate is old. The other night I watched a movie called Milk, which was about the beginning of the gay lobby movement, and I was surprised that the arguments put forward against gay rights way back then were exactly the same. The arguments put forward then are the same now; nothing has changed. We have continued to resist moving forward and accepting the fact that homosexuality is (I believe) actually a part of nature. Homosexuals have been discouraged from coming out and owning their sexuality because of social pressure; we are now moving into a time when more and more people are owning that, and I believe they deserve the right in our society to enjoy the possibility of having a family, and to live as much of a normal (if you could call it that) life as possible, without all the prejudice and discrimination they have had to face for all these years.

It is time for this debate to be over. I urge members to put their personal views aside and look at this as a whole of society issue that needs to be addressed.

The Hon. I.K. HUNTER: If there are no further contributions—

The Hon. R.I. Lucas: That's not necessarily so; you don't close the debate.

The Hon. I.K. HUNTER: I am not presuming that, Mr Chairman, but no-one else has stood up, so I will speak before you put the amendment. I thank those members who have spoken so far on my amendment. I would like to say, in respect of the views expressed by the Hon. Mr Hood, that lesbians and single women have access to ART now under the existing legislation; lesbians and single women will have access to ART should the bill before the council pass without my amendment. The difference is that only lesbians and single women who are medically infertile currently will have access to ART. The situation I am seeking to reflect is the one that pertains now in Queensland, New South Wales, Victoria and the ACT, whereby the consideration of medical infertility is too restricting, and to open it up to those women who would otherwise, in the opinion of a doctor, be unable to fall pregnant.

The Hon. Mr Hood (as is his wont) gives some extreme examples—old age or some age limit, or that prisoners may access this treatment—to try to show that my amendment is open to abuse. I do not think that is right. The fact is that anyone who wants to access this treatment must still go through the stringent counselling and screening procedures, and also meet the requirement we have just passed—an amendment moved by Mr Hood—that the provision of treatment be in the best interests of the child. If all those boxes are not ticked you will not have access to the treatment, so to say that women in prison or very old people will naturally get a leave pass to access this treatment is just wrong.

Mr Hood says to us that we are casting a very wide net with this amendment. I say, respectfully, that he is drawing a very long bow.

The Hon. D.G.E. HOOD: I need to respond to that. There is no doubt at all that, in the reading of this amendment, the examples I gave are correct. The Hon. Mr Hunter may have a different view—and that is fine; he is entitled to do so—but the advice I have, and the plain reading of the amendment, is that the examples I gave are legitimate and that those people would have access, subject to the safeguards in the bill (as Mr Hunter points out). Subject to those other considerations in the bill, they would indeed have access, should this amendment pass.

The Hon. R.I. LUCAS: I would like to ask a question of the minister. Is it the government's position that the bill, as introduced, is a government bill and the party vote and any amendments are a conscience vote for members, or is it a conscience vote in respect of the whole legislation and the amendments? I understand that the minister herself may move an amendment. If the amendments proposed for this bill are part of the conscience vote for government members, does that extend to the minister's own amendment?

The Hon. G.E. GAGO: I thank the honourable member for his question. The whole bill is a conscience vote for government members. It has been tabled under government business, and permission has been given to table this legislation but with the provision that it remains, in its total form or parts thereof, a conscience vote for all government members. I am tabling this and debating it on behalf of the government, but it is a conscience vote. The bill itself is a conscience vote, or parts of the bill are a conscience vote, and all amendments are subject to a conscience vote.

The Hon. R.I. LUCAS: Just to clarify that; given that the Hon. Mr Hood's amendment was supported earlier by, I think, all members in this chamber—

The Hon. S.G. Wade: I think it was on the voices with no division.

The Hon. R.I. LUCAS: Okay; so the majority of members supported it without a division being called. Given that that is now to be part of the proposed legislation, can the minister clarify the specific level or position of the officers (not their names) who make the difficult judgment about the prospective cases that the Hon. Mr Hood has raised, and to which the Hon. Mr Hunter has responded, in terms of the best interests of the child? Specifically, what is the nature and position of the individuals who have to make decisions in relation to who may or may not access the treatment under this proposed amendment?

The Hon. G.E. GAGO: I have been informed that those decisions about the welfare of the child are made via a team approach—of those who provide the service—and that includes counsellors, clinicians and their medical director. They are required to abide by the NHMRC ethical guidelines, and the clinics themselves have to be accredited and meet certain requirements and standards.

The Hon. R.I. LUCAS: Can the minister indicate whether this is a constituted panel comprising those persons who formally vote on it? One can imagine that there may well be conflicting views on occasions about what is in the best interests of the child. So, if there are differing views, how is that conflict resolved? Is there a majority vote of all those people indicated by the minister on a panel, or does one particular individual have the final say in terms of what is in the best interests of the child?

The Hon. G.E. GAGO: I have been advised that we are proposing that any disputes within the team—that is, between counsellors, clinicians and the medical director—that might occur in relation to these decisions will be dealt with by a clinical ethics committee, which will be prescribed in regulation.

The Hon. R.I. LUCAS: If we can work through the example that I outlined, where there is a difference between the clinicians, the counsellors and the medical director—if that is the correct title—as to whether or not it was going to be in the best interests of the child for this particular individual to have access to the treatment: the minister is now saying that that will go to an ethics committee, which I assume at this stage has not been prescribed. Can the minister indicate the nature of the ethics committee and who would sit on it? Secondly, I assume the minister is indicating that the decision of the ethics committee—however that is constituted—would be the final decision as to whether or not an individual accessed the treatment.

The Hon. G.E. GAGO: I am advised that it is intended that the clinical ethics committee would act as an appeal mechanism to resolve those disputes from the service providers. So, if there was not a unanimous decision, appeals would be sent to the clinical ethics committee. In relation to who would be on the committee, we intend to develop guidelines around that. We are considering the types of skills and expertise that might be needed, and the degree of independence would obviously be an issue for consideration. We have given a commitment to consult broadly to assist us in putting those guidelines together.

The Hon. R.I. LUCAS: I thank the minister for that detail, but I guess it does leave members—or certainly myself—a little unclear as to what this process is. The minister has made it clear that, unless there is a unanimous position, it will be referred to the clinical ethics committee, so that resolves one issue. If there was a strong vote, if I can put it that way, to allow a service and a minority vote from one of the service providers—so if there is not unanimity, as the minister has indicated, it would be referred to the clinical ethics committee. I thank the minister for the clear assurance given to the committee.

Given the significance of the issues being raised by way of the Hon. Mr Hood's previous amendment (which was successful) and the questions that he raised, from my viewpoint, it certainly would have been preferable to actually see in the legislation exactly how this process is to operate. It is easy to say that this will be done in the best interests of the child, but who will make that judgment? It must be seen to be a fair, reasonable and impartial process in relation to these judgments, and the prisoner example and the 72 year old female example will have to pass muster—if I can use a colloquial expression—in terms of this assessment. If it is not a fair and reasonable process, that is no assurance at all, and the intentions of the amendment, the legislation and the assurances given in the chamber count for precious little. It certainly would have been preferable to see some of these assurances in the legislation, but that is not the case, and I hope not to delay the passage of the legislation.

The minister has given an assurance in relation to unanimity, and I thank her for that. However, in relation to the construction of the ethics committee, there is precious little detail at this stage as to how that might be comprised.

In the first instance, I ask the minister to give an assurance on behalf of the government that all the members of the clinical ethics committee will be completely independent and have no role at all in the initial decision-making and discussions. In other words, it is the counsellors, the medical director and the clinicians who will be involved in the first decision-making process where unanimity cannot be achieved and would be part of what is meant to be the independent ethics appeal process that the minister is proposing.

The Hon. G.E. GAGO: I have been advised that the guidelines for the composition of the ethics committee have not yet been developed. We have certainly given a commitment to consult broadly in relation to who would be best placed to sit on that committee. We are certainly committed to consulting with the sector generally and also the South Australian Council of Reproductive Technology. We need to be mindful that there are probably very few people in the field who have a high degree of technical expertise in this area. I think that, until we have consulted and drawn up the guidelines, that process is a fair and reasonable way to proceed and that it will ensure that we protect the interests of the child and ensure that the best possible decisions are made.

The Hon. J.S.L. DAWKINS: Further to that, my understanding is that the bill we are debating will abolish the Council of Reproductive Technology and that it will be replaced by what I understand will be an ethics committee based on the health advisory committee model that now exists around this state under this government. Can the minister clarify whether that ethics committee is different from the clinical ethics committee to which the minister referred when answering the questions asked by the Hon. Mr Lucas?

The Hon. G.E. GAGO: I have been advised that the honourable member is right; that is, that we propose to remove the South Australian Council of Reproductive Technology and replace it with a health advisory council. The advice I have received is that it will not be the same beast as the clinical ethics committee that I have outlined in relation to assisting in dispute resolution or the appeals mechanism for decisions about welfare suitability.

The Hon. B.V. FINNIGAN: Just for the sake of completeness, perhaps I should put on the record that I oppose this amendment, which I think I indicated in my second reading speech. I do not see that it is appropriate that we extend assisted reproductive technology beyond those who are medically infertile.

I know some have talked about the fact that there are single parents and same-sex couples raising children and doing a good job of that, and I think I also said in my second reading that that is undoubtedly the case. I do not think anyone is suggesting that the traditional nuclear family, or whatever way you want to describe it, of a mother and father is the only way in which children can be brought up successfully, or that they have a monopoly on love or caring or anything else. However, I think we need to consider what is the ideal and what is in the best interests of children generally.

Once we accept the principle that ART should be extended beyond the infertile, I think that would lead us to a position where anyone who wants a child and is prepared to love the child should therefore be able to access ART. I am not suggesting that the Hon. Mr Hunter's amendment does that on this occasion, since it is still looking at people who would otherwise be unlikely to conceive, but I think that is the ultimate end point of accepting that proposition. I oppose the amendment.

The Hon. R.I. LUCAS: I note from the minister's response to my last question that she was unable to give the assurance that I sought, and that was that the clinical ethics committee composition would be completely independent from those who had already been involved in the process. I invited her to do so, and she gave an answer which did not give that undertaking. I can only assume, therefore, that the government will keep open the option that it will not be completely independent from the earlier process. I think that is the only logical conclusion one can reach from the minister's response to that question.

I indicated in my second reading contribution that I would listen to the debate on the Hon. Mr Hunter's amendment. I indicated that I was more unlikely to support the Hon. Mr Hunter's amendment than likely. Having listened to the debate, I have not been convinced by the Hon. Mr Hunter's argument or, indeed, those who support it, and I will oppose the amendment.

The committee divided on the amendment.

AYES (10)
Bressington, A. Gago, G.E. Gazzola, J.M.
Hunter, I.K. (teller) Lawson, R.D. Lensink, J.M.A.
Parnell, M. Wade, S.G. Winderlich, D.N.
Wortley, R.P.
NOES (11)
Brokenshire, R.L. Darley, J.A. Dawkins, J.S.L.
Finnigan, B.V. Holloway, P. Hood, D.G.E. (teller)
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Zollo, C.

Majority of 1 for the noes.

Amendment thus negatived; clause passed.

Remaining clauses (9 to 14) passed.

Schedule.

The Hon. G.E. GAGO: I move:

Page 12, lines 21 to 37—Delete the Schedule and substitute:

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendments to Family Relationships Act 1975

1—Amendment of heading to Part 2A

Heading to Part 2A—delete "medical" and substitute:

fertilisation

2—Amendment of section 10A—Interpretation

Section 10A(1), definition of fertilisation procedure—delete the definition and substitute:

fertilisation procedure means—

(a) assisted insemination (within the meaning of the Assisted Reproductive Treatment Act 1988); or

(b) assisted reproductive treatment (within the meaning of the Assisted Reproductive Treatment Act 1988).

3—Amendment of section 10B—Application of Part

Section 10B(1)—delete subsection (1) and substitute:

(1) Subject to this section, this Part applies—

(a) in respect of a fertilisation procedure carried out before or after the commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 either within or outside the State; and

(b) in respect of a child born before or after commencement of the Reproductive Technology (Clinical Practices) (Miscellaneous) Amendment Act 2009 either within or outside the State.

4—Amendment of section 10D—Rule relating to paternity

Section 10D—after subsection (2) insert:

(3) Subject to this Act, if a woman undergoes, in accordance with this or any other Act, a fertilisation procedure in consequence of which she becomes pregnant using the semen of a man—

(a) who has died; and

(b) who, immediately before his death, was living with the woman on a genuine domestic basis as her husband; and

(c) who had consented to the use of the semen for the purposes of the fertilisation procedure,

the man—

(d) will be conclusively presumed to have caused the pregnancy; and

(e) will be taken to be the father of any child born as a result of the pregnancy.

5—Insertion of section 10EA

After section 10E insert:

10EA—Court order relating to paternity

(1) This section applies to a child if—

(a) the child is domiciled in this State; and

(b) the child was conceived as a result of a fertilisation procedure carried out in this State; and

(c) 1 or more of the following applies:

(i) the paternity of the child is not able to be determined by the operation of section 10D;

(ii) the operation of section 10E(2) does not reflect the wishes of both the provider of the sperm used for the purposes of the fertility procedure (the sperm provider) and the mother of the child;

(iii) the fertility procedure was carried out in any other circumstances brought within the ambit of this paragraph by the regulations.

(2) The Court may, in relation to a child to which this section applies and on the application of the sperm provider in respect of the child, make an order under this section.

(3) However, the Court must not make an order under this section unless satisfied that both the mother and the sperm provider freely, and with a full understanding of what is involved, agree to the making of the order.

(4) The Court must, in deciding whether to make an order under this section, regard the welfare of the child as the paramount consideration.

(5) In deciding whether to make an order under this section, the Court may take into account anything it considers relevant.

(6) If the Court makes an order under this section, the effect of the order will be as follows:

(a) for the purposes of the law of the State—

(i) will be conclusively presumed to have caused the pregnancy; and

(ii) will be taken to be the father of any child born as a result of the pregnancy.

(b) the relationships of all other persons to the child will be determined according to the operation and effect of paragraph (a).

(7) If the Court makes an order under this section, the Court may make any other ancillary order the Court thinks fit.

(8) In this section—

Court means the Youth Court of South Australia constituted of a Judge.

Part 2—Transitional provisions

1—Existing licensees

(1) A person who, immediately before the commencement of this clause, held a licence under Part 3 of the Reproductive Technology (Clinical Practices) Act 1988 (as in force immediately before the commencement of this clause) will be taken to be registered under Part 2 of that Act (as enacted by this Act).

(2) Any licence condition to which the licence was subject under section 13(3)(a) and (e) of the Reproductive Technology (Clinical Practices) Act 1988 (as in force immediately before the commencement of this clause) will be taken to continue to apply as a condition of registration under Part 2 of that Act (as enacted by this Act).

2—Record keeping

A person who held a licence under Part 3 of the Reproductive Technology (Clinical Practices) Act 1988 (as in force immediately before the commencement of this clause) must keep any record required to have been made or kept as a condition to which the licence was subject under section 13(3)(d) of that Act (as in force immediately before the commencement of this clause) as if the record were a record required to be made or kept under that Act after the commencement of Part 2 of this Act.

As members are aware, the bill before us allows for the posthumous use of sperm under limited circumstances. I have been advised that, as a result, amendments are required to the Family Relationships Act 1975 to assign legal parentage to children born in these circumstances. The Family Relationships Act assigns parentage for children conceived from a fertilised procedure.

The Family Relationships Act provides that where a child is conceived using donor sperm the donor is not the father by virtue of section 10D, even if the husband or partner is the donor. So, that is the current provision. Instead, the husband or partner is recognised as the father by virtue of his relationship with the mother, which is appropriate in the majority of cases. However, where a husband or partner is deceased when the child was conceived he is considered the donor and, therefore, not the legal father. So, it would affect inheritance and such matters.

This has implications for the child's inheritance and has other legal consequences. To ensure that children born in these circumstances have legal clarity about their parentage, I seek members' support for this amendment. It replaces schedule 1 containing the transitional provisions and substitutes it with the amendments to the Family Relationships Act.

The Hon. J.M.A. LENSINK: While this is a conscience issue for all members, I think it is fair to say it is a commonsense amendment. It would be a rather perverse situation, I would think, where the rightful parent was not included on a birth certificate, so I indicate I will support the amendment. While I say it is a conscience issue for all members, I would be surprised if there were too many objections.

I raised an issue in my second reading speech, and I think members would have received correspondence from people who are donor conceived adults and who have some concerns that they are not able to access their parental information, which is not something that this bill was going to amend. However, I do have an understanding that the minister in another place may have undertaken to look into the matters of voluntary registers for donor conceived people, so I ask the minister whether she has any further information about this situation.

The Hon. G.E. GAGO: I have been advised that a register will be established: that a model will be developed in consultation with donor conception groups, the sector and the council. The detail of the model will be described in regulations. There will be a voluntary component and a mandatory component to the register. Anyone can submit their own information to the voluntary component. The mandatory component will be only for children conceived after the commencement of the act.

Amendment carried; schedule as amended passed.

Long title.

The Hon. G.E. GAGO: I move:

Page 1—After '1988' insert:

and to make related amendments to the Family Relationships Act 1975

Amendment carried; long title as amended passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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