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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-11-19 Daily Xml
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STATUTES AMENDMENT (SURROGACY) BILL

Final Stages

The House of Assembly agreed to the bill with the amendments indicated by the following schedule, to which amendments the House of Assembly desires the concurrence of the Legislative Council:

No. 1 Clause 2, page 3, line 5—Delete '3 months' and substitute:

12 months

No. 2 Clause 4, page 3, lines 10 to 17—Delete clause 4

No. 3 Clause 6, page 3, lines 23 and 24—Delete clause 6

No. 4 Clause 12, page 4, after line 21 [clause 12, inserted section 10HA(1)]—Insert:

fertilisation procedure has the same meaning as in Part 2A;

No. 5 Clause 12, page 4, lines 32 to 34 [clause 12, inserted section 10HA(1), definition of lawyer's certificate, (b)]—Delete paragraph (b)

No. 6 Clause 12, page 5, lines 1 and 2 [clause 12, inserted section 10HA(1), definition of marriage relationship]—Delete the definition

No. 7 Clause 12, page 5, line 11 [clause 12, inserted section 10HA(2)(a)(ii)]—Delete 'or' and substitute:

And

No. 8 Clause 12, page 5, lines 21 to 24 [clause 12, inserted section 10HA(2)(b)(iii)]—Delete subparagraph (iii) and substitute:

(iii) the commissioning parents—

(A) are legally married; or

(B) have cohabited continuously together as de facto husband and wife—

for the period of 3 years immediately preceding the date of the agreement; or

for periods aggregating not less than 3 years during the period of 4 years immediately preceding the date of the agreement;

No. 9 Clause 12, page 5, after line 26 [clause 12, inserted section 10HA(2)(b)]—After subparagraph (iv) insert:

(iva) either—

the female commissioning parent is, or appears to be, infertile; or

(B) there appears to be a risk that a serious genetic defect, serious disease or serious illness would be transmitted to a child born to the female commissioning parent;

No. 10 Clause 12, page 5, lines 27 to 31 [clause 12, inserted section 10HA(2)(b)(v)]—Delete subparagraph (v) and substitute:

(v) the surrogate mother has been assessed by and approved as a surrogate by a counselling service—

(A) that is accredited for the purposes of this subparagraph in accordance with the regulations; and

(B) in accordance with any relevant guidelines published by the National Health and Medical Research Council; and

(C) in accordance with any other requirement that may be prescribed by the regulations for the purposes of this subparagraph;

No. 11 Clause 12, page 6, lines 30 to 44 [clause 12, inserted section 10HA(3)]—Delete subsection (3)

No. 12 Clause 12, page 7, lines 1 to 12 [clause 12, inserted section 10HA(4)]—Delete subsection (4) and substitute:

(4) For the purposes of subsection (2)(b)(vi), a certificate complies with the requirements of this subsection if—

(a) the certificate is issued by a counselling service that is accredited for the purposes of this subsection in accordance with the regulations; and

(b) the certificate states—

(i) that the person to whom it relates has received counselling—

(A) individually; and

(B) if the person is married, or is 1 of the commissioning parents—as a couple,

about personal and psychological issues that may arise in connection with a surrogacy arrangement; and

(ii) that, in the opinion of the counsellor who undertook the counselling, the proposed recognised surrogacy agreement would not jeopardise the welfare of any child born as a result of the pregnancy that forms the subject of the agreement.

No. 13 Clause 12, page 8, line 16 [clause 12, inserted section 10HB(1), definition of birth parent, (b)]—After 'Act' insert:

(the birth father)

No. 14 Clause 12, page 8, line 35 [clause 12, inserted section 10HB(5)]—Delete '6 weeks' and substitute:

4 weeks

No. 15 Clause 12, page 9, line 4 [clause 12, inserted section 10HB(7)]—Delete 'both birth parents' and substitute:

the surrogate mother

No. 16 Clause 12, page 9, line 5 [clause 12, inserted section 10HB(7)]—Delete 'agree' and substitute:

agrees

No. 17 Clause 12, page 9, lines 7 to 11 [clause 12, inserted section 10HB(8)]—Delete subsection (8) and substitute:

(8) However, the Court may dispense with the requirement under subsection (7)—

(a) if satisfied that the surrogate mother is dead or incapacitated; or

(b) if satisfied that the applicants cannot contact the surrogate mother after making reasonable inquiries; or

(c) in any other circumstances prescribed by the regulations.

No. 18 Clause 12, page 9, after line 36 [clause 12, inserted section 10HB(9)]—After paragraph (c) insert:

(d) any submission made to the Court by, or on behalf of, the birth father.

No. 19 Clause 12, page 10, lines 12 to 22 [clause 12, inserted section 10HB(14)]—Delete subsection (14) and substitute:

(14) In the making of an order under this section in relation to a child, the child has as his or her name such name as the Court, on the application of either or both of the commissioning parents, approves in the order.

No. 20 New clause, page 14, after line 17—After clause 15 insert:

15A—Insertion of section 15

After section 14 insert:

15—Regulations

(1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.

(2) Without limiting the generality of subsection (1), the regulations may—

(a) make provisions of a savings or transitional nature consequent on the amendment of this Act by another Act or the commencement of specified regulations under this Act;

(b) incorporate or operate by reference to a specified code or standard as in force at a specified time or as in force from time to time;

(c) fix fees to be paid in respect of any matter under this Act and regulate the recovery, refund, waiver or reduction of such fees;

(d) impose a penalty, not exceeding a fine of $10 000, for contravention of, or non-compliance with, a regulation;

(e) fix expiation fees, not exceeding $315, for alleged offences against the regulations.

(3) The regulations may—

(a) be of general application or limited application;

(b) make different provision according to the matters or circumstances to which they are expressed to apply;

(c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister.

(4) If a code or standard is referred to or incorporated in the regulations—

(a) a copy of the code or standard must be kept available for inspection by members of the public, without charge and during normal office hours, at an office determined by the Minister; and

(b) evidence of the contents of the code or standard may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code or standard.

No. 21 Heading to Part 4, page 16, lines 14 and 15—Delete 'Reproductive Technology (Clinical Practices) Act 1988' and substitute:

Assisted Reproductive Technology Act 1988

No. 22 New clause, page 16, after line 19—Insert:

20A—Amendment of section 9—Conditions of registration

Section 9(1)(c)—after subparagraph (iv) insert:

(iva) for the purposes of a recognised surrogacy agreement;

No. 23 Clause 21, page 16, lines 20 to 28—Delete clause 21

No. 24 Clause 22, page 16, lines 29 to 33—Delete clause 22

No. 25 Schedule 1, page 17, line 5 [Schedule 1 clause 1(1)]—Delete 'under' and substitute:

as defined by

No. 26 Schedule 1, page 17, lines 7 to 16 [Schedule 1 clause 1(2)]—Delete subclause (2) and substitute:

(2) Subject to this clause, if the Court, on application under this clause, is satisfied that in the circumstances of the particular case it would be an appropriate course of action for the Court to exercise the powers conferred by this clause, the Court may determine that a surrogacy contract entered into before the commencement of this clause should have effect as a recognised surrogacy agreement under section 10HA of the Family Relationships Act 1975 (as enacted by this Act), despite the operation of Part 2B of that Act.

No. 27 Schedule 1, page 17, after line 40—After paragraph (d) insert:

and

(e) the Court may make any other related order as it thinks fit.

No. 28 Schedule 1, page 18, lines 1 to 5 [Schedule 1 clause 2]—Delete clause 2

Consideration in committee.

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

That the amendments be agreed to.

I had great pleasure in witnessing the debate in the other house today. The amendments moved by my colleague Dr McFetridge, the member for Morphett, and also other amendments moved by the Minister for Health were agreed to by the House of Assembly, and the amended bill was then agreed to convincingly. I am happy to accept all amendments put in the other place.

The Hon. D.G.E. HOOD: Are these the surrogacy amendments we are dealing with?

The CHAIRMAN: Yes.

The Hon. D.G.E. HOOD: It appears that the amendments have the numbers to go through. Literally five minutes ago these amendments were put on my table and I have not even read them and we are voting on them. It is unreasonable to expect people to go through these sorts of amendments in that time frame.

The CHAIRMAN: I do not intend to have this delayed until the next Wednesday of sitting.

Motion carried.

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