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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-02 Daily Xml
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FAMILY RELATIONSHIPS (SURROGACY) AMENDMENT BILL

Second Reading

Second reading.

The Hon. J.S.L. DAWKINS (20:20): I move:

That this bill be now read a second time.

It gives me great pleasure to present the second reading for this bill. This bill was sponsored in the lower house by the member for Adelaide (Ms Rachel Sanderson), and she did that at the suggestion or request of a constituent of hers. I am very pleased to say that this amendment went through the House of Assembly on the voices and in relatively quick fashion.

I am delighted to say that, sir, as you and many others know, the original surrogacy bill I brought into parliament actually languished in the House of Assembly for some 16 months, being stalled and delayed by some who were opposed to it. So, I am delighted now that a bill to improve what was my bill has gone through the House of Assembly very quickly and went through, as I said, on the voices. I will outline some of the elements of the bill.

Currently, under South Australian laws a potential mother in South Australia can legally engage a surrogate mother to carry her child under two eligibility categories, the first being that the potential mother is infertile, and the second being that the child is at risk of being born with a serious genetic defect or a serious disease or illness that would be transmitted to the child from the potential mother.

The current legislation does not cover a mother whose own life or health would be seriously impacted by pregnancy or delivery of an infant. The proposed amendment was as a result of an inquiry to the office of the member for Adelaide by a South Australian mother who has had serious health issues during her first pregnancy, and another pregnancy would likely lead to her permanently being in a wheelchair.

Under current laws, she would need to move interstate to legally engage a surrogate to carry and deliver her child. I would like to read into Hansard a copy of her story that she kindly typed out and gave to the member for Adelaide for insertion into the House of Assembly, and it is only appropriate that we do here. I quote:

My husband and I were fertility challenged and eventually pursued IVF treatment as we were deemed infertile as a couple. This treatment was finally successful in October 2008 resulting in the premature birth of our daughter in June 2009. The IVF treatment has provided us with 3 healthy embryos that we are keeping frozen in the hope that a surrogacy arrangement may be made. I do not believe this will happen due to so many legal hurdles and it being such a difficult and expensive process here in Australia, in particular South Australia. I became incredibly ill whilst pregnant, which meant I spent 8 weeks in hospital prior to my daughter's birth and another 6 weeks post her birth. I was confined to a wheelchair for the duration of the hospitalisation and for a subsequent 6mths post discharge. I ended up with a walking aid of some kind for 20 months post my daughter's emergency C-section under general anaesthetic. I suffered a rare pregnancy condition called transient osteoporosis of the hip which resulted in the ball of my hip fracturing and the neck of the femur breaking down. I had 2 operations post birth to try to save the hip which was scheduled for replacement. This condition is believed to recur in future pregnancies and the specialists—

I interpose here; this lady has seen three endocrinologist specialists. I go on:

The specialist advised that it would be highly likely that if I was to carry another child I might end up in a wheelchair for life—hardly the ideal parenting situation! This likelihood coupled with the fact that I also contracted severe ulcerative colitis during my first pregnancy that contributed to my ill health and meaning I had to have 2 blood transfusions has meant another pregnancy would be extremely high risk. Both conditions would be likely to recur in future pregnancies. Treatment of this ulcerative colitis requires steroids that exacerbate bone deterioration thus making the risk of the transient osteoporosis condition returning even greater. Basically, with all the blood, bone and weight loss I suffered, my life was threatened by my first pregnancy.

We tried going down the surrogacy path with the blessing of my medical team but this was not with the blessings of the government. The only way we could consider a surrogacy arrangement was under Victorian law. This meant that we would have to have the baby in Victoria and become Victorian residents prior to and at the time of implantation and birth. We would also have to undergo lengthy psyche testing and all fertility treatment in Victoria. This process is ridiculously long and tedious and it became way too impractical and expensive for us to continue this process. The family commissioning the surrogate must fund all travel, medical and overall expenses of a surrogacy arrangement, not only for the surrogate but for their immediate family as well. This is a hugely expensive considering you're flying 4 people and any children they may have—

To be a surrogate, you must have already had children under those arrangements—

to all of the appointments. Although you do not have to pay commercial fees to the surrogate, there are lots of medical and fertility clinic and legal costs involved. Under South Australian law, you need to employ 4 separate psychologists (one for each person of the two couples involved) for all of the testing and 2 independent legal teams. Victorian law only applies 2 which is why it can be the more attractive option to couples. At the end of the day we are a South Australian family and we really wanted to have a surrogacy arrangement here as it was more practical for our family and less expensive [being] something that ultimately affects the welfare of the child. We however were unable to proceed in [South Australia] with Repromed, the fertility clinic that houses our embryos, because we had not known our potential surrogate for more than 2 years (this is their personal policy and not a governmental one).

So it was then that [we went to the] Flinders fertility clinic stepped up to the plate. They were incredibly positive about trying to help us until their legal team determined our case did not warrant a surrogacy arrangement under the current South Australian laws. This was because I was able to carry another baby so it was unlikely there would be any risk to the actual child it was just my life that was being threatened. So it was fine to die (or risk death and disablement) thus leaving a baby motherless as opposed to entering a surrogacy arrangement that would allow a family to live healthy, positive lives thanks to the aid of the amazing medical knowledge we have [in] South Australia...We pursued surrogacy in Victoria but pulled out of that arrangement due to spiralling expenses.

They had to move there to have the child. The member for Adelaide worked through these issues, as a private member does in developing legislation. After speaking with minister Hill, she decided to add a second clause to expand the definition of what 'infertile' means so that instead of just being 'infertile' it also includes that you cannot carry a baby to term. The changes made with two clauses are that we have inserted the provision:

...the female commissioning parent is, or appears to be, unable on medical grounds to carry a pregnancy or to give birth;

Also, it was decided to include a subparagraph, which provides:

There appears to be a risk that becoming pregnant or giving birth to a child would result in physical harm to the female commissioning parent (being harm of a kind, or a severity, unlikely to be suffered by women becoming pregnant or giving birth generally);

In coming to a conclusion, I must say that, in the House of Assembly, Ms Sanderson said:

It is certainly not my intention that we become like America, where busy career women can just go and pay for somebody to have a child for them. Basically, this is to do with the health of the mother and the best outcome for the family.

Can I say that, while we cannot just talk about America because I think these things can happen in many parts of the world, the fact is that my motivation for bringing in surrogacy legislation is to help couples who genuinely wanted to have a child but were unable to do so in the normal fashion, and there were a range of reasons as to why that could not happen.

I developed that bill as a private member, and you do that without the resources of a government department. Over a long period of time, that bill came into this house, went to a parliamentary committee and was referred back. We then changed some of it, it went through this place in a few months, and then went off to the House of Assembly, as I said, for 16 months. There were a number of amendments suggested, and a number of those were made by the Department of Health and the minister, and then some of those at a later stage were rejected by the very same department.

It is very difficult to develop laws like this as a private member. I am happy to have my original bill improved, and in fact, sir, as you and others would know, we have already improved it once since the main bill went through in late 2009. With those words, once again I commend the member for Adelaide for bringing this matter to the parliament. I am delighted that it went through without any opposition in the lower house. I look forward to its passage in this place. I will be indicating to members that I intend to seek a vote on 30 May. With that, I commend the bill to the chamber.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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