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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-12-03 Daily Xml
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Bills

Family Relationships (Surrogacy) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2014.)

The Hon. T.T. NGO (17:22): I would like to recognise the contribution that the Hon. John Dawkins has made on this very important issue. Mr President, as you well know, I have not been in this chamber for a long period of time. It would be remiss of me not to recognise the important legislation that passed this parliament four years ago to legalise surrogacy in this state. It is my understanding that, with this amendment, the Hon. John Dawkins is seeking to address some of the barriers which he believes are forcing couples to search overseas instead of here in South Australia for a surrogacy arrangement.

Having looked very closely at what has been proposed, there are a number of issues I wish to raise. I hope I can get answers from the Hon. Mr Dawkins at a later stage as this bill progresses. This amendment bill proposes the formation of a surrogate register. My understanding is that a major reason that South Australian families seek international surrogacy is because they do not know anyone who is willing to be a surrogate mother and they are unable or unwilling to advertise their need for the service.

My question is whether surrogacy should only be recognised if it is sought through this register. It would seem to me that doing this would clear up any potential future ambiguity over whether a particular agreement constituted legal surrogacy. This may mean that those surrogate mothers who only choose to be a surrogate for a specific person they may trust would need specific recognition within the register.

Another question I would like a response to is whether this amendment bill is effectively setting up an industry, whether altruistic or not, which needs adequate safeguards built in to provide certain protections for all parties involved. Even if a surrogate acts out of altruism, she would still expect that the necessary expenses she has incurred throughout pregnancy would be accounted for by the commissioning parents. If this does not occur, what protections are available in this bill? What if there are unexpected complications in the pregnancy, and this changes the attitudes of commissioning parents? Do these matters become a purely civil issue with no protections available to the surrogate mother?

Likewise, Mr President, as a man I will never be able to understand the emotional bond that develops between a mother and her baby during pregnancy, but I can foresee a scenario where surrogate mothers who have previously come to an agreement with commissioning parents then decide that they want to keep the baby. How is this issue dealt with? I would also like to know what information will be available to women who are considering placing themselves on the register. It is a very big decision to make.

I bring this form of discussion, particularly, to the chamber because the primary factor that facilitates altruistic surrogacy is trust. My guess is that surrogacies currently being undertaken in South Australia are between people who know each other quite well and, therefore, a fair element of trust already exists.

Whilst I acknowledge the Hon. Mr Dawkins' belief that couples who do not know anyone they can go to should have access to a register to stop them from going overseas, I believe this brings out some of the very issues I have mentioned here—namely, that there is a high likelihood of disputes occurring between parties. Because of this, I need to be satisfied that there are adequate safeguards in place to prevent any potential exploitation of either party.

Altruistic or not, what we are talking about here is a provider and a consumer of a service and, just like in any other contractual agreement, there should be protections in place to safeguard the vulnerable in scenarios where these arrangements are broken. I will support the second reading of this bill to allow some of the issues that I have raised recently to be further discussed, so I am happy to go to the second reading stage if the Hon. Mr Dawkins allows.

The Hon. K.L. VINCENT (17:29): I thank you, Mr President, and the chamber for the indulgence of allowing me to change the speaking order somewhat. Dignity for Disability is pleased to support the amendments, as it considers it important that we keep with the times as legislators, which we have the opportunity to do in this case. The bill envisages a follow-up process to review the framework and see that it remains in line with community expectations over time.

As members would be aware, the international media focus on the story of 'baby Gammy', as he is known, highlighted a range of moral and ethical concerns surrounding the issue of international surrogacy. There are a multitude of human rights issues too, of course, when Australians choose to go overseas and enter into an arrangement with an agency and ultimately with a woman who may be living in extreme poverty and is willing, therefore, to carry a child to have the opportunity to escape that poverty. Such arrangements are clearly exploitative, even though for that woman and her family their lives could be dramatically improved by the money earned through surrogacy.

The number of intended parents heading overseas instead of using domestic surrogacy services or adoption indicates that our policy in this area is failing. Although aspects of these matters fall well outside our jurisdiction, human rights matter whether at home or abroad. Altruistic surrogacy is not new and the provision before us to allow for reimbursement of reasonable costs therefore makes sense. We need to acknowledge that for many couples surrogacy is their best option of having a child. Bringing the practice into the open and allowing regulation protects all parties involved. It is important that appropriate preparatory counselling is available to all parties.

Rather than moving to criminalise overseas compensated surrogacy, the bill seeks to impose regulation on such arrangements. This makes sense but it is difficult to see how it will work in practice because the exploitative nature of overseas practices will not change. All that being said, Dignity for Disability commends the work of the Hon. Mr Dawkins in this area and in bringing these issues before us and thank him for his diligence in consulting with people affected. With those words, I indicate that we will support the bill.

The Hon. R.I. LUCAS (17:32): I rise to speak to the second reading of the bill. I indicate that, on reflection, I will support the second reading of the bill but will reserve my position during the committee stages and at the third reading and leave open, obviously, the option of either supporting amendments that might be moved and, ultimately, either supporting or opposing the third reading of the bill. I think the Hon. Tung Ngo has articulated some of the questions that are being asked about the details in relation to how the registry arrangement will work.

There are other questions being raised about issues of reasonableness of costs. I note the recent paper produced by the parliamentary library and other commentary in relation to arrangements in other states. My understanding is, from the mover of the legislation, that the intention today is to seek a second reading vote and I am happy to support the second reading, with the intention that when the parliament resumes some time next year we can explore in greater detail the provisions of the legislation.

The Hon. T.A. FRANKS (17:33): I rise to indicate that the Greens will be supporting the Family Relationships (Surrogacy) Amendment Bill second reading. We look forward to the committee stage where we will have questions and will possibly seek to make amendments. I commend the Hon. John Dawkins for his work in the area of surrogacy. I know he has had constituents over the years, well before my time in this place, who he has fought very long and hard to support, and that is an incredibly admirable thing.

Another incredibly admirable thing is anyone who is willing to be a surrogate, to give other people the ability to have children. I think that is a really noble cause. I do not think it is a modern cause. I do not think it is getting with the times. I think it is something that has happened for a very long time—time immemorial even. There have been surrogate arrangements in our society for millennia. This is not a new thing.

What is perhaps a new thing is the fact that we have legal systems and we have situations such as baby Gammy and international movements where people travel overseas or from far afield. In this day and age, there is the ability for people to go further afield than their own close circles to find somebody to be a surrogate and, certainly, that does raise a range of measures.

Of course, members would be well aware that I will be advocating for a whole range of legal reforms to support same-sex parents and I also support options for single parents, whether somebody is biologically infertile or 'socially infertile', as the terminology goes. No barriers to raising and loving and caring for a child and creating families should be put in people's way if they are good parents and if they create good families. That is the bottom line of what is important here.

I do welcome further moves in this area. I do acknowledge that, well before my time, these issues have been very vexed ones, and while they in fact get an airing and a hearing in this place, the other place can be very slow to debate, and certainly very slow to vote on, these issues. These issues, however, deeply affect some people in our community.

I thank a woman who has written to me and, I imagine, to other members here who has been a surrogate in South Australia. She has shared her story. I know she has also done a story in The Advertiser, so I know she is not too shy to share this. She says in her correspondence with me that she met her IPs—in surrogacy terms, that means 'intending parents', the baby's parents—on a surrogacy forum. Again, the technology. She says:

We chatted [and emailed] for hours every day, not just about surrogacy, but about their views on families, the weather, sport, travel—all of the things we had in common.

She was then referred and had the genetic embryo transferred to her at Repromed late last year and seven days later she used a home pregnancy test and discovered she was pregnant. The morning that she was to have the blood test to confirm that and also to confirm any possible abnormalities with the fetus, those prospective parents had had some reservations, but they came along with her and they were able to be with her at her first obstetric appointment, for which she travelled from regional South Australia to Adelaide.

When her baby was scanned, the intending parent burst into tears, because she had assumed that there would be no heartbeat as happened in the case when she had tried to conceive, and as had happened to her when she had been able to conceive. In fact, the tears were apparently a common occurrence in their prenatal appointments, or antenatal appointments, and the day before the appointment, they had been petrified that something would be wrong.

It is a joyous story. The pregnancy for this particular person was not an easy one and not all pregnancies are. Some people have a delightful and joyous and wonderful experience of being pregnant and some people have much less joy in the morning sickness, the pre-eclampsia and the bloating and the inability to eat, in my case, onions and all sorts of food.

I certainly know with my pregnancies that each one of those experiences has been different. Some have been more difficult than others. This particular surrogate mother gave birth and had complications with haemorrhaging, something she had not experienced with her own children, she notes. But she says:

Despite this, I would do it all again (and again, and again!) To give people joy & hope when they see none, is an honour. To know that they now wake up with a purpose every day, instead of just existing, keeps me feeling enriched. I don't just mean my surrogate babies parents either—when I became a surrogate it was quite common for strangers to open up to me about their own fertility struggles.

She goes on to say in this correspondence:

SA (& Australia for that matter) do not need to hide surrogacy away, or leave the legislation as it is, we need to continually update it and work on it so that it can be a legislation that protects IPs and surrogates alike. At the moment there are some grey areas in the legislation and I would be honoured to assist in discussions on how these could be improved.

I am sure that she is not alone, having had the experience of being a surrogate, in assisting people to have children and raise families. I am sure that there is a wealth of knowledge out there. This parliament should turn its attention to this issue. As I have mentioned before, I will certainly be seeking the views of a wide variety of people who could benefit from more comprehensive laws around surrogacy.

None of us want to see the situation that we have seen in the media of Baby Gammy. But despite Thailand's recent law reforms we do know that people are seeking surrogates from across our borders—and this is the here and now and the reality of what we should be dealing with. So, even on those principles alone, one should be open in this parliament to having a conversation about the legalities around surrogacy and giving those children the protections they deserve.

I know that this bill refers to altruistic surrogacy, but I think that just the act of providing that surrogacy for another person is altruism in itself, and I personally have no problem with someone receiving payment; I do not have any aversion to that. I think that it is a wonderful and joyful thing to do for another human being but, of course, it involves a sacrifice financially and socially that should be recognised, and I guess that is because I am a feminist and I believe that this is a woman's work and that it should be accordingly treated as such.

A woman is often not paid for all sorts of things women do, whether that is housework or, indeed, as in this case, giving hope, life and joy and creating families for others. So, with that, I commend this bill to the second reading, and I look forward to our resuming debate on this bill in the new year.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (17:42): I would like to make a brief contribution to this bill. First of all, I commend the Hon. Mr Dawkins for once again bringing forward to this chamber legislation to deal with altruistic surrogacy. I know that his intentions are honourable. Indeed, I have supported him in the past, although I have moved amendments in this place to his previous legislation to enable the option of altruistic surrogacy to be open to same-sex parents and also single women, amendments which were ultimately unsuccessful at the time and which I have not, at this stage, thought to reintroduce.

However, I have been contacted by two of my constituents who, again, have raised some serious reservation about the legislation before us. They wished to make very plain to me that they too see much of benefit in the amendments brought forward by the Hon. Mr Dawkins and were essentially torn because they can see the advantages in the proposals in the bill, but they have serious reservations in some respects, and they are mainly in terms of same-sex parenting.

I am grateful for the indication from the Hon. Mr Dawkins of his agreement to take this to the second reading stage and to do some more work when parliament resumes to tease out some of these concerns and to find out whether they are based on some recognition of unforeseen repercussions in the legislation or whether, in fact, that does not come through and we can reassure people that there will be no unintended consequences.

I am very pleased that I will be supporting the second reading but reserve my position currently on the third reading until we can tease out these issues a little bit more. What I thought I would do is put on the record tonight some of the questions that have been raised with me by my constituents, and I would like to work with the Hon. Mr Dawkins over the intervening weeks before parliament resumes to get some answers on that for our constituents.

Briefly, my questions are: in practice, does the bill exclude same-sex couples? In practice, does the bill exclude single women? What criteria, under the bill, would the minister impose on restricting the access to various groups under the framework proposed? Could couples who engage in overseas surrogacy be subject to an offence as outlined in section 10H(2)? If so, what is the intent of legislating for such an offence? How does the incorporation of the offence balance with parliament's desire to legislate in the best interests of a child? Does this bill work to deny appropriate legal recognition of parentage to children born through overseas surrogacy?

They are the issues that have been raised with me by my constituents. Again, I hasten to say that I wish to commend the Hon. Mr Dawkins for bringing forward this bill for our debate. I know that his intention to assist parents who decide to pursue surrogacy to have a family is a noble one, and I would normally be supporting him in this, but I would just like to have some reassurance that there will be no untoward repercussions in passing this bill, and I look forward to working with him in the new year to tease out those issues.

The Hon. J.S.L. DAWKINS (17:46): I will be brief. I thank those who have contributed: the Hon. Tung Ngo, the Hon. Kelly Vincent, the Hon. Rob Lucas, the Hon. Tammy Franks, and the minister, the Hon. Mr Hunter. I recognise the questions that have been raised. I very much appreciate the overall support for the work I am doing. I very much appreciate the conversations that I have had with the Hon. Tammy Franks about these matters over some time, and they assist me greatly.

The honourable minister, the Hon. Mr Hunter, has also put down a little bit of the history on the first bill that I put through this parliament which, from go to whoa, took up about 6½ years of my life, so it is an issue that I am very genuine about in doing the best I possibly can for the community

I also acknowledge the support I have had from other members in this chamber and in the parliament, and people outside in the community. I acknowledge them, particularly those who have personal experience. Most people who, for one reason or another, have had experience with surrogacy are very private about it, and I respect and understand that. However, there is a small number who are prepared to go public and who are prepared to raise issues.

I understand that the described unintended consequences that the Hon. Mr Hunter has discussed are ones that need to be clarified. I think, as a private member of parliament, we have endeavoured to clarify that as best as can be done with my limited resources. I am happy in the time between now and 11 February to do my best to clarify that and the other questions that have been put on the record.

There are a couple of things that I would like to add. Certainly, there was one suggestion that was raised with me earlier in the week through one arm of government: it had been suggested by some that the bill was not necessary because COAG is now dealing with this issue of the legality or otherwise of overseas surrogacies. That was not my understanding. My understanding was that COAG had very strongly been referred by the commonwealth back to the state jurisdictions.

Even if COAG is turning its mind to dealing with this situation, I pointed out to the person who had been good enough to tell me this that, some seven years ago I think it was, when I was first dealing with my private legislation in this place, I was told by someone from the government then that I did not need to worry because the Standing Committee of Attorneys-General was working on uniform legislation across the country—seven years ago!

So, it is appropriate that the parliamentary research library today has given us a document, 'A comparative analysis of surrogacy regulation', which shows that it could not be any further away from uniform legislation. I will not sit around and wait for COAG, and I do not think this parliament should at all do that.

My bill is not perfect, but it is a genuine effort to, I think, make some changes that need to be made, and I have put this to my friends in the government who have asked me to delay going further with it. I believe that it should not be John Dawkins doing this today but it should be the government doing it, and I think the two ministers concerned, the Attorney-General and the Minister for Health, ought to be doing this work and doing it with the strength of a department.

I appreciate the Hon. Mr Hunter's indication of the detail of the things he wants answered, but I will follow up from the conversation I have had with the minister and with the Hon. Gail Gago that I would very much appreciate some assistance if they could provide it to me, because between now and 11 February, when I want to continue with this, for me to have the best information it will be difficult if I do not have some other assistance. I am happy to talk to both ministers about that in due course.

I thank members very much for their expressions of interest and support, and sometimes that support is with a qualification and I understand that, but we have improved the access to the wonderful technology we have in South Australia for South Australians, and all I want to do is enhance that. With that, I commend the second reading to the council.

Bill read a second time.

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