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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-02-22 Daily Xml
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Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (17:49): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, today I rise to introduce the Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill 2023. The Bill seeks to modernise legislation in line with evolving community expectations, empower individuals and extend fairer access to important information and technology.

The Bill seeks to enhance the operation of the donor conception register that records information in relation to people born through the use of donated human reproductive material by allowing donor conception participants access to certain types of information, overturning the historical preservation of anonymity of donors.

The Bill also seeks to legalise the posthumous use of an ovum or embryo in similar circumstance to what is already permitted in respect of posthumous use of sperm.

Donor Conception Register

In 2017, highly regarded academic in the field of assisted reproductive treatment and donor conception, Professor Sonia Allan conducted the State Government's Review of the Assisted Reproductive Treatment Act. Professor Allan recommendations included the establishment of a Donor Conception Register in South Australia and providing donor-conceived people aged 18 years and over the right to access identifying information about their donors.

Recognising the change in views, South Australia established a donor conception register in November 2021 in accordance with amendments to the Assisted Reproductive Treatment Act as moved by the Hon Connie Bonaros MLC in 2019.

The register currently holds information on donors, the recipient parent of this donated human reproductive materials, and any person who is born as a result of the donated material.

This Bill seeks to enable the donor conception register to function retrospectively and enable safe as well as supported access to the information it holds.

In doing this South Australia will not only join jurisdictions including Victoria, New South Wales and Western Australia that all have donor conception registers available to donor conceived people. South Australia will also follow Victoria in legislating the retrospective disclosure of a donor's identifying information for donor prior to 2004.

This will allow donor conceived people to access information about their donor, irrespective of when they were born. Where the information is verified the identity of the donor will be disclosed providing donor conceived people the right to their genetic parentage.

It is recognised that historical donors made those donations on the understanding they would remain anonymous, however it is important to note that these amendments place no requirement on any donor to have contact with their donor conceived offspring.

The Government has given careful consideration to legislate a retrospective donor conception register. The Government has sought expert input and has undertaken extensive consultation with those that this legislation will impact including the donor conception community, our state's fertility clinics as well as stakeholders across Australia.

This consultation which included the SA Donor Conception Reference Group and national advocacy group Donor Conceived Australia supported the development of this bill and helped ensure the model proposed for South Australia is workable and allows disclosure of personal information in a safe, respectful and ethical way.

The increase access and use to at home DNA testing and services including AncestryDNA has also contributed to donor conceived people being able to find out the identity of their donor.

However, this approach does not provide the systems, support and assurances that would be present under the proposed regulatory system for South Australia.

In recognising the particular impacts that may be felt by the pre 2004 donors, the Government will make important counselling and intermediary support services available to this group.

Posthumous Use of Human Reproductive Material

Strict conditions apply to the use of posthumous use of human reproductive material, including the deceased having consented to the use of their material posthumously prior to their death and for the partner seeking to use the deceased's material having lived in a genuine domestic relationship with the deceased prior to their death.

Currently the Assisted Reproductive Treatment Act only allows for posthumous use of sperm.

The amendment included in this Bill would make the legislation equitable for men whose female partner has died and for same-sex couples.

This amendment would also bring South Australia in line with Victoria and New South Wales the other jurisdictions that allow posthumous use of reproductive material.

Amendments to the Assisted Reproductive Treatment Act and consequential amendments to the Births, Deaths and Marriages, Family Relationships, and Surrogacy Acts are proposed to:

Provide donor-conceived people over 18 years, regardless of when they were born, with access to information about their genetic parent (the donor).

Ensure the effective operation of the Donor Conception Register.

Provide donor-conceived people with options for the inclusion of donor information on birth certificates.

Provide gender equity for the posthumous use of human reproductive material when certain conditions are met.

The Government recognise how important it is for all donor-conceived people to have access to information about their genetic heritage, it not only plays a significant role in the development of a person's identity and self-esteem, but it also enables them to access important medical and genetic information for things like family planning.

It is the Malinauskas Government's view that the Bill strikes a balance between upholding a person's welfare as paramount with safe and respectful disclosure of donor identities in a regulated environment.

I would also like to take the opportunity to make a few acknowledgements of those involved in getting the Bill to this stage including:

Tony Piccolo, from the other place for his support of the donor conceived community in pursuit of this change over a number of years and helping to raise this matter.

Connie Bonaros for her support and her legislative amendments that lead to the creation of the Donor Conceived Register; and

All the members of the Reference Group that have contributed and helped support the development of this bill, including Donor Conceived Australia for their advocacy for this change and their ongoing support of the donor conceived community.

Specifically, from Donor Conceived Australia I would like to acknowledge Damian Adams from South Australia and Aimee Shackleton at a national level who have been passionate drivers for this change for a number of years.

I thank you and all other members of the Reference Group for your contributions and input in developing this bill.

I commend the Bill to the chamber and seek leave to insert the Explanation of Clauses without my reading them.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Assisted Reproductive Treatment Act 1988

3—Amendment of section 9—Conditions of registration

This clause provides for the use of human reproductive material from deceased donors in certain circumstances.

4—Insertion of section 14A

This clause inserts a new section providing for the Register provisions to apply to assisted reproductive treatment provided before commencement of the Part.

5—Amendment of section 15—Donor conception register

Section 15 is amended:

to clarify the obligations under that section;

to provide for the inclusion of additional information on the register;

to give the Minister discretions to authorise the disclosure of information contained in the register in certain circumstances and to refuse to disclose information in the register in certain circumstances (the latter determination being subject to a right of review);

to allow a person engaged in connection with the administration of the Part to disclose information contained in the register in certain urgent circumstances;

to allow any person (not being a registered provider of assisted reproductive treatment) to provide information of a prescribed kind for inclusion in the register;

to oblige registered providers of assisted reproductive treatment to provide the Minister with information required by the Minister for inclusion in the register in the manner and form determined by the Minister.

6—Insertion of sections 15A, 15B, 15C and 15D

This clause inserts new sections as follows:

15A—Authorisation of entities

The Minister may authorise an entity to carry out certain functions under this section.

15B—Notice requiring provision of information etc

The Minister may, by notice, require a person or a public authority to provide the Minister with information. It is an offence for a person to refuse or fail to comply with a notice (without reasonable excuse) or to knowingly or recklessly provide false or misleading information to the Minister. The maximum penalty is $10,000. The Minister may also require the Registrar of Births, Deaths and Marriages to provide information, or specified kinds of information, in relation to donors recorded in the Register under the Births, Deaths and Marriages Registration Act 1996.

15C—Freedom of Information Act 1991 does not apply

The register and other documents held for the purposes of this Part that relate to a particular person are not subject to access under the Freedom of Information Act 1991.

15D—Liability

A registered provider of assisted reproductive treatment or other person required or permitted to provide information under this Part does not incur any civil or criminal liability in respect of providing that information.

7—Amendment of section 16—Record keeping

This clause makes a number of amendments relating to record keeping. Under proposed section 16(2a), a person who is in possession of documents relating to the provision of assisted reproductive treatment must keep the documents in accordance with the regulations. The maximum penalty for contravention is $50,000. The proposed provisions also allow the Minister to authorise a transfer of records to another person and makes it an offence to fail to comply with any conditions imposed on such an authorisation. This provision also has a maximum penalty of $50,000.

8—Amendment of section 18—Confidentiality

This clause clarifies the confidentiality requirements in the Act.

Schedule 1—Related amendments

Part 1—Amendment of Births, Deaths and Marriages Registration Act 1996

1—Amendment of section 4—Interpretation

This clause inserts new definitions of donor and donor conception for the purposes of the measure. For the purposes of this Act, donor conception means conception of a child by any insemination procedure involving a donor and is not limited to assisted reproductive treatment within the meaning of the Assisted Reproductive Treatment Act 1988.

2—Amendment of section 14—How to have the birth of a child registered

This clause amends section 14 to require a birth registration statement for a child born as a result of donor conception to state that fact and include particulars of the identity (if known) of the donor.

3—Amendment of section 18—Alteration of details of parentage after registration of birth

This clause makes a minor related amendment to section 18.

4—Amendment of section 46—Issue of certificate

This clause contains requirements relating to the issue of a birth certificate in a case where the Register indicates that a person was born as a result of donor conception.

Part 2—Amendment of Family Relationships Act 1975

5—Amendment of section 10C—Rules relating to parentage

This clause makes amendments to the rules relating to parentage to deal with the situation where a woman becomes pregnant as a result of a fertilisation procedure using an ovum from, or an embryo created by using an ovum from, the woman's deceased spouse or partner.

Part 3—Amendment of Surrogacy Act 2019

6—Amendment of section 4—Interpretation

This clause inserts a definition of human reproductive material.

7—Amendment of section 18—Court may make orders as to parentage of child born as a result of lawful surrogacy agreement

This clause makes amendments to allow orders to be made where human reproductive material used in relation to a relevant lawful surrogacy agreement came from a person who has died.

8—Amendment of section 19—Court may revoke order under section 18

This clause is consequential to clause 7.

9—Amendment of section 21—Court to notify Registrar of Births, Deaths and Marriages

This clause is consequential to clauses 7 and 8.

Debate adjourned on motion of Hon. L.A. Henderson.


At 17:49 the council adjourned until Tuesday 5 March 2024 at 14:15.

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