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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-03-19 Daily Xml
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Bills

Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 February 2024.)

The Hon. J.M.A. LENSINK (15:29): I rise to indicate support for this piece of legislation, which is one of a range of reforms that have taken place in this policy space over several years. In doing so, I would like to acknowledge the Hon. Connie Bonaros, particularly for her role in the establishment of the Donor Conception Register, and former reports that have been done under previous governments and work that has taken place. Sometimes these things are a long time in coming, but this legislation certainly is consistent with some that other jurisdictions have introduced as well.

There are four main policy considerations in the bill, which reflect the United Nations Convention on the Rights of the Child as being the major consideration. These are, firstly, to bring into the law, if you like, the posthumous use of an ovum or embryo, which is already available for the posthumous use of sperm in that the law currently prohibits the use of embryos or gametes after a woman's death. Stored gametes or embryos, created using the ovum of a deceased woman, are currently required to be destroyed upon the woman's death. One amendment will establish the circumstances in which the human reproductive material can be used posthumously.

Amendments to the Surrogacy Act will enable an embryo of a woman who is deceased to be used under a lawful surrogacy agreement for the benefit of the surviving domestic partner, whether the agreement was in place before or after the deceased partner passed away. The woman who provided the ovum or embryo will be considered the co-parent of the child despite her death occurring prior to the child's birth.

Secondly, this bill expands on the work that took place under the former Marshall Liberal government by allowing donor-conceived people to access certain information about their donor and by compelling registered fertility clinics to maintain suitable records and provide information for inclusion on the Donor Conception Register.

The shadow minister responsible for this area, Ashton Hurn, member for Schubert, has sought feedback from a range of stakeholders. Feedback from the South Australian fertility clinics has been supportive of the fines that are in place in the bill. If a donor provides a clinic with false or misleading information and the clinic provides that information to the register in good faith, the clinic will not be liable.

Thirdly, the bill is changing the historical anonymity of donors. Prior to 2004, donations of human reproductive material, the majority of which were sperm, were done on an anonymous basis, there being no other option available at the time. The National Health and Medical Research Council's guidelines, implemented in 2005, removed the capacity for a sperm donor to remain anonymous in every Australian state except Victoria.

SA Health have indicated that they have information relating to approximately 1,000 individuals who made donations prior to 2004. This does not give a very specific indication of how many donor-conceived children this information would be relevant to, given many historical records have been lost and those that remain often contain limited information.

There is no formal process under this bill for any donor who provided human reproductive material prior to 2004 to object to the disclosure of their personal information. Under the current Donor Conception Register, donors may set a contact preference which outlines the extent to which the donor wishes to be contacted by any donor-conceived person born as a result of their donation. This relates to pre and post-2004 donors.

At this point in time, there is no obligation for parents to advise their children that they are donor conceived. SA Health estimates that some 80 per cent of donor-conceived children are not aware of their conception status. This bill will not change the requirement of parents to tell their existing children that they are donor conceived. An 18 year old who is aware that they are donor conceived would be able to apply to the register to find information about their donor. A matched donor would then have an opportunity to receive counselling and set a contact preference before any information about them is released to the child.

Fourthly, amendments to the Births, Deaths and Marriages Registration Act enable the inclusion of donor details on a birth certificate. Donor-conceived children born after the passage of the bill will automatically have the fact that they are donor conceived listed on their birth certificate. Children born prior to the passage of the act can apply for donor information to be included on their birth certificate once they turn 18. Children under the age of 18 will require the consent of their parents or legal guardians to have the fact that they are donor conceived and any information about the donor included on their birth certificate.

Donor gametes, which includes both ovum and sperm, can be imported into Australia for use but not on an anonymous basis. The donor information would still be uploaded to the register and the donor conception status would be on the child's birth certificate. By way of background, according to SA Health and representatives from Donor Conceived Australia, donor-conceived people are finding their parents and family members, such as half-siblings and the like, by DNA testing, Ancestry.com and other hereditary-type services and apps.

The Donor Conception Register provides a way to ensure accurate information (where it is available) is provided to the right people under the right conditions and with the right supports in place. Information is only provided to the donor child and the donor and is not accessible to the broader community.

I might address the Liberal Party's amendment in my second reading speech. There are some retrospective elements of the bill. We have had an amendment drafted and filed which will allow donors of human reproductive material from pre-2004 to have an opportunity to opt out of providing personal identifying information to a donor-conceived person via the Donor Conception Register.

Medical information would still be disclosed to the donor-conceived person. This is just to preserve for a small cohort of individuals the anonymous conditions under which they had provided that material with their consent prior to 2004, whilst still allowing for medical information to be shared. With those comments, I support the bill.

The Hon. S.L. GAME (15:37): I rise briefly to support the bill. The Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill 2023 aims to significantly reform various aspects related to assisted reproductive treatment in South Australia. It allows the use of reproductive material from a deceased person for assisted reproductive treatment if they consented before their death and the recipient was their domestic partner.

It specifies that the assisted reproductive treatment procedure must be performed for the benefit of the surviving partner and not through surrogacy. It establishes a Donor Conception Register to hold information about donors and individuals born through donor conception. Individuals born through donor conception will have greater access to information about their donor upon request, subject to privacy limitations and the donor's consent. The register will be confidential and not subject to freedom of information requests.

The bill mandates recording information about donor conception on birth certificates for individuals born after the legislation commences. For individuals born before the legislation commences, birth certificate amendments to include information about the donor require consent from the individual and/or legal guardians. It clarifies that being listed as a donor on a birth certificate does not establish parental rights or responsibilities.

Overall, this legislation aims to provide greater transparency in respect of individuals involved in donor conception, while also ensuring responsible use of posthumous reproductive material and protecting the privacy of all parties involved. I am concerned about the retrospective changes that will affect some donors, specifically the donors who provided reproductive material for assisted reproductive treatment on the basis that their identity would not be disclosed to any child born because of the treatment or to any parent or guardian of such a child without donor consent. However, ultimately I believe that children have a right to know who their parent is for their psychological wellbeing.

The Hon. C. BONAROS (15:38): I rise to speak wholeheartedly in support of the Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill 2023. The bill encapsulates two objectives: first, enabling the posthumous use of an ovum or embryo; and, secondly, granting donor-conceived individuals access to their genetic information.

The genesis of the Donor Conception Register traces back to the recommendations of Associate Professor Sonia Allan OAM from Deakin University, whose independent review of the Assisted Reproductive Treatment Act 1988, as tabled by the former Labor government in 2017, laid the groundwork for its establishment. I take a great deal of pride in the establishment of the Donor Conception Register, an initiative that was realised through amendments that I moved to the Assisted Reproductive Treatment Act 1988, through the Surrogacy Act, in what I would, and probably could, only describe as an opportunistic but much warranted move.

I acknowledge the support of honourable members from across the political spectrum in relation to those changes that were moved at the time and their support for the establishment of that register. The register represents more than just a database, it holds very important pieces of the puzzle for many donor-conceived people who up until now have been unable to access important information about their genetic history. Every individual has the right to know their story and claim their identity, and the passing of this bill is a testament to the tireless efforts of advocates and allies who have fought for the rights of donor-conceived individuals.

In particular, I would like to acknowledge, and they are present here today, Damian Adams and his mum, Elizabeth, Katherine (Kat) Dawson, Reece Trevenen, the Donor Conceived Australia national director, Aimee Shackleton, and also members from the other place, the member for Light, the Hon. Tony Piccolo, and the member for Davenport, the Hon. Erin Thompson, for her support. In particular, I would like to acknowledge the hard work and effort of the Minister for Health and Wellbeing, Chris Picton, who I know has remained committed to this since his time in opposition. It has been a long, long journey but one that we are all pleased to have finally reached in this place.

I acknowledge the work of the opposition in terms of supporting this bill. I acknowledge that the Hon. Michelle Lensink has filed amendments identical to those filed in the other place to retain the secrecy of pre-2004 donors, which I cannot lend my support to, and I think the honourable member acknowledges the reasons for that. This is a balancing exercise but the paramount importance of the welfare of a donor-conceived child is a fundamental principle of the ART Act and it would be unfair for a person conceived as a result of a donation prior to 2004 to be treated differently to donations made after that date. It goes against the grain of that review that we spoke of.

There are safeguards enshrined in this bill such as the provisions for donor participants to specify their contact preferences. Drawing inspiration from the successful implementation of similar measures in Victoria since 2017, the bill also mandates a three-month buffer period post identification to facilitate access to support services, so we have built in those supports to deal with those concerns that have been raised.

I can say this: it is impossible to spend five minutes with Damian or with Kat or with Reece and not be convinced of the need for these changes because their stories are touching beyond measure, but also their resilience and their determination is a testament to them and everything that we are doing here today.

We all talk about our own identity and we know that our genes form such a vital part of our identity and who we are. I cannot think of the number of times we have come into this place and spoken about our family backgrounds and histories and everything, and who we are as people and where we came from. There is no question that donor conception has made possible the dreams of countless families in terms of having children, not just here but across the world, but in many of those cases it has resulted in a lifetime of questions and endless quests for piecing together pieces of one's identity, questions and answers we all take for granted.

I always use the example of the questions put to me. Imagine walking into the doctor's surgery, sitting down and the doctor says, 'What is your family medical history? Is there a history of heart disease? Is there a history of cancer? Is there a history of diabetes?', and simply not knowing the answer to those questions. I do not think that is something many of us think of in the broader context but, certainly speaking to individuals who have advocated for this, it is a daily thing that we deal with.

We have also spoken in this place about not knowing, potentially, whether you have other siblings out there, and there are some stories that will shock you in terms of the potential number of siblings that people have as a result of historical events and they simply do not know. That makes the most basic thing like dating, meeting someone, a huge question for individuals who do not know, and it is only fair and right and reasonable that we address that.

Our own ethnicity—not knowing what your ethnic background is—there are so many questions; it is endless. Not having answers to those is something beyond my comprehension, and I am sure that of many others in here, but we do know that these are the very things that define each and every one of us, and for some they will remain forever questions that will go unanswered. We are trying our level best here to address that as far as possible.

So, Damian, Kat and Reece, I have no words. In fact, I have nothing but admiration for everything that you have done. Elizabeth, I cannot begin to imagine how much this means to you for your son and how exceptionally proud you must be of him for the advocacy and work that he has put into this issue on behalf of all donor-conceived children. All I can say is well done to all of you. This has been a truly humbling and heartwarming experience to be a part of and an amazing journey to have shared with you. I know it is not a silver bullet. I know it will not address every single question people have left, but I cannot commend you enough for getting us, as a parliament, to this place today.

As I said, this legislation will offer a path towards healing and understanding for donor-conceived individuals, and indeed their families, and I commend each and every one of them for ensuring that we extend the most basic right to know one's identity to each and every donor-conceived South Australian. With those words, I support the bill.

The Hon. T.A. FRANKS (15:47): I rise on behalf of the Greens to support the Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill 2023. I do so noting that my colleague the Hon. Rob Simms carries this portfolio and, indeed, carries a commitment to ensuring that we, as parliamentarians, do the best we can in this particular area. It is an emerging area that affects many tens of thousands of people in our nation. It is estimated that there are between 20,000 and 60,000 people in Australia who are donor conceived, and the corollary of that is families and loved ones and potential relationships and so on, so the number affected by this legislation is far greater than that.

This bill legalises the posthumous use of ovum or embryos, as is already done with sperm. It allows donor-conceived children to access certain types of donor information. Genetic testing has, of course, changed the landscape when it comes to anonymous donor information, given that people can often identify their biological parent through online platforms after undergoing DNA testing in this day and age.

It actually does reflect in this bill that the government has committed to making counselling and intermediary support services available to any donors prior to 2004 who did believe that they would remain anonymous, and it allows for an option to have donor conception status or donor information added to birth certificates.

This bill speaks to the rights of the child and it is in line with changes that have been made in Victoria as far back as 2017. My understanding is that this has come from the call for access to donor information because people do have a right to know. They have a right to know their medical information, their genetic heritage, who their siblings are—especially when forming romantic relationships—and they have a right to know their true identity.

Donor Conceived Australia believes that the vast majority of adults who were donor conceived from the 1970s onwards still have not been told that they are, and many are now actually finding out by accident when undertaking DNA testing using home kits.

The Greens will support the passage of this legislation today. We note the work of the many contributors to this piece of legislation, including the minister, and the Hon. Connie Bonaros' words that certainly reflect the depth and breadth of the efforts that have gone into this and the impact that this will have on the community.

The Greens, similarly, will not be supporting the Liberal amendments today. I think the Hon. Connie Bonaros, when she referred to the balance that has been sought here, goes some way as well to the Greens' motivation for our position on that, and we look forward to the passage of the bill this afternoon.

The Hon. E.S. BOURKE (15:51): One of the most common human urges is to know where we have come from and to know our heritage and our ancestry. It gives us our sense of identity and helps us to understand our place in the world, but donor-conceived people have not always had this opportunity and so this bill seeks to enhance the operation of the Donor Conception Register by expanding access to donor information.

There is a broad range of reasons, which have been highlighted by many today, why it may be important for donor-conceived people to have the opportunity to access certain information about their genetic parents. One very obvious reason is the ability to know one's inherited medical history. If there are any conditions that a donor-conceived person may have inherited from one of their genetic parents it is more than simply useful for them to be aware of it. It can be life-altering and even life-saving to know about it and, therefore, to have some forewarning of what the future might have in store for one's health.

In the past when a person made the decision to become an anonymous donor of reproductive material, generally speaking they would most likely have been a reasonably young and reasonably healthy individual. Medical histories that were taken at the time of donation did not necessarily reflect the medical realities that may have come about later in life, or indeed inherited conditions that may not have been known at the time of the donation.

When it comes to the health and welfare of donor-conceived people in our community they should have the right to access information relevant to their genetic medical history. This bill aims to modernise our laws and bring them into line with the community's expectations in terms of the rights of people who access assisted reproductive treatment, as well as those who have gone through this process.

In 2017, Professor Sonia Allan conducted the state government's review of the Assisted Reproductive Treatment Act. Her recommendations following the review included the establishment of the Donor Conception Register in South Australia, as well as to provide donor-conceived people with the right to access identifying information about their donor upon reaching legal adulthood.

Recognising that public expectations have evolved, especially as donor-conceived people across the world are demonstrating through experience that there can be very significant risks in not knowing about their medical history, our state established a Donor Conception Register in November 2021, and I would like to acknowledge the significant role, as many have today, of the Hon. Connie Bonaros in bringing these changes about. It has been lovely to hear the true commitment that she has had to this and to be able to share this with the people who have been advocating for it today in the chamber as well.

The Donor Conception Register holds information on donors, the parents and also the donor-conceived person. This bill seeks to enable the register to function and to enable access to information that has been held prior to 2004, as we have heard. It is understood that historical donors who chose to donate prior to 2004 made their choice with the understanding that they would remain anonymous. The rise of home DNA kits, however, has meant that donor-conceived people have been able to find out the identity of their donor, but in an uncontrolled and unregulated way.

In developing this legislation, the government has undertaken extensive consultation with subject matter experts as well as the communities of people that this legislation will impact. The outcome of the government's consultation assisted in ensuring that the model we propose to adopt for South Australia functions efficiently and provides for the disclosure of personal information to occur in an ethical, respectful and safe way.

The changes proposed by this bill are reasonable. The bill enjoys broad support from advocates, from experts and from members across the political divide. I think the support that this legislation enjoys is a clear testament to the fact that its time has come. It is the Malinauskas government's position that this bill strikes a good balance between promoting a person's health and welfare and ensuring the respectful and regulated disclosure of donor identities. I support this motion and this bill coming to the chamber.

The Hon. M. EL DANNAWI (15:55): I would also like to rise to speak in support of the Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill. This bill will continue the process of modernising South Australia's assisted reproductive legislation. Assisted reproductive technology continues to advance, and as it does so our acceptance and expectations as a society change as well. Through this bill, we will bring legislation more into harmony with community expectations, empower individuals and extend access to vital information and technology.

As many will know, in 2017 Professor Sonia Allan conducted the state government's review of the Assisted Reproductive Treatment Act. Professor Allan's recommendations include 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.

This register was established in 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 about donors, the recipient parents of the donated human reproductive materials and any person born as a result of the donated material.

This bill will enable the Donor Conception Register to function retrospectively and enable safe and supported access to the information it holds. This will bring us into line with other jurisdictions, including Victoria, New South Wales and Western Australia, which all have donor conception registers available to donor-conceived people. We will also join Victoria in ensuring the retrospective disclosure of a donor's identifying information for a donor prior to 2004.

The early days of IVF in the 1970s were poorly regulated. Many sperm donors only donated under conditions of anonymity up until the 2000s. Record keeping was a matter for the clinicians and doctors, and there was no uniform method for collecting and maintaining information. Finding answers for many donor-conceived people in this generation can be tough.

A 2011 federal Senate inquiry reported that there were 20,000, and likely upwards of 60,000, donor-conceived people in Australia. This number will only have increased since then. The desire to know who we are and where we come from is deeply human. Access to available information about yourself, which has the potential to shape and change your life, is a human right. As Professor Sonia Allan said:

Reasons people wish to obtain information range from issues concerning identity, medical information, fear and risks of forming relationships with people they might be related to, concerns for each other's wellbeing and a desire for openness, honesty and equality.

This bill will allow donor-conceived people to access information about their donor, regardless of when they were born, as long as the information is available and verified.

As I have stated, many historical donations were made on a condition of anonymity. Though it is a matter of equality, fairness and common sense that donor-conceived people should have a right to access information, the rights of the donor must also be respected. This bill places no requirement on any donor to have contact with their donor-conceived offspring, regardless of any identifying information disclosed. The government gave careful consideration before legislating a retrospective Donor Conception Register. Extensive consultation was undertaken with those who will be directly impacted, including the donor conception community.

This consultation, which included the SA donor conception reference group and the national advocacy group Donor Conceived Australia, supported the development of this bill. They helped to ensure the model proposed for South Australia is workable and allows disclosure in a safe, respectful and ethical way that preserves the rights of all parties. We acknowledge the potential impact this bill may have on donors prior to 2004. The government will make important counselling and support services available to this group.

This amendment bill also deals with the posthumous use of human reproductive material. There are already very strict conditions on the use of human reproductive material after death. The deceased party must have already consented to the use of their material prior to their death, and the partner seeking to use the deceased's material must have lived in a genuine domestic relationship with them prior to their passing.

As it stands, the Assisted Reproductive Treatment Act only allows for the use of sperm after death. The amendment within this bill would allow equitable treatment for men whose female partner has died and same-sex couples where one partner has died. Combined, the proposed amendments within this bill will ensure the effective operation of the Donor Conception Register, providing donor-conceived people with options for the inclusion of donor information on birth certificates and access to information about their genetic parents once they turn 18, and will provide gender equity in the use of human reproductive material after death.

Access to donor conception and assisted reproductive technology is still relatively new. It is incredibly important that all donor-conceived people have access to information about their genetic heritage. It is not only sensible, as it enables access to important medical and genetic information, but is a matter of wellbeing. It is our belief that this bill strikes the correct balance between safe and respectful disclosure of donor identities with upholding the right to know information about yourself and respecting the essential human desire to understand your own identity.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:01): I would like to thank all members for their contributions. Today, in closing this second reading debate, I would also like to take the opportunity to make a few acknowledgements. I know the Hon. Connie Bonaros has campaigned long and hard, and I thank her for her support and her legislative amendments that have helped in a big way to lead to the creation of what we are seeing today. As the Hon. Connie Bonaros mentioned, the member for Light, Tony Piccolo, in another place, has long supported the concept of a donor conception register and has supported the donor-conceived community in pursuit of this change over a number of years.

I would like to acknowledge 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, Katherine and Reece from South Australia and also Aimee at a national level, who have all been passionate drivers for this change over a number of years. I thank you and all other members of the donor conceived reference group for their contributions and input in developing this bill.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 4 passed.

Clause 5.

The Hon. J.M.A. LENSINK: I move:

Amendment No 1 [Lensink–1]—

Page 4, after line 26 [clause 5(4)]—After inserted subsection (4d) insert:

(4e) Despite any other provision of this section, if—

(a) a donor provided human reproductive material for the purposes of assisted reproductive treatment on the basis that their identity would not be disclosed to any child born as a consequence of the treatment, or to any parent or guardian of such a child, without the donor's consent; and

(b) the donor—

(i) has given written notice to the Minister that they do not consent to having their identity so disclosed; or

(ii) has not received information from the Minister about the effect of this section and had a period of at least 3 months to consider whether or not to give the Minister such a notice; or

(iii) has died before receiving information from the Minister about the effect of this section,

the Minister must ensure that access is not provided to identifying information about the donor contained in the donor conception register.

Note—

Access may still be provided to information about the donor in the register (such as, for example, medical information) but the identifying information must be redacted or otherwise excluded.

I will be brief, given I can read that there will not be support for this particular amendment. I appreciate that, as honourable members have pointed out in their second reading contributions, it is a balancing act in terms of determining where these things are. The principle on which this amendment has been drafted is the matter of retrospectivity, and I appreciate that it is very unlikely to pass this afternoon.

The Hon. K.J. MAHER: I will not speak for long. I have copious notes to read out about the government's view in not supporting the honourable member's amendment. A lot of those have been ventilated and agitated when this went through the other chamber. Whilst we can understand the motivation for the honourable member's amendments, we think it goes against the intentions of the bill and would treat people very differently based on an arbitrary line in the sand.

The bill is more than about providing donor-conceived people with just medical information about their donor. As members have talked about here, that very essence of knowing their identity—who they are and where they fit in in the world—is a really important aspect of this. We think integrity is achieved by the bill itself and is lessened by the amendments.

The Hon. C. BONAROS: As indicated in my second reading, I rise to indicate that I will not be supporting the amendments for similar reasons just outlined by the Attorney. As the Hon. Tammy Franks pointed out—we both did during our second readings—I think we have the balance right here in terms of those safeguards that have been adopted and incorporated into this bill to address the concerns that have been raised by the opposition, and that is not to discount the work that the opposition has done on this in the past.

I do note that initially we had done some work together while in government, but I think the consensus is that not only is this going against the grain and the intent of the bill itself but the amendments do not have the support of the individuals who have been advocating so tirelessly in relation to this bill.

The CHAIR: The Hon. Ms Lensink, your second amendment was consequential, so we will not be putting that.

Amendment negatived; clause passed.

Remaining clauses (6 to 9) and title passed.

Bill reported without amendment

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:07): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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