Surrogacy Bill

Second Reading

I wish to commence by thanking all the honourable members for their contributions on both the development of this bill and the contribution to debates. In particular, can I acknowledge the member for King, who has foreshadowed some amendments during the course of this debate and who I have absolutely no doubt is resolute in her motivation to do everything she can to ensure that we protect children. She has demonstrated that in a number of areas in the parliament already. Children who might be born as a result of a surrogacy agreement should be no exception. In that regard, I value her contribution.

I will have a little to say shortly in relation to the applicability of draft amendments that I have seen to date. Nevertheless, I want to assure members in the house that, in the circumstances, particularly as a number of other members will be sympathetic to the proposition, there should be some kind of capacity to do background checks on prospective parents and/or surrogate mothers. We need to do it, though, in a manner that will be both valid and capable of being implemented and not in breach of other agreements and/or create restrictions in other legislation. It is a little bit complicated, but I think the motivation is there. I think other members have presented to me the view that we need to have some sort of check. In that regard, we need to work to ensure that ultimately occurs.

The work that was previously done in the parliament to provide an appropriate and modern regulatory framework for surrogacy with minimal government intervention should also be acknowledged. As some members have pointed out, when we attempted to deal with this under the dying days of the previous government on the last parliamentary sitting days, there were other priorities of the former government. I think the person who was most disappointed by that was, of course, the Hon. John Dawkins, who spent a decade trying to support the previous government to get this right to be able to advocate in this parliament. The former attorney was deeply disappointed about the priorities that were displayed on the last day. Nevertheless, that happened.

A lot more work has been done and I think there is capacity for us to ensure what we are trying to do, which is to set up a regulatory framework that will enable South Australians to enter into lawful and enforceable agreements in relation to a surrogacy contract, can occur here in South Australia and to ensure that we provide that opportunity so that our residents do not have to go and live in another state and/or so the privileged few who might have the money do not have to go and effectively buy a baby via a process in other countries.

We have all heard and no doubt read in the SALRI report about some of the unscrupulous practices—it is the kindest way I can describe them—that operate in some other countries that leave particularly women vulnerable to not only being exploited as the carrier of a child, as a surrogate of a child, but left in either financially impecunious circumstances and/or left a child, the product of the agreement, whom receiving parents, for whatever reason, consider not to be satisfactory for them to receive.

That, of course, is no further exemplified than by the baby Gammy case with the rejection of a child who was considered by the receiving parents to not be to standard as a result of a disability with which he was born. If that is not bad enough, they took the child they considered to be in a wholesome state for the purposes of being acceptable to them. They took the good child, from their perspective, and left the one with difficulty, and we are left with a mother who is having to raise a child who is severely disabled.

Everyone in this parliament who has knowledge of that case will forever have etched on their minds the memory of that child being held by its natural mother—surrogate mother, as such—in a foreign country in an impoverished circumstance. The fate of that child's future is just too horrific to think about.

We are all trying to strive towards the same outcome. The previous parliament set up a register system with ministerial oversight. I think that even the minister of the day, the attorney-general (Hon. John Rau) was not at all pleased about having to try to operate that, and I think he was right. Nevertheless, it was something that needed to be fixed. Unfortunately, he did not fix it but, anyway, we are here. We have a chance to do this. We have a chance to give a future to parents who will rely on the surrogacy arrangements in South Australia and be able to have that come to fruition.

There were a couple of matters that were raised in the course of debate that I wish to place on the record. The first is access to genetic information for donor-conceived children. I am advised that a child's access to donor information depends on whether the donor was known or unknown. For known donors, if the parents used a known donor, they are required to list the donor on the birth registration statement, as per section 14(2) of the Births, Deaths and Marriages Registration Act 1996. This is the case for both clinic and do-it-yourself donor insemination and would cover donors to a surrogacy agreement.

Section 46(1a) of the Births, Deaths and Marriages Registration Act states that information about a biological parent—that is, a donor—cannot be released without the permission of the donor. Births, Deaths and Marriages' current processes require the donor to sign the birth registration statement and acknowledge therein that they understand their information will be released to the child at age 18. Therefore, they acknowledge their donation and give permission for the information to be released at a certain time, satisfying section 46(1a). The child can then be provided the official record of their genetic parents when they reach the age of 18. However, their legal parents may have provided that information to them earlier.

In respect of anonymous donors, I advise members as per the advice I have received that the Assisted Reproductive Treatment Regulations 2010 provide that all ART clinics operating in South Australia must comply with the National Health and Medical Research Council guidelines. These guidelines require the fertility clinic to collect and maintain identifying information and medical history about the donors, which must be provided to any children born from the donors' gametes once they reach the age of 18. The clinic may provide such information to a person under 18 if they determined that the person has sufficient maturity.

The next issue that was raised was in relation to the Youth Court processes and the best interests of the child. I advise members that the advice I have received on that matter is as follows. Intending parents under a surrogacy agreement are entitled, after the birth, to apply to the Youth Court for a transfer of parentage of the child. The order to transfer parentage must be in the best interests of the child. This is an express prerequisite for the order under clause 18(4)(a) of the bill.

Respect for the human rights of any child born under a surrogacy agreement is also a fundamental principle of the bill, which applies to the court and is set out in clause 7. The court must also be satisfied that the intending parents are fit and proper and assume the role of parent of the child. In deciding this and any other consideration, the court may inform itself as it thinks fit and therefore can seek any further information it requires. That is in relation to clause 18(11).

Further, clause 18(9) expressly allows the court to require any party to the proceedings to provide an assessment of a specified kind in relation to the matter from an accredited counsellor. That is obtained at the expense of the intended parents. The court must also be satisfied that the surrogate mother consents to the making of the order unless there are certain prescribed exceptional circumstances, such as the surrogate mother has died.

Regarding an issue raised in respect of the counsellor role, the bill covers two types of counselling: mandatory pre-agreement counselling for all parties and optional further counselling for the surrogate. On the question of the mandatory pre-agreement counselling, I am advised as follows. Firstly, prior to entering a surrogacy agreement, each party to the agreement—that is, the surrogate mother and all intending parents—must receive counselling on the implications of the agreement in order to help them come to an informed personal decision about whether to go ahead with the arrangement.

Secondly, the counselling must be provided by a counsellor accredited in accordance with the regulations. The expected requirement to be prescribed is eligibility for full membership of the Australian and New Zealand Infertility Counsellors Association (ANZICA), as recommended by the South Australian Law Reform Institute. Thirdly, the counselling must be consistent with the guidelines published by ANZICA and the National Health and Medical Research Council and any other requirements set out in the regulations. Fourth and finally, the counsellor must provide a certificate certifying that this required counselling was provided.

In respect of the optional further counselling for the surrogate, I am advised as follows. Clause 15 of the bill provides that intending parents must ensure counselling is available to the surrogate mother and her spouse or domestic partner, if any, during the attempt to become pregnant, during the pregnancy and for six months after the birth of the child. Costs are to be paid by the intending parents and the costs are recoverable as a debt. This ensures that the surrogate has access to appropriate professional support throughout the surrogacy process and after the birth.

There may have been other matters that I have missed in relation to contributions that were made. I listened with interest to the member for Light's contribution near the conclusion of the debate and I am hopeful that the access to genetic information for donor-conceived children material I have just provided covers his query. If I have missed other members' concerns or questions that they wish to foreshadow as being an impediment to them being completely satisfied with the bill, then I am more than happy to cover that as soon as I get further information on that.

Obviously, we are yet to go into committee, and we will certainly make every effort to make sure that members have all the material available and that they have their questions answered. I appreciate that this type of legislation raises a lot of questions about how it is going to operate. It is a new concept. It is a new procedure. It is a new process. Whilst I get a lot of advice in relation to these matters as the person who is moving this bill, it is fair to say that it is not without its complications. I fully expect members would want to be completely satisfied in seeking the approval.

Another matter I want to briefly raise is that the member for King has foreshadowed some amendments. One of the matters that has been raised that I do not think is proposed to be advanced as a formal amendment relates to the question of the definition of 'impaired decision-making capacity'. I just place on the record the principal reason why it is important that the bill maintain a consistent position in relation to the definition. It largely relates to the fact that the definition in this bill is not novel, it is not new and it is not peculiar: it is actually the same definition of 'impaired decision-making capacity' that is the standard definition across the statute book.

That includes such legislation as the Mental Health Act 2009, the Consent to Medical Treatment and Palliative Care Act 1995 and the Advance Care Directives Act 2013. Just in case any other members had the view that we needed to somehow or other have a different standard for the definition in relation to the decision-making capacity of the parties in a surrogacy agreement, when issues such as mental capacity for contractual arrangements are developed and the law relating to that is developed, consistency is pretty important for two reasons.

The first reason is so that we have the interpretation by the courts in a consistent manner, and the second reason is so that we do not set up, in this instance, a different set of arrangements for persons who might have a disability in one area of contractual decision-making from the arrangements of another.

It recognises the advancement, I would suggest, of the definition that applies across our legislation now—the advancement of the recognition of persons who have the disability and who may have episodic or intermittent interruption to their mental capacity but who are still recognised as being competent for the purpose of exercising contractual obligations.

That develops over a period of time and recognises, as I say, those who might have that impediment but where the law across other pieces of legislation recognises their capacity, and that is to ensure that the person is able and capable of understanding, retaining and using relevant information in the course of making a decision.

The member for King is quite right to raise the concern about making sure that, in this instance, we are ensuring that the people who are able to sign up to these agreements, these contractual arrangements for which they are seeking approval by a court, are competent to do so, because these are very important decisions. So are advance care directives for people who want to give instructions about their future care, and so are Mental Health Act determinations and decisions which they make and which they are capable of making, and things such as consent to palliative care or medical treatment.

That consistency is very important, that is true, and within the envelope of this legislation I certainly have been advised and am satisfied that maintaining that consistency is important. Having said all that, I thank the member for King for raising it because it also makes us reflect on making sure that what we have is exactly the best option in these matters for consideration; so, I thank her for that.

In relation to the second matter that has been foreshadowed, that is, to introduce some form of mandatory criminal history reporting or access to information in relation to criminal history of intending parents, again this is really a fundamental question which has quite rightly been raised by the member for King and which, I think, has general attraction when you ask yourself the question: 'Are we going to set up a restructure in relation to enforceable agreements for surrogacy in South Australia and in so many other ways in dealing with the protection of children require criminal history checks and the disclosure and the real-time updating of that information for other areas of care of children; why shouldn't we apply it to this?'

We do not have a criminal history check on couples who might partner and/or marry to have children of their own; we do not require that. However, more importantly and leaving aside that arrangement, where we have a regulation as to the competence, I suppose, to be a prospective parent, such as IVF treatment, which is able to be accessed by certain persons and cost provisions are made and guidelines are set up as to what is to occur (and, in fact, there is a very significant fee frequently paid for that by persons who are seeking to have IVF), in those circumstances we do not impose on them some form of criminal history check. The adoption of children under the Adoption Act in South Australia is again through a court process and a number of different checks are required in relation to that process.

Notwithstanding all that, let's assume for the moment that there is a desire for us to have some kind of assessment or check available to be considered and available as part of the information—if the parties seek to have it—for when the court makes the order in relation to an application under the surrogacy proposal.

I say 'if the parties seek to have it' because I think it is reasonable to assume that in a number of cases—most likely in a circumstance where a sister, mother or cousin is going to be the surrogate of the receiving parents and is volunteering to provide this service to their relative—it is probably unlikely that they will say, 'I want you to have a police check before you come into this arrangement.' So, 'Mum, thanks very much for offering to have a baby for me, but I want you to have a police check.' That is not necessarily something that the parties would want to do.

These are the sorts of things that we need to have a look at. I have discussed the matter with the member for King and I think we can probably come to some arrangement as to how we can progress this without breaching our obligations under the use of the current data we collect for the purpose of checks. I have undertaken to work with her overnight to see what we can come up with in that regard.

I just place on the record that, having received the 99(2) amendments that have been tabled, today I have been advised the use of the central assessment unit under the Child Safety (Prohibited Persons) Act 2016 to undertake working with children checks in the surrogacy process would actually breach a national COAG agreement in relation to the disclosure of data and its purpose. I have only just received preliminary advice in that regard, which I am happy to read into Hansard, but essentially it indicates that the use of this information would breach that agreement. If an amendment in that form were to pass, we would have to renegotiate, at the COAG level, access to that unit for the purpose of using it for surrogacy agreements.

One of the matters that has been raised is in relation to what else we can do. I have received some preliminary advice on that, and overnight I will be considering how we could use an alternate method to be able to do what I think the member for King wants; that is, if we are going to have surrogacy agreements in South Australia, we need to know that the parties to them—and I suggest the surrogate mothers as well, not just the receiving parties, as she has indicated in the amendment—do not have a record that obviously identifies them with convictions in relation to child offences. We will work to try to ensure that—

The DEPUTY SPEAKER: Attorney, can I just come in here, please. Can I remind the Attorney that the second reading speech needs to relate to the content of the bill, rather than the amendments in particular. We will deal with the amendments when they come up during the committee stage.

The Hon. V.A. CHAPMAN: Correct. Members have raised it in the contributions they have made; therefore—

The DEPUTY SPEAKER: Yes, and I have been listening carefully—

The Hon. V.A. CHAPMAN: —that is the reason why I am indicating that—

The Hon. A. Koutsantonis interjecting:

The Hon. V.A. CHAPMAN: Excuse me?

The DEPUTY SPEAKER: Member for West Torrens, I will speak with the Attorney just at the moment. We have had a pretty good run at this, and probably for the past 10 or 15 minutes you have been discussing the amendments themselves. So, with all due respect—

The Hon. V.A. CHAPMAN: Let me put it in this context. Members have raised, in the course of the contributions made in this debate, the imperative and benefit of having checks in relation to children who are going to be parties to these agreements. Without foreshadowing amendments that have been put, I indicate that I think the submissions in those contributions have merit.

I am happy to work with any of the members, including the member for King, on how that can be effected without causing there to be a breach of a whole lot of other processes. I think we can probably do that and I am happy to continue to work on that. I mention that because I think there has been a general discussion on this issue—and there has been public reporting, of course—and it is reasonable that I indicate to the parliament my position as the mover of this bill to accommodate that as we can. In relation to that aspect, I think I have covered it sufficiently and otherwise commend the bill to its second reading.