 Adjourned debate on second reading.
To which question the Hon. I.K. Hunter had moved an amendment leaving out all the words after `That' and inserting:
`the bill be withdrawn and referred to the Social Development Committee, to inquire into and report upon the issue of gestational surrogacy and, in particular, to consider—
×the ways in which South Australian statutes might be amended to better deal with matters pertaining to surrogacy and related matters;
×what complexities might arise from the consideration of such changes;
×the efficacy of surrogacy legislation in other Australian jurisdictions, and the status of children born through surrogacy interstate and now living in South Australia;
×the interplay between existing state and federal legislation as it affects all individuals involved in, and affected by gestational surrogacy; and
×any related matters'.
(Continued from 20 September. Page 661.)
The Hon. A.L. EVANS: Family First welcomes the amendment to refer this bill to the Social Development Committee. Surrogacy is a complicated and emotional issue, and Family First welcomes the thorough scrutiny that the Social Development Committee can bring to bear in respect of several concerns.
This bill will allow fertilisation procedures to achieve pregnancy. The bill envisages that the surrogate mother would be fertilised by artificial insemination, IVF and embryo transfer, or transferring an egg to the surrogate mother so that it can be fertilised. This means that the bill is wide in scope. As the Southern Cross Bioethics Institute has indicated to me, it would be possible under this bill for a child to be genetically related to just the commissioning couple, just to donors, to a donor and one of the commissioning couple, or to the surrogate and a donor, or to the surrogate and the commissioning male.
This bill therefore allows full surrogacy—a woman who is implanted with an embryo usually created from the egg and sperm of the commissioning couple. It also allows partial surrogacy in which the surrogate mother is genetically the mother of the child, with that mother being inseminated with the sperm of the social father, or a sperm donor. Family First acknowledges the difficulties faced by infertile couples. A medical diagnosis that a woman is unable to bear a child must be heart-rending. We also acknowledge the goodwill of those who wish to help a woman who is unable to bear a child to term.
Statistics show that infertility is on the rise. Fertility in women naturally declines as their age passes 24 years. Many couples today are leaving it later to have children, compounding the problem. Factors such as environmental pollution have also been blamed for the striking increases in infertility in recent years. Surrogacy is not as straightforward a solution as it may appear at first glance. Interstate and overseas experiences show that surrogacy often gives rise to unforeseen difficulties. I will canvass some scenarios which could cause concern, and I invite the committee to consider thoroughly the implications.
Let me raise the first scenario from a real-life incident reported in The Australian of 27 January 1983. A commissioning parent and birth mother in Michigan agreed to a surrogacy arrangement. However, when the baby was born he was severely retarded and deformed. The commissioning parents rejected the child on the basis of the handicap. The disabled child became nothing more than an object and was handed over to the state.
I am concerned for a heightened risk of health problems with this bill, as it has a requirement that the surrogate mother be a close relative of the commissioning parents. This leaves open the risk of what is sometimes called gestational incest which can pose a risk of birth defects. Let me raise a second scenario: instead of a single child, a surrogate mother carries twins. Again, this has happened. There was a story on CNN in 2001 which talked about the legal wrangle between a commissioning parent and a surrogate mother when it turned out that she was carrying twins. When the surrogate mother refused demands to abort one of the children, the surrogacy agreement was terminated and the matter was dragged through the courts.
Let me raise a third possibility: a surrogate mother can form a strong emotional attachment to the child she is carrying, which can lead to legal arguments over residency of the child. One particularly bitter Australian case was referred to on The Law Report of 15 September 1998. Baby Evelyn, as she was known, was born as the result of an agreement between an Adelaide couple and a Brisbane couple. Knowing that the Brisbane mother could not conceive, the Adelaide mother offered to be a surrogate. For some time the child resided with the Brisbane couple, but the Adelaide couple had a change of heart and applied for recovery of the child through the Family Court, in a bitter case that made it to the doorstep of the High Court.
I have a fourth concern: the bill before us today says that a surrogate mother must already have had at least one other child. If the mother's other child or children are old enough, then they will know that their mother is pregnant. Will these children experience psychological harm when they realise that their mother is giving the baby away? Will they be worried that they may be given away as well? These are all concerns that should be properly canvassed.
I sympathise with Mrs Kerry Faggotter's comments made on ABC Radio on 18 September, and the other submissions that she made to us. She explains that she finds it difficult, for example, to enrol her child (born through a surrogate agreement) for swimming lessons because her name is not on the child's birth certificate. I encourage the committee to consider, in this regard, the submission put by the Australian Families Association, that this concern might be dealt with by allowing changes to the birth certificate, in a similar way to that provided by section 41 of the Adoption Act.
Surrogacy has sometimes been called a Pandora's box. There are a bewildering number of issues that need to be addressed and considered. I note that the issue of surrogacy was debated at length, and perhaps most comprehensively, in a meeting in 1991 of Australian health ministers. After much debate and numerous studies, the ministers agreed unanimously on a position against surrogacy. I would encourage members of the Social Development Committee to consider the debate from that meeting before reaching a conclusion.
The Hon. SANDRA KANCK: I indicate at the outset that I support this bill and I am disappointed that it is going to be referred to the Social Development Committee. Some years ago I referred, in this chamber, to the issue of increasing rates of infertility in this country. It is infertility that is occurring on a worldwide basis, particularly in developing countries, and it is affecting men and women. It is a problem that is simply not going to go away. At the state and national level, a lot of questions are being asked about why the problem is increasing. I, and members of my party, tend to believe that it is because of exposure to environmental pollutants and also synthetic products.
At the local level, infertility causes heartache for many couples, in turn placing pressure on our health services and, in particular, access to very costly reproductive technology services. Surrogacy, however, is a time-honoured method of producing a child and, in the past, this and adoption were, in fact, the only ways that a childless couple could have a child.
I have had feedback opposing the bill from groups associated with Christian fundamentalism—that is, the Southern Cross Bioethics Institute, the Festival of Light, and the Australian Families Association. Such groups, I find, are never honest about where they are coming from, and in this case it is the same. None of them have indicated that they come from a Christian tradition. I would have more respect for the their views if they acknowledged that their starting point is the Bible and their interpretation of it—because that is what it is; it is an interpretation. Today is a somewhat unusual day. I am choosing to quote from the Bible, and I do so to demonstrate that surrogacy is a proud tradition in the Judeo Christian religion. Those with a Christian background might be aware that Jacob had two wives—and I do not think we will judge him for that—Leah and Rachel. Leah had managed to produce children, while Rachel was infertile. I am reading from Genesis, Chapter 30, verses 1 to 13:
And when Rachel saw that she bare Jacob no children, Rachel envied her sister; and said unto Jacob, Give me children, or else I die. And Jacob's anger was kindled against Rachel: and he said, Am I in God's stead, who hath withheld from thee the fruit of thy womb? And she said, Behold my maid Bilhah, go in unto her; and she shall bear upon my knees, that I may also have children by her. And she gave him Bilhah her handmaid to wife: and Jacob went in unto her. And Bilhah conceived, and bare Jacob a son. And Rachel said, God hath judged me, and hath also heard my voice, and hath given me—
the operative word here—
a son: therefore called she his name Dan.
And Bilhah Rachel's maid conceived again, and bare Jacob a second son. And Rachel said, With great wrestlings have I wrestled with my sister, and I—
again I emphasise the `I'—
have prevailed: and she called his name Naphtali.
When Leah saw that she had left bearing, she took Zilpah her maid, and gave her Jacob to wife. And Zilpah Leah's maid bare Jacob a son. And Leah said, A troop cometh: and she called his name Gad.
So, although it was Zilpah who gave birth to the child, it was Leah who named him. It continues:
And Zilpah Leah's maid bare Jacob a second son. And Leah said, Happy am I, for the daughters will call me—
the operative word here is `me'—
blessed: and she called his name Asher.
The Australian Families Association made an interesting point in its submission opposing the bill—one with which I actually agree—and that is its concern that people may be choosing to treat children as commodities. As I say, I agree with that; I have that similar concern. I have never been happy with reproductive technology for exactly the same reason; whether it be IVF or artificial insemination, I do not regard it as a right for people to have children. Nevertheless, I recognise that the technology is there and, if it is not made available, a black market will emerge and the only people who gain from that will be those who run the black market and the wealthy people who can afford to effectively buy the process of making children.
Reproductive technology does have huge financial costs for our economy, and it has emotional ones for those who go through it and still find they cannot conceive. By contrast, however, surrogacy does not cost the state anything. I do not believe anybody has a right to have children, but I do recognise that childless women will seek to have children of their own by other means. It is a reality that we have to deal with. I had intended, if we had got to the committee stage of this bill, to move an amendment so that it would be applicable also to people in a same sex relationship, but that will not be possible now that the bill will be sidelined to the Social Development Committee.
I was very perturbed to find that the Labor caucus has decided that, if push came to shove, it would prefer to defeat this bill. This is very much ducking the issue, because the parents of children who have been produced through surrogacy will continue to face the problems of not being able to enrol their own children in school and not being able to sign off on medical treatment for their own children. It is such a nonsense. However, I recognise that having the bill referred to the Social Development Committee is better than nothing, and I will therefore support it but, as one of my staff members responded when I told her that this was the decision of the Labor caucus, `Why don't we just go out and get a bigger bucket of sand and we can all put our head in it?'
Members interjecting:
The Hon. SANDRA KANCK: I think we will need a big bucket of sand for the Labor caucus. I congratulate the Hon. John Dawkins on his humanity in recognising and acting on the plight of people in this situation.
The Hon. J.S.L. DAWKINS: I will be brief, but I want to make a few comments in relation to this matter. First, I wish to thank all those members who have made a contribution to this debate, being the Hons Nick Xenophon and Michelle Lensink, you yourself, sir, and the Hons Andrew Evans and Sandra Kanck. I also indicate my gratitude to the large number in this chamber who have spoken to me about this issue, some very supportive, some with, I think, mixed views about this issue. The great majority have spoken to me with some sincerity about the issue, whatever their views. I am proud of the fact that this is a conscience matter for the Liberal Party.
I was advised last week by members of the Labor Party that it would be having a party vote on it and that if I proceeded, as I wished, to take this to a vote today they would vote against it. However, I am grateful that a number of members of the Labor Party have seen merit in the consideration of this legislation, even if they do not agree with it entirely as it sits today. I am also appreciative of the fact that those members have, I think, persuaded caucus to allow them to talk to me and to suggest that it be referred to the Social Development Committee of the parliament.
I considered that at some length, and I talked to Mrs Kerry Faggotter (who has done so much work in relation to this issue) and I discussed it with some other people. I am happy to accept the amendment that you have moved, sir, and so I will be supporting that course of action in a few moments. I am assured by members of the Social Development Committee that there should not be any reason for untoward delay of this bill, and I am also assured that the committee members are keen to advertise this inquiry and to seek submissions and indications of people wanting to give evidence prior to the end of this calendar year and, hopefully, the committee can examine the matter thoroughly early in the new year.
I have also been encouraged by a couple of informal conversations I have had with minister John Hill. He has given me an assurance that he will have some work done on this matter, particularly in relation to his own personal knowledge of the Births, Deaths and Marriages Act. He said that he would also look at the overall matter in relation to surrogacy being legalised in this state. I look forward to that. Views have been expressed to me about this bill, although I would not say that there were a large number, despite the consultation which I as a private member have attempted to do. I refer to the Festival of Light and the Australian Family Association. Both groups have indicated to me quite clearly and in person, I might add, that they oppose my bill. However, I have to say that they were clear and open in the way they did that and, while I choose to have a different view from the view expressed by both those groups, I appreciate the honest way in which they did that.
There were other groups and some individuals who did not do that. Some of them wrote to my colleagues but not to me and made some fairly outlandish statements about what might happen if this bill was successful. I was disappointed about that because I thought that they could have given me the opportunity to put them right, so to speak. I did circulate this bill to the Heads of Christian Churches Committee in South Australia, through the head of that committee (as I was asked to do), and I must say that I have had no response from any of the churches in relation to this bill. When the bill and the associated issues that are in the amendment are examined by the committee, I ask all members and members of the public who have an interest in this matter to give evidence to the committee, because I think that will only enhance the examination of what to me is a very important matter.
It is important to remember that, in this instance, we are talking about heterosexual couples who are either in a marriage relationship or in a de facto relationship that is considered under law in this state to be the same as a marriage relationship. We are talking about the people in that relationship benefiting from the wishes of a family member—that is, someone who has had children—and the fact that, in addition, no money will change hands in such an agreement. The baby would have the genetics of the commissioning parents. The comment that I should forget about this and tell these people to adopt a child has been made quite often. If we go back to the time prior to IVF being available to the community, yes, adoption was more prevalent, but now people have the opportunity to have their own genetics in a child.
This is another way in which people can bring up a child who is biologically theirs, rather than biologically belonging to someone else. In conclusion and in response to some of the things that may have been said in this chamber but certainly outside this chamber, the surrogates about whom I am talking are people who volunteer out of love and their wish that a relative of theirs may have the joy of their own child. I think we need to remember that when we hear some of the stories about all the terrible things that may have gone wrong in other parts of the world or where money has changed hands. We are not talking about that: we are talking about the situation such as that related to me in a conversation I had in the past 24 hours where an aunty, whose niece is not able to carry children, has provided the opportunity for her niece to hopefully have a child in the very near future.
Once again, I appreciate the time that members have put into this bill at this stage. I would have preferred the bill to pass through this council. If it had done that, it would have come to a dead stop in the lower house, so I am prepared to accept the amendment in the hope that this bill is given a very thorough and not speedy but considered examination by the Social Development Committee, and I trust that the members of the committee will do that. Having said that, I support the amendment.
Amendment carried; bill referred to the Social Development Committee.
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