Statutes Amendment (Surrogacy Eligibility) Bill

Adjourned debate on second reading. 

(Continued from 30 November 2016.) 

The Hon. J.S.L. DAWKINS ( 11:39 ): I rise today to put on the record my contribution to what is now the Statutes Amendment (Surrogacy Eligibility) Bill 2016, and I indicate that, quite obviously, this bill is a conscience vote for Liberal members in this place. I might indulge the council with a little bit of history. 

In 2005, I was first approached by a wonderful young woman called Kerry Faggotter about her particular situation regarding surrogacy and the fact that she needed to go outside this state to allow her child to be carried by her cousin, and for that subsequent family to develop. That young man is now over 11 years old. 

Of course, even though they had to go outside the state to have the surrogacy, when she returned to South Australia, one of the first things she realised was that her name was not on the birth certificate. There were certain complications with that, but she was also very keen that we should legalise altruistic gestational surrogacy in South Australia, certainly in a non-commercial sense. 

This lady went to see her local member, the member for Playford (the Hon. Jack Snelling), to ask him about getting the law changed. I think these famous words have been said before in this place, but the Hon. Mr Snelling who, happily for him, is blessed with a number of children, told his constituent that it was 'God's will' that she not have children. 

This lady was particularly disappointed by that response. She was directed to me. I did not know much about the issue at all at that stage. I spoke to our then shadow minister for health, Dean Brown, who advised me that most of the needed changes would be in the Attorney-General's area. I wrote to then attorney-general Michael Atkinson, and I suppose no-one here would be surprised to know that the response I got from then attorney-general Atkinson was less than supportive. He made it quite clear that the government would not be doing anything in that regard. 

I apologise to some members who have been here and lived through this, but I am going to put this on the record because I think it contrasts with some things that have been done recently. In 2006, I came up with my first private member's bill to amend three different acts to achieve a number of things in relation to the legalisation and recognition of surrogacy in this state. That first bill was far from perfect, and I would be the first to recognise that. 

On the motion of the minister who is with us today, that bill was referred to the Social Development Committee of which he was the chair. I think the Hon. Mr Wade and certainly the member for Hammond in another place were members of that committee, but I cannot recall the others. I gave evidence, as did Ms Faggotter and a number of other people. 

After a comprehensive examination of some 14 months, the report came back in the latter part of 2007 with a number of suggested changes, and I am the first to admit that there were some suggestions about allowing surrogacy for same-sex couples. There were one or two other suggestions that I did not pick up but I did pick up quite a bit of the committee's suggestions and came back with a second bill in early 2008. I have to say I was very grateful that that bill passed this chamber on the voices. 

It then went to the House of Assembly and to say that it was delayed is an understatement. It sat in the House of Assembly for some 14 months and there was no doubt that there were some people in the House of Assembly who wanted it to drop off the perch in the legislative sense, in the parliamentary sense, when parliament got up for the 2010 election. Thankfully, a number of people supported me, on all sides of the parliament, enabling that bill to pass 34 votes to seven late in 2009. Early in 2010, we had to bring in a minor amendment bill. Due to the effluxion of time, one of the provisions for the age on the child's birth certificate to be changed had unfortunately passed, so we made that change fairly quickly, and I do not think anybody opposed that. 

The bill was, of course, restrictive on how commissioning parents could access a surrogate. It was basically limited to the people you knew, the people you were related to and there was no ability to compensate a surrogate for the costs of a pregnancy. There were a lot of things that were not in it that I would have liked to have been there, but there were things that I had removed, some at the suggestions of the then minister for health, the Hon. John Hill, who later criticised me for putting up amendments which had been suggested by his own department. The bill could have been much better but it was a bill. It was there, it was a foot in the door for South Australia, and I am very proud of it. 

As much as I know there were a lot of people who thought that it should have gone further, I got what I could achieve and I am pretty proud of that. In the middle and towards the end of 2014, there was a lot of publicity in this state, in this country and around the world about surrogacy. It was bad publicity about baby farms in India, and particularly about baby Gammy—I think we would all remember that—and the aspect that a surrogate in another country carried twins for a couple in Western Australia, and when the children were born that couple chose to take one and not the other. We heard the reasons and it was a pretty sorry tale. Further to that, the commissioning father had had a very poor background in relation to his treatment of children. 

These things got enormous publicity and were doing the cause of surrogacy a great disservice, so I introduced a new bill in late 2014 that included the framework to make it harder for people to go overseas, not to stop people from going overseas, but to make it easier for people to access surrogacy here, and to make them justify to the Attorney-General of the day, if they still needed to go overseas, why they needed to do so and, in doing so, to prove that their record of dealing with children was worthy of that approval. 

We also included, obviously, the ability for the reimbursement of natural costs associated with the pregnancy. Another aspect was the establishment of a register and the ability for people to advertise—all designed, I think, to heighten the chances of people to have a surrogacy here at home, in our system and with our languages, and reduce the financial cost. 

That bill passed this chamber—once again, on the voices—in May 2015. I would be the first to recognise that there were some of my friends and colleagues who indicated their concern that it still did not have an ability for same-sex couples to be involved in that. That has been a consistent message, and I think that certainly the minister and others know the reasons why I did not include that. 

The first bill that I had, had been stewarded through the House of Assembly by the member for Morphett. On this occasion, the member for Morialta took charge of charge of the bill in the House of Assembly and, while there was some muted opposition, I was very pleased that it went through much more rapidly than the previous one. It certainly went through on 2 July 2015, on the voices again. 

It is disappointing to me that, basically, I have had to drag further work out of the government, out of the Attorney-General. I have had to enlist the support of the Premier, who has generally been supportive of this work, to get the Attorney-General to prepare the regulations to enable the framework—which I have just mentioned—to exist and also allow the creation of a register. There has been almost no work done. Only after I brought the Premier's attention to this did I get a letter back to say that the Attorney-General had gazetted the regulations. 

Well, the regulations he has gazetted only allow for the consultation before he develops the eventual regulations. That could have been done straight after we got this through, when I met with him in the first couple of weeks after the legislation came through. That has been a particularly disappointing thing for me. It was interesting, today, during a parliamentary committee only this morning, that the Attorney-General, in his capacity as Minister for Industrial Relations, was talking about matters to do with the Return to Work Bill. He did use the words—and I am paraphrasing here, obviously—'the parliament has made a decision'. 

He then went on to say, and this might be somewhat of a paraphrase: 'as a result, the government has acted, and the community needs to recognise that'. I would be pretty grateful if the Attorney used his own words in relation to my bill. The parliament did make a decision. It made a decision on 2 July 2015, and I would like him to act because there is no doubt that the community has recognised the decision of the parliament. 

I could say a great deal more, but I am conscious of the time and the other members who wish to contribute to this debate. I have spent 11 years or so working with the people who wish to access surrogacy. The great majority of them are very private, and I respect that. The time that I have spent doing that work and the processes that I have just outlined of those bills going through both houses of parliament and, of course, through a respective parliamentary committee, are in stark contrast to the process that the bill we are dealing with today has followed. 

As I said in an earlier contribution, it originally started out in the other place as just a few extra provisions tucked away at the back of the Relationships Register Bill 2016. Some of the conspiracy theorists of this parliament—and I assure you that I do not count myself among them—think that maybe the member for Reynell may have tried to slip these somewhat controversial provisions into the Relationships Register Bill so that no-one would notice. 

If that was the plan—it may not have been, but I have seen some of the machinations that happen in relation to these matters—it came a bit of a cropper because eventually the Relationships Register Bill was split into two: the now Relationships Register (No. 1) Bill, which I spoke about earlier today, and the remnants of that in relation to surrogacy, which have ended up in this bill. These bills have arrived in this place in acceptable form, a form in which they should have been introduced into the other place. 

It is interesting that this bill actually skipped a second reading debate and vote completely in the lower house. I find that bizarre. Such was the complete shambles of the consideration of these bills in the other place that clean copies were not available to members for the debate. This situation had to be highlighted at clause 1 of the committee stage in the lower house by the Deputy Leader of the Opposition. That was the first opportunity when there had actually been these separate bills. That was at the committee stage. I do not know how you run a house of parliament that way, but certainly they do some things differently. 

I will at this stage record my thanks to the member for Hammond in the House of Assembly. The house had endured a very late night on the assisted dying bill the night before this bill was considered, and there were, I suppose, thoughts in other places after such a long night's sitting. I must thank the member for Hammond for his active participation at the committee stage of what was not at the time a bill but now is. 

Of course, as I said earlier, the member for Hammond probably, like me, did not come into this place thinking that we would pursue the number of social issues that we have. He was on that Social Development Committee in his first term. He did participate, with now minister Hunter, in the inquiry into my first bill. I thank him for his participation in that committee stage—that committee stage of a bill that never had a second reading. It sounds bizarre, and I do not know how it happened, Mr President. It would never happen in this house; it would never happen here. 

I do have to say that the overall handling of the legislation by the assistant minister, the member for Reynell, has been, I think, very ordinary. I have spoken about how the legislation to date has been developed. Yes, it was not perfect and there were people who wanted other things in it. The reality is that it gets to me a bit that an assistant minister, with government resources, never had the thought in her mind to actually come and speak to me about what she was trying to do, or to ask how I thought she might achieve it. Not at any stage. Certainly, at a briefing she was at with the South Australian Law Reform Institute, I expressed some issues, but there was never any follow-up on that. I think it is extraordinarily disappointing. 

In relation to the handling of the bill in the lower house, I do say that I am pleased that the member for Little Para's amendments, which remove the eligibility of single people from access to surrogacy, was something which I supported. I am prepared to go along with the same-sex provisions of this, as long as I get the assurances and the support for the amendment that I will move. I will refer to that later. I certainly was not prepared to support that aspect of it. 

I find it somewhat humorous, but also sad, that clause 9 of this bill provides that surrogacy agreements must comply with the requirements set out in the State Framework for Altruistic Surrogacy. This is an instrument which is prescribed by regulations. The reality is that this piece of legislation, that the member for Reynell has put forward, is actually trying to amend an aspect of the legislation which does not exist at the moment because the Attorney-General has not developed the regulations to make it exist. 

If they did not want to talk to me, as the architect of the bill, you would think that one arm of government might talk to the other arm of government and work out whether that was the case. It is somewhat humorous, but for those people, some of whom are trying to defy the biological clock and are actually waiting for these things to be made available, it is pretty sad that these games are being played. I do hope that these matters are taken up very strongly with the Attorney once this bill passes, if that is the case, and I think it probably will. I hope additional pressure is put on the Attorney to get on and do the job he is supposed to do. 

An even more serious matter is that I am so concerned with the complete rewriting of the criteria set out under the bill for the medical eligibility of women trying to access surrogacy. Clause 9 of this bill completely replaces what currently exists under the Family Relationships Act 1975. This is completely unnecessary. Whilst tweaking of the wording may have been required to include access by qualifying relationships or same-sex couples, it did not have to be completely replaced with the retrograde provisions that have been included in this bill. In essence, the specific medical eligibility for a woman to access altruistic surrogacy in South Australia, if they are unable to safely carry a baby to term, has been removed in this bill and replaced with what I can only describe as very weak language. I will explain that a bit more in a moment, and the fact that that language would be entirely left to interpretation. 

I will, at this point, go back to that particular matter. When some members of the Legislative Council had a briefing, probably less than a fortnight ago, in the last 10 or 12 days—it may not even be that long—we were given, I think, quite good information by an adviser from the Department of Premier and Cabinet about this legislation. I asked what I thought was probably a silly question, which was that I wanted to make sure that in the definition of 'infertility' in the original bill there was a definite inclusion of women who can become pregnant but cannot carry a child, or it is dangerous for them to do so. I just wanted to make sure that that was still in the bill. 

I had some assurances that that was probably the case, but they were going to check. The next day—and it is actually only a week ago, on Thursday of last week—minister Hunter (and I give him great credit) rang me to say that they had found out that that ability for women who are in that situation to be included in the definition of infertility had been removed. We had a discussion about whether the minister would draft an amendment, or if I wanted to move an amendment. We agreed that he would draft something up and we would have a look at it. 

We had subsequent discussions over the next few days and I indicate that he included Professor John Williams from the South Australian Law Reform Institute in those discussions. I think the minister canvassed, quite properly, with me the potential to not move an amendment but to have words put on the record by him in this chamber which would make it clear in the Hansard, but not in the actual act, that it is the intention that those women still be included. 

I have looked at those suggested words, and I will not read them out here, but I do commend the minister and Professor Williams for the work they did on that. However, the minister is aware that I will move an amendment to restore, as close as possible, the wording of the current legislation to make sure that those women who can become pregnant, but cannot carry a child, are included. I thank the minister for attempting to address the issue, certainly for being immediately up-front and saying that this had not been done. It is another example of the sloppy way in which this whole legislation has been developed in the House of Assembly. Why would they have not come to me initially to get my thoughts about this? The more I think about it, I just wonder why that was the case. 

In coming to the conclusion of my remarks I could apologise for delaying the house, but it is a matter that has taken up a lot of my time for more than a decade. I have read the words developed by Professor Williams for the minister, and I respect everything that is said in there, but I could not possibly leave this bill in a state where the previous words were not restored to it, or as close as is possible, given that the suggestion is to now include same-sex couples. I could not possibly allow that to happen given that the reason that all this work has been done is because, in the initial stages, the people who came to me were in that situation. How could I possibly go back to them and say, 'Yes, we've got an updated version of this bill but, sorry, you're left out.' 

I will put some questions on the record that I indicated to the minister I would ask. The minister will have to go to the Attorney-General to get answers for these, so I would appreciate them either at the second reading summary stage or, perhaps, at clause 1 in the committee. Firstly, when is it expected that the regulations required by the current provisions of the Family Relationships Act 1975, and, if passed, the provisions of this bill, will be gazetted, given the delays that have already been experienced through the handling of these matters? 

Secondly, why is the provision for eligibility criteria currently available at section 10HA of the Family Relationships Act 1975 for women wanting to access surrogacy in South Australia—namely, that they are considered eligible if they are unable to safely carry a baby to term—not included in this bill? That might be a question for the member for Reynell, not the Attorney. Is it the intention of the government that this would no longer be sufficient cause to access altruistic surrogacy in South Australia? If not, what is the government's intention in this matter, and how can women who are affected have confidence that they will not be caught up in legal action trying to interpret the legislation? That is all based around the suggested wording that, in good faith, the minister said could be included in the Hansard. I think the prospect of having some legal action of, instead of looking in an act, having to go back to try to find some words in the Hansard, is a bit flimsy. 

I would hope that this can be fixed relatively easily. I have spoken to a number of members in this chamber about this issue and the moving of such an amendment, which I do not yet have available. The minister had one drawn up prior to the development of these alternative words, so we will consult on that over the next several days. I would ask that members support such an amendment going through to clarify who is actually eligible to participate in the provisions made available by this legislation. I will obviously support the second reading. 

I have been concerned, as I have indicated on a number of occasions this morning, about the manner in which this current bill that we are dealing with has been developed. A number of these issues, particularly the one I have just been talking about at some length, could have been avoided if there had been some consultation. I reiterate the fact that I will be developing an amendment to clause 9. I recognise the sincerity of minister Hunter in his interest in this whole legislative area, right back to when I first brought a bill to this parliament in 2006. He has been consistent, I have been consistent, however I think he knows that, in the development of the bill, the legislation would not exist now if I had tried to get it up in the form he wanted. 

The legislation is there. It is there so that the government can make some amendments to it and make it further available to other people in the South Australian community. Can I say in conclusion that, given the attitude of many members of the government, if I had not done this work there would not be a bill there, and there would not be a bill there for them to amend. I think that does highlight the value of private members' legislation. There are a number of my colleagues who have had the experience, and it is a difficult experience, of putting private members' legislation through. People will say, 'I agree with what you are doing, but I don't like this bill. The bill is not perfect.' 

I have expressed a view previously, particularly in relation to the voluntary euthanasia legislation—and this is a view of John Dawkins, it is not a view of the Liberal Party or anybody else, I think, at the moment—that if there is a significant community issue, and there is no doubt that there is quite a deal of support for it in the community, then the government of the day should provide some assistance to a private member in the development of a private member's bill to perhaps make sure that it is a better piece of legislation, and that perhaps there is less likelihood for people to say, 'I support this matter, but not this bill, because this bill is not perfect.' 

People tend to criticise private members of parliament, in bringing up legislation, for not having a perfect piece of legislation. I know there are a number of members in this chamber who have had to do that. I have been blessed with staff members who have helped me do it. This goes back to Todd Hacking, whom many would remember and, of course for the last five years, that work has been followed on by Councillor Brad Vermeer. 

I could not have done it without them and without parliamentary counsel. That is something for the current government and future governments to think about. I am quite genuine in that view. I ask members to give serious consideration to supporting the amendment that I will arrange to have drafted to clause 9 because, as I said before, how can I go back to the people I did all this work for and say, 'Sorry, you've sort of been left out of it. We've got some words that might stand up in court to allow you to be part of it, but we can't be sure'? 

We do need to make sure that they are part of it as, I agree, this bill will actually include the same-sex couples who wish to be there. I have had more discussions very recently than I have ever had with members of the same-sex community about this matter. Generally, as much as many have been encouraged to do that, they have not, but I have had some recent discussions in that regard. With those words, I appreciate the chamber's patience in listening to me on this bill. This legislative area means a great deal to me.