Family Relationships (Surrogacy) Amendment Bill

18th October 2017 

Introduction and First Reading 

The Hon. J.S.L. DAWKINS (21:24): Obtained leave and introduced a bill for an act to amend the Family Relationships Act 1975, and to make related amendments to the Assisted Reproductive Treatment Act 1988 and the Births, Deaths and Marriages Registration Act 1996. Read a first time. 

Second Reading 

The Hon. J.S.L. DAWKINS (21:25): I move: 

That this bill be now read a second time. 

Members would be well aware that in November 2014 I introduced, as a private member’s bill in this place, the Family Relationships (Surrogacy) Amendment Bill 2014 as a result of significant media attention and community disquiet regarding the actions of some Australians pursuing the use of commercial surrogacy in international jurisdictions. This had stemmed from several cases where surrogate parents had failed to take custody of the child produced through a surrogacy agreement due to that child having birth defects. 

There had also been concerns raised around the suspicious backgrounds of some prospective parents, mainly brought to public attention through the Baby Gammy situation. Such was the broad-ranging concern on the matter at that time that the potential of creating federal laws in the area of surrogacy was highlighted at COAG. That proposal was generally not taken up by the commonwealth, with that government indicating a preference to work with the various states to improve current laws and standards and make access to surrogacy arrangements in Australia easier for approved prospective parents. 

Of course, members in this place and I think in the parliament generally are aware that, while in many other jurisdictions the government of the day in those places had brought in legislation in relation to altruistic surrogacy, that has not happened in South Australia, so that is something I have done on a number of occasions in this place, probably more than other members would have wished and more than I would have wished in many senses. However, I am only trying to do what I think is right by the community. 

Having been originally responsible for bringing a bill to legalise altruistic surrogacy in South Australia, which started off its journey in 2006 and finally passed both houses in 2009, I felt that limited amendments to the act could be made to bring it into line with today’s community expectations. After internal and external consultation, I caused the Family Relationships (Surrogacy) Amendment Bill 2014 to be drafted. It was intended that that bill would improve the law in South Australia to secure the welfare of children born through surrogacy, to attempt to make the accessibility of surrogacy arrangements in this jurisdiction wider, to limit the use of overseas surrogacies to maximise the ability for South Australians to have a surrogacy in South Australia and, in addition, to continue to ensure that commercial surrogacy remained banned in South Australia. 

That bill received cross-party support in both houses, where it passed in both places without division, and was assented to on 16 July 2015. Unfortunately, some 27 months after its passage through both houses, that act has not yet commenced operation. The Attorney-General only commenced the consultation on the regulations for the act more than 12 months after it was passed. I made a number of representations in that period and following that period with the Attorney and with a range of other members of the government, including the Premier, in regard to making this act actually work. 

I did meet with the Attorney-General, and I was accompanied by the Minister for Sustainability—and I am grateful for his support—earlier this year. Late last month, I again met with the Attorney-General, who advised that the act had not been commenced due to his perception of the administrative burden he felt it put on himself and his department to establish and administer the altruistic surrogacy and surrogate register. The Attorney also believed that other aspects of the act were too difficult to implement because of different surrogacy agreements that were prevented by the act and inconsistencies between international agreements and the statutes regarding surrogacy in this state. 

He believed that the requirements that any proposed international surrogacy agreement go before the responsible minister and be assessed on a case-by-case basis for approval, much like the process already in place for overseas adoptions, was too cumbersome. In the minister’s considerations for approving a surrogacy agreement, the minister must as their primary concern ensure that the welfare of the potential child is protected and that unsuitable parents—those with criminal histories in the area of child sexual offences—are discouraged from using this option. 

Despite the concerns that the Attorney raised with me, he advised that he was supportive of the intent of the act; however, he did not think that it was workable in its current form and that his office would work to assist in the development of an amendment bill as soon as practicable. As a result of that and given the extensive delay between the assent to the act and the Attorney-General raising his concerns about the operation of the act, I proposed introducing a private member’s bill which dealt with the Attorney-General’s concerns and ensured that a workable legal framework would exist in South Australia for altruistic surrogacy. 

While the bill would not go as far in certain areas as I wished, it would certainly maintain a consistency with legislation in other jurisdictions and would ensure that we would, I suppose, to be quite simple, get on with it. There are a lot of very private people out there in the community who have been very nervous about the fact that this has been languishing for so long. For most of these people, the women involved particularly, their biological clocks are ticking, and 27 months is an extraordinary amount of time. 

The Attorney accepted my proposal that I would come up with a bill based on a piece of legislation that is working in another Australian jurisdiction, and he undertook to handle that if I could get it through this house in a reasonably prompt time. I said that I was confident that I could do that and he undertook to handle and support the bill in the House of Assembly. So, I have had this bill drafted. It is based on the New South Wales legislation. It removes the requirement that the Attorney-General establish and maintain an altruistic surrogacy and surrogate register. The bill also removes the requirement for the state to establish a surrogacy framework which is compliant with international law agreements and standards. 

The bill will maintain the current prohibitions that were part of the existing act and continue to require that no payment is made for a surrogacy arrangement, but allows for reasonable expenses and costs to be reimbursed, as well as impose the requirement that the parties obtain legal advice, or continue to impose the requirement that the parties obtain legal advice, on the agreement and a lawyer’s certificate certifying the same. 

Importantly, the bill also ensures that the definition of infertility covers women who can conceive naturally but are either unable to carry the child or it is a case where it is dangerous for them to carry the child. I think members will recall that this was something that inadvertently slipped out of one other piece of government legislation, I think last year, and the Minister for Sustainability and I worked together to fix that. 

This is a conscience matter for members of the Liberal Party and I understand that it is very likely that it will continue to be a conscience matter for members of the Australian Labor Party. I have generally had very good support, not only in this house but around the parliament, for such legislation. I believe it is something that the government ought to be doing but, in the absence of that, I will continue to pursue it. 

I indicate to members that because of the likelihood of the willingness of the Attorney-General to deal with this in the Assembly this year—and I have sought confirmation that he is willing to give up government time for this, and I think it would be very good if he could do that—then I think we need to pursue this as quickly as we can. For those reasons, I give notice tonight, and I will write to members tomorrow, that I would like to call for a vote on this matter on the next Wednesday of sitting. I know that is quicker than would normally be the case but I think the issues are well known to members of this house. However, I invite anybody who wants to raise matters with me to bring it to my attention. 

We are basically dealing with something that is already working in New South Wales. It does not cover some of the issues that I wanted to cover but I would sooner have a large degree of what I want rather than nothing and at the moment, in effect, we have nothing. Even for the same-sex couples who were brought into the system last year, because of the fact that it is not operating, because of the uncertainty and because things have not been happening, no-one is prepared to go and test it, so it is just not happening at the moment. 

It is important that we get on and do this and I would be very grateful for members’ consideration of that and to vote on it on Wednesday 1 November. With those comments, I am pleased to commend the bill to the council.