Family Relationships (Surrogacy) Amendment Bill


Mr GARDNER (Morialta) (10:47): It gives me great pleasure today to introduce into the House of Assembly the Family Relationships (Surrogacy) Amendment Bill. I acknowledge and appreciate that the Hon. John Dawkins MLC is in the gallery today to see the House of Assembly first give consideration to this bill.

Mr GARDNER: Thank you, sir; I appreciate your guidance and I take it. The Hon. John Dawkins has worked on this matter for eight years to ensure that families seeking to have surrogacy arrangements to assist in their reproductive opportunities are able to access those in a reasonable manner. The Golden Gate Bridge took four years to build and the Hon. John Dawkins has been working on this for eight years. In 2007, he first introduced legislation into the Legislative Council. It was sent to the Social Development Committee to consider how best a framework might be developed to allow for surrogacy arrangements to be put in place for South Australian families seeking assistance in reproduction. I know that the member for Hammond served on that committee as did a number of other members, and they did good work.

In 2008 the Legislative Council passed the first surrogacy bill, which then sat in this house for 18 months before eventually, at the end of 2009 in the twilight of that parliament, the surrogacy bill came into law, and for the first time families in South Australia were able to have the hope and the joy that comes with being able to have children, despite the fertility problems that they may have had, with the assistance of a surrogate.

In 2010 further legislation was passed which enabled some technical improvements to that bill to take place, and now here we are in 2015 and we have further improvements that were brought by the Hon. John Dawkins to the Legislative Council at the end of last year, and then reintroduced after the prorogation of parliament at the beginning of this year. Now, having passed the Legislative Council in early May, we have the opportunity in this house to make this a law.

Having taken eight years I just say to all members that this is an opportunity for us to show the community of South Australia that these improvements which will bring hope and joy to so many families are things that can be done expeditiously. I indicate to all members now that, after those who wish to make a contribution to this debate today, we will be no doubt adjourning off and I will seek on 2 July to progress the debate further and if possible get to the committee stage and a vote.

I indicate that now so that all members are on notice that for the next month the Hon. John Dawkins has undertaken to make himself available to any member who wishes to discuss details of the bill because, of course, through the Legislative Council process there were a number of amendments that came forward. Parliamentary counsel has been working closely with the Hon. John Dawkins to access some of those refinements, and so the opportunity is there, and for anything that members wish to raise in the committee stage the standing orders, of course, provide for that too. But I think there is the opportunity to do this expeditiously and I hope that the parliament takes the opportunity to do so and that we can have that further debate on 2 July.

The purpose of the bill in summary is, as I say, to enable those families who wish to seek surrogacy arrangements to have greater opportunity and greater access to do so. I will quote from something that John Dawkins said:

Often it is the ability to find a willing surrogate that presents the biggest hurdle for couples seeking to have a child through this method. However, by establishing a 'surrogacy register', these reforms will improve access to potential surrogates across South Australia, hopefully diminishing this barrier and increasing the viability of surrogacy as an option for those who cannot conceive naturally. This bill seeks to introduce a range of measures that will ultimately make surrogacy more accessible and attractive for potential surrogates by increasing the financial and psychological assistance available throughout the entire process.

It is critical to understand, this bill seeks to maintain the offence and clarify the offence of commercial surrogacy. This is not about commercial surrogacy, this is not about setting up an industry whereby people will undertake these measures for profit; this is altruistic surrogacy where those who are willing to assist families who are struggling to conceive can join a surrogates' register and those who wish to access surrogacy will have far greater opportunity to find a surrogate to assist in that process.

At the moment surrogacy is restricted to where a family is able to identify somebody known to them already who can assist with the process, and that is, of course, the greatest hurdle, and it means that many families, who do not have somebody readily identifiable who is willing and ready to assist in that process, seek other alternatives.

I think the community has been troubled by some of the alternative pathways that a number of families have taken, especially when those families do not fulfil the obligations that any respectful or reasonable society would expect of them. We were appalled at the situation of baby Gammy in Thailand, and we were appalled at the way that that family treated that surrogate mother in Thailand and what happened with poor baby Gammy. The community responded in that case with an outpouring of emotional and financial support to that mother.

I think the establishment of international agreements, which this bill will provide for, will enable the facilitation, where it is appropriate, that families go overseas, and that it recognises that we have a responsibility in this parliament to ensure that vulnerable women are not exploited overseas. So the minister will have the opportunity to set up arrangements with a framework around which those may take place rather than having this complete free-for-all where we have effectively washed our hands of what happens overseas, and 'What happens in Thailand stays in Thailand' would be the unfortunate way that it might be presented.

This bill would do a good measure to make it more accessible in South Australia thereby reducing the level of people who are seeking to access surrogacy overseas, and it will provide a framework within which those overseas matters may take place. Because the joy and the hope and the love that may be brought to South Australian families by virtue of surrogacy arrangements should not come at the expense of the exploitation of vulnerable people in other countries: the human cost must be taken into account.

I commend the Hon. John Dawkins for the work that he has done over eight years and particularly, in relation to this bill, over the last six months. He has consulted very widely. He has consulted with other members, he has consulted with the community, with experts, and a range of people.

To the particular measures of the bill, the bill seeks to create a surrogacy register which will enable individuals willing to become surrogates to place their name on a list which can be provided to prospective parents, making it easier for both parties to connect. The bill will establish a state framework for the advertising of surrogates, conduct of those involved in the organisation of surrogacy agreements, and a criteria for approved international surrogacy agreements.

The bill will make counselling for surrogates and their partners, whether that relationship is marital, de facto or domestic, both before the pregnancy and after the birth available at no cost to them. It will become a requirement that the commissioning parents will in fact make that counselling available to give further support to those surrogates, and it will expand the out-of-pocket expenses that surrogate mothers may be reimbursed for in the fulfilment of the agreement. We are not talking about commercial surrogacy, we are not talking about fee-for-service and payment, but it is necessary that the current restrictions to ensure that there is not commercial surrogacy on what may be paid to the surrogate be relaxed so that all legitimate out-of-pocket expenses for that surrogate are able to be met and their family.

The bill will also seek to clarify any ambiguity that currently exists for fertility service providers when it comes to the timing of when eggs may be harvested. It is the intention of this bill to ensure that fertility service providers can harvest and freeze eggs at any point, regardless of whether a recognised surrogacy agreement is in place. The bill seeks to reinforce the fact that a surrogate mother, insofar as it complies with the surrogacy agreement in place, may conduct her pregnancy as if the child was her own. The bill provides for the minister to establish a process for approved international surrogacy agreements to prevent situations such as baby Gammy from occurring again and ensure that the welfare of the child is the primary concern when such agreements are put in place.

The bill has been the result of input from a number of individuals and organisations over a lengthy period of time. Specific thanks should be given to Stephen Page, an expert surrogacy lawyer from Queensland; the Law Society of South Australia; Dr Christine Kirby of Repromed; and Kerry Faggotter, a mother who has lived the benefits of surrogacy first-hand.

John Dawkins and I have also both had contact with a range of constituents who have both used and are hoping to use surrogacy, and their feedback has been substantially incorporated into the bill. I also recognise the work of Mark Herbst of parliamentary counsel, without whose efforts and assistance the bill would not be a reality, and we thank him and his team for their efforts. We acknowledge also the Attorney-General's office, who have been helpful in keeping the Hon. Mr Dawkins informed regarding the work of this area in COAG and the state committees of attorneys-general.

I note that there have been discussions that some of these matters should be dealt with through a national framework, and that would be of benefit, but if we wait for COAG and for the state committees of attorneys-general on such matters, it will be years longer. We could build another Golden Gate Bridge in the time that we were waiting for that work to take place. It would be terrific if this was a prioritised matter for a department or for the COAG; the reality is it is not, and we have the opportunity as parliamentarians to bring this to a conclusion and to enable these benefits to take place.

For the Liberal Party, this matter is a conscience vote. I understand that for the government it is also a conscience vote, so it is up to each individual member of parliament to form their views. The reasons for a conscience vote on these matters are well understood: things to do with reproductive rights are often conscience vote matters. However, I do note that, even by the scale of things that are classified in this house as a conscience vote, this bill does not actually grant a new opportunity for a new right for potential parents. That right currently exists; this is a change to the way these things are facilitated.

This actually will restrict the, I would suggest, exploitation of potential surrogates overseas, and it will do little more, in terms of the local level, than provide extra counselling for those who are undertaking the process and the potential for advertising and for an altruistic register to take place.

I would suggest that, if members who have significant concerns about the philosophical issues behind the introduction of surrogacy in the first place actually look at what the provisions of the bill are seeking to do, they may well find it within their hearts to support the bill. I encourage them to consider it in those terms, because it is administrative and it is pragmatic.

I would like to identify the main sections for those members who wish to turn to the bill itself and consider these matters. The guidelines for the state framework for altruistic surrogacy are outlined at clause 4, which seeks to insert new division 1A—section 10FA—State Framework for Altruistic Surrogacy. The matters relating to the surrogate register are again at clause 4, in new section 10FB, and are really quite simple: that the register be established by the department and the restrictions on it. I note that clause 7(6) refers to:

any reasonable out-of-pocket expenses incurred by the surrogate mother in respect of the agreement

and that subclause (7) provides:

commissioning parents will…ensure that the surrogate mother and her husband or domestic partner, if any, are offered counselling (at no cost to the surrogate mother or her husband or domestic partner) after the birth of a child to which the agreement relates (including, to avoid doubt, a stillbirth).

I think that is one of the key components of the legislation.

The other key part that members should familiarise themselves with, if they are looking into the detail, is at clause 8—Insertion of section 10HAB—Medical decisions affecting surrogate mother or child, which provides that questions relating to any medical treatment to be provided to a surrogate mother or an unborn child to which a recognised surrogacy agreement relates are to be determined as if the recognised surrogacy agreement did not exist. So, consideration of matters while the surrogate mother is pregnant are treated as if the surrogate mother's own child were at stake and as if the agreement was not in place. That is a critically important matter.

I reiterate that this bill will significantly enhance the opportunities for families in South Australia to undertake surrogacy within South Australia and, thereby, potentially reduce the challenges that come from overseas surrogacy. Those who continue to use the overseas method will have a framework in place whereby we can reassure ourselves that the opportunities for exploitation are reduced. I hope that all members will consider and support this bill, which will facilitate that and put the welfare of the child at the centre of matters in relation to those international agreements.

I congratulate the Hon. John Dawkins for his significant efforts over eight years in dealing with this matter in the South Australian parliament—long hours, long years. I hope that members will take the opportunity to inform themselves between now and 2 July. I look forward to the other contributions in this place, and I hope that the house will work with us in four weeks' time to deliver a resolution.