Family Relationships (Surrogacy) Amendment Bill - Second Reading

Legislative Council
Wednesday November 1st 2017

Family Relationships (Surrogacy) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2017.)

The Hon. T.A. FRANKS (17:47): I rise on behalf of the Greens to support the Family Relationships (Surrogacy) Amendment Bill 2017, and thank the Hon. John Dawkins, on behalf of those many constituents he serves, for his persistence in the face of extreme adversity. This bill, of course, follows on from the honourable member's previous bills but I note, in particular, the Family Relationships (Surrogacy) Amendment Bill 2014, which was assented to on 16 July 2015 but which is yet to come into operation. It is extraordinary, the glacial pace at which our wheels of government are moving on this issue.

I understand the Attorney-General only commenced consultation on the regulations for that 2014 bill, assented to in July 2015, more than 12 months after the bill passed. Around this time I understand that the Hon. John Dawkins met with the Attorney-General and was supported by minister Hunter to push for swifter implementation—indeed, I am not sure that you could get slower implementation. In September 2017, just a few short weeks ago, there was a further meeting with the Attorney-General who, according to the Hansard of the second reading bill debate, advised the Hon. John Dawkins that:

the act had not commenced due to his perception—

that being the Attorney-General's perception—

of the administrative burden he felt it put on himself and his department to establish and administer the altruistic surrogacy and surrogate register.

There was no mention, of course, of the undue burden this put on those people waiting for this legislation to come into effect—indeed, 27 months seems a tad long. The Attorney also purportedly 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 in international agreements and the statutes regarding surrogacy in this state.

As per the Attorney-General's desires, this bill is now drafted, based on the New South Wales legislation. It removes the requirement that the Attorney-General establishes and maintains an altruistic surrogacy and surrogate register. It also removes the requirement for the state to establish a surrogacy framework that is compliant with international law agreements and standards.

The bill maintains current prohibitions to require that no payment is made for a surrogacy arrangement, but allows for reasonable expenses and costs to be reimbursed and imposes the requirement that the parties obtain legal advice on the agreement and a lawyer's certificate requiring the same. To ensure clarity, the bill also ensures that the definition of infertility covers women who can conceive naturally but are unable to carry the child or cases where it is dangerous to for them to carry the child. These women and families have been waiting long enough to become families. The Greens do not intend to delay those families any further in having the benefits of a law passed many years ago. With that, we commend the bill.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (17:50): I rise to support and speak in favour of the bill before us today. In doing so, I would like to take the opportunity to acknowledge my friend and colleague, the Hon. John Dawkins, who has been a long-term champion of this legislation in relation to our state surrogacy laws. So I do I pay tribute to the Hon. John Dawkins and his work to progress our laws to help those members of our community who are unable to conceive or unable to carry a pregnancy to full term.

This bill provides for practical amendments to the Family Relationships Act 1975 and related amendments to the Assisted Reproductive Treatment Act 1988 and the Births, Deaths and Marriages Registration Act 1996. I want to praise the Attorney-General in the other place for his reasonable requests for workable legislation. I am incredibly pleased that the honourable Attorney and the Hon. John Dawkins have been able to get together and work out the proposition that we have before us today, which will ultimately deliver for us in this parliament and, more importantly, for those South Australians who require access to this sort of medical treatment.

It has been long overdue, and some of us have expressed frustration at that, but I believe we have now arrived at a point where we can see the intent that the Hon. Mr Dawkins has tried to drive through the legislation finally being delivered. I am grateful for that.

As I said, the bill aims to allow for lawful surrogacy agreements prescribed as being between a woman (being the surrogate mother) and two other persons (being the commissioning parents). I think the honourable members understand that there is going to be some sensible level of reimbursement for the costs of the surrogate parent, and I think that is a good thing. Of course, the bill, consistent with other legislation we have dealt with, does not allow for commercial surrogacy arrangements. However, as I said, it does allow for reasonable reimbursement of costs to the surrogate mother.

These amendments provide for a more stable legal framework for agreements to be drawn up for parties to an altruistic surrogacy arrangement and a framework that the Attorney-General believes is doable. I am incredibly pleased that we have come to this point. Again, I just want to sum up by thanking the Hon. John Dawkins for his patience, and his resilience, in pushing this agenda. I want to thank the Attorney-General for coming to the party and applying his expertise to a piece of legislation that he believes will now be workable. I commend the bill to the house for imminent passage.

The Hon. S.G. WADE (17:53): I am going to speak very briefly to commend the Hon. John Dawkins for his dogged advocacy on behalf of childless couples and also commend the Hon. Ian Hunter for providing support to the member as he approached the Attorney. I am not satisfied that the government has addressed this issue with due speed, but I think the cooperation between the two members has facilitated progress, which is to be welcomed.

The Hon. K.L. VINCENT (17:54): I simply want to place on the record my support for the bill and, in particular, acknowledge that this has been an area of great passion and interest for the Hon. Mr Dawkins for many years. I congratulate him on finally reaching the point where we have this legislation ready to pass.

I would also like to acknowledge the work of the Hon. Ian Hunter and the Attorney-General in the other place, because I think that it is through working together and using different perspectives that we really create comprehensive change. I know that in parliaments we tend to spend more of our time arguing and debating with each other, but it is when we can sit down, find the common ground and work through using those diverse perspectives that we create the change that is worthwhile in the end.

As has already been said, this bill allows for fair and equitable access to surrogacy services for those who wish to have biological children but are unable to conceive or carry a pregnancy to full term. This is of course something that can be very heartbreaking and difficult for a number of reasons, so anything to assist with what is a very painful experience is something I think should be commended.

The bill also allows for reasonable financial costs associated with the pregnancy to be covered. It needs to be made very clear that this is very different from commercial surrogacy. This is simply for the reimbursement of costs strictly associated with the pregnancy as opposed to any financial gain to the surrogate themselves. I think having that distinction made is very important and is something that the Hon. Mr Dawkins and all members involved need to be congratulated for. Again, acknowledging that the Hon. Mr Dawkins has been fighting the good fight on this issue for a long time, I would like to congratulate him on reaching this point and lend my support to the bill.

The Hon. J.S.L. DAWKINS (17:56): I will be brief. I think it is important that we conclude this bill as early as we can. I told members of the House of Assembly that I had great hopes that we would get it down to them earlier rather than later today. I very much appreciate the support from the speeches, particularly from the Hon. Tammy Franks, the Hon. Ian Hunter, the Hon. Stephen Wade and the Hon. Kelly Vincent but also the support on this issue from many others in this house and the other house and, I must say, in the community.

It has been a long haul. I think, in essence, this is the fifth incarnation of surrogacy legislation that I have had in this place. When Kerry Faggotter first came to see me with these issues, her son Ethan was one year old. He is now going to secondary school, so it has been a long haul—a longer haul than we would like.

I again reiterate my thanks to the Hon. Mr Hunter for assisting me earlier this year in trying to get some cogs turning that were not turning at all at that stage. While they have not turned as quickly as either of us would have liked since then, we certainly have got to a position. This bill does not go quite as far as I would like in creating optimal conditions for South Australians to have a surrogacy in South Australia, but it is certainly one that I am obviously happy to support.

I appreciate the fact that the Attorney-General has indicated he will handle the bill in the House of Assembly, and I am very hopeful that accommodation can be made to put the bill through in government time, certainly to make sure it goes through before the end of the year. With those words, I thank everybody for their great support for this issue and commend the bill to the house.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. J.S.L. DAWKINS (18:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting suspended from 18:02 to 19:47.

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