Child Protection

Surrogacy Bill

Bills, In Parliament, Speeches

The Hon. T.A. FRANKS (17:09): I rise on behalf of the Greens to support this bill. The Surrogacy Bill 2019 repeals part 2B of the Family Relationships Act 1975 and creates a standalone act to recognise and regulate certain forms of surrogacy in our state. 

Surrogacy, of course, refers to an arrangement for a woman to become pregnant and give birth to a child for another couple or a single person with the intention of giving that child to the couple or the person once the child is born. People turn to surrogacy as a means to have a family for a variety of reasons, and many women are very happy to act as a surrogate. I am glad that, with this standalone bill, we will be supporting those families in those choices. 

Those women have an absolutely inspirational gift to give, as the Hon. Emily Bourke just mentioned, to help others experience the joys of parenthood and family. Some women may have finished having their own families while others may decide to continue to have more children in their own future. There is no one size fits all for surrogates. I note that research carried out by the Family and Child Psychology Research Centre at City University in London between 2002 and 2006 found that, overwhelmingly, surrogates have little difficulty handing the child they have carried back to the intended parents. 

Contemporary media about surrogacy often focuses on the problems and the challenges, and it might make good midday movie viewing, but it actually bears little resemblance to reality and the statistics. The majority of surrogacy arrangements end without issue, with both the intending parents and the surrogate completing their journey together and feeling satisfied and fulfilled. 

This bill has had a very long gestation before it came to us today. I am pleased that it at least has the current decade in its title. At this point, I acknowledge the work of the Hon. John Dawkins in well over my just under a decade here. Indeed, the very first phone call I ever received from the Hon. John Dawkins was about surrogacy and possibly supporting that aforementioned work of the Social Development Committee, and there have been many other phone calls since that time. 

I was incredibly disappointed in the last parliament that we did not progress the work on surrogacy as we should have, that the legislation that passed this place was not given due consideration in the other place, that these issues were left to languish and that previous members of the other place said to particular constituents that perhaps God did not want them to have children or that they had not seen the bill on the Notice Paper when they were in the position of whip in the other place. They seemed to have an extraordinary range of ‘my dog ate the homework’ excuses for why we could not finish the job that was started so long ago, but we are here today to finish this job. 

In very late 2017, after Christmas Day, the South Australian Law Reform Institute was asked by the former attorney-general to inquire into and report on the law regulating surrogacy in South Australia and to suggest a suitable regulatory framework for surrogacy in our state. That referral to SALRI for proper investigation and recommendations for reform, based on best practice in this area and with the guidance of course of other jurisdictions—one of the benefits of lagging is that we have the benefit of learning from those who have led—ensures that we have an effective, modern and appropriate reform for surrogacy in South Australia. 

SALRI presented that report to government on 30 October 2018. That report made some 69 recommendations, including a recommendation for a standalone surrogacy act, which we are seeing realised here today. South Australia should be very grateful for the work of SALRI and, in particular, I commend the work of Professor John Williams, Dr David Plater, Dr Sarah Moulds, Ms Madeleine Thompson, Anita Brunacci and the entire team there, including the students, who have worked tirelessly on this project. They brought back to our parliament a very worthy effort, and we certainly owe them a debt. 

We do not owe a debt, however, to those who have ignored, delayed, obfuscated and demeaned the lives of those who seek laws to support families in all their diversities. While political games have been played behind the scenes, biological clocks have been ticking. In my own group of friends, I know people who have undertaken surrogacy within this time where the parliament has dragged its feet and moved at a glacial pace, completely in spite of the needs and the lives of those members of our community. I am glad today that we are putting the needs of those members of our community to the fore, for a change. 

In this case, the SALRI referral demanded extensive work, and that a draft bill was prepared in accordance with the recommendations of SALRI and duly tabled in parliament late last year for public consultation and feedback are very welcome innovations of the Marshall government. They have all taken place and we have before us now a bill. The Marshall government has afforded this debate precious government time. 

Previously, these matters have been left to languish in private members’ business time only, strangled, constrained, consumed and gazumped by other motions, often in their own way somewhat worthwhile but often distraction and diversion tactics used to stop these particular debates ever seeing the light of day and getting to a vote of the members of this place, when that is in fact our job—to vote in this place. 

Surrogacy, as is noted by SALRI, does raise ethical, legal and other sensitive and personal issues and implications. Commercial surrogacy, where a fee is charged for carrying the pregnancy and delivering the child, will remain unlawful under this bill, as it is in Australia. This is a position that is reflected right across our nation. That is not to say that we have not had commercial surrogacy arrangements entered into outside our shores by those who are resident in our nation, because we have. The system provided by this bill will enable domestic non-commercial surrogacy, where no fee is charged but, appropriately, various medical or other costs may be recovered, to finally get the legal recognition it deserves. 

Specifically, the bill has a set of guiding principles, including that the best interests of any child born as a result of lawful surrogacy is the primary consideration in the administration and the operation of this act; that the human rights of all parties to a lawful surrogacy agreement, including any child born as a result of the agreement, must be respected; and that the surrogate mother, under a lawful surrogacy agreement, should not be financially disadvantaged as a result of her involvement. 

It also requires the age of all parties to surrogacy agreements to be 25 or older, and allows easier access to surrogacy agreements in which neither intending parent provides the genetic material. It makes clearer provisions for the payment of reasonable surrogacy costs, including compensating surrogates for loss of income. It provides less complex fertility requirements that include same-sex couples and single intending parents. 

It requires surrogates and intending parents to provide each other with a criminal history check prior to entering the agreement, it implements the SALRI recommendations of accommodating that cross-jurisdictional service provision by removing the requirements for fertility treatment to take place in South Australia, as well as allowing interstate lawyers and counsellors to fulfil advisory functions under the bill, and it maintains that existing protection, including the requirement for all parties to obtain counselling. 

It has been well over 10 years, as I mentioned. It really is our job in this place to best serve our constituents and our communities, and here today we are doing that—not just those who often have the loudest voices in this place but all voices and the diversity of members of our community and members of the state of South Australia. Today, we do a great service, I think, to people who have for too long been ignored, been stymied and had their lives treated as if they are not important. Today, we will show them that we do believe that they are important, with the passage of this bill. I commend the bill to the council.