Assisted Reproductive Treatment Amendment (consent) Bill 2019
Victorian Parliament - June 19, 2019 - Ms KEALY (Lowan) (12:03:37): It is a privilege, as it always is in this place, to speak on the Assisted Reproductive Treatment Amendment (Consent) Bill 2019. There has been much discussion around this. In terms of the purpose of the bill, I think it is something that most people would support, which is in relation to amending the Assisted Reproductive Treatment Act 2008 to ensure that a married woman is not required to obtain the consent of her spouse to undergo a treatment procedure using donor sperm in circumstances where the woman has separated from her spouse; to making consequential and other amendments to the Status of Children Act 1974; and for other purposes. On a first reading of this bill and the statements around it, it sounds extremely positive, and of course we should be supporting women to not have to receive permission from their ex-spouse when they are seeking to undertake assisted reproductive treatment. I will raise some other concerns that we have around the structure of this bill and the drafting of this bill. There are significant concerns that we have. I will outline the concerns which have been raised with us—the Liberals and The Nationals—by private assisted reproductive treatment (ART) providers in Victoria. They are deeply concerned about how some of this legislation may be interpreted. As I outline these concerns to the Parliament, I would ask that the minister take these concerns on board and that they do consider it quite carefully and seriously because there may be extraordinarily serious unwanted impacts on the access to and discrimination around assisted reproductive treatment, which may be quite deleterious. In my view, these are issues that must be addressed before this bill is taken to the Legislative Council, and therefore I would ask that there is special attention given to that. Further, I ask that the government and their advisers take additional steps to provide consultation to this important sector, the private sector, that undertakes about 30 000 cycles of treatment every year. It is important that these people are consulted because they are wise, they are experienced and the concerns that they have raised over the limited time we have had to be able to scrutinise the bill really do raise a number of concerns not just with me but within the sector also. It is at the outset something I put forward, and I ask that you not only take the comments I relate through my contribution today on board but that the government also does take the necessary steps, which I believe they should have taken before bringing this legislation forward, which is to consult with the 25 private providers of assisted reproductive treatment in Victoria. Just as a bit of background, this bill largely originates from the outcome of the Federal Court of Australia case EHT18 v. Melbourne IVF  FCA 1421. In this instance, the Federal Court ruled in favour of allowing a woman to undergo in-vitro fertilisation to become pregnant using her own eggs and donor sperm. As it stands, the Assisted Reproductive Treatment Act 2008 prohibits any such procedure being provided to a woman who is married unless her husband consents. This is where the problem arises, in that if you are separated, under legal interpretation you are still married, and therefore you would require that consent by the partner. However, the way that this bill has been drafted, this has not been simply undone. It is such a complex piece of legislation and has an enormous impact on so many other acts at a state and federal level that any small amendments may seem like they are small amendments, but they have enormous consequential effects through access and discrimination in other aspects of the interpretation of the associated relevant legislation. The bill wants to make it so that if a woman has separated from her spouse but is not divorced she will be able to go ahead with the IVF process without spousal consent. I would like to absolutely endorse the view that that should be the case. That is something that I think it would be difficult to argue in this day and age should not be in legislation, and we do need to make sure that those changes are put in place. However, we need to make sure we get it right because there is a huge impact in reading through the concerns from people involved in this industry, and I would ask that the government do consider pulling this bill and making some amendments before they take it further through the legislative process. The main provision of this bill is to prescribe that a woman who is separated from her spouse, irrespective of gender, is able to undergo assisted reproductive treatment without the consent of her spouse and that any child born of the assisted reproductive treatment is not considered a child of the spouse for the purposes of the Status of Children Act 1974. I note that there is a really interesting case which has just been published on the Australian website today in relation to a High Court ruling, where a sperm donor who has been involved in the parenting of a child donated their sperm to a friend of 25 years who was in a same-sex relationship. They had a relationship with that child over the year and contributed to the upbringing and the cost of raising that child. The High Court has actually determined that the sperm donor has a parenting right to that child. It does change considerably not just the interpretation of the legislation that is before us today but also how this may be interpreted into the future, in that if sperm donors are involved in the child’s life it is impossible to exclude them from parenting rights. This is a significant and complex area. Obviously it is extraordinarily emotive as well. I have friends who have undertaken surrogacy, who have undertaken IVF, and not only is it an enormous cost burden, it is extraordinarily draining and challenging for all involved—the feelings of failure for either parent involved in the situation. I have a friend who went into early menopause in her early 20s and was fortunately the recipient of some donor eggs. She now has three gorgeous little boys, and she raises them like the best mother that you could ever imagine. I have friends who have gone through the very stressful process of not just IVF but also going through surrogacy procedures. It is so draining, and there are so many regulatory steps, which are necessary but are very challenging for couples going through that, whether it is the surrogate couple or the couple involved in the pregnancy. It is a tough, tough challenge, and my thoughts and my heart go out to all families who are involved, because you spend so much time in your life trying to avoid getting pregnant and then when you cannot get pregnant it can be an extraordinary psychological blow for couples. I would now like to move on to the areas of concern regarding the bill, and these are concerns which have been raised by private providers. Again, I emphasise that it is important that these groups are consulted. I would have thought they should have been consulted before the legislation was brought forth, particularly as it is so complex. These are people with expertise in the area, and because it is already a legally complex area, I think they should have been top of the list in consultation. Therefore again I urge the government to undertake that consultation and to meet with these groups to work through these issues and commit to undertaking any amendments that are required to the legislation that has been put forward to this house before it goes through to the Legislative Council. It needs to be sorted. We cannot have a situation where we create discrimination or unnecessarily damage the process around women being able to access ART treatment or any couple being able to access ART treatment. I do ask you, Acting Speaker, to bear with me, because this is quite a complex area and there are some convolutions in here which make it extraordinarily difficult to convey and describe. I guess I am somewhat fortunate in that I studied biomedical science and I have undertaken sperm counts in my time and I have got some familiarity and training around the knowledge and the process around ART. But there is no doubt that this is an area where you do need a huge level of expertise. I am no expert in the area, but the language around donors and gametes and making sure that embryos are included in certain statements is essential. If you do not get that right, you actually destroy the whole intent of the bill, and that is something that does need to be addressed. If I may walk through the issues that were raised with us by Monash IVF Group. This is in a broad sense; there is further information available from Monash IVF, but I believe the government should really be working directly with Monash IVF to be able to work through those issues. There may be some areas where there can be some explanation but also pointing to other areas of legislation which may negate these concerns. However, on my read we will need some amendments to this bill. The first concern I would like to raise is that it implies a woman separated from her husband could use embryos created with his sperm while they were still together without his consent, and this is in relation to the terms of using donor sperm or donor gametes within the legislation when he is not necessarily interpreted according to legislation as a donor; he is an owner of these gametes and therefore has not donated them and so he may be excluded from some elements of this legislation. In division 3, section 16(1) and (2), the act refers only to donated gametes, requiring both gamete sources to consent. In this case the male was not a donor at the time of embryo creation; he was part of the contract. So there is significant concern around use of biological material without the owner’s consent. This needs to be qualified and fixed in the legislation. Section 16(2) implies that a woman separated from her wife could use embryos created with the wife’s eggs under an egg-sharing arrangement while they were together without the wife’s consent. Again, this raises significant concern around use of biological material without the owner’s consent, and again links to whether it is around a donor egg or is part of somebody who is part of the contract in relation to a specific treatment. Thirdly, it allows a woman separated from her partner, irrespective of gender, to use embryos created with donor eggs and/or sperm or donated embryos while they were together without the spouse’s consent. These embryos are currently considered jointly owned by the spouses. Now there is again concern that there could be use of property without the co-owner’s consent. We need to tackle these issues. This is what the purpose of the bill is: to try and avoid some of these issues around management of consent, and this has not been addressed in an appropriate manner through the drafting of this bill. I do not believe that any of these issues have been raised intentionally—I would like to clarify that—but we do need to ensure that the bill is drafted correctly, because if we are raising additional concerns about consent around use of biological material or use of property without a co‑owner’s consent, we are getting into an area where we could actually create more conflict and more challenges for certain people in our population who are already challenged in going through ART treatment and a relationship breakdown. Fourthly, it allows a person separated from their partner, irrespective of gender, to commission a surrogacy arrangement using embryos created with the estranged spouse’s gametes without their consent. Again, there are significant concerns around the use of biological material without the owner’s consent. Fifthly, it allows a person separated from their partner, irrespective of gender, to commission a surrogacy arrangement using embryos created with donor eggs and/or sperm or donated embryos while they were together without their consent. Again, this is an issue related to the use of property without the co-owner’s consent. Sixthly, it prohibits couples who are separated but not divorced and wish to co-parent from doing so as they no longer meet either point (a) or point (b), and in this case the male is no longer considered a donor because the intent is for him to be named on the birth certificate and to have equal right. Again, this is something that was probably seen as a small change in an earlier element in the context of the bill, but it has not delivered that. It has actually delivered greater complexity because it has not been drafted appropriately and there has not been full consultation with the entire sector. There are recommendations that Monash IVF have in relation to this, and I will note that this is in relation to the definition of 'partner’. So those six issues that Monash raise are in relation to just the changes to the definition of 'partner’. The flow-on impacts of that are significant, and I would think that if the government have the focus on making sure that ART is managed in a safer way that does not have any discrimination against women, when we can outline a number of instances where there will actually be discrimination in terms of the use of property without consent or the use of biological material without consent, these are serious issues that must be addressed. We need to do it once and do it right, and we need to make sure that the government do that. I would also like to refer to consent in division 2, section 10(1)(a) of the act, where a person may undergo an ART treatment or procedure only if all biological and legal owners and their partners, if any, have consented in the prescribed form. A surrogacy arrangement may be commissioned and undertaken only if all biological owners and all parties to the arrangement, including a partner, if any, have consented in the prescribed form, but we have not seen the prescribed form and again we have got that problem with the definition of a partner, which has not been clarified. We have also got an issue where the terms 'separation’ or 'separated couple’ are not defined within the legislation. It should be included within the legislation to provide legal clarity and to help to inform agents who have to deliver on this bill to make sure that they are delivering their services in a way that does meet the legal framework of Victoria. There are also significant concerns in other definitions, whether it is around 'partner’, 'biological owner’, 'legal owner’ or 'separation’, and these are things which must be included. It sounds quite straightforward, but it really does have an enormous impact in terms of making sure we get this process correct. I have also received correspondence from the Fertility Society of Australia, IVF Directors group. They note significant concerns around the drafting of this bill. Again, it is in relation to ensuring that elements of definitions and the amendments that have been proposed in the bill, particularly in relation to the definition of a 'partner’, do not deleteriously impact on other sections of the bill, which may actually override consent issues or create consent issues for material or for embryos which are co-owned. It is an extraordinarily complex situation, as I have stated, but it is something that does need to be worked through, and I am surprised that it actually came to the house in the state that it is in. The elements that the fertility society have raised are similar to Monash IVF’s, but again I would encourage the government to take the step to meet with these groups and to work with them, given that they are experts in the area. It is not a huge ask; there are 25 private providers, 30 000 treatments a year. They are an important stakeholder group and they should be consulted, and it must be done, given their concerns, before this bill hits the Legislative Council. I would like to just quote now a section from the Fertility Society of Australia, IVF Directors group. They are deeply concerned that: The current proposed legislation will impose a different sort of discrimination on patients, namely, the male patient. Any new legislation in this area must, as the recent Western Australian review recommended, be free of sexual or other discrimination of any nature. We are anticipating receiving a detailed legal opinion from Ebsworth Lawyers, the lawyers who were engaged in the Federal Court case, providing us with a much deeper analysis of how these proposed legislative changes will impact patients and medical practice. Monash IVF are similarly seeking a separate legal opinion on the impacts of the proposed Bill … and have agreed to make that available. So these bodies have taken the steps of seeking legal advice. We have received some of that legal advice and it is very comprehensive and thoughtful. I would encourage the government to avail themselves of that and to work with these groups to ensure that we are not actually creating a more complex and discriminatory legal framework by the passage of this bill. I would like to of course refer to as well the Gorton report. The Gorton report was one of the reasons that this proposed bill has come to reality, but the full Gorton report has not yet been released. In the interim report this change to consent around women who are separated to be able to go ahead with ART treatment procedures without their ex-spouse’s consent was a recommendation. However, we do need to see the whole Gorton report. I think it should have been released by now, and we are very keen to see what the content of that is. And if the content of the Gorton report indicates that there are further amendments that are required to this Assisted Reproductive Treatment Amendment (Consent) Bill 2019, then we need to make sure that we do this once and we do it right. One change can make an enormous amount of difference to the interpretation of the remainder of the bill. And if we are expecting other amendments to this bill and/or this legislation in relation to Gorton’s review, then I would recommend that we take all of that into account and review the relevant acts in one hit, particularly given the concerns which have arisen as part of this one single piece of legislation and one recommendation in the interim report. It is not just the private ART providers in Victoria who have raised concerns around this legislation; I refer to the Scrutiny of Acts and Regulations Committee report around the Assisted Reproductive Treatment Amendment (Consent) Bill 2019. There are a number of issues which have been raised by SARC, and they have noted that they will be writing to the minister and seeking a response to the committee about a number of areas that have been raised. These are issues which are related to components of the bill which I have gone through that were raised by private providers of ART procedures, but I do note in particular that the committee are going to write to the minister seeking further information as to the compatibility of clause 4, when read with provisions other than sections 10(1)(a), 13 and 34 of the principal act, with the charter. I note that clause 4 alters the existing definition of 'partner’ throughout the Assisted Reproductive Treatment Act 2008 to exclude the separated spouses of married people, whereas clause 6 extends the parenting presumptions for women who have no partners to married women who have separated from their spouses. The committee are writing to the minister to seek further information—and obviously clarification—around that because we have to have a standard set of definitions which can be applied appropriately and as intended across the entire piece of legislation. Also, the committee notes that clause 6, amending existing section 12 of the Status of Children Act 1974, extends the parenting presumptions for women who have no partners to include married women who are separated from their spouses. There are elements of concern that SARC have raised around that, particularly in relation to how that compares to other legislation, and the observations that SARC made in relation to the statement of compatibility that it does not expressly address the possible impact of clause 4, the definition of 'partner’, on existing provisions other than sections 10(1)(a), 13 and 34; the possible impact of clause 4 regarding the definition of 'partner’ on separated spouses, including its application to treatment procedures that use the separated spouse’s gametes or embryos created from those gametes; and thirdly the possible differential impact of clause 6 on separated male and female spouses. These are significant issues. SARC are seeking some further information and explanation from the minister. I cannot see how the only step forward would not be to pull this bill and to fix these issues in the drafting of the bill before this bill goes any further and does become law. I also refer to another issue that SARC will be writing to the minister about, which is the meaning of 'separated’ in clauses 4 and 6, and the concern that those clauses’ compatibility with married people’s charter rights do not have the family unlawfully or arbitrarily interfered with to the extent that the meaning is uncertain and that there is equality on the basis of marital status to the extent that clauses 4 and 6 apply a different test than the one that would be used to determine the end of a de facto relationship. So again, that is in relation to the definitions of 'partners’ but also of 'separation’, which can be quite complex to define. It can be done through other legal aspects including court determinations of what 'separated’ is, but for the purpose of this legislation, given that there are some definitions, it really needs to be clarified what the intent is of the definition within this bill. I have raised and put on record some of the concerns of parties which have contacted us as part of our consultation process to hold the government to account and to provide an informed reflection on the legislation that is before us in the house. However, I do wish to urge the government again that this is something that should have happened before this bill was brought forward. These are significant drafting errors which would have an enormous impact in restricting access for some couples and discriminating against some sections of the community who are involved in the ART process. I think these are all unwanted impacts. I do not believe that this is intentional, but it is the reason why the government needs to take the time to make sure we get this right. Again, I would like to reaffirm that I do not in any way disagree with the intent that a woman separated from her spouse should not have to receive permission from her former partner to participate in assisted reproductive treatment. However, we do not want to see legislation in place that does put additional barriers in place for other sections of the community or does result in a negative effect or confusion within this sector and also within the legislative framework in the very difficult area of egg donation, gamete donation, surrogacy and of course the definition of modern relationships and what that means. We need to make sure we get this right. Again, I do just urge the government to take the time to review this bill and to take additional consultation as required. There are at least seven weeks until the next sitting week of Parliament. It may be long enough for us to actually look at doing that consultation and making the required amendments so that there is not discrimination or any deleterious impact in relation to access to ART for people in Victoria. We also need to make sure that we are not prolonging that delay, because we do want to make sure we fix up those key elements of the bill, in addition, around ensuring women who are separated do not have to receive permission from their ex-partner to access assisted reproductive treatment. There is a recommendation that came through only an hour or so ago, which is around the cross-border implications of these changes to legislation. Because there is a differential in the proposed legislation in Victoria and in South Australia and New South Wales we really need to look at making that consistent. I am aware that there are individual groups who will be writing to the Attorney-General to appeal for a national approach in relation to management of assisted reproductive treatment and associated legislation, which feeds into that and is related to that. I think that that is important—that we do seek to take a national approach. However, understanding that that can take a considerable period of time, at the very least we need to make sure that the laws we make in Victoria are written in a way that deliver the intent that we outlined and also that no human rights are negatively affected as a result of that. In saying that, I do support strong elements and the intent of this bill very, very strongly. However, I urge the minister to pull this bill and to review the elements that have been raised in the debate and by private providers with the Liberal-Nationals. I am aware that some of these matters have also been brought to the attention of the government. It is important that we do it once and we do it right in an area like assisted reproductive treatment. It is such an emotional area for all involved. It can be heartbreaking. It can be enormously joyful when people can finally carry a child and parents can welcome a little one into the world and have that joy of raising a child. It is the highs and lows of assisted reproductive treatment. It is why it is so important that we get this right and provide the right legislative framework to support people to access assisted reproductive treatment and to not be unfairly discriminated against, but also to ensure that we have a great legal framework in Victoria where we can proudly say that we have got it right. I just do not think in this legislation we have quite got it right at this point in time.
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