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Friday, 5 December 1986
Page: 3513

Senator GARETH EVANS (Minister for Resources and Energy) —On behalf of the Attorney-General (Mr Lionel Bowen), I seek leave to make the Government's response to the report of the Senate Standing Committee on Constitutional and Legal Affairs on `national uniformity in laws relating to the status of children born through the use of in vitro fertilisation' and to incorporate the statement in Hansard.

Leave granted.

The statement read as follows-

Response to the report of the Senate Standing Committee on Constitutional and Legal Affairs on National Uniformity in Laws Relating to the Status of Children Born through the Use of In Vitro Fertilisation

1. On 15 May 1985, the Senate resolved to refer the following matter to the Standing Committee on Constitutional and Legal Affairs: ``National uniformity in laws relating to in vitro fertilisation and the status of children deriving therefrom and the role of the Commonwealth in achieving such uniformity''. The Standing Committee presented its Report to the Senate on 6 December 1985. The Committee obviously worked hard to present its report in such a short time and I take this opportunity on behalf of the Government to congratulate Committee members on their work.

2. The scope of the Report of the Standing Committee is limited by its terms of reference to issues relating to the ``status'' or parentage of children born as a result of in vitro fertilization (IVF).

3. The question, who, in law, should be regarded as the parents of a child born as a result of artificial insemination by donor (AID) or IVF using donor gametes, is one of many significant questions raised by the use of reproductive technology in Australia today. It is a question which affects a growing number of children and the families in which they are being reared. Although there are no accurate figures as to the total number of children born as a result of AID, the general estimate is 1,000 births per year. Further, a total of 29 children were born by means of IVF using donor gametes (including 2 from donor ova) to September 1985. The legal parentage of these children is an issue with wide-ranging consequences-for the child's legitimacy, for inheritance, for the obligation to support the child and for custody and guardianship to name but a few. The Government considers that the present situation whereby variations exist in the law within Australia relating to the parentage of AID/IVF children is highly undesirable. It follows that we strongly support the Committee's view that legislative uniformity should be the goal in this area.

4. The Government considers that a uniform Australia-wide response to all the legal social and ethical issues raised by the advent of reproductive technology, is highly desirable. These wider issues have been the subject of a number of Reports, most recently that of the Family Law Council, Creating Children: A uniform response to the law and practice of Reproductive Technology in Australia, which the Attorney-General is presently considering and to which reference is made later.

5. The Standing Committee's Report makes 13 specific recommendations to which the Government's reponse is as follows.

Recommendations 1, 2, 7 and 8

6. Broadly, these recommendations express the Standing Committee's view that legislation relating to the status of children should be uniform throughout Australia. The Government supports this principle and agrees, in particular, with the desirability of formulating legislation dealing with children born from donor gametes (or donor embryos) in general terms rather than tying it to a specific procedure such as IVF which may be overtaken by new developments.

Recommendation 3

7. This proposes that, so long as status law is not uniform throughout Australia, the Attorney-General should consider the possibility of enacting uniform choice of law rules under s.51 (xxv) of the Constitution. The Attorney-General has considered this possibility. In his view, the use of s.51 (xxv) would not provide an effective solution to the problem of lack of uniformity in this area. The better approach is to pursue uniformity through negotiation as discussed in paragraphs 11 and 16.

Recommendations 4, 6 and 9

8. These recommendations deal with the content of uniform status law. Recommendation 4 proposes a basic rule that ``a consenting married couple entering an IVF program involving donor gametes should be the legal parents for all purposes of any child born as a result''. Recommendation 6 proposes, in essence, that a de facto married couple should be treated as if they were married for the purpose of status legislation, and Recommendation 9 proposes that legislation should explicitly provide that ``the woman who gives birth to a child is its legal mother.''

9. The Government agrees with the substance of these 3 recommendations, subject to the following comments. First, in line with the Committee's own recommendations (Nos 7 and 8) the basic rule proposed by recommendation 4 should not be limited in its terms to IVF or any other specific procedure. At present, this rule, which was agreed to in the Standing Committee of Attorneys-General (SCAG) and has been adopted by most jurisdictions, extends specifically to AID and IVF.

10. Secondly, I wish to draw attention to the recommendations made by the Family Law Council Report concerning the drafting of provisions which, in effect, reassign the bundle of rights and responsibilities which attach to parenthood in our society from the genetic parent to the social parent. The Council takes the view that we should not create what it refers to as ``legal fictions'' whereby legislation provides an irrebuttable presumption that in a certain situation ``X'' (who has no genetic input) is the mother or father of a child, or caused the pregnancy (in the case of a man). The Council argues that this fictional approach distorts the reality of social and genetic relationships. It favours the approach taken by the United States Uniform Parentage Act which provides, in relation to AID, that ``the husband is treated in law as if he were the natural father of the child thereby conceived'' (s.5). This approach was also commended by the Chalmers Committee in Tasmania and has since been adopted in the November 1985 amendments to the Tasmanian Status of Children Act 1974. All other Australian jurisdictions (except Queensland which has yet to pass relevant legislation) follow the so-called legal fiction approach, which is also the one preferred by the Standing Committee (para 7.8).

11. The Attorney-General takes the view that the appropriateness of the `legal fiction' approach should be considered in the context of a review of status legislation relating to children born of donor gametes with a view to achieving greater uniformity.

Recommendation 5

12. This recommendation proposes that consideration should be given to whether legal links with the genetic parents should be retained for the limited purposes of the criminal law on incest and the prohibition of marriage within a prohibited relationship. The rationale for maintaining the prohibition on incest between ascendants and descendants and brothers and sisters in Australian society today is based on both social and biological factors. Generally, a child born as a result of AID or IVF using donor gametes will have no social or parent/child relationship with the donor. It may be, therefore, that in a purely social sense, the important prohibition is on incest between the child and its social parents and their immediate family. However, from the point of view of genetics, it would not be desirable to exempt incest between a child and the gene donor or the child's ascendants and descendants from the general prohibition on incest. The risk of congenital abnormality as a result of such inbreeding is not an insignificant one. On the other hand, unless information about their genetic origins is freely available to children of a certain age they may unwittingly contravene the law with disastrous consequences. Given the prevalence of AID and the current absence of legal restrictions on the number of occasions a man can donate sperm, the possibility of accidental incest between half brothers and sisters is not a far fetched one.

13. The Attorney-General proposes to give further consideration to these difficult questions before making any recommendations as to whether or not `status' legislation should uniformly provide that legal links between genetic parents and AID/IVF children should be retained for these limited purposes, and before coming to a decision on amendment of the Marriage Act 1961 in this way.

Recommendation 10

14. This recommends that the Commonwealth should seek to obtain from the States the power to enact legislation to deal with all issues of the status of children in law.

15. As is well known, negotiations have been taking place between the Commonwealth and the States for many years over a reference to the Commonwealth of State powers in relation to a number of issues affecting children. The 1976 Constitutional Convention in Hobart recommended that the Commonwealth seek a reference from the States of power over ``illegitimacy''. Shortly afterwards, however, this was dropped from the reference agenda after discussion by SCAG. Other SCAG discussions over the past decade have culminated in South Australia and Victoria introducing legislation into their respective State Parliaments in September 1986 to refer powers relating to maintenance, custody and guardianship of, and access to, all children not presently within Commonwealth jurisdiction, i.e. children who are not ``children of a marriage'', but excluding children covered by their State Child Welfare legislation. New South Wales and Tasmania have Cabinet approval to a similar reference and intend to introduce the necessary legislation before their current sittings end. The history of obtaining the present references of power relating to children demonstrates that a reference on status of children would be exceedingly difficult to negotiate.

Recommendations 11 and 12

16. These recommendations put forward what the Committee sees as interim solutions to the problem of lack of legislative uniformity. Recommendation 11 proposes in part that, as a matter of priority, SCAG should be used to achieve a greater degree of uniformity in status law. The Government supports the call for greater uniformity and the Attorney-General proposes to recommend to his State colleagues that status legislation relating to children born of donor gametes be reviewed with a view to achieving this goal. It seems obvious that this is a matter of the highest significance as the number of children affected is ever increasing.

17. Recommendation 11 also proposes that SCAG should monitor the impact of scientific developments on status law. In the Attorney's view this is not an appropriate function for SCAG. It is the type of function which could be carried out by a national advisory body of the sort recommended by the Family Law Council, to which I refer below.

18. Recommendation 12 puts forward 3 other proposals. First, that the Commonwealth should enact legislation for the External Territories to deal with status issues arising from artificial reproduction. The Government does not consider this to be a high priority. However, we will enact such legislation if a need is perceived.

19. Recommendation 12 (b) proposes that the Family Law Act 1975 s. 5A and the Australian Citizenship Act 1948 s. 5 (6)-(8) be amended so as to deal with maternity issues where donor female genetic material is used. At present, these provisions do not adequately cover the situation where donor ova are used. An amendment to the appropriate provisions of the Family Law Act will be introduced at the first suitable opportunity to ensure that a woman who gives birth to a child as a result of the use of donor ova or a donor embryo will be treated in law as if she is the mother of the child. This accords with the thrust of Recommendation 9 above. A similar amendment to s. 5 of the Australian Citizenship Act will be introduced.

20. Recommendation 12 (c) proposes that the above provisions also be amended, ``so that the consent of a husband to his wife's participation in an artificial reproduction program is rebuttably presumed to have been given, in the same way as is done in all State and Territory IVF status legislation''. In the interest of uniformity, the Attorney-General proposes to implement this recommendation also, as does the Minister for Immigration and Ethnic Affairs.

Recommendation 13

21. This recommendation proposes that, pending the possible establishment of a national advisory body on reproductive technology (as recommended by the Family Law Council), the issue of record-keeping and access to information about donors should be considered by SCAG, and that further, the operation of any scheme adopted should be monitored by SCAG.

22. The Attorney-General is presently considering the Family Law Council's recommendation that an independent multi-disciplinary national council be established to advise Federal, State and Territory Governments, through their relevant ministers, on matters relating to reproductive technology with a view to establishing a uniform national approach to such matters. He does not consider it appropriate to raise the issue of record keeping and access to information for consideration by SCAG before a decision has been made on whether to establish a national body to advise on such issues.

Senator GARETH EVANS —I move:

That the Senate take note of the statement.