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Monday, 11 November 2002
Page: 5821

Senator STOTT DESPOJA (9:55 AM) —As the Australian Democrats biotechnology spokesperson, I welcome this historic but somewhat overdue debate. As honourable senators would be aware, the Democrats have a longstanding interest in biotechnology issues and a specific interest in the issue of human reproductive cloning. We have called for comprehensive bans on human reproductive cloning since the announcement of Dolly the sheep. In fact, since 1997, as you will see by my contributions to this chamber, through the proposals for Senate select committees, notices of motion, adjournment speeches and press releases, we have made very clear our stance on this issue. We have sought to expand public debate on a raft of biotechnology issues ranging from the patenting of genes and gene sequences through to grappling with the issue of genetic discrimination. That underlines our commitment to this debate, and indeed the Australian Democrats, like other parties in this chamber, support the Prohibition of Human Cloning Bill 2002 before us today.

We believe that human reproductive cloning is unethical and unacceptable. It is a view that is virtually unanimously accepted throughout the community. In the recent Senate inquiry into this legislation, no-one put forward an argument to defend human reproductive cloning. Accordingly, the Democrats support the passage of this bill. The bill sets out to do more than just ban human reproductive cloning. I would like to make some comments shortly about the legislation but I begin with a few reflections on the Senate Community Affairs Legislation Committee process.

There was an inquiry into the provisions of the Research Involving Embryos and Prohibition of Human Cloning Bill 2002 which, as we know, was subsequently split in the other place. I would like to acknowledge the work of Senator Sue Knowles, who chaired the committee. I certainly enjoyed being her deputy on that occasion. Some witnesses and senators, of course, have strong views about the matters covered by the bills. Given that situation, I thought that the chair managed contentious material and tight time frames even-handedly and fairly. As the coalition and the opposition decided to grant their senators a conscience vote, it was agreed very early in the process of that committee that the chair's report would not contain recommendations; rather, that it would aim to balance the major issues and arguments relating to the bill. Thus the intention all along was that other senators could submit supplementary reports if they chose to.

I think it should be understood by the Senate that, just three working days before the deadline for the providing of the reports to the secretariat for printing, a number of senators demanded a large number of changes to the chair's report and the incorporation of additional material. That additional material substantially changed the tone of the report, the approach and the evidence contained in the chair's report. I do acknowledge that, while some of those contributions were helpful and useful, the overall effect was to significantly alter the character and the balance of the chair's report. I believe that the chair was quite generous in accommodating these views, and thus I can well understand the frustration that she expressed in her media statement on the release of the committee's report.

I note that in his report Senator Harradine was critical of the fact that one day was allowed after finalisation of the chair's report for dissenting reports to be prepared. I do take issue with that. Given the time frame, we all lost because of the initial agreement of the role of the chair's report and the fact this was not respected by all. I do not doubt or question the sincerity or the intensity of some senators' personal commitments to these matters. However, I do want to put on record my concern at the level of personal attacks, the badgering of witnesses, some misrepresentation of evidence and indeed attempts to impugn the motives of some witnesses demonstrated by some senators during the committee process and those hearings that took place. Most of the misrepresentations to which I allude actually relate to the other bill, the Research Involving Embryos Bill 2002.

Senator Harradine —I rise on a point of order, Mr Acting Deputy President. There has been a serious reflection by Senator Stott Despoja on honourable senators. I ask that that reflection on other honourable senators be withdrawn. If Senator Stott Despoja is referring to me, I particularly ask that it be withdrawn. All of my comments in the many, many years that I have been here, when Senator Stott Despoja was not here, and all of my attempts with regard to Senate committees have been to look upon those committees as providing opportunities for persons in the public to provide information to the Senate. I take strong exception to that reflection.

The ACTING DEPUTY PRESIDENT (Senator Lightfoot)—Senator Harradine, with respect to your point of order, what Senator Stott Despoja has said seems to be a generic reference and not a particular reference. It does not appear to offend standing order 193. Although I understand what you are saying, Senator Harradine, I must rule that there is no point of order.

Senator STOTT DESPOJA —I am happy to withdraw remarks that Senator Harradine finds offensive but, as you have recognised in your ruling, I am, as a senator— admittedly of only seven years standing— able to comment on the processes and concerns that I have with that committee process. However, I am happy to withdraw any imputations that Senator Harradine finds offensive.

The ACTING DEPUTY PRESI-DENT —I am sure the Senate accepts that withdrawal. Thank you, Senator Stott Despoja.

Senator STOTT DESPOJA —Thank you, Mr Acting Deputy President, but I make it very clear to you and to the chamber that, during the debates on this legislation, I intend to correct any misrepresentations of evidence presented to that committee and I intend to correct the public record if evidence provided by witnesses is used in misleading and mischievous ways.

I acknowledge that this is a complex debate and, through you, Mr Acting Deputy President, I acknowledge that Senator Harradine has been one of the few people to support me in my attempts to get some of these issues debated. He has long recognised the need for public debate on the raft of biotechnology issues with which we are grappling. That does not mean that we always agree on these issues, but nonetheless it is high time that we had this public, and indeed parliamentary, debate.

The Prohibition of Human Cloning Bill 2002 makes it an offence to do a number of things, including to create a human embryo clone, to place a human embryo clone in the body or the body of an animal, to import or export a human embryo clone, or to create or develop a human embryo other than by fertilisation. This bill bans somatic cell nuclear transfer, embryo splitting, parthenogenesis or any other technology that does not involve the fertilisation of ova by human sperm. The bill also prohibits creating a human embryo for a purpose other than achieving pregnancy—that is, it specifically bans creating embryos for research. It bans creating or developing a human embryo containing genetic material provided by more than two persons. This bans cytoplasmic transfer, which is a new ART technique that may assist some older women achieve pregnancy. The bill also bans other practices, including mixing human and animal cellular material in an embryo, and commercial trade in human eggs, sperm or embryos. I want to emphasise that last point because there has been some suggestion in the media today that the legislation allows Australian embryos to be exported. Let us be very clear about this: it is legal to export an ART embryo if a woman wishes to continue her treatment overseas. However, the implication that there could be wholesale export of prohibited embryos, including excess ART embryos, is not the case. Section 22 makes that quite clear. We need to be cognisant of that for this debate and for the debate to come.

It also needs to be understood that this legislation is relatively conservative by international standards. For example, this bill bans somatic cell nuclear transfer. That is permissible in the UK, Israel and non-national institutes of health funded research in the USA. It bans cytoplasmic transfer, which is permissible in Italy, the USA, Israel and Taiwan. It also bans germ line gene therapy, which may have considerable benefits in terms of overcoming heritable diseases such as spina bifida. Moreover, the Research Involving Embryos Bill 2002 applies a new level of regulation on some practices in IVF clinics that have been routinely carried out with no apparent abuse for up to 25 years in this country.

In the original bill, the National Health and Medical Research Council, NHMRC, is required to cause an independent review of the act. This is retained in the Research Involving Embryos Bill 2002. However, in the Prohibition of Human Cloning Bill 2002, it is the minister who causes an independent review. Section 47(2) of the Research Involving Embryos Bill 2002 requires the review to be undertaken by the same people, and concurrently with the minister's review of the Prohibition of Human Cloning Act. The net effect is to ensure that the minister rather than the NHMRC nominates the people who will conduct the review. I note in the qualifying comments of Senators Heffernan, Hutchins, Barnett and others on page 134 of the committee report that they discuss this review. They cite the ACF Gene Ethics Network submission, which states:

... an in-house committee of the NHMRC is not open to public scrutiny, communication, or participation and cannot be therefore assured of acting in the public interest.

Oddly, the quote appears in the submission in relation to section 2, not the provisions containing the review. In fact, the Gene Ethics Network submission does not say anything about the review provisions at all. Unfortunately, by using this quote out of context, it may reflect adversely on the Gene Ethics Network in that someone could reasonably conclude that the network has misunderstood the bill on this matter. As it happens, both the original bill and the split bills require an independent review, not an in-house committee. I note that the Queensland government has requested that parliament reconsider the review provisions to return to the original intent that the NHMRC cause an independent review. However, as the bill requires the independent review to be carried out by persons chosen with the agreement of each state—and I emphasise `agreement' and `each state'—the Democrats do not consider the change to the minister causing an independent review to be of material significance. Accordingly, we see no compelling reason to amend the bills in relation to who carries out the review or who causes the review.

The constitutional issue has raised some discussion too. The heads of power in the legislation provide wide Commonwealth coverage of corporations' commerce and trade. However, the Commonwealth's power may not cover individuals. This opens the prospect of an individual challenging the constitutionality of the legislation should a prosecution be instigated. To cover this potential loophole, the states and territories agreed at COAG to introduce complementary legislation to ensure full coverage within six months of royal assent. According to the Attorney-General, the three states that already have legislation that seeks to ban cloning and research on excess ART embryos—that is, South Australia, Victoria and Western Australia—are currently in the process of amending their legislation. Accordingly, I do not accept the alarmist claims that there are serious doubts about the constitutionality of the legislation. The limits are well understood and there are no compelling grounds to believe a state or territory would act in bad faith by not honouring the COAG agreement, particularly given that each state and territory was party to that agreement.

Section 13 of the bill makes it an offence to create an embryo other than by fertilisation of human egg by human sperm. Currently, there are two technologies that can achieve this: embryo splitting, which also occurs naturally in the case, for example, of identical twins; and somatic cell nuclear transfer, in which a somatic cell from a child or adult is placed in an enucleated egg. Somatic cell nuclear transfer is the technology that produced Dolly and other animal clones. However, it can also be used to develop an embryo that is subsequently used to derive stem cells—with the theoretical advantage that these stem cells will be immunologically identical to the donor of the somatic cell. Their use is sometimes referred to as `therapeutic cloning', and this term is in common usage around the world to distinguish such approaches from `reproductive cloning', in which an embryo created by this technology is implanted in the mother to produce live offspring.

However, there is a strong argument that `therapeutic cloning' is misleading as a term because it manifestly is not therapeutic for the particular embryo that is destroyed in the process of deriving stem cells. Moreover, as Dr Breen from the Australian Health Ethics Committee has stated, the term `therapeutic cloning' collapses both therapeutic and non-therapeutic research on embryos and also the distinction between destructive and non-destructive research on embryos.

I think that the argument against therapeutic cloning as a term is actually quite well made and that there is a very good case for us to be quite distinct and very clear about the distinctions between `therapeutic' and `non-therapeutic', and `destructive' and `non-destructive'. Certainly, more accurate nomenclature would be of considerable benefit in the public debate surrounding these issues. In one sense, this is not an issue, as both reproductive and so-called therapeutic cloning are banned in the legislation.

As I mentioned earlier, somatic cell nuclear transfer is allowed in some jurisdictions—notably in the UK and in United States research not funded by their National Institute of Health. I note that the comprehensive report on human cloning by the House of Representatives Standing Committee on Legal and Constitutional Affairs back in August 2001—the Andrews committee—recommended a three-year moratorium on somatic cell nuclear transfer rather than a ban. That is something that senators should be conscious of.

Section 16 of the bill prohibits developing a human embryo outside the body of a woman for more than 14 days. This means that human embryos created by ART must be implanted, stored or allowed to succumb if they are unsuitable or excess, before the 14th day of their development. I understand that it is actually usual clinical practice for ART embryos to be implanted when they have reached between three and seven days of development. The meaning of 14 days was discussed at some length by a number of witnesses in the Senate inquiry. An argument could be advanced that an embryo is not fully a human being prior to the 14th day because of, firstly, the high natural rate of embryo loss—estimated to be between 50 per cent and 80 per cent—prior to full establishment of pregnancy; secondly, natural twinning through embryo splitting; and, thirdly, the development of the primitive streak—the first sign of the nervous system—at about 14 days. Up until then, it has been argued, there is no certainty that fertilisation has produced a morally identifiable human being.

This view is strongly challenged by those who see the 14-day marker as arbitrary in biological terms as well as ethical terms. The argument here is that fertilisation is the beginning of human life and that, indeed, the view hitherto held that some of the features of the embryo only existed from about the 14-day period is scientifically out of date. The Southern Cross Bioethics Institute, for instance, has pointed out that recent work in embryology has shown that the early embryo is not an undifferentiated blob of cells but that it demonstrates asymmetrical structure at a much earlier stage—as early as the single cell zygote stage. The key point is that development is a process beginning at fertilisation, and that selecting any given point along that developmental pathway is fundamentally arbitrary in terms of the moral status of the embryo.

I think the argument against seeing the 14-day stage as decisive in development is actually well made. And to be fair, there was no evidence provided to the Senate inquiry that argued that full fertilisation is not the beginning of human life. However, I think we have to separate two very distinct ideas concerning the 14 days in the bill. First, as I have already outlined, there is the issue of the status of the embryo from fertilisation. I am sure that this is going to be discussed at great length when we come to the Research Involving Embryos Bill 2002.

However, the NHMRC advised the Senate inquiry that the prohibition on maintaining an embryo in vitro for longer than 14 days is based on scientific evidence which indicates that, beyond 14 days development in vitro, an embryo is unlikely to have the capacity to implant in a woman's uterus. Implantation is necessary to ensure the viability of the embryo and has normally completed by the end of the second week. That is why, for instance, ART guidelines require that embryos must be implanted, stored or allowed to succumb before the 14th day of their development. That is, quite independently of the question of the ethical status of the embryo, there are good grounds for the provisions that ban developing an embryo outside a woman's body for more than 14 days.

In conclusion, I would like to reiterate the Democrats' longstanding interest in these crucial questions. I believe that Australia has long lagged behind many other developed nations in establishing sound, consistent regulations on these issues—not just in relation to the prohibition of human reproductive cloning but more generally in relation to debates about biotechnology. As I have said earlier, whether it is the patenting of genes and gene sequences, the issue of genetic privacy or ensuring that we cannot be discriminated against on the basis of our genetic make-up, these are all issues that have been debated in many other parliaments around the world.

It is high time that we had comparable debates. This bill is an important start. This is a fundamentally important piece of legislation and, indeed—without meaning to pre-empt the debate that we will have later on the research bill—it is of course an important regulatory development for our nation in relation to the broader issues. We welcome this bill; the Democrats support this bill.

There are many issues that need to be addressed in relation to intellectual property, for example, and in our report, cosigned by me and by Senator Jan McLucas, we made very clear that we have foreshadowed some amendments that go to some of the issues, including intellectual property. We have also advocated the establishment of a stem cell bank. Senator McLucas and I have indicated an interest in that issue, as evidenced by our questions in the committee stage of the bill as well as by our report on that legislation. I note that some latecomers to the debate have also picked up this idea and I look forward to their support in moving amendments that would guarantee such additions and improvements to the legislation. In the meantime, while recognising that there are many intense and strongly held views, and indeed, emotional ethical debates on this issue, I welcome this debate. The Australian Democrats will be supporting wholeheartedly the legislation before us.