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Monday, 11 November 2002
Page: 5841


Senator ABETZ (Special Minister of State) (11:49 AM) —The Prohibition of Human Cloning Bill 2002 is intended to prohibit human cloning and other unacceptable practices associated with reproductive technology. That we need this legislation is an indictment of the scientific community, because it is quite clear that, given the scientific developments, there would unfortunately have been elements who would have engaged in what are described in an understated way in this bill as `unacceptable practices'. I personally would use stronger language to express my complete abhorrence of the practices detailed in the legislation—legislation which I have just said is most regrettably necessary because, if it were not enacted, these practices would be undertaken.

The legislation at section 3 talks of the utilisation of human embryos as though they were some type of commodity. When we start talking about human life in these terms we demean the true, unique and special value of this sacred gift. One of the dilemmas I face is that the legislation talks in these terms of utilisation as though the human embryo were a commodity. Yet it asserts in the next breath that there are unacceptable practices which need to be outlawed. I happen to agree that the practices to be outlawed should be outlawed. But why, unless you actually do believe that the human embryo is not just a commodity but has a unique and intrinsic value?

The simple fact is that we are dealing with human life. If we are not dealing with human life, why is cloning an `unacceptable practice'—to quote the legislation? It is because, I suggest, we are dealing with human life. And that is why the following bill, the Research Involving Embryos Bill 2002, dealing with destructive research on human embryos, should not be allowed. The argument appears to be that you cannot clone because you are dealing with humanity, yet you can destroy an embryo because it is not a human. There is a fundamental inconsistency in the thinking underlying these two bills. The issues we need to grapple with in this bill are momentous and grave. We are dealing with the essence of humanity and of when life commences—and I will have more to say on that when we discuss the other bill.

Apart from the ethical considerations, I have real reservations with this legislation and its drafting. Throughout the clauses dealing with prohibited practices we see the word `intentionally'. I simply ask: how could one unintentionally create a human clone or how could one accidentally implant a human embryo clone? Quite frankly it defies my mind. The very actions to be outlawed would require deliberate intention. Making the prosecution prove intention in these cases, as opposed to making the accused or defendant prove some lack of knowledge as to what he was undertaking, seems highly inappropriate. What happens if someone deliberately keeps themselves ignorant of certain matters that are highly likely—that is, they are reckless? This important distinction is made and recognised in clause 22. Why it is not recognised in the previous clauses will require an explanation.

There also appears to be an omission of grave proportions, in that it is not an offence to be in possession of a human clone. You cannot create, export or import a human clone or, indeed, place a human clone in a human body, but there is nothing stopping a person from being in possession of a prohibited embryo. Surely that in itself ought to be an offence as well. Unless I can be convinced otherwise, I will be moving an amendment to that effect during the committee stage. In many aspects of the law, mere possession is a crime. It seems to me quite astounding that a mad professor, to use that example, could create and implant a clone but, when the person is found implanted with the clone, she could exercise her right to remain silent and she would not be guilty of a crime, because the person who undertook the work would not necessarily be identified or identifiable. There could also be a very realistic situation where a laboratory technician may deliberately keep a frozen human clone and can look at the legislation and say, `I didn't import it. I didn't create it. Therefore, I can keep it in safe custody without breaching the law,' thereby being part and parcel of this quite inhumane suggestion and process of human cloning.

Be it drugs, housebreaking equipment or forged money, mere possession is a crime. You do not have to be charged with having grown, made, imported or exported the substance. The mere fact that you are in possession of it is a crime. Everybody in this place would note my absolute abhorrence of the drug scene and how many humans it kills in this country each year. If it is good enough for mere possession of drugs to be a crime, then surely mere possession of a human clone should also be a crime. I would urge all honourable senators who may have the opportunity to be listening to this debate to give serious consideration to my suggestion.

I would also be interested in a full explanation to clause 14(2) and its impact. I think I understand the explanatory memorandum, but I would like to know whether this means that the defendant does not need to prove his intention to achieve pregnancy in a particular woman. How would the Crown be able to prove their case? The drafting appears to provide a simple escape route for a defendant. I have other concerns with the legislation. For example, clause 14(1) talks of `a particular woman', and I agree with this wording. Yet in the definition clause, clause 8, reference is only made to `a woman' as distinct from `a particular woman'. The omission is important but, might I suggest, easy to rectify. I would be pleased if that suggestion could also be given consideration.

Clause 16 highlights another dilemma for me. Why do we have this arbitrary cut-off period of 14 days? Under the legislation, it is an offence to develop `a human embryo outside the body of a woman for a period of more than 14 days'. After fertilisation takes place, the process of development has begun. No stage of development is to be given any greater importance than any other. Every stage of development is part of a continuous process, yet the 14-day cut-off period has been arbitrarily grasped in a cynical attempt to allay public anxiety. It will not allay my anxiety. I simply ask: why 14 days? What happens in that split second when the human embryo becomes 14 days and one second old? What has been the intrinsic change that causes further development, at 14 days and one second, to no longer be an acceptable practice? It seems that supporters and drafters of the bill know that they are dealing with human life, but become too uncomfortable after 14 days. But no logic is offered as to why there is this arbitrary cut-off point. I will be interested to hear the explanation. The indisputable fact is that the fertilised ovum has life and is genetically human. The genetic individuality or identity of the adult is practically the same as that of the embryo.

Let me at this stage dispose of the false assertion that embryonic stem cell research which destroys the embryo is no different to allowing the so-called excess embryos to succumb. The difference between natural death and killing is obvious to all. All of us will face physical death. That of itself should never allow life destroying experimentation on us, nor should it be allowed on embryos. Even worse, in the case of this destructive research, the embryo would actually be grown and developed further prior to its killing. At the time the embryo is removed from the freezer and thawed for normal IVF, the embryo is not at the stage of having the cells that are needed for stem cell research. In a macabre way, these scientists will deliberately grow these embryos and allow them to develop further so that they can kill them to gain access to the stem cells. Ethically, that is even worse than killing the embryo moments before the embryo might succumb naturally.

Clause 19 makes it an offence if a person `removes a viable human embryo from the body of a woman, intending to collect a viable human embryo'. I just observe in passing that it is not an offence if you intentionally seek to kill the viable human embryo. Our so-called ethics and morality as a society are two-faced and duplicitous. For the next generation, it informs them that this society sees human life at various stages as dispensable and then we ask: `Why is there a high suicide rate amongst our young?' If we do not value human life, why should they?

I assume that the law of aiding and abetting will apply in relation to these offences, and that should be clarified in particular to those people in charge of research facilities who should be keeping the appropriate watchful eye on scientific projects so that they simply cannot try to divest themselves of any responsibility by saying, `That was Joe Bloggs in the laboratory doing that.' If they, knowingly, are in charge of these research laboratories, they should have a very strict liability to ensure that they keep a watchful eye on such projects.

The bill has its deficiencies. It will be of no surprise to honourable senators that I, of course, will be supporting the bill. But I suggest to my colleagues all around this chamber that this bill can be enhanced and strengthened by making the changes that I have proposed, especially in relation to widening the bill's scope to deal with those found to be in possession of a prohibited embryo. I urge colleagues to give serious consideration to these proposals. The prospect of this parliament, through inattention or a sense of competing priorities, allowing this bill to proceed without careful consideration would be an abrogation of our responsibilities. To fail to firmly denounce, repudiate and outlaw any involvement in human cloning would be a failure of devastating proportions by this parliament.