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Monday, 11 November 2002
Page: 5978

Senator CROSSIN (8:58 PM) —I rise this evening to make a few brief comments about the Research Involving Embryos Bill 2002, because I believe that, given the context and the importance of this debate, it is important that as many people as possible put their views on the public record and provide an explanation for future records and to the public as to why they are taking the stance that they are taking on this bill. Let me say at the outset that I intend to support this legislation. I have thought about it for many days and have done a fair bit of research into it. I do not have a prepared speech for tonight, but I do have some dot points that I think will provide my reasons in this chamber as to why I will be supporting this legislation.

This legislation deals with the excess embryos that have arisen from the assisted reproductive technology techniques that occur in this country at the moment—embryos that are in excess due to the IVF program. There is not a lot more that I can say about this issue that has not already been said either in the House of Representatives or in this chamber. A number of speakers today quite clearly identified what it is about this bill we are being asked to determine. I do not believe we are being asked to determine, nor can we determine, nor has it ever been possible to determine, when life begins. I do not believe that it is up to us, as public representatives in this chamber, to determine that. We all have different views about that. Many of the different churches and scientific lobby groups have a different view about that. But I do not think a decision about whether you vote for this bill should be based on whether you can clearly define when human life begins. This is about what is going to happen to these embryos that are currently in excess and whether these embryos would be otherwise destroyed, assumed or got rid of— whatever word you want to choose—or whether anything profitable can come from the fact that they have existed.

There has been a lot of debate in times gone by about when life actually begins. There have been quite a number of very good articles in the Bulletin in recent months written by Dr Peter Carnley, who is the Primate of the Anglican Church of Australia and the Archbishop of Perth. In the two articles in the Bulletin that I have read that he has contributed to, he seeks to explore that discussion. He talks about the difference between fertilisation and conception. He goes on to say in one of his articles in September:

... the present state of scientific physiological knowledge allows us to appreciate that while fertilisation occurs from the moment of the docking of ovum and sperm, conception is not a punctiliar or momentary event, so much as an observable process.

He talks about the fact that what should by now be clear to everyone is that the question of when a human individual life may be said to have begun is a physiological question, not a theological question. There are a number of people who have provided a contribution to this debate who have embarked on a theological path rather than a physiological path. I do not subscribe to the idea that we are destroying a human life. This debate has opened the gates to a number of very emotive terms and uses of language. Perhaps to some extent they have been used to manipulate people's thoughts about this bill. When I was listening to the debate in the House of Representatives, I often wondered whether a lot of people were saying what they were in order to simply get the attention of the media for that night rather than genuinely trying to contribute to the debate.

We are, though, talking about human tissue. A number of people today have highlighted dilemmas that scientists over the years have come across and have been confronted with in dealing with what happens with human tissue. The transplant of organs is but one example. I think it was Senator Ferris who outlined the obstacles and the dilemma that Dr Christiaan Barnard faced those many, many years ago when that very first heart transplant was to be used and developed over time. If we look back into history, there are many scientists who have faced a barrage of criticism from public figures and politicians and even other scientists of the day. But they have endeavoured to continue with their campaign and, through their successes, have eventually got public opinion on side or have had tangible outcomes.

It is not because I believe that somewhere down the track there is going to be a miracle cure that I support this bill. In fact, I am very hesitant and I worry about those people who have used examples of people's lives to provide a glimmer of hope for those people. If, at the end of the day, in five, 10 or 50 years there is a positive outcome to the work that is being done on embryonic stem cells, that is well and good and that is an added and fantastic bonus. I think that everyone has a window of opportunity in front of them at any one point in time. This is another window of opportunity for our scientific and medical world. I believe that this is an opportunity that we should seize. As legislators of this country I believe that we need to keep pace with science and assist science rather than impede and retard what scientists in our country are trying to do.

We know about the COAG communique of 5 April this year. I do not believe this bill should be supported simply because all the other states and territories have decided that that is a good thing. That assisted in having the bill come before the parliament. Following from this bill, there will need to be complementary and consistent legislation from each of the states and territories. The NHMRC will establish a licensing committee to assess the applications for this research. I understand that this research will be dealt with on an application-by-application basis. I have a lot of confidence in the work of the NHMRC. I believe that they apply rigorous scientific evaluations to the applications that come before them and I trust that they will make the best assessment, on a case-by-case basis, of applications regarding this research as they are received.

We know that this legislation will approve the use of embryos created before 5 April 2002. To some extent I believe that this is fairly restrictive of the bill. I certainly would not mind if there were no date there at all. I would not mind if in fact any of the excess embryos at any point in time, even into the future, were used for this sort of research. I understand that, to appease the minds of some and to provide them with some guarantee that there is a safeguard there, a fence has been put around this point in time, and it corresponds with the date of the COAG communique.

There has been a lot of debate about the use of embryonic stem cells and adult stem cells. I was not part of the Senate Community Affairs Legislation Committee and was not involved in the hearings. There has been an inquiry into this matter in the House of Representatives, and the committee report that was tabled in the Senate is extremely comprehensive. Let me say this: from the reading that I have done, I have come to the conclusion that both forms are needed, that one can complement the other and that science has still got to embark on a very long and complicated process of discovery and research before perhaps it comes to the conclusion that one of them is not needed. I do not think there is any basis in science, from what I have seen, that favours one over the other.

I believe, though, that there are some flaws in this bill and that a national bioethics commission should be established to support and oversee some of the work that might emanate from this bill. One of the flaws that is in this bill goes to the issue of ownership of the research and the patenting of the research. Whilst I have not had enough time to explore the elements of the bill in relation to this, I do know that there are substantial holes and gaps in the bill where I think there need to be a number of amendments that pick this up. I know that in her speech this afternoon Senator Nettle, from the Greens, alluded to this area as being one of the deficiencies in the bill.

The issue basically goes to what happens with the patenting of stem cell research. Currently, the stem cell lines can be imported and research can go on, but any benefits, tests or treatments derived will be privately owned by the corporation—which may be abroad—which is paying for the research to be conducted here in Australia. There is an argument, I believe, that says that any results from this research need to become publicly available, that the bill should specify that, and that we should ensure that the results are in the public domain and that people do not have to pay a commercial rate to benefit from the outcomes of this research. So the issues of ownership and public accountability in regard to this research need to be strengthened in the bill.

There is also the matter of the patenting of stem cell research. We know that patents are obtained, contested and used. The process through which the patents on this research would be obtained is the normal, standard process, with the standard application for patents being lodged with the Patents Office. But there have been a number of articles written and quite a few comments made about the fact that the current patents system does not allow any leeway for a public policy aspect to the patent. Miranda Forsyth discusses the matter in her article on public policy issues and patents. She writes:

... the patents system's current approach to biotechnology patents is unsatisfactory in two fundamental ways. First, it is undermining the delicate balance between inventors and the public that has been developed in patent law over the centuries. Secondly, granting patents for inventions without considering any social, ethical or environmental issues they may raise is contrary to the raison d'etre of the patent system.

That, I believe, is another flaw in this legislation which needs to be addressed.

In my concluding remarks I want to say a number of things. I was somewhat surprised to receive a telephone call from a Catholic organisation, which must have been writing an article or doing a summary on how people in this chamber would vote. I said to them that I would be supporting this legislation. Of course, the person on the other end of the line then asked me whether I was a Catholic. The answer to that is yes, I am. But I do not believe that I have any right to come in here and assert my religious beliefs in deciding whether or not I support this sort of legislation. I think that what I ought to do when I am in this chamber, and what I believe I have a role to do, is look at what is best going to advantage the community that I represent, the people of this country.

As I said before, I believe that there is a window of opportunity here. So often, the people who write legislation for this country and seek to pass it lag behind the progressive work that science is doing. It is probably about time we not only kept in step with scientists but, in some respects, walked along the path with them. So I do not believe it is proper for me to try and assert my religious views within this chamber in deciding whether or not legislation should be supported.

Finally, I was impressed to get a letter from Australia's National Infertility Network. It is an area that I had not contemplated looking at in terms of the issues around this legislation. We know that those couples who are experiencing fertility problems have, at the end of the day, a number of excess stored embryos. It is interesting to see that the statistics show that 10 per cent of these couples donate those embryos to other couples. Twenty five per cent to 40 per cent want them destroyed. Whether they have had success and have children as a result of the IVF process or whether they have not had any success and have decided to give up the process, 25 per cent to 40 per cent of those people want their excess embryos destroyed.

However, 50 to 60 per cent of these people want to donate their embryos to research. It is not an area that I had consciously thought about. I think it is a bit like having a member of your family die and coming to terms with the reality of their wishes to have their organs donated. In a sense these embryos belong to these couples, and if a substantial number of those couples want to have some meaning come out of the purpose of having ovum and sperm create this cluster of cells in the very beginning, we should respect that wish. The letter from Australia's National Infertility Network says:

For many couples, the opportunity for their embryos to have some added meaning would be given if they were permitted in law to donate them to embryo stem cell research. This would allow these embryos to contribute to scientific knowledge that will ultimately provide a way to ease the suffering of others with debilitating diseases.

That may or may not be the case, but I think we need to look at the requests of the people who own these embryos and try as best we can to emulate what clearly a majority of these people would want us to do in considering this legislation.

Like many other senators in this place I have had numerous emails—in fact hundreds—urging me not to support this legislation. It is unfortunate that perhaps not as many people have emailed me to suggest that I should support this legislation. But I am not about to give credence to or acknowledge the squeakiest wheel on the block; perhaps there were many who assumed and had confidence in the fact that I ought to and should support this legislation and did not bother to contact me. I do know that I do not support the very emotive debate that has occurred around this legislation. I do not accept the idea that in some way we are killing human beings in order to derive benefit from this research; I believe that we are undertaking research on a cluster of cells where it is yet to be determined whether or not that should develop into a human being. These cells have the potential to be, but they are not. I think there is a very significant difference between the two. By and large, I believe it is important that we take note of the wishes of those many couples who do have their excess embryos stored and who have expressed a desire that something meaningful and useful should come from the creation of those cells; therefore, on that basis, I intend to support this legislation.