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Monday, 2 December 2002
Page: 6816


Senator JACINTA COLLINS (1:03 PM) —by leave—I move amendments (1) and (2) on sheet 2693:

(1) Clause 10, page 9 (line 22), after “created”, insert “where the suitability of the embryo is determined only on the basis of its biological fitness for attachment”.

(2) Clause 10, page 10 (after line 4), before the definition of observation, insert:

diagnostic investigation, in relation to an excess ART embryo, means any procedure undertaken on embryos for the sole purpose of diagnostic investigations for the direct benefit of the woman for whom it was created.

The background to these two amendments goes right back to the House of Representatives debate in relation to this bill, where Minister Andrews expressed concern about the exemption in the bill with respect to diagnostic investigations. He raised concern that this was something that had been considered by the Australian Health Ethics Committee. The basis of his concerns led me during the inquiry by the Senate Community Affairs Legislation Committee into this bill to seek further clarity from the Australian Health Ethics Committee. On that basis, I would like to thank Dr Breen for appearing at my request before the committee and for undertaking on notice to take back to the Australian Health Ethics Committee this specific question and to give us some clear guidance. Those of us who have been intimately involved with the progress of this bill will recall the advice that the NHMRC, under the signature of Assistant Professor Tobin, the Deputy Chair of the Health Ethics Committee, provided to the community affairs committee.

I should at this stage thank Senator Nettle, who has also picked up the issue in her amendments. Both of us have sought to adopt the advice of the Australian Health Ethics Committee on how to ensure that this exemption does not generate an unintended loophole that could cause future problems for what COAG has determined should be a strict regime.

I will take a moment to take the chamber back to the advice from the Australian Health Ethics Committee, again commending Dr Breen for his courage in bringing forward this statement. The position put was that members of the Australian Health Ethics Committee are not satisfied that this potential loophole has been removed and that two matters are still of concern. Senators need to be mindful that this was as a consequence of a discussion in the Senate committee where, if I recall correctly, Dr Breen said that, in the discussion of these sorts of things and in the consultation process, you give some ground in some places and you gain some ground in other places. I felt a bit uneasy at the time, when I was thinking, `Is this the way we conduct ethical debates on issues of principle?' But Dr Breen took on board concerns raised and came back with the very strong position from the Health Ethics Committee that the consultation process that led to this bill had left them not satisfied that this potential loophole had been removed.

The two matters still of concern in the bill were that, firstly, the phrase `unsuitable for implantation' is so broad as to allow a clinic, if it so wished, to deem any embryo—regardless of its biological condition—not fit for implantation and, secondly, the phrase `forms part of diagnostic investigations' is similarly so broad as to allow a clinic to investigate embryos in ways which would constitute research as well as diagnosis. The letter then reads:

Several views were then expressed as to how this part of the bill might be redrafted so that it would deliver the strict regulatory regime for experimentation on embryos that it promises.

The first suggestion that came forward was that the wording of the bill could be improved: the phrase `unsuitable for implantation' could be clarified so that the unsuitability of the embryo is determined only on the basis of its biology—for example, the poor physical appearance of the embryo. While in the AHEC advice this part is not in inverted commas as suggested wording, these are the words that Senator Nettle sought to adopt in her proposed amendment. Secondly, the phrase `forms part of diagnostic investigations' could be clarified so that the investigation of the embryo is for the sole purpose of diagnostic investigations for the direct benefit of the woman for whom it was created—with the words starting from `is for the sole purpose' clearly implying that this is the suggested wording of the Australian Health Ethics Committee.

In my amendments, especially since the words were in inverted commas, I adopted that into a definition of diagnostic investigation, which is clear in my amendment (2). I struggled a bit more with amendment (1) to try and give effect or meaning to the suggestions that had been raised by the Australian Health Ethics Committee. In regard to the suggestion in point 1, which is that the unsuitability of the embryo is determined only on the basis of its biology—for example, the poor physical appearance of the embryo— and in contemplating biology and what interpretation might be put into this act in the future, certainly in my mind it was not clear that poor physical appearance gave a significant meaning to close a loophole. You then obviously ask what poor physical appearance really means.

That brings me back to my significant concern here. When we are talking about the biological issues involved in this exemption what we are really saying in my view is that the biological aspects of this embryo mean that it is not suitable for implantation because it would not lead to a viable or successful pregnancy—and that is all. We are not saying that, according to the biology, this embryo is carrying the cancer gene, so we will set it aside for research. We are not saying that, according to its biology, this embryo is female, so we will set it aside for research. We are not saying that, because of its biology, this embryo might have some form of disability, so we will set it aside for research. I think that most of us are pretty clear here that these are not the sorts of things we are saying. We are not providing a loophole which says that, for diagnostic purposes, anything other than the eugenically pure embryo is available for research.

With respect, while I am aware of some of the NHMRC advice on this issue and we are aware that it is only diagnostic investigation in relation to the particular woman involved, some of those arguments are quite circular, because AHEC have already told us that they do not think those factors are strong enough. They have already told us that we have to be more clear about why we are saying it is unsuitable for implantation.

Let me go back to why they say that. They say that the phrase `unsuitable for implantation' is so broad as to allow a clinic, if they so wished, to deem any embryo—regardless of its biological condition—not fit for implantation. They are the words that AHEC suggested, and on this particular occasion I would not class it as stronger than a suggestion because, unlike in the second point where they give us precise words, on this occasion they just say to clarify it so that the unsuitability of the embryo is determined only on the basis of its biology—for example, the poor physical appearance of the embryo. But we need to go one step back from that—they talk about its physical appearance or its biology, but for what purpose? The purpose really concerns whether it is biologically fit for implantation to survive a successful pregnancy.

The suggestion in my amendment (1) is stronger than Senator Nettle's on this point, because I go on to say `where the suitability of the embryo is determined only'—and I stress the word `only', which I am not sure is that clear in the further amendment but does come from the AHEC advice—`on the basis of its biological fitness for attachment'. I am also aware that some issues have been raised about the suitability of or how clear is the term `attachment'. I am quite happy to change that word `attachment' to `implantation' in the amendment. I think the meaning or effect of that is quite clear.


The TEMPORARY CHAIRMAN (Senator Cherry)—Senator Collins, you can seek leave to amend that.