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Monday, 2 December 2002
Page: 6821

Senator JACINTA COLLINS (1:28 PM) —I am somewhat surprised by the response of the Minister for Health and Ageing on this point, particularly the statement that there was not a loophole. What started me down this path was the second reading debate in the House of Representatives, in which Minister Andrews said that he still had concerns with the Research Involving Embryos Bill 2002 as drafted and that this loophole would occur. I can only presume that the draft as presented is the consequence of the consultation process that the NHMRC went through. That is why, in the Senate Community Affairs Legislation Committee, I said to the Australian Health Ethics Committee: `Are you happy with the result of this consultation process? Are you happy that concerns you raised were taken seriously and are you happy with the outcome?' On this particular issue the Australian Health Ethics Committee—quite courageously, in my view, given some of the practices I have become aware of over time— said, `No, we are not.' Their letter said, `Members of AHEC are not satisfied that this potential loophole has been removed.' I reinforce the point back to the minister and to the Senate:

Two matters are still of concern. 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.

Aside from the phraseology of this bill, what does that tell us about the confidence of the Australian Health Ethics Committee and how they think a clinic might seek to apply this exemption? I think there is a very strong warning in those words. Let me read them again:

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.

I have already commended Senator Nettle for picking up the suggestion in this AHEC letter. When I first read it and took note of the fact that it did not have these words in inverted commas, as indeed it did have for the second element of their suggestion, I read it as their suggestion that we look at this and give some serious consideration as to how best to tie it up as much as we can, which is what I did. The letter continues:

The unsuitability of the embryo is determined only on the basis of its biology, for example the poor physical appearance of the embryo.

With respect to Senator Patterson, beyond simply a preference for wording something one way or the other I have not heard any significant reason why tightening this exemption to the biology of the embryo in terms of its viability for implantation is not satisfactory as a way of tightening this loophole in the view of the Australian Health Ethics Committee. On the basis of their response on the last occasion I raised this issue with them, I would be quite surprised to hear them come back and say, `No, actually we think that is too strong; you have tightened it too strongly.' Their advice to us was, `Tighten it; it needs to be tightened. We do not have confidence in clinics not using this phrase “unsuitable for implementation” to deem any embryo up for research.'

We already know from our hearings that some of these clinics are open to many things. A number of the senators on the committee were quite surprised to hear that Sydney IVF is doing gender selection, not for health related reasons or to do with genetic issues but simply for anyone who wants to use IVF as a means of determining that their next child be male or female. We do not want to see the consequences of this in terms of the handling of embryos under this exemption. The only embryos that should be available under this exemption are those that would not result in a viable pregnancy. No other biological reason should be a factor. I believe that Senator Nettle's wording still allows that possibility. We do not have the further benefit of the Australian Health Ethics Committee's advice on this, but I think the intent of their response to my questions was quite clear: tighten it as much as you possibly can. In fact, they went one step further and said to put them into the licensing requirement—even though they then discounted that suggestion on the basis that other problems would eventuate. I can only suggest most strongly to the committee that we look at tightening this loophole as much as we can. I do not accept Senator Patterson's view that there really is not a problem here. In fact, I am surprised that that position has been represented to her.