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We'd been cheated by the justice system. It let us down.

Tonight on the 7.30 Report - the medical en-Demity loophole that left families out in the cold.

They have a very clever legal argument. The question is whether they're right.

From gene technology to same-sex marriage. World renowned Australian ethicist Margaret Somerville
on some of the tough, moral questions of our time.

I describe it as we being the first generations of humans ever who've held life itself in the palm
of our collective human hand. We can do things to life that no other humans have ever been able to

IR fight hits close to home for Rudd

IR fight hits close to home for Rudd

Broadcast: 28/05/2007

Reporter: Michael Brissenden

The Government tried to win back the moral high ground on its radical WorkChoices laws this week.
If it fails, it will not be for want of money. It has set aside millions to help administer the new
fairness law for workers earning less than $75,000 a year. But the Labor Party claims there is a
lot more spending still to come. Kevin Rudd seems to know a great deal about an advertising blitz
on climate change, despite the fact the Prime Minister says no such campaign has even been


KERRY O'BRIEN: Welcome to the program, in the week the Government tried to win back the moral high
ground on its radical WorkChoices laws. And while they're selling their amendments to WorkChoices
as a fairness test, the real test will measured in the polls over the next few weeks and months.
And if the Government ultimately fails the political test, it won't be for want of money. There's
an extra $375 million set aside to help administer the new fairness law for workers earning less
than $75,000 a year.

But the Labor Party claims there's a lot more spending still to come. In fact, Kevin Rudd seems to
know a great deal about a reported advertising blitz on another troublesome issue - climate change
- despite the fact the Prime Minster says no such campaign has even been approved. Political Editor
Michael Brissenden reports.

MICHAEL BRISSENDEN, POLITICAL EDITOR: Well, everyone knew industrial relations would be the
centrepiece of this year's political argument, but few would have predicted this.

KEVIN RUDD, FEDERAL OPPOSITION LEADER: Well look, you know, I'd be dishonest with you if I said
it's not embarrassing that these sort of things happen, of course it's embarrassing. I accept that.

THERESE REIN, WORKDIRECTIONS AUSTRALIA: I have, let me just say I have absolutely independently and
of my own accord come to this decision. Kevin has not forced me, or compelled me or pressured me,
nor would he ever nor has he ever tried to in our entire life together. And if he did, he'd end up
sleeping on the couch!

MICHAEL BRISSENDEN: Has the conduct of Therese Rein's employment placement company derailed her
husband's job prospects? Well, with the polls the way they are, probably not yet. But it has
certainly taken some of the sting out of the Labor attack.

Since the difficult news emerged about Therese Rein's employment practices, the commentary has been
tough. Ms Rein wants employment flexibility for her own companies with individual contracts, but
her husband leads a concerted attack on other businesses who seek flexibility with AWAs. But the
nature of this political development goes further than just policy. This has also reflected on the
quality of the personal relations of the aspiring Prime Minister.

Today, Kevin Rudd has decided to head off another possible conflict of interest by telling his
colleagues he would not be allowing any Ministers in a future Labor Government to have any
professional dealings with his brother, Greg. Greg Rudd runs a successful political lobbying
business in Brisbane. Perhaps there wasn't as much kitchen table discussion with his brother as
there was with his wife. But so far his sensitive approach has been applauded. Few of us have
companies that earn quite as much as Therese Rein's, but the conclusion is, theirs is a thoroughly
modern marriage.

But so too is the marriage of Don and Joan Doolan, who run the Lilac City Motor Inn. The industrial
relations debate has suddenly become a much more complex one.

JOHN HOWARD, PRIME MINISTER: I say through you to both the Leader and Deputy Leader of the
Opposition that there has been a lot of anguish around the kitchen table in the Doolan household
over the last few days, Mr Speaker, a lot of anguish, and this is a couple who started with
nothing, a small business, and they have toiled to build it up, they have won the esteem and the
affection of their employees, and they should not be subject to disgraceful attacks by the Leader
of the Opposition and the Deputy Leader.

We've heard a lot, Mr Speaker, over the past few days about a lot of things. This issue Mr Speaker
has got nothing to do with modern marriages, it's got nothing to do whatever with conflicts of
interest, it's got everything to do with the hypocrisy and the double standards of the Australian
Labor Party.

MICHAEL BRISSENDEN: For her part, Julia Gillard says her attack of last week was aimed at the AWA
template provided by the Hotels Motels Accommodation Association, and not the Doolan's motor inn
per se. But the inauspicious blonde brick highway haven has become a central feature of the

Labor has had a good run with its attack on WorkChoices, the laws have not been popular and the
Labor mantra of flexibility with fairness has struck a chord. But forced by that political reality
to make some big changes in the form of the so-called fairness test, the Government now claims its
new laws are in fact fairer than those offered by Labor.

JOE HOCKEY, FEDERAL WORKPLACE RELATIONS MINISTER: Because under the fairness test, Australian
Workplace Agreements will be individually and independently assessed for fairness to ensure that
people are properly compensated for losing penalty rates, leave loadings and so on. Under the Labor
Party's common law contracts, it's left to the employers to undertake the test, and Mr Speaker,
when employers undertake such test, such benchmarks, of course they make mistakes.

MICHAEL BRISSENDEN: Above all, this is politically pragmatic fine tuning. The fairness test will
cover all workers on less than $75,000. It seeks to ensure that workers who trade off benefits will
receive fair compensation. The starting point will be money, but if non-monetary compensation is
agreed between an employer and an employee, it must be of significant value to the worker.
Obviously, this leaves a fairly wide interpretation. But the Government says the bar will be set
high. The Opposition says it's a pre-election stunt.

and from Treasurer Costello himself is that whatever the changes are in the legislation the
Parliament will finally see today, they won't last one day after the next election. Treasurer
Costello has refused to guarantee they will last, and we know they won't, because this is
pre-election window dressing because John Howard is a clever politician, a clever politician who
doesn't care about the terms and conditions of Australian workers, the only job he cares about is
his own, and that's all that this legislation is about today.

MICHAEL BRISSENDEN: Clever. Surely one of the most loaded words in politics these days. For what
it's worth, Joe Hockey today guaranteed the legislation would last beyond the next election, and to
help it, he's also pledged an extra $370 million over the next four years to allow the new
Workplace Ombudsman to regulate the fairness test and other IR matters.

Money, like puffed-up political indignation, is one thing that's not in short supply at the moment.
And it does now seem pretty clear that the Government is planning to use plenty of cash to help it
out of another potentially damaging problem. Fairfax Papers last week revealed Government plans for
a $23 million ad campaign to sell its leadership role and balanced voice on global warming. The
Prime Minister denied any such campaign had been approved by the Government. But Labor seems to
know quite a bit about it.

KEVIN RUDD: Can the Prime Minister confirm whether, in fact, one advertisement in this non-existent
advertising campaign has an elderly lady in it talking about practical responses to climate change
while boiling the kettle?

JOHN HOWARD: Well, Mr Speaker, I can only repeat what I said last week, no campaign has been

MICHAEL BRISSENDEN: Formal approval may not yet have been given, political semantics aside, it is
clear a big taxpayer funded climate change campaign is on its way. The Prime Minister will receive
the report from his own emissions trading task force this week. Some suggest it will be tougher
than he might have hoped. But with polls showing that water and climate change are among the most
important issues in some critical marginal seats, his response will have to be a very clever one

KERRY O'BRIEN: Political Editor, Michael Brissenden.

Fund accused of avoiding compensation payouts

Fund accused of avoiding compensation payouts

Broadcast: 28/05/2007

Reporter: Peter McCutcheon

A legal loophole is allowing a major international medical fund to pull out of negligence cases in
Australia. This means that two children who allegedly suffered serious injuries as the result of an
obstetric mistake could miss out on compensation.


KERRY O'BRIEN: A legal loophole is allowing a major international medical fund to pull out of
negligence cases in Australia. It means that two children who allegedly suffered serious injuries
as the result of an obstetrician's mistake could miss out on compensation. The fund at the centre
of the controversy is the MDU which left the Australian market in the 90s but is still a major
player in the United Kingdom. The MDU is the world's Medical Defence Organisation set up by doctors
in the late 19th century as a not for profit organisation. But the MDU's reputation is now being
called into question by its decision to use its status as a discretionary fund, rather than an
insurer to avoid the potential of a big compensation payout.

Peter McCutcheon reports.

PETER MCCUTCHEON: Nathan Chessell has mild brain damage. He has repeated a year at school and still
struggles to keep up with his studies. His disability is allegedly the result of an obstetrician's
mistake 12 years ago.

And the Chessell family have been trying to sue the doctor they believe is responsible.

RUTH CHESSELL, MOTHER: We can pay for the extra things that he needs, a special needs teacher, the
extra speech therapy, the extra occupational therapy that he needs.

PETER MCCUTCHEON: But due to a legal loophole, the fund that provided medical indemnity to the
doctor has pulled out of the case, leaving the Chessell family with potentially nothing.

RUTH CHESSELL: It's disgusting. There's no reason for the insurance company not to honour their

PETER MCCUTCHEON: It's a controversial legal manoeuvre that has the medical profession worried.

DR ANDREW PESCHE, AUSTRALIAN MEDICAL ASSOCATION: Most doctors would not wish a justified claim not
to be met on the basis of a legal technicality.

DAVID HIRSCH, AUSTRALIAN LAWYERS ALLIANCE: They have a very clever legal argument. The question is
whether they're right.

PETER MCCUTCHEON: Nathan Chessell was not a happy baby. He frequently vomited and lost the ability
to even hold his head up. After four and half months, doctors discovered the problem: vitamin B 12

RUTH CHESSELL: It affects all his nerve endings which is why he has very poor fine motor control.
He has very few...if you go to do Nathan's reflexes you won't find them, because they're so dull.

PETER MCCUTCHEON: The vitamin deficiency was due to his mother's undiagnosed illness, pernicious
anaemia. Tragically this condition could have been picked up earlier if Ruth Chessell's B 12 levels
were checked as was recommended, after a blood test a month before her son was born.

Although the Chessells thought highly of their obstetrician Dr Ian Borody, they believed he had
made a mistake and decided to sue him for negligence.

RUTH CHESSELL: He was very sympathic. He was a wonderful, wonderful man. He realised that this
could happen to anybody, so he changed his practices. He started testing every one of his patients
for B 12 deficiency. He found several. He'd ring me and tell me what he found. He tried to get it
as part of the pregnancy screening.

PETER MCCUTCHEON: It's not unusual for an obstetrician to be sued a number of times over a long
career and indeed Dr Borody was involved in another negligence case.

Rod and Deanne Burrows began a suite against the doctor for a bungled forceps delivery which
permanently damaged the shoulder of their now nine-year-old son, Matthew.

DEANNE BURROWS, MOTHER: He was in a bad state, black and blue all over. His right arm was just
limp. He couldn't move it at all. We couldn't touch him for a week because he was that sore.

PETER MCCUTCHEON: The legal problems for the Chessell and the Burrows families began six years ago
when Dr Barody passed away and his estate was declared bankrupt. With standard insurance that's not
a problem. The company is still liable to pay compensation for injured patients.

But Dr Barody was covered by a so-called discretionary fund, the MDU, which is technically not a
insurance company. And in these cases, the MDU simply used its discretion to walk away.

ROD BURROWS, FATHER: We'd been cheated, the justice system let us down.

DAVID HIRSCH: It is a legitimate manoeuvre legally. The question is whether they would be allowed
to get away with it if it ever went to court.

PETER MCCUTCHEON: David Hirsch is a specialist in medical negligence law and works with the
Australian Lawyers' Alliance. He says discretionary funds stopped providing medical indemnity in
Australia after the insurance reforms of 2002. But he argues the right of the MDU to exercise
absolute discretion is an historic anomaly, dating back to the 19th century when the union was a
benevolent organisation. And that discretion was never intended to be used to disadvantage

DAVID HIRSCH: From the Defence Organisation's perspective this is a legitimate tactical advantage,
from the perspective of the families involved, this is an abuse.

DR ANDREW PESCHE: I believe that the public and the medical profession would both be very horrified
to learn that discretion was being used in that way.

PETER MCCUTCHEON: The MDU no longer operates in Australia. But remains a major player on the UK
market. MDU has refused to comment on these cases, and its legal correspondence reveals it believes
its stance is legally watertight. But the Australian Medical Association says that doesn't make it

DR ANDREW PESCHE: Something tells me if this doctor hadn't died and his estate hadn't been declared
bankrupt, something tells me the Medical Defence Organisation involved wouldn't dare to use its
discretion in this way because it would really set a cat amongst the pigeon in the membership. It
would say, well, "What? That might be me. "

PETER MCCUTCHEON: The Burrows family have been advised by lawyers that they're now at a legal dead
end as have indeed the Chessells. What are their options?

DAVID HIRSCH: Either take an appeal all the way to the High Court, or a threat to basically stare
down the MDO, the Defence Organisation, to see, do you really want to go to court and persuade a
judge that it's OK for you to pull the plug on indemnity in situations where you have said for
years, in fact, forever that you would never do such a thing?

PETER MCCUTCHEON: Since moving from Sydney to the Gold Coast last year, Nathan Chessell tries to
surf every morning, come rain or shine. The 12-year-old has undergone intensive treatment since he
was six months old and compensation would help the family pay for his special schooling needs.
Compensation Ruth Chessell now believes she has little chance of getting.

RUTH CHESSELL: We never wanted to touch his estate, that's got nothing to do with it. But we just
want what's right for Nathan. Nathan shouldn't have to suffer all his life.

KERRY O'BRIEN: Peter McCutcheon with that report.

Prof Somerville discusses the ethics of medical breakthroughs

Prof Somerville discusses the ethics of medical breakthroughs

Broadcast: 28/05/2007

Reporter: Kerry O'Brien

Margaret Somerville is a world renowned Australian ethicist who founded the centre for Medicine,
Ethics and Law at McGill University in Montreal, and she is as controversial as the field she works
in. While hailing many of the scientific breakthroughs that have opened up some astounding medical
possibilities, Professor Somerville has published a book of lectures which argue that some of those
breakthroughs are setting up dangerous ethical dilemmas for society.


KERRY O'BRIEN: And now the science of medicine and the frontiers of research that just keep
changing as more and more momentous breakthroughs are achieved. None more than so than the related
fields of genetics and the new reproductive technologies. Margaret Somerville is a well renowned
Australian ethicist who founded the Centre for Medicine, Ethics and Law at Montreal's McGill
University and she's as controversial as the field she works in. While hailing many of the
scientific breakthroughs that have opened astounding medical possibilities, Professor Sommerville
has published a book called of lectures called "The Ethical Imagination", which argues that some
breakthroughs are setting up dangerous ethical dilemmas for society. And while supporting civil
union for homosexual couples, she opposes same sex marriage because she says it legally recognises
a right for gay couples to have children. Margaret or Margot Somerville is here for the Sydney
Writers' Festival and I spoke to her today.

Margot Somerville, you've spent decades trying to define the ethical pros and cons thrown up by new
reproductive technologies, apart from other things. But is it a simple truth that the technology is
advancing too rapidly for society to actually keep up with the ethical dilemmas?

I think we have to try to keep up and sometimes it's hard and I think we also have to take into
account the very fact that maybe we're not keeping up. I describe it as we being the first
generation of humans ever who've held life itself in the palm of our collective human hand. We can
do things to life that no other humans have ever been able to do and when we realise the enormity
of that power and how unprecedented it is, all that I ask for is what I'd call "wise ethical
restraint", that we stand back, we sort of appreciate that and we try to be wise about what we do.
And also wise in not doing certain things that we could do. And that's hard, you know, it's hard to
make those decisions.

KERRY O'BRIEN: Let's look at some specific examples to try and tease out your arguments. What about
the woman about to undergo chemotherapy for cancer who has her eggs frozen to keep her hopes alive
of one day being able to bear a child?

MARGARET SOMERVILLE: I think that's perfectly acceptable and wonderful that we can now do that. In
fact it's a colleague of mine at McGill who successfully did that a few weeks ago. And I think
that's marvellous. That's a very good example of science solving an ethical problem rather than
creating one.

KERRY O'BRIEN: Take the woman who's frozen her eggs so her 7 year old daughter with future
fertility problems, because of a disease, can maintain the family's genetic line. If the daughter
ultimately has the mother's child which is brought up in a loving environment, where's the ethical

MARGARET SOMERVILLE: I've written an article on this as you probably know and that's actually a
case from Montreal that I'm involved in. Let's have a look.

First of all, the woman who gives birth to the baby, the gestational mother, is actually the half
sister. This child will be that woman's half sister or half brother. Secondly, it involves a
situation in which this daughter is having the child of her mother and the girl's husband. So what
do we think about that? Also, what about the child in terms of its genetic and family and
relationship identity? What does it mean that your grandmother is also your mother, and that your
father has had you with your grandmother?

Humans haven't, we could have done that naturally which is interesting and yet we've stringently
prohibited over huge periods of time, I think mainly because, well first of all for genetic
reasons. But secondly, I think because we've had this intuition that there's something wrong for
the child in that situation.

KERRY O'BRIEN: In fact the rights of the child seem to dominate your thinking?

MARGARET SOMERVILLE: They do, because for a whole lot of ethical reasons. Children are the only
ones who are not asked what they want to do in this situation. Secondly, children are the only ones
who don't give consent to this. Third, there's a doctrine emerging in ethics called anticipated
consent. Can we reasonably anticipate that what we're doing would be consented to by the people
most affected by it?

Now it's very interesting because coming out of Australia is a group of young people who contact me
constantly and they're the children from the original IVF done at Monash University because
Australia led the world in that at that time. They're now what they call themselves
"donor-conceived adults". They've got a website called Tangled Webs. And what they're doing is
they're lobbying that children should not be brought into the world in ways that deprive them of
certain rights and those rights are first of all a right to know who their biological parents are.

I believe they also include a right to a mother and a father which I think is going to prove to be
genetically important in their upbringing. It's a right to be reared in their own biological
family, both their immediate and extended one and most importantly - and this is what I'm working
on at the moment, which is extremely controversial and two years ago would have been thought as
science fiction - is making a shared genetic baby between two men or between two women.

And this is why I've got into awful trouble over my opposition to same sex marriage. Marriage gives
adults the right to do that. That's the problem with it.

KERRY O'BRIEN: When you talk about the growing evidence and you talk about that group of Australian
children who are now young adults - the so-called test tube babies - resent the circumstances of
their birth. But do they resent being alive?

MARGARET SOMERVILLE: Yeah I know, that's always the case isn't it. No, they don't, but they think
they could have been alive without this. There's an extraordinary new...

KERRY O'BRIEN: But in many instances they couldn't have been?

KERRY O'BRIEN: They wouldn't have been them probably, no. But when you read what they write. I read
this every other day practically. They write things like, "I get up in the morning and I look in
the mirror and half of me is missing, I walk down the street and look at men and think, maybe could
he have been my father?" We've just had in Canada a group of young people who contacted each other
on the Internet and all found out from their single mothers that they had all been born from the
same fertility clinic in Vancouver. They got together and got themselves genetically tested to see
if they were related. Two were a half brother and a half sister and the rest of them weren't. Kids
want to know this, and do you know when they most want to know it? They want to know it when
they're going to have a child of their own.

And hat they say is that "I feel this was done to me and now I'm going to do it in a way to my
child because my child won't know any further back than me."

KERRY O'BRIEN: Aren't there ways around that? Aren't there counselling programs now that is coming
to the fore, isn't it likely that better counselling processes will be developed to help those
children through childhood to come to grips with those questions?

MARGARET SOMERVILLE: But to deliberately create them knowing they're going to have a problem that
needs counselling, needs ethical justification.

KERRY O'BRIEN: But then by the same token you're not ethically opposed to an IVF birth for a
married couple?

MARGARET SOMERVILLE: I'm not opposed to man and a woman having a child whether naturally or through
IVF provided what we're doing - and the phrase I use is "repairing nature when it fails" - and most
IVF is you've got blocked fallopian tubes and what you're doing is you're getting around that, and
repairing nature when it fails.

What I've got a problem with, for example, to take an extreme example, would be making a sperm from
a woman's stem cell which is now possible, and using that to fertilise another woman's ovum. That
child has got no natural biological origins. That's what worries me.

KERRY O'BRIEN: You support the right of homosexual couples to have a civil union that protects
their various human rights but not gay marriage. Why isn't that, though, an exercise in semantics
in terms of whether it's a civil union or you call it a marriage?

MARGARET SOMERVILLE: Well, under the Universal Declaration of Human Rights Article 23, it actually
says men and women have the right to marry and to found a family. So it's the "and to found a
family" that comes explicitly with marriage.

KERRY O'BRIEN: But you do acknowledge that a couple could be in a civil union and have a child
without the marriage anyway?

MARGARET SOMERVILLE: They could, but the point is that whether you want to give them the right to
have that family. That's the only argument I've got against same-sex marriage, that it gives same
sex couples a right, but it simultaneously takes away the right of children to have a mother and a
father, to know who their biological parents are and to be reared by them.

KERRY O'BRIEN: You've raised the possibility of genetic tampering to create a soldier class by
removing the gene that produces fear?

MARGARET SOMERVILLE: I'm not a geneticist, I just work with the geneticists. There's a possibility
that we could insert a hyperaggressivity gene. The Canadian scientists have done that with fish.
They found a fish that was hyperaggressive, they found the gene and they put it in nice kind of
mild sweet fish, and those mild fish became nasty and aggressive fish.

One thing we worry about is what if some kind of terrorist organisation decided it wanted a bunch
of really hyperaggressive soldiers or terrorists, you know. That's the sort of thing that we are
thinking about. One of the other big areas where we're looking at this and where I've been doing
some work is in bioterrorism. What about if we could design a weapon that would be specific to a
certain gene that only a given ethnic group had and we could go into a city and wipe out that
ethnic group and not affect anybody else.

KERRY O'BRIEN: Those are real issues?

MARGARET SOMERVILLE: Those are real things we're thinking about, yes.

KERRY O'BRIEN: You've said that "we", that is civilisation, "have made a mistake disconnecting
ourselves from nature". You talk about kids growing up by never climbing a tree, what does a kid
lose by never climbing a tree?

MARGARET SOMERVILLE: You see I think the more extraordinary our knowledge... and I like to talk in
images we understand. Like a tree, the higher a tree grows, the further its roots have go down in
order to be stable and survive. That's a good image with what is happening with science. Our new
science is spectacular, amazing, wondrous. I think of it as being like a laser beam going out into
the darkness of our own knowing.

The Japanese have a lovely saying, "As the radius of knowledge expands the circumference of
ignorance increases". So if you imagine it like a laser beam, here's our knowledge and here's this
huge circumference of ignorance. In order to first of all live with a certain degree of equanimity
with that, I think we've got to have one hand what I'd call "deep in the earth" to sort of know
those natural origins from which we come. To have profound respect for them so that we don't think
that doesn't matter, which is one of the danger of science that, we now think we've got all the
power in our hands and we can just use it without understanding what we might be doing.

KERRY O'BRIEN: Margot Somerville, thank you very much for talking with us.

MARGARET SOMERVILLE: It's been my great pleasure Kerry, lovely to meet you.

For an extended version of that interview or to revisit any of our stories, just go to our website.
That's the program for tonight. We'll be back at the same time tomorrow, back at the same time
tomorrow, but for now, goodnight.