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Wednesday, 20 March 1985
Page: 625


Mr SPENDER(6.40) —The purposes of the Marriage Amendment Bill have been outlined both by the Attorney-General (Mr Lionel Bowen) and by the honourable member for Menzies (Mr N. A. Brown). I do not wish to traverse what they have said. I think all of us are in favour of uniform rules relating to the recognition of marriages, and I hope that more than the five countries which I understand have presently acceded to the Hague Convention on Celebration and Recognition of the Validity of Marriages will soon become party to that Convention. A convention of five countries is very much less useful than a convention of 25 or 30 countries.

The Bill also deals with the question of legitimacy of children born as a result of certain medical procedures. The honourable member for Menzies has touched on the import of that matter, and I wish to come back to it later. There are, in fact, three areas that I wish to address: First of all, the fixing of fees for celebrants, secondly, the Hague Convention on Civil Aspects of International Child Abduction, not a matter which has been addressed in the Bill; and, thirdly, the profound moral and ethical questions raised by scientific developments in biomedical techniques of artificial conception. Let me first of all deal with the question of fees. The Attorney-General has said to us:

It seems desirable, in light of the particularly vulnerable position of parties about to be married, that there be a clear legislative statement to this effect, for the protection of both parties and celebrants. It is not intended by this provision to affect the ability of celebrants to make reasonable charges for other matters ancillary to the actual solemnisation, such as flowers or music.

Flowers are all right, music is okay-one can charge what one thinks the market fairly would bear. But when it comes to fees, that is a different matter. The pavlovian reaction of those whose minds are encased in nineteenth century ideology causes them immediately to say: 'If it's a fee and if we can fix it, we're going to fix it. Mark you, if it's a fee which has anything to do with a union we're not going to fix it. We're going to index it, we're going to give it superannuation benefits and we're going to give it productivity gains'. But a marriage celebrant falls into a quite different class. It does not matter whether a celebrant is drunk or sober. It does not matter whether he is shaven or unshaven, or whether a woman celebrant presents well or presents badly. It does not matter whether she or he is sympathetic, understanding, kind and genuinely interested in what is going on or whether he or she-my God, how we get into this he or she terminology!-is not sympathetic, understanding or anything else but is simply out to make a quick buck. None of these things are to be taken into consideration. A celebrant is to be paid $20 regardless-no more and no less, certainly no more. Of course, that is the purest of nonsense. The reasons why this rather absurd provision has been introduced are given away in the next paragraph of the Attorney-General's second reading speech, where he says:

I should also point out that the Government is keeping under review the level of fees to ensure, consistent with overall economic restraint, that the fees represent an adequate remuneration for this important service.

In fact, what the Attorney-General is talking about is the Government's precious wage accord. Those vulnerable people who, having made the major decision to get married, are apparently quite competent to decide what they should pay for music and for flowers but are quite incompetent to decide what they should pay a celebrant for uttering those words which have for many a beneficial and kindly import and which will have for others a somewhat more lethal import or, indeed, more lethal consequences somewhere further down the track. When one considers that many of the people who are getting married are not only quite competent to make decisions about their lives because, after all, they have already made a very important one but also in the exuberance of a triumph of optimism over experience, are entering into an engagement for a second or third time, one can only wonder why it is necessary to protect them in that one area. Unquestionably there is no basis for such protection. The only basis put forward to support this proposal is perfectly specious.

Let me move on to a quite different matter. The Convention on the Civil Aspects of International Child Abduction was concluded in The Hague in October 1980. It came into force on 1 December 1983 and was signed by Canada, France and Portugal. Switzerland has since become a party to it. The purpose of the Convention may be found in Article I, which states:

The objects of the present Convention are-

a to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

In short, this provision seeks to overcome the jungle in which one parent finds himself when a child is abducted by the other parent. The immense and continuing anguish, the sense of isolation and helplessness of parents who find themselves in that kind of situation, are acute. I have seen the problem professionally and I have seen it as a member of parliament. I will look at some of the problems that parents face. First of all, how does a parent track a child down? Secondly, once a child has been tracked down what does a parent do? Does the parent go to the courts of the country in which the child and the husband or wife who has taken that child away are found, while engaged in litigation and worry about whether the child will be abducted again and face the endless delays that courts can pose and the enormous expenses of travel and living and that the lawyers will exact of that parent? Should that parent seek to take the opportunity to snatch the child back? These are very real problems which some parents have to face.

We face here a provision which was concluded in October 1980, for which provision was made in the Family Law Amendment Act 1983-that is, provision for Australia to become a party-and which is still under examination. The delay is inordinate and inexcusable. It passes understanding how time can be wasted and this Convention can be not being given effect to. I ask the Attorney-General to see whether he can speed up the consideration being given to this Convention so that parents who face this kind of appalling situation can be given some aid and comfort by way of a more uniform and workable system in place of the present system which they have to face when seeking to recover an abducted child.

I now pass to a different subject. Developments in biomedical techniques of conception have passed the frontiers of traditional ethical responses and have confronted us with new dimensions in ethical and moral values and questions. Artificial conception, as honourable members will be aware, is dealt with in clause 26 of the Bill, which recognises State laws but which poses some of the problems that were outlined by the honourable member for Menzies. Artificial conception can be achieved through two main methods. First of all, there is artificial insemination of sperm, for example, from a husband to his wife. The second method is in vitro fertilisation, in which case the egg is fertilised in a laboratory and is then implanted, the second part of the process being called an embryo transplant. This is a quite historic and unique development in that the egg is fertilised outside the human body. This first took place in England in 1978.

The problems posed can be seen in terms of surrogacy. Surrogacy can be achieved, first of all, through artificial insemination and, secondly, through a surrogate mother being implanted with an in vitro fertilised egg. Thirdly, there is a technique called NID. The word 'nid' means a nest in French, and that does not seem inappropriate because the acronym NID stands for natural insemination donor. In that case the male, with or without payment, naturally inseminates another women with his wife's consent, under an arrangement which is to ensure that the offspring will be the child of the impregnating male and his wife. This has already happened in New South Wales.

The new medical realities that we face illustrate the dimension of the moral questions that we must confront. I would like to pose some of those questions in terms of an examination of three different cases or sets of facts. Let us take first of all surrogate motherhood. Should commercial surrogacy be allowed? What of non-commercial surrogacy? The concern for this important issue is felt everywhere. Every State of Australia is having or has had inquiries into artificial forms of conception. National guidelines were laid down on in vitro fertilisation in 1982 by the Medical Research Ethics Committee, a committee operating under the Department of Health. Incidentally, these guidelines were a world first.

In New South Wales at present all aspects of artificial conception, including surrogacy, are under examination by the New South Wales Law Reform Commission under the direction of Mr Russell Scott, the Deputy Chairman. The Warnock Committee in England, which reported in July 1984, recommended that commercial surrogacy should be a criminal offence and that all surrogacy arrangements, commercial or otherwise, should be illegal and unenforceable. The Weller Committee, which was set up in Victoria and which reported in August 1984, followed the Warnock line. The Victorian Parliament's response to that committee's report was the Infertility (Medical Procedures) Act 1984, which has not, however, been proclaimed. It is the first Act in the world to deal in detail with in vitro fertilisation procedures. Commercial surrogacy is made criminal by it and all arrangements, contractual or otherwise, are made void and unenforceable.

What should be our attitude to commercial surrogacy? Ought we to permit commercial surrogacy arrangements? I must confess that my instinctive reaction is that fees for conception, carriage and birth seem not just distasteful but morally offensive. On the other hand, in the United States of America traffic in commercial surrogacy is allowed. What of the non-commercial surrogacy arrangements? My instinctive reaction here is that in certain circumstances surely those arrangements should be permitted. I give the House the example of a non-commercial surrogate arrangement motivated by love and affection. There is a known case in this country, in circumstances in which conception might have been fatal to the wife, of the wife's sister volunteering for in vitro fertilisation procedures. Should that not be allowed? If one is looking for ancient precedent it is perhaps to be found in the Book of Genesis, Chapter 30, verses one to six. It is quoted by Mr Russell Scott in his excellent book The Body as Property. It reads:

And when Rachel saw that she bare Jacob no children, Rachel envied her sister; and she said unto Jacob, give me children or else I die.

And Jacob's anger was kindled against Rachel: and he said, Am I in God's stead, who hath withheld from thee the fruits of the womb?

And she said, Behold my maid Bilhah, go in unto her; and she shall bear upon my knees that I may also have children by her. And she gave Bilhah her handmaid to wife: and Jacob went in unto her.

And Bilhah conceived, and bare Jacob a son. And Rachel said, God hath judged me, and hath also heard my voice, and hath given me a son . . .

That is perhaps the first example of a surrogate arrangement.

I turn to the second of the three cases to which I wanted to refer. It starkly illustrates the new moral frontiers that we have reached. It is now scientifically possible to take an in vitro fertilised egg a few days after its creation, surgically divide it into two sections and freeze one part and implant the other in a woman's womb, for the conception of a female child then to take place and for that child to grow to adulthood. It is scientifically possible for her then to be implanted with the other section so that she becomes the mother of her own twin. This would never be permitted but the scientific possibility exists.

Let me take the third case. In vitro fertilised eggs can be deep frozen and stored, and Australians perfected this technique back in 1981. Stored eggs can become surplus. What does one do with the surplus eggs? The Warnock and Weller committees thought that research was justifiable provided that the eggs were no more than 14 days old. In the United Kingdom Parliament very recently Mr Enoch Powell introduced a private member's Bill which would outlaw all forms of research into in vitro fertilised eggs, and that has received a very wide measure of across the board support in that Parliament. Yet I understand that the benefits of research could be vast-for example, a cure for Down's Syndrome. I have not the least idea what the answer should be, but the dimensions of the moral questions with which these new techniques confront us are universal and must be dealt with on a national basis.

Two things are necessary: Firstly, a Federal inquiry at the highest level, bringing in those who are wise, not simply in scientific matters and techniques, but also in ethical and moral questions; and secondly, a code that should apply throughout this country. Newness, the complexity and the dimensions of the questions we have to face would caution us to hasten slowly. Whilst we must hasten slowly, we must begin urgently because it is essential that this question be addressed and be addressed deeply and that we come up with solutions which are wise, which are understood and which are beneficial.