2016-02-22
Ms PENNICUIK (Southern Metropolitan) — I am very pleased to speak today on the Assisted Reproductive Treatment Amendment Bill 2015. This bill will amend the Assisted Reproductive Treatment Act 2008. It will enable people born as a result of pre-1998 donor treatment procedures to obtain available identifying information about their donor regardless of whether the donor consents. It will enable people who donated gametes on or before 30 December 1997 and people born as a result of donor treatment procedures to lodge a contact preference. It will give the Victorian Assisted Reproductive Treatment Authority (VARTA) responsibility for donor conception registers, it will also give VARTA powers to search for and obtain information about pre-1998 donations where there is insufficient information available, and it will create an offence of tampering with donor conception records, which we know has happened in the past.
This bill will finally remove the current distinction in the act between those born from gametes donated prior to 1998 and those born from gametes donated after that time. Instead, subject to provisions relating to contact preferences — and I will speak about those further into my contribution — all donor-conceived people will now have the same legal rights to information identifying their donor and about their genetic heritage. The bill will give all donor-conceived people equal rights to access available identifying information about their donor, regardless of when the donation was made, and the Greens support that provision of equal access to information regardless of the date on which a person was conceived.
The bill introduces contact preferences which allow donors either to prevent contact from their donor-conceived offspring or to limit contact, and this will be associated with a penalty of 50 penalty units or around $7500. The Greens have concerns about the introduction of contact preferences into the act, and we have had concerns with contact statements or contact vetoes when they were also introduced into the Adoption Act 1984. After many years of the Adoption Act functioning without them, they were introduced and have now been removed. We do have concerns about those. I will return to that in a moment.
Importantly the bill seeks to ensure that people are supported in the search for information and at the time when information about them is released by the establishment of VARTA as the one-door stop or one-door service to ensure simplicity for those seeking information and coordination of support services. This was a recommendation of the former Law Reform Committee. It will address the concerns that have been raised by a number of submissions to the committee that the current system is disjointed and can be confusing, so VARTA will now be the single authority dealing with these issues.
It is worth referring to the guiding principles of the Assisted Reproductive Treatment Act 2008. Section 5 of the act says:
It is Parliament's intention that the following principles be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act …
The pertinent ones are:
(a) the welfare and interests of persons born or to be born as a result of treatment procedures are paramount —
and —
(c) children born as the result of the use of donated gametes have a right to information about their genetic parents …
These are the two guiding principles I think we need to keep in mind when we are talking about this particular bill and the long road that we have taken to arrive here. Ms Wooldridge went into quite a lot of detail about the long road we have taken to get here.
In terms of my involvement in this issue, I have a very strong commitment to the issue of making sure that, or bringing about the situation where, all donor-conceived people are equal under the law. That is why I am very pleased that we have this bill before us today.
Back in 2008 when the Assisted Reproductive Treatment Bill 2008, which act came into effect in 2010, was debated there was a free vote for the coalition. During the debate I was able to move an amendment, which allowed for a notation to be put on a birth certificate — and that provision has now been in place for around seven years. It notifies a person that there is more information about their birth, and they are then informed that they are in fact a donor-conceived person. The number of people who are donor-conceived and who are finding out this information when they apply for a birth certificate after they turn 18 years is increasing. As Ms Wooldridge said, the vast majority of those do now know that.
I became very interested in the issue and in the debate in 2008, which people might remember was a very long debate. The bill went to what was called at the time the Legislation Committee, so it was very thoroughly debated in the Parliament. A number of amendments were moved; not very many were successful, but that particular one was. I make mention of that because it allows for information to be given to people when they apply for a birth certificate such that if they have not been informed by their parents, when they are adults and when they are able to apply for a birth certificate in their own right they are given that information.
During the debate I queried the then minister, Mr Jennings, who was responsible for the bill going through the Parliament, as to this issue. At the time when we were debating it we had the three tiers of legislation following the Medical Treatment Act 1988 and the Infertility Treatment Act 1995, which preceded the 2008 bill. We had a situation where those born before 1988 had no right to any information as a result of the promises, the agreements and sometimes the contracts around anonymity that were given by the clinics. Sometimes it was a requirement of a clinic. It needs to be understood that it was not just that it was given to the donor so the donor was assured there would be anonymity — as in the donor was asking for it; in some cases it was a requirement by a clinic of the donor, and it was not always the case that the donor required that. It needs to be understood that there were two ways that that worked. So at that time there was no right to any information for people born or conceived by gametes prior to 1988.
Information could be obtained by those conceived between 1988 and 1998 with the permission of the donor, and as we know, post-1998 it has not been possible to be an anonymous donor. Anybody who is a donor is aware that information about them will be available to donor-conceived people. So we had a three-tier system whereby people were discriminated against based on the time they were conceived and/or born.
It is worth noting also that those people born between 1980, when the first in-vitro fertilisation (IVF) person was born in Australia — and that person was Candice Reed, who was born on 23 June 1980, and I will return to make some comments about Candice Reed in a moment — and 1988 are now between 28 and 36 years old. It is interesting that people born since 1998 are about to turn 18 this year. We are talking about people covered by this bill, which will change their ability to obtain information with the consent of a donor to without the consent of a donor — hopefully with the consent of the donor, but not requiring that consent. The people in that cohort are now almost all adults. They will be adults by the end of this year and certainly by the time the act commences this year or early in 2017. The bill requires it to be commenced by 1 March 2017.
I asked the minister if he would do something about that particular issue of discrimination between the different rights that were attributed to people based on their year of birth or conception. At the time he said, 'Well, I promise to do something within 12 months'. Nothing was done. So at the beginning of 2010 I started to talk with people from the donor-conceived community, particularly from the group Tangled Webs, that had been set up to pursue this issue. I undertook to refer the issue to the parliamentary Law Reform Committee. I also held a forum in the Parliament in the lead-up to the debate on that referral. Members of Tangled Webs came and presented their stories of how the inability to obtain information about their donors, about their genetic heritage, about their medical history and about just who they are had profoundly affected their lives. Many members of Parliament came to the forum and I think were very persuaded by those stories. Many people emailed MPs as well.
By the time I came to the date when I could move a motion, on 23 June 2010, I realised by coincidence that it was the 30th birthday of Candice Reed. When I realised it was her 30th birthday I got in touch with her. I mentioned to her that I was going to move this motion to refer the issue of the availability of information for donor-conceived persons to the parliamentary Law Reform Committee. I said, 'Would it be okay if I mention you and that this is your 30th birthday?'. She very graciously agreed for me to mention that at the time. She has also been a long-term advocate for the interests of donor-conceived people, for education about reproductive issues in the education system and for more openness about this issue in the community. So by coincidence it was a very auspicious date to have moved that referral.
I was very pleased to be able to do it, because I said at the time, and I have said a number of times in Parliament, that in the early 1980s when IVF, as it was called, first came into being and children were being born I was very happy along with everybody else that people who previously had been unable to have a family were able to do so. But it was said at the time that donors were anonymous, and I did think to myself, 'Who's thinking about the children here?'.
I do not think that at the time enough attention was paid to that. There was more attention being paid to the technology and to the understandable need of parents who had been unable to have children to be able to do that, and not enough attention was being paid to the future needs of the children born of those technologies. We know from the stories that we have all received via email, from the forum that I held in the Parliament and also from the extensive testimony and submissions made to the Law Reform Committee how this has profoundly affected people's lives.
So that referral was successful and the committee reported in March 2012 — almost two years later and almost four years ago. In August 2014, two and a half years after the report was tabled and 18 months ago, we debated the Assisted Reproductive Treatment Further Amendment Bill 2013, which brought into line those born between 1980 and 1988 with those born between 1988 and 1998. We went from a three-tiered system to a two-tiered system, so that those born prior to 1998 could then obtain information with the consent of the donor. As we know, those born prior to 1998 have full rights to information about their donor.
That is a history of the last eight years. Many people have been waiting all that time to the point where the bill in front of us today will make all donor-conceived people equal under the law. As I said before, it will bring the actual provisions of the act to comply with the guiding principles of the act. But of course it all really began almost 36 years ago in June 1980 when our first donor-conceived person was born.
This is a difficult issue. I am aware that there are various views on this issue, as Ms Wooldridge said. As I have paid great attention to it over the last eight years, I can say that the vast majority of people who have ever contacted me about this issue have been supportive of more information being available to donor-conceived persons and supportive of the rights of donor-conceived persons. Certainly, as Ms Wooldridge said, given the changes to the act in 2014, most donors who have been contacted by VARTA have in fact agreed to have their information released. Many of them have also agreed to contact with their donor-conceived person. That has been made clear to us by the Victorian Adoption Network for Information and Self Help (VANISH), and Ms Wooldridge read out part of a letter from Coleen Clare of VANISH. All of us have had a lot to do with Coleen and VANISH, not only on this issue but also on the forced adoption issue.
Of course they are very supportive of this bill, as are most of the people who have contacted me by email. That includes Kim, Geraldine, Kerry, Damian, Simon, Bridget, Kimberley, Ross, Lucy, Chloe, Sharni and Adrienne, who have all sent emails telling us about how the lack of information — their denial of information — has affected their lives. Also, I am very struck by many of them — a couple of them were actually born after the time when they were at least able to get information with the consent of the donor — thinking about the persons who were born in the earlier time when that was not possible. Some of them have written about how they were not told until they were quite older, about how that had been upsetting for them and about the fact that not being able to find the information has really affected their lives.
I especially want to pay tribute to VANISH, Tangled Webs and the Donor Conception Support Group, which have lobbied and advocated for this issue for many, many years. In particular Lauren Burns and Myfanwy Cummerford, who have also contacted me and I think everybody else, have been very active on that issue. We should all remember Narelle Grech — and many people have called these laws Narelle's laws. Sadly Narelle died in March 2013 as a result of bowel cancer. Because she was born prior to 1988 and did not have any rights to information, she was able after the intervention of the Premier at the time, Mr Baillieu, to get some documents from the public records office and connect with her donor father, Ray Tonna. That is a very heartbreaking story, and there are some other stories in the emails that people would have read with regard to the issue of health records.
We must remember that, as I said, people in the group born post-1988 are now between the ages of 28 and 36, and in the other group, pre-1998, most of them are between 18 and 28.
They are adults, they are coming into a situation where many of them have families or are thinking of having families and of course the issue about knowing your genetic heritage and your medical history is very important. It is not that it was not important before, but it becomes even more important when you are having your own family.
I have also received the emails that were referred to by Ms Wooldridge, one from a man called Ian and one from John Donor, who set out a very long, very detailed case against the bill, and I have also been contacted by other persons who are against the bill, but as I said before, they are mainly in the minority. Over the years most of the people who have contacted me have been supportive of the rights of donor-conceived people to have the information and supportive of removal of discrimination from the act and making all people equal.
I know that there is the issue that Ms Wooldridge raised about anonymity. As I said, sometimes that was an assurance, and sometimes it was a condition imposed by the clinics. In fact it was imposed by the clinics, and it was not underpinned by any law at the time, so that is worth thinking about. It is not that I do not have any empathy with or understanding of some donors not wishing to be contacted or wanting to preserve their anonymity, which they understood was preserved at the time. But I would say that, just like with adoption where anonymity was promised — as we know, an apology was made by the Victorian Parliament to those who were caught up in the forced adoption issue, but this is not the time or place to go into all that, and people can read all the speeches and everything that happened then — that act was changed in 1984, and we know that really it has worked quite well in terms of the release of information and people contacting each other. There have been very few problems, and I believe the same can happen here.
We are talking now mainly about adults, and as we go forward in the years, more and more are adults. I believe adults are able to manage this issue with good faith and with respect on all sides. I think it comes down to the fact that the donor-conceived people were not party to the assurances of anonymity, but those assurances and those promises have had a profound effect on their lives. Given that I believe it is their right to know their genetic identity, I think in the balance that is more important than the right to anonymity. I would also say that if you take yourself back to 1980, it was a new technology; it was a new thing. Perhaps people thought there needed to be anonymity. I think, though, 36 years on, there are so many donor-conceived children in the community and it is such an accepted and normal part of life that I would hope it would not be too shattering for people to be contacted by their donor-conceived person.
Of course the donor already knows they were a donor, so it is not a shock to them to find out they were a donor and the donor-conceived person may have been a result of their donation. They are not finding out information they did not know anything about. There is no requirement for them to necessarily tell everybody else immediately. There are provisions in place, and VARTA has very experienced staff and a lot of experience in dealing with this issue, so I think, with all that is in the bill, these things can be managed, as we have seen they can be with adoption and the adoption issue over the last 30 years as well.
I just want to turn to some amendments, which I have circulated to all parties, and they go to the issue of contact statements. That was an issue which the Greens had concerns about with regard to the Adoption Act, which brought them in, I think in 2013. The Greens did not support the introduction of those statements because they had not been a part of the Victorian legislation since 1984 — so for 29 years — and for the same reasons, that we believe adults can manage their own contact. If people want to go against the wishes of someone else in terms of contacting them, we already have laws in place to deal with people who do that.
I have not proposed amendments to completely remove the contact statements from the act, but I have amendments that do two things: one is to remove the penalty of 50 penalty units because I believe even with a contact statement in place, which is part of the bill, that a donor can lodge a contact preference with the authority and that if the donor was to learn of that contact preference, I think donor-conceived people would not go against that contact.
Greens amendments circulated by Ms PENNICUIK pursuant to standing orders.
Ms PENNICUIK — So the first of my amendments would simply remove the 50 penalty units that are associated with the breach of a contact statement. We do not believe that such a penalty of $7500 should apply, and we believe that people can regulate their contact without that penalty there. I would also say that this cohort of people would be the only people that are covered by such a provision, as it now no longer exists in the Adoption Act.
The other amendments with regard to contact statements are to apply a sunset clause to them, such that after 30 June 2020 there would not be the ability to lodge a contact preference statement. That is some four-and-a-bit years from now. I chose that date because it is quite an auspicious one; 30 June 2020 will be 40 years and one week after the birth of the first IVF person in Australia, Candice Reed, as I mentioned before, and I think that is a long enough time for us to have these issues of contact between donors and donor-conceived people regulated by contact preference statements. I would hope that in the lead-up to that time the government would step up its awareness campaigns about what the new legislation contains, how that works, the role of VARTA, the rights of people et cetera. By that stage we will be four years on: the first cohort of donor-conceived people will be approaching 40, if not turning 40, and those who were born after 1998 will be in their early 20s, so all of the people we will be dealing with will be adults in that regard. I think that rather than the ability to lodge contact statements just staying in there in the act in perpetuity that sunset clause is more appropriate, and it would mean of course that up until that time a person could lodge a contact statement that would last five years, but there could not be any more lodged after 30 June 2020. I think it is expressed as 1 July 2020 in the amendment, but it really means 30 June would be the last day.
Those are the amendments that I put up for the consideration of all members, given of course that coalition members have a free vote. That would be more in the spirit of the first and major recommendation of the Law Reform Committee. I take the opportunity to thank those members of the Law Reform Committee of the two previous parliaments, because it carried over from one to the next before the report was actually tabled. I thank them for their work, and I thank all the people who made submissions to that committee. That work has led to the various iterations of the act, in particular in 2014 and again now. Hopefully this will be a historic occasion, where all donor-conceived people will be equal under the law. With those words, I indicate that the Greens will be supporting the bill.
In committee:
Ms PENNICUIK: I am very pleased to speak today on the Assisted Reproductive Treatment Amendment Bill 2015. This bill will amend the Assisted Reproductive Treatment Act 2008. It will enable people born as a result of pre-1998 donor treatment procedures to obtain available identifying information about their donor regardless of whether the donor consents. It will enable people who donated gametes on or before 30 December 1997 and people born as a result of donor treatment procedures to lodge a contact preference.
Ms PENNICUIK (Southern Metropolitan) — I move:
1. Clause 23, page 26, line 15, omit all words and expressions on that line.
Clause 23 repeals an existing section of the act and replaces it with new section 63 and new divisions 3A and 3B. This very long new section, quite a comprehensive part of the bill, refers to the issue of contact preference statements that we have been discussing so far in the committee under clause 22. The amendment I have moved makes an amendment to new section 63(3) on page 26 of the bill. It removes the penalty of 50 units that applies if an applicant knowingly contacts a pre-1998 donor unless there has been previous contact.
As you mentioned, Deputy President, this is a test for my further amendments 7 and 13. Amendment 7 is an amendment to section 63G on page 32, which applies a penalty of 50 units in relation to:
An applicant who gives an undertaking … must not knowingly contact the pre-1998 donor in contravention of the contact preference …
Amendment 13 is to section 63O on page 40, which applies a penalty of 50 units in relation to an applicant who gives an undertaking under the previous subsection and must not knowingly contact the person born as a result. This is the donor contacting the donor-conceived person — a penalty of 50 units.
As I mentioned in the second-reading debate, the Greens have always been concerned about contact vetos or contact preference statements. I note that in terms of the adoption laws they have been removed. They have not been supported by groups such as VANISH, Origins Victoria or Tangled Webs. For example, if you read the letter that came to us from VANISH late last year with regard to the bill and how it is similar to the adoption laws, it says:
At VANISH we have experienced a similar process with adoption whereby previous agreements to unfair secrecy were revoked by legislation.
As the minister mentioned earlier. It continues:
We know that when records were opened, nearly 100 per cent of people acted with full respect for their birth parents and adopted children. Our law has excellent mechanisms for preventing stalking or unwanted contact; laws that have hardly ever needed to be used under these kinds of circumstances.
I also pointed out in relation to Mr Jennings's private members bill, when the issue of contact statements came up, that contact vetos were being phased out. No new ones have been allowed in Western Australia since 2005, and other states are also phasing them out. The Greens believe there is no need for them. People can make their wishes clear without us making it an offence under the law to make contact with someone. In Western Australia they are certainly saying they do not view making contact with someone to be an offence, but obviously in the rare cases that the contact becomes harassment there is already an offence under the law. Also, the experience with the voluntary register, with the incremental changes that we have already had so far, has been positive.
If I can just reflect a little bit on what was said by some speakers in the second-reading debate about the particular issue of contact, I point out that because of the notation on birth certificates anybody who is over 18 years of age and applies for a birth certificate will be able to find out that they are donor conceived. Those people who were donors know that they were donors. Under this bill the donor-conceived person does not have access to everybody in the family; it is about the donor that the de-identifying information will be supplied — that is, the de-identifying information about the donor will be supplied and, under the bill, any children of that donor will not be.
This amendment will not take away the contact preference statements; they will be left in place. It is just the penalty of 50 penalty units. We believe that we should not be putting punitive provisions in this bill when we are talking about the sorts of issues that we have. As I said, I think that if a person indicates a contact preference, the vast majority — 99.95 per cent — of people will respect that, and if on the odd occasion that does not happen, we already have laws in place, as the minister referred to in her previous answer to a question from Ms Wooldridge.
We do not believe these penalties are fair. They are punitive and they are aimed at people who have already undergone many years of fighting for their right to the information about their birth heritage, their genetic information and just to know about who they are. So while we are not necessarily supportive of them, they are not being removed by this amendment. It is just the punitive 50 penalty units, or $7500 fine, and any unwanted contact can therefore be dealt with by existing laws.
The DEPUTY PRESIDENT — Order! Does the minister wish to respond at the moment?
Ms PENNICUIK (Southern Metropolitan) — I thank the minister for her response. As much as she wishes to point out to me how long she has been involved in the issue, she would know how long I have been, because we have both spoken on this issue across the chamber from each other many times. I just want to clarify that this amendment does not remove contact preference statements. They still remain in new section 63. The amendment just seeks the removal of the 50 penalty units associated with them, as I have already outlined.
As I said, I wanted to reflect on some of the things that were said during the second-reading debate about contact. There was an unduly negative view put by some speakers as to the result of contact. I take on board what the minister says: hopefully with the passage of this bill more and more donors will take the view that they do want to have contact and will see that as a positive thing — and many already have. There has been a lot of negativity — as if there is going to be a negative experience — whereas I think in the vast majority of cases it will be a positive experience, particularly for the donor-conceived people. The amendments tested by amendment 1 do not remove those contact vetos, just the penalty.
Regarding one more point the minister raised, which was about the report, I am very familiar with the report. I was very closely watching what was going on in the inquiry, I was reading the submissions and I have read the report. I know what is in the report. The Senate inquiry report released in February 2012 recommended to have the same thing for adoption, but states have not gone down that path, because even in the short time from 2012 to now the world has moved on. The idea of contact statements is being phased out in other states. I understand it was in the report, but I point out that I am not seeking its removal from the bill; I am just seeking the removal of the penalties associated with it.