Wednesday, 5 June 2019

 Mr FOLEY (Albert Park—Minister for Mental Health, Minister for Equality, Minister for Creative Industries) (10:21): In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Assisted Reproductive Treatment Amendment (Consent) Bill 2019.

In my opinion, the Assisted Reproductive Treatment Amendment (Consent) Bill 2019 (the Bill), as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The purpose of the Bill is to amend the Assisted Reproductive Treatment Act 2008 (the ART Act) to remove the requirement that a woman needs the consent of her spouse to access assisted reproductive treatment using donor sperm if she is separated but not divorced from her spouse. The Bill also amends the Status of Children Act 1974 (the SOC Act) to ensure it operates consistently with the ART Act and to replace a redundant reference in a provision regarding counselling requirements relating to substitute parentage orders granted by a court for surrogacy arrangements.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The Bill promotes the following human rights protected by the Charter:

•   the right to recognition and equality before the law (section 8 of the Charter)

•   the right to privacy (section 13 of the Charter)

•   the right to protection of families and children (section 17 of the Charter).

The right to recognition and equality before the law (section 8 of the Charter)

Section 8(3) of the Charter provides that every person is equal before the law, is entitled to equal protection without discrimination and has the right to equal and effective protection against discrimination.

The ART Act requires a married woman to obtain the consent of her spouse to undergo an assisted reproductive treatment procedure using donor sperm. The spouse’s consent is required, even where the woman is separated but not divorced from her spouse.

In September 2018 the Federal Court was asked to consider the consent requirements in the ART Act in the circumstances of a married woman who was separated from her husband but not divorced and who wished to undergo assisted reproductive treatment using donor sperm without her husband’s consent. The Court found that the provision in the ART Act that required the woman to have her spouse’s consent discriminated against the woman because of her marital status, as the same consent requirements would not apply to a woman who had separated from a domestic partner to whom she was not married [EHT18 v Melbourne IVF [2018] FCA 1421].

The Bill will:

•   amend the ART Act so that a woman who is married and separated from her spouse does not need the consent of her spouse to access assisted reproductive treatment using donor sperm

•   make consequential amendments to the SOC Act so that the presumptions of parentage in the Act operate consistently with the amendments to the ART Act. The amendments ensure that the provisions concerning parentage that apply to a child born to a woman who underwent assisted reproductive treatment and who does not have a partner, are the provisions that apply to a woman who underwent treatment and who is married to but separated from her spouse.

Clause 4 of the Bill amends the definition of partner in section 3 of the ART Act so as to exclude from that definition a spouse from whom the person has separated.

Clause 6 of the Bill makes a consequential amendment to Part III of the SOC Act so that a married woman who is separated from her spouse at the time she undergoes an assisted reproductive treatment procedure will be treated as a woman without a partner for the purposes of the presumptions in Part III as to the parentage of a child born as a result of that treatment procedure.

The amended definition of partner in the ART Act will also have an effect on whether a surrogate mother has a partner for the purposes of Part 4 of the ART Act, which deals with the use of assisted reproductive treatment in surrogacy arrangements.

The ART Act requires the surrogate mother and her partner, if any, to undergo counselling and be provided with legal advice before a surrogacy arrangement is entered into.

The effect of the amended definition of partner will be that a married surrogate mother who is separated from her spouse but not divorced at the time she enters into a surrogate arrangement will be regarded as not having a partner for the purposes of the counselling and legal advice provisions relating to surrogacy arrangements. In effect this means a married but separated surrogate mother is treated the same as a surrogate mother who has recently separated from a domestic partner.

These amendments promote equality before the law for women who are married but separated from their spouse. They provide for women who are separated from their spouse and women who are separated from their domestic partner to be treated equally with respect to the consent, counselling and legal advice requirements under the ART Act, and with respect to the presumptions about the parentage of children born as a result of assisted reproductive treatment under the SOC Act.

The right to privacy (section 13 of the Charter)

Section 13(1) of the Charter recognises the right of a person not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. This right encompasses physical and psychological integrity and the autonomy and inherent dignity of the person.

The amendment made by clause 4 of the Bill to the definition of partner in the ART Act will allow for a woman who is married to but separated from her spouse to access assisted reproductive treatment using donor sperm without requiring the consent of her spouse.

This promotes the right to privacy by:

•   allowing a married but separated woman to make the decision to access assisted reproductive treatment using donor sperm autonomously

•   preventing the arbitrary interference with privacy that might result if the consent of the woman’s separated spouse is required and he or she is thus informed about the woman’s decision to access assisted reproductive treatment using donor sperm.

The protection of families and children (section 17 of the Charter)

Section 17(1) of the Charter recognises that families are the fundamental group unit of society and that families are entitled to be protected by society and the State. Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests, in recognition of a child’s special vulnerability because they are a child.

The amended definition of partner updates the ART Act so that it better reflects the make-up of modern families. The amendment to Part III of the SOC Act promotes the right to protection of families and children by providing certainty about the parentage of children born as a result of assisted reproductive treatment to women who are married but separated from their spouse.

Martin Foley MP

Minister for Mental Health

Minister for Equality

Minister for Creative Industries

 Mr FOLEY (Albert Park—Minister for Mental Health, Minister for Equality, Minister for Creative Industries) (10:21): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Andrews Labor Government is committed to promoting equality and removing discrimination in all its forms. The Assisted Reproductive Treatment Amendment (Consent) Bill 2019 will address an outdated law that allows men to control the reproductive rights of women.

Specifically, this Bill will remove the requirement that women need the approval of their former partner to access assisted reproductive treatment using donor sperm. In doing so, it will ensure that women are not discriminated against on the basis of their marital status when accessing treatment.

Implementing this Bill will acquit one of the government’s key election commitments. It forms part of the government’s continued commitment to review and strengthen Victoria’s assisted reproductive treatment laws.

Amendments to the Assisted Reproductive Treatment Act 2008

The Assisted Reproductive Treatment Act 2008 requires a woman and her partner, if any, to consent to undergo a treatment procedure. To ensure that a person does not need the consent of their spouse where they are still married but have separated, the Bill amends the definition of partner in the Assisted Reproductive Treatment Act. The amendment will mean that a person’s spouse, that is, the person to whom the person is legally married, is not a ‘partner’ for the purposes of assisted reproductive treatment, if the spouse is separated from the person. The amendment will apply equally to women in same-sex and heterosexual marriages.

Consequential amendments to the Status of Children Act 1974

The Status of Children Act 1974 sets out presumptions that determine when a person will be recognised as a parent, including when children are born as a result of assisted reproductive treatment. The presumptions form the basis of recording parentage on birth certificates by the Registry of Births, Deaths and Marriages.

The Bill makes consequential amendments to the Status of Children Act to ensure that the presumptions about who is the parent operate consistently with the amendments to the Assisted Reproductive Treatment Act. The amendments provide that where a married woman is separated from her partner and has a child with the assistance of a registered assisted reproductive treatment provider, using donor sperm, the presumptions as to parentage are the same as those that apply to a woman who undergoes such a treatment without a partner. This means that the woman’s estranged spouse is not presumed to be the parent of a child.

Other minor amendments

The Bill makes a further minor amendment to the Status of Children Act to replace a redundant reference to the Assisted Reproductive Treatment Act. The amendment will clarify who can provide counselling required for parties to certain surrogacy arrangements for the purposes of a substitute parentage order.

The Bill also includes minor statute law revision amendments to the Assisted Reproductive Treatment Act.

Commencement

The amendments to the definition of partner in the Assisted Reproductive Treatment Act and the consequential amendments to the Status of Children Act will commence 28 days after the Bill receives Royal Assent. This will allow sufficient time for assisted reproductive treatment providers to prepare for implementation.

The amendments to counselling provisions in the Status of Children Act and the statute law revision amendments will commence the day after the Bill receives Royal Assent.

I commend the Bill to the house.

 Ms McLEISH (Eildon) (10:21): I move:

The debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 19 June.