Thursday, 20 February 2020
Bills
Assisted Reproductive Treatment Amendment Bill 2020
Bills
Assisted Reproductive Treatment Amendment Bill 2020
Statement of compatibility
Mr FOLEY (Albert Park—Minister for Mental Health, Minister for Equality, Minister for Creative Industries) (10:07): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Assisted Reproductive Treatment Amendment Bill 2020.
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this statement of compatibility with respect to the Assisted Reproductive Treatment Amendment Bill 2020.
In my opinion, the Assisted Reproductive Treatment Amendment Bill 2020 (Bill), as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
The Bill amends the Assisted Reproductive Treatment Act 2008 to remove requirements for a woman and her partner, if she has one, and parties to a surrogacy arrangement to undergo a criminal record and child protection order check before a woman may undergo a treatment procedure.
Human rights issues
The provision and regulation of assisted reproductive treatment involves a balancing of a number of rights and interests, including those of donor-conceived children, potential parents, and donors of eggs, sperm and embryos.
The Bill aims to enhance protection of Charter rights and achieve an appropriate balance between the above interests.
Right to privacy
Section 13(a) of the Charter recognises a person’s right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The right to privacy encompasses the right to information privacy and bodily autonomy (although it does not extend to the right to become a parent or create a family). The right requires that any interference with privacy be lawful and not arbitrary, meaning that any interference be precisely prescribed and reasonable in the circumstances, and be in accordance with the provisions, aims and objectives of the Charter.
Clause 8 of the Bill repeals s 14 of the principal Act, removing the presumption against providing a treatment procedure to a woman that applies if a woman or her partner, or a party to a surrogacy arrangement have had charges proven against them for a sexual offence, been convicted of a violent offence or had a child protection order removing a child from the custody or guardianship of the woman or her partner or a party to a surrogacy arrangement. Presently, if this presumption against providing a treatment procedure applies to a woman, a registered assisted reproductive treatment provider must not provide a treatment procedure to the woman, unless an application is made to the Patient Review Panel to review the presumption, and the Panel determines there is no barrier to the person undergoing treatment.
The final report of the Independent Review of Assisted Reproductive Treatment undertaken by Michael Gorton AM, noted that the requirement for a woman and her partner who wish to access assisted reproductive treatment to undertake these checks, which people conceiving children by natural means do not have to undergo, was the second most common concern raised by stakeholders.
The Bill enhances the protection of the right to privacy as it removes requirements for criminal record and child protection order checks to be carried out before a woman and her partner, if she has one, and parties to a surrogacy arrangement may undergo a treatment procedure. These requirements may interfere with a person’s privacy in two ways. Firstly, it requires a person who wishes to access treatment procedures to provide personal information about their private life including their parenting history and any criminal records (if relevant), which may interfere with their right to information privacy. Secondly, the presumption against providing a treatment procedure that applies to specified record checks may interfere with a person’s private life by limiting their reproductive autonomy (such as the available methods of conception). Removing the requirement to satisfy such record checks removes a potential obstacle for certain persons to access assisted reproductive treatment and therefore enhances their enjoyment of their right to privacy.
Right to equality
Section 8(2) of the Charter provides for the right to enjoy one’s human rights without discrimination. Section 8(2) is not a freestanding right; rather, it prohibits discrimination only in the enjoyment of the substantive rights in the Charter. ‘Discrimination’ under the Charter means discrimination within the meaning of the Equal Opportunity Act 2010, on the basis of a protected attribute set out in s 6 of that Act, which relevantly include sexual orientation, and marital status.
Under s 8 of the Equal Opportunity Act 2010, direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute under that Act unfavourably because of that attribute. Section 9 of the Equal Opportunity Act 2010 provides that indirect discrimination occurs where there is a requirement, condition or practice that is the same for everyone but disadvantages a person, or is likely to disadvantage a person, because they have one or more of the protected attributes, and the requirement, condition or practice is not reasonable.
A person may seek to use assisted reproductive treatment to facilitate creating a family because they are single or in a same-sex relationship. Accordingly, the current requirements and presumptions, which do not apply to persons who wish to conceive naturally, may have the effect of disadvantaging persons with such protected attributes (by restricting their access to assisted reproductive treatment) that is not reasonable in the circumstances. By removing such requirements and presumptions, the Bill promotes the right in s 8(2) of the Charter as it promotes the equal enjoyment of the right to privacy in s 13(a) of the Charter by removing requirements which may have the effect of indirectly discriminating against persons on the basis of sexual orientation or marital status.
The amendments are also consistent with s 5 of the principal Act, which sets out the guiding principles for the provision and regulation of assisted reproductive treatment, including that persons seeking to undergo assisted reproductive treatment must not be discriminated against on the basis of their sexual orientation or marital status.
Protection of families and children
Section 17(1) of the Charter provides that families are the fundamental unit of society and are entitled to be protected by society and the state. Section 17(2) provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Section 17(2) of the Charter recognises the special vulnerability of children as a result of their age and confers additional rights on them. It is one of the guiding principles for the provision and regulation of assisted reproductive treatment, as outlined in s 5 of the principal Act, that the welfare and interests of children to be born as a result of the use of assisted reproductive treatment are paramount.
As the requirements for criminal record and child protection order checks were intended to safeguard the welfare of a child to be born from assisted reproductive treatment, removal of these requirements could be construed as removing an existing protection of a child such as to limit the right in s 17(2). However, there are a range of existing opportunities to identify risks to the welfare and interests of a child to be born through assisted reproductive treatment and measures to manage those risks, both under the principal Act and broader child safeguarding schemes. For example, in determining whether to treat a person, a registered assisted reproductive treatment provider must consider the guiding principles of the Act including that the welfare and interests of persons born or to be born as a result of treatment procedures is paramount. An assisted reproductive treatment provider can refuse treatment if the provider or doctor reasonably believes that a child that may be born as a result of a procedure would be at a risk of abuse or neglect. If treatment is refused on this basis, a person could request the Patient Review Panel reviews that decision.
In addition, since the requirement for the checks was first introduced, the regulatory landscape in relation to child safeguarding in Victoria has significantly changed with the introduction of child safe standards, the reportable conduct scheme, child information and family violence information sharing schemes, the expansion of mandatory reporting of child abuse, the working with children check scheme and significant government investment in initiatives addressing family violence.
Finally, as discussed above, maintaining this requirement may limit the privacy and equality rights of persons seeking to use assisted reproductive treatment in circumstances that are not reasonably justified. I note that such requirements for police and child protection order checks are not required by other jurisdictions with comparative human rights obligations.
Accordingly, I am satisfied that any limitation on the right in s 17(2) under the Charter is reasonable and justified.
Conclusion
I consider that the Bill is compatible with the Charter. The Bill promotes the right to privacy and promotes the right to equality. To the extent that some provisions may limit human rights those limitations are reasonable and justified in the circumstances.
Martin Foley MP
Minister for Mental Health
Minister for Equality
Minister for Creative Industries
Second reading
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. I am pleased to table the Assisted Reproductive Treatment Amendment Bill 2020, which removes unacceptable discrimination between people who conceive naturally and those accessing assisted reproductive treatment.
Specifically, this Bill will remove the requirement that women and their partners, if they have one, and parties to a surrogacy arrangement must undergo a police and child protection order check prior to accessing assisted reproductive treatment. In doing so, it will ensure that people are not discriminated against on the basis of needing to access assisted reproductive treatment to create their family.
The amendments represent the next step to action the government’s commitment to review and strengthen Victoria’s assisted reproductive treatment laws.
Implementing this Bill addresses significant concern in Victoria about the requirement for the checks that was raised during the review of assisted reproductive treatment commissioned by the Victorian Government in May 2018 and undertaken by Michael Gorton AM (the Gorton review).
It will remove a process that people have found to be unfair, humiliating and distressing at a time when women receiving treatment and their partners are already feeling anxious about their fertility. It will also reduce costs and delays to treatment.
Amendments to the Assisted Reproductive Treatment Act 2008
The Assisted Reproductive Treatment Act 2008 requires a woman and her partner, if she has one, and parties to a surrogacy arrangement, to undergo a police and child protection order check prior to accessing assisted reproductive treatment. Section 14 of the Act creates a presumption against providing treatment to a woman if the woman or her partner has returned a criminal record check that shows charges have been proven for a sexual offence of a specified kind; or a conviction for a violent offence of a specified kind; or where a child protection order check specifies that a child protection order has been made removing a child from the custody or guardianship of the woman or her partner.
Where a presumption against treatment applies, a person may apply to the Patient Review Panel for a review of that presumption. The Panel is an independent statutory tribunal established to consider a number of matters including whether treatment can occur if there is a presumption against treatment. After considering the application and having regard to certain matters, the Panel must decide whether or not a barrier to treatment applies.
During consultations undertaken by the Department of Health and Human Services in August 2019, stakeholders overwhelmingly supported removing the requirement for the checks.
Following commencement of the proposed legislation, any existing presumptions against treatment based on a police or child protection order check, will no longer apply.
There are a number of important safeguards that will remain in place.
In deciding whether to treat any person, including a person that had a presumption against treatment prior to commencement of the proposed legislation or had a previous barrier to treatment, an assisted reproductive treatment provider must still consider the guiding principles in section 5 of the Act including that the welfare and interests of persons born or to be born as a result of treatment procedures are paramount. An assisted reproductive treatment provider will continue to be able to refuse treatment if the provider or doctor reasonably believes that a child that may be born as a result of a procedure would be at risk of abuse or neglect. The Patient Review Panel will still be able to review any decision by a provider to refuse treatment on this basis.
In the last 10 years since the checks were introduced, the regulatory landscape for child safeguarding in Victoria has changed significantly. This includes the introduction of the reportable conduct scheme, child safe standards, child information and family violence information sharing schemes, the expansion of mandatory reporting of child abuse, the working with children check scheme and significant government investment in initiatives addressing family violence.
Commencement
The amendments in the Bill are intended to come into operation by proclamation 28 days after the proposed legislation receives Royal Assent. This will allow sufficient time for assisted reproductive treatment providers to prepare for the changes. It also allows sufficient time for Victoria Police to complete any checks in progress and update its website, and for the Assisted Reproductive Treatment Regulations 2019 to be updated to reflect the changes.
I commend the Bill to the house.
Mr WELLS (Rowville) (10:08): I move:
That the debate be now adjourned.
Motion agreed to and debate adjourned.
Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday, 5 March.