Thursday, 15 August 2019

 Ms CROZIER (Southern Metropolitan) (16:02): I am very pleased to be able to rise this afternoon to speak to the Assisted Reproductive Treatment Amendment (Consent) Bill 2019. In doing so I want to say that this bill, as set out in the purposes clause of the bill, is to amend the Assisted Reproductive Treatment Act 2008 to ensure that a married woman is not required to obtain the consent of her spouse to undergo a treatment procedure using donor sperm in circumstances where the woman is separated from her spouse and to amend the Status of Children Act 1974 so that presumptions as to parentage of children operate consistently with the amendments made to the Assisted Reproductive Treatment Act 2008 and to clarify requirements for counsellors for the purposes of surrogacy arrangements commissioned without the assistance of a registered assisted reproductive treatment provider.

This bill on the face of it is of course very sensible. Members of the coalition are very supportive of women in what they choose to do with their reproductive rights, and of course I for one am very supportive of that. In saying so I just say at the outset that the Liberal-Nationals will not be opposing the bill, but we do have and I do have a number of concerns that I want to go through in relation to this bill which have been brought to my attention after many discussions with service providers.

But to go back to the intent of this bill—and, as I said, we are very supportive of the intent of the bill—the history around this, and I will go to the Gorton report in a moment, is that the government has said that the bill largely originated from the outcome of the Federal Court of Australia case EHT18 v. Melbourne IVF in 2018 whereby the Federal Court ruled in favour of allowing the woman to undergo IVF to become pregnant using her own eggs and donor sperm. As it stands currently, a woman is unable to do that without obtaining consent from her husband or separated spouse. She needs to get the consent, and in many instances of course there are delays in court proceedings by the time that the full proceedings of separation and divorce are concluded, and for many women the opportunity for them to be able to undertake this very sensitive and in many instances delicate procedure is reliant on time.

As I said, the intent of this bill I absolutely agree with wholeheartedly, but as I have alluded to, there have been a number of concerns that have been raised through the course of what I have done in my consultation process, and I would just like to put on record my thanks to all those people who have assisted me in understanding their concerns specifically around many issues with what the government is proposing with this bill.

If I could just go back to a little bit of history. As I said, the bill largely originated out of a Federal Court decision, a very important decision, but it also is the result of ramifications from the report from an independent review into assisted reproductive treatment which was undertaken by Mr Michael Gorton, AM, and a panel of others in the review team: Dr Jeff Rich, Dr Genevieve Cowie, Rebekah McDonald, Alison Morris and Sophie Vasenszky. I think they have done an extraordinary job in relation to reviewing many issues around assisted reproductive treatments, and I would like to place on record my thanks for the work that they did as well.

As the report states and as I think we would all agree in the house, there are a lot of women, a lot of families and a lot of people that actually undertake this very significant treatment to assist in their ability to have a child. Of course the purpose of the Assisted Reproductive Treatment Act is really to assist in the welfare and interests of persons that are born as a result of treatment and to ensure that their best interests are always maintained. With this bill we have seen that in actual fact, as has been highlighted by various stakeholders, they are concerned about some of the unintended consequences. The review that was undertaken by Michael Gorton absolutely highlights some of the risks, and I have read the interim report.

I want to just go through some time lines in relation to how this came about and in relation to how this bill is affected by two recommendations from the interim report—recommendations 4 and 17. In relation to the time lines, it was announced by the former health minister in April of last year that she would commission a review to be undertaken. The purpose of that was to look at assisted reproductive technology aspects that are in the state of Victoria. A lot has happened since 30-odd years ago when the first Victorian child was born through IVF—technological advancements but also different aspects around risks and of course improved technology for improved outcomes. It is really important that we continue to review this because of course we are talking about people’s lives. As I said, on the face of it the intent of the bill is a very simple undertaking that I think most people would agree with—well, I would hope that most people in the chamber would agree with it—but it is the other elements that have been highlighted by the Gorton review.

In October last year the interim report of the Gorton review was released. In May of this year it is my understanding that the government received the final report, and just a few weeks ago, in early July, the final report was made public. But what I have been concerned about has been various issues around what has been highlighted in the report. The final report of the Gorton review talks about the risks that have been identified in the treatment process—that is, what surrounds assisted reproductive treatments for clinicians and of course for patients and family members. Obviously they have gone into a huge amount of detail, called for public submissions, got advice from specialists within the field—clinicians, those that are working both in the private and public sector—and put all that information together in this report.

Some of those identified issues that the report did make mention of include improving the quality, safety and experience of assisted reproductive technology; counselling; promotion of inclusive practice; affordability; accessibility; a shortage of donated gametes in Victoria; the causing of delays for treatment or in treatment; removing the barriers to access; surrogacy, which is a very complex area; the emerging issues around technology and how that intersects with assisted reproductive technology; and ownership and consent issues around gametes and around the treatment itself. There was much more detail in the final report and I am just skipping over a lot of those issues, but I am trying to give the house an understanding of the extent of the report and the complexity around those various issues.

If I go back to the time frames, what has been made very clear to me is that it has been a quite shambolic process in relation to speaking with the affected stakeholders, the impacts on them and the concerns they have about this bill by the government. I have just spoken about the release of the report and the time lines. The bill was introduced in the lower house and debated back in June, but the final report was released after that. At the time that it was introduced in the lower house, a whole range of stakeholders had not even been consulted. They had no input into this legislation. I find that extraordinary because these private providers are doing a huge amount of work in this area. They take it very seriously. They are doing something in the vicinity of 30 000 cycles for Victorian patients, so we are not talking about small numbers here. We are talking of tens of thousands of cycles. They have every right to have an understanding, and I think it is incredibly disappointing that the government failed to consult with them on the aspects of and their concerns about the bill.

Now, the stakeholders in the private areas who I have had numerous discussions with—and I want to again acknowledge the work that they have done—say openly, ‘We support the intent of this bill’. However, there are other aspects—and certainly that is highlighted in the interim report of the Gorton review—about how this issue should be handled, and I will come back to that in a moment. For instance, the Fertility Society of Australia IVF directors group wrote to the minister and asked for an urgent briefing in relation to their concerns many, many weeks ago. I am absolutely incredulous that they were finally given a hearing last Wednesday—last week—by the department. They said that they had a very good discussion with the department where they were able to put forward their concerns on these issues around the very real issue of separation and what that means, and the legalities—the legal issues—for the protection of all parties, not just for the clinicians but also for those women and the patients that they are treating.

Now, I think it is extraordinary that the government went to a major group and consulted with them only last week and provided information to them to allay their concerns. I want to say that I have had a number of conversations with the minister around this, who has assured me that their concerns will be addressed. Even the minister’s own staff have given assurance to stakeholders to say that there will be amendments to this bill so that those concerns can be addressed more fully.

As I mentioned, the Gorton review has made mention of how this is a complex area and needs a proper review; it should not be rushed at all. But we have got this bill before us that has caused a huge amount of consternation amongst a number of stakeholders, especially those in the private sector, who feel that they were not listened to—they were not consulted—and it took weeks and weeks and weeks for the government to act. I am hoping that the government, in good faith, will be able to provide that assurance. I say that because the Scrutiny of Acts and Regulations Committee (SARC) report, which also highlighted some very real concerns around discrimination, around definitions and around various aspects that were also raised by the stakeholders, was only responded to by the minister last Friday. The minister has said, ‘I have responded to all the concerns in the SARC report’, but that was only provided last Friday. So the point I am making is that we have got legislation that is rushed into the lower house. No consultation with a major stakeholder group has been undertaken. Answers are going back and forth after many conversations that I have had in relation to understanding the concerns and getting the assurances from the government to make sure that these issues—these unintended consequences that could very possibly happen—are resolved. In reality the clinicians and the providers that are providing the treatment do say, ‘This is what happens in practice and therefore we need to have the proper protection’.

In her response to the SARC report the minister makes a number of comments in relation to some of the concerns that SARC highlighted, and she has provided that explanation in her written response of last week. The response sets out what SARC identified as the complexity of what is actually in this bill, as others have done, yet it is a very simple statement that came from the government to say, ‘We’re fixing this’. In fact their media release of 4 June says:

The Andrews Labor Government is making important law changes that will make it easier for women to access IVF treatment.

The minister herself in that statement said:

These amendments are an important step towards ensuring Victoria’s assisted reproductive treatment laws are fair, up to date and reflect the expectations of our modern community.

I understand where the minister is going in relation to that, but again it needs to reflect, as she says, a modern community, where we have got clinicians and where we have got people who, in times of emotion and stress and other things, can actually provide misinformation to clinics. In Gorton’s final review he makes comments around the implementation process. He says:

In total, the Review has proposed 80 recommendations in its Interim and Final Report. The Review considers that this set of reforms may be best implemented over a number of years. They will require an overhaul of Victoria’s ART legislation, and for the government to consider the best approach to that legislative change.

Gorton was saying, ‘Don’t rush this and make any mistakes. Understand that it is complex and that it is interactive with the principal act, which has certain requirements’. Again, as the treatments and as things have evolved throughout the past few years, we have now got a far more complex environment that we are working in.

A number of areas of concern were highlighted by the Monash IVF Group around the legislation. I want to just read into Hansard the concerns that they have about various aspects of the bill, because I think it is important that the government understand fully their concerns and what needs to be done. One of the areas they spoke to me about was around the discriminatory aspects of the bill. They feel that the bill does not cover all scenarios. I quote:

These explain the intent of the change as “a married woman is not required to obtain the consent of her spouse to access a treatment procedure using donor sperm”, but this explanation should not be gendered and gives rise to the following circumstances that we do not believe are intentional:

1. This does not allow for a male, separated from his spouse (irrespective of gender) to commission a surrogacy arrangement …

So when we are talking about same-sex couples who are going into these surrogacy arrangements, the Monash IVF Group have particular concern around the discriminatory nature, and that needs to be addressed if this bill is going to be amended in the future, I suggest. The group continued:

2. This does not allow for the use of donated embryos;

3. Could be interpreted as prohibiting the person from using donated eggs;

4. It is unclear if this would allow a woman separated from her spouse (irrespective of gender) to commission a surrogacy arrangement.

Around the definitions of ‘partner’ and ‘separation’ there is a very clear issue that many clinicians have in terms of how people are perceived. Separation comes in so many forms, and to define that is very difficult, because it will have different meanings for different people. We know that there are different living arrangements for so many people in relation to how they live in their domestic lives. Some people are separated and live in the same house and share the parenting of their children. Others are in relationships but live in different homes. I mean, there are so many different forms of how people live, and that is why it is very confusing around separation.

They go on to talk about the definitions, as I said, around partner and separation. They point out that the bill itself implies a number of things, including the following concerns:

1.   Implies that a woman separated from her husband could use embryos created with his sperm and while they were together, without his consent. Division 3, section 16(1) and (2), refers only to donated gametes requiring both gamete sources to consent … the male was not a donor at the time of embryo creation.

2.   Implies that a woman separated from her wife could use embryos created with the wife’s eggs (under an egg sharing agreement) and while they were together, without the wife’s consent.

3.   Allows a woman separated from their partner (irrespective of gender) to use embryos created with donor eggs and/or sperm or donated embryos while they were together, without the spouse’s consent. These embryos are currently considered ‘jointly owned’ by the spouses.

4.   Allows a person separated from their partner (irrespective of gender) to commission a surrogacy arrangement using embryos created with the estranged spouse’s gametes, without their consent.

5.   Allows a person separated from their partner, irrespective of gender, to commission a surrogacy arrangement using embryos created with donated eggs and/or sperm or donated embryos and while they were together, without their consent.

6.   Prohibits couples who have separated but not divorced and wish to co-parent from doing so as they no longer meet either (a) or (b). In this case, the male is not considered a ‘donor’ because the intent is for him to be named on the birth certificate and have equal right.

Now, I have read that in because that is essentially a lot of concerns. But the definition of separation or what evidence there is of separation when people do come to the clinics is really what many of the clinicians are concerned about, because a variety of scenarios can arise in relation to how people do approach clinicians. They are not always accurate in their assessment of their status. It could be that a woman who has got a very violent partner who she is married to does not want to have his child. So they are technically together, but she says to the clinic that she is separated and therefore wants to undertake the donor treatment—and in good faith that is done. However, as time goes by with that husband who she is actually not separated from, who is on the birth certificate, there are various elements around parenting and legal obligations. This is an example of some of the scenarios, and they are obviously complex.

It is a concern of the clinics that there is no evidence required that a woman has to provide that speaks of that separated status. That of course is what is required to provide certainty for women to be enabled to access the treatment so that they are not denied the treatment but also to provide certainty for those who are providing the clinical treatments. I think that is a very important element, because both patients and clinicians—the doctors—need to be able to provide certainty of an outcome and have no ambiguity or doubt about what they are doing, no threats to what they are doing and no prospect of having litigation in years to come.

Of course we have seen the enormous cost that that litigation brings. We have seen the recent case that went to the High Court, the Masson v. Parsons case, which I am led to believe cost in excess of $1.5 million. Now, that was a case where a friend who had donated the sperm had been part of bringing up the child so in the eyes of the law was seen as very much a parent. The woman and her wife were unable to go back to New Zealand to bring up that child. The court did agree that the male who donated the sperm was indeed very much part of that parenting role. Now, that is a different aspect, but my point is that that was very expensive litigation and that nobody wants to be putting these people under any more stress in relation to the costs of IVF or by challenging it or of course through the heartache that that brings to the families and most importantly to children.

In relation to these areas I am led to believe that the minister’s office have provided assurance to the stakeholders and have actually said that they would amend this legislation, as I mentioned before, to provide certainty around that area of concern—around the status and around their obligations. It is up to this Parliament to provide that certainty—the legislation, the guidelines and the framework for that to occur. It is not up to a court of law to be determining this every time someone wants to challenge it, and that is what I think is very important and needs to be made very clear.

There is one other element I want to raise briefly—because I see my time is fast escaping—and that is around the working with children checks that were introduced into the Assisted Reproductive Treatment Act 2008 by former Attorney-General Rob Hulls. I know that Ms Patten has a huge concern about this and that she has been speaking to the government about this. Again, it was out of the scope of the Gorton review, but it was one of the major issues that came through that was highlighted in the report—and I totally agree. At the time of that debate in this place Mr Davis made a number of comments in relation to his concerns about the very unnecessary checks that had been put in place. He said:

I want to put on record in strong terms my concerns about the Attorney-General’s decision to impose a criminal records check or a child protection check on certain procedures …

It is concerning to me to see that medical and health procedures have been linked in this way with checks on criminality or on other matters. Medical procedures, as a matter of general principle, should be available to people in the community and should not be subject to checks on a person’s background as such.

He also said:

My concern as expressed in the debate—about the linking of police checks with health procedures as a principle, in the first instance, and the specific impacts that will have on the steps that women seeking assistance will face—is a point I hope that the Legislation Committee, if this motion is carried, will examine.

It was 11 years ago that he made those comments. We should have dealt with this a long time ago, in my personal view, because it is putting unnecessary stress on people that are seeking this very important treatment.

I want to conclude my remarks to this debate by saying that it was a shambolic process undertaken by the government. There were the time lines, as I have highlighted, in relation to the release of the report, and the consultation process—or non-consultation process—that was undertaken with a very important part of the ART sector was not done properly. It has been done in the last few days. Letters were written last night and have not even been received today.

Again I say that I am very disappointed that despite the fact that everybody understands the intent of the bill, in actual fact a proper process for such an important piece of legislation has not been undertaken. I hope with the remaining recommendations of the Gorton review that there is a far more considered process to what is very important legislation with multiple complexities around it. I have consent forms here that highlight the huge number of requirements that a patient and their family have to undertake that are designed to protect them but also to protect clinicians. At the moment clinicians do not feel that they have the protection that we in this place should be providing. I would like the minister—and she has given me her undertaking and I thank her for that—to provide assurances to these clinicians that they will get that support and that protection.

I want to raise some questions in committee, so I will have to leave it there, but again I say that it is up to us to provide to the patients, the doctors and those that are providing this very important treatment certainty as to outcomes and to not rush through such important legislation. I hope as we go forward with the remaining recommendations of the Gorton review that that is undertaken.

 Ms TERPSTRA (Eastern Metropolitan) (16:32): I rise to make a contribution today in regard to the Assisted Reproductive Treatment Amendment (Consent) Bill 2019. Last year, on 13 November 2018, the Premier announced that a re-elected Andrews Labor government would abolish an outdated rule that allows men to control the reproductive rights of women, amending the Assisted Reproductive Treatment Act 2008 to remove the requirement that women need the approval of their former partner to access IVF using their own eggs and donor sperm. The commitment was made following the release of the interim report of the review of assisted reproductive treatment called Helping Victorians Create Families with Assisted Reproductive Treatment undertaken by independent reviewer, Mr Michael Gorton, AM—otherwise known as the Gorton review. We heard Ms Crozier talk about that, and I will talk about that in a bit more detail in a moment.

Having to get permission from somebody who is not in your life and who is not part of any prospective family you wish to create simply does not make any sense. This bill gives effect to that key election commitment, and in doing so implements a recommendation of that interim report. Importantly it also follows a Federal Court ruling from September 2018, which found that the requirement to seek consent in the circumstances of the particular case where a woman was separated from her husband, but not yet divorced, discriminated against the woman because of her marital status. It was considered discriminatory because this requirement to seek consent would not apply to a woman in a de facto relationship who separated from her partner.

So what do the changes accomplish? The bill amends the definition of ‘partner’ in the Assisted Reproductive Treatment Act to ensure that a married woman is not required to obtain the consent of her spouse to access assisted reproductive treatment if she is separated from her spouse. This amendment will apply equally to women in same-sex and heterosexual marriages. The bill also makes consequential amendments to the Status of Children Act 1974 to ensure that where a married woman is separated from her partner and has a child with the assistance of assisted reproductive treatment using donor sperm the presumptions about who is the parent are the same as those that apply to women with no partner. This means that the woman’s estranged spouse is not presumed to be a parent of the child. The bill further amends the Status of Children Act to replace a redundant reference in the provision regarding counselling requirements for the purposes of substitute parentage orders granted by a court for traditional surrogacy arrangements—that is, those commissioned without the assistance of a registered assisted reproductive treatment provider. The amendments to the definition of ‘partner’ in the Assisted Reproductive Treatment Act and consequential amendments to the Status of Children Act will commence 28 days after the bill receives royal assent. All other amendments will commence the day after the bill receives royal assent.

The Victorian Assisted Reproductive Treatment Authority, otherwise known as VARTA, the regulator of assisted reproductive treatment, will work with treatment clinics to ensure a smooth transition to the new arrangements when they come into effect. The authority will work with clinics to ensure they are aware of the changes and help them change consent forms to reflect the new laws. The Andrews Labor government is making these important law changes to make it easier for women to access IVF treatment. This is a genuine issue that our government has acted swiftly on to address, and I will talk about why we acted so swiftly in a moment.

Anecdotally, clinics have reported that they have seen several women who have been unable to access assisted reproductive technology because of the current wording of the act. When it comes to fertility treatment, timing matters.    We know that a year can make a difference to the quality of eggs for women in their late 30s or early 40s, and that this can impact on their chance of success in conceiving. We also know that divorce proceedings can take time, and some women do not want to lose that precious time when they have to undergo treatment. As you have probably heard people say, the clock does tick. The requirement for a woman to seek the consent of her former spouse is outdated and has no place in our society today, especially when the same requirement would not apply to a woman in a de facto relationship. Our government committed to getting rid of this requirement, and that is what we are doing, because the choices that a woman makes about her body should not be determined by a former spouse. Our amendments are an important first step towards ensuring Victoria’s assisted reproductive treatment laws are fair, up to date and reflect the expectations of our modern community.

The Andrews Labor government is committed to ensuring more Victorians can start a family and discover the joys of parenthood through IVF. In the past year alone more than 13 000 women accessed assisted reproductive treatment services in Victoria. Whether treatment is successful or not, IVF can be an isolating, emotional and challenging journey and an incredibly difficult subject to talk about. It is deeply personal for many women. Anecdotally we hear that two-thirds of women who undergo IVF treatment are unsuccessful, and there are others who have suffered at the hands of unscrupulous clinics that have misled or misinformed patients, causing financial, physical and emotional harm to women.

This is why, last year, we commissioned a landmark independent review of assisted reproductive services in Victoria. The review’s interim report, handed down in November, highlights issues of affordability and access to IVF, leaving the service out of reach for many Victorians. This is why we made a $32 million commitment to public IVF services, bulk-billed and subsidised for low-income Victorians. We will also ensure that this includes a partnership with regional health services to improve affordability and accessibility for rural and regional Victorians. This year’s budget includes $2 million for work to begin on developing a business case for this model. As part of the review some brave women and IVF practitioners came forward with troubling cases of potential breaches, clinical errors, inadequate communication with patients and unethical practices.

The interim report highlighted a number of examples of concerning instances of clinics and individual fertility specialists publishing information that was misleading and deceptive, including about the chances of success and the costs associated with treatment. These practices are unacceptable, and we need to crack down on those providers who do the wrong thing. We want all Victorians seeking assisted reproductive treatment to do so in a safe and supportive environment with accurate information so that they are able to make informed choices about treatment options.

To save families the heartache of false hope the government has also asked the health complaints commissioner to investigate the dodgy, dangerous and unethical practices of some IVF providers, with a report due by the end of this year. Our objective is to make sure that people are not exploited and that we have got arrangements that are fair with good checks and balances in place. Assisted reproductive treatment is a vital health service that has helped countless Victorians create their families and allows more options for women when they choose to do so. It is vital that Victorians have access to understandable and accurate information before they embark on their journey to create a family so they know what is ahead, especially given that that journey may be a lengthy and costly one.

I might just circle back and talk a little bit more about the Gorton review, which I touched on earlier. As a precursor to these legislative changes, in April 2018 the Andrews Labor government commissioned a landmark independent review of assisted reproductive treatment in Victoria, and that review, as I have mentioned previously, was conducted by Michael Gorton, AM. The final report was released in July 2019. The amendments in the bill deliver on two of the recommendations from the Gorton interim report, and there were other reasons for that, which I will get to in a moment. But before I do, the first recommendation was that the Assisted Reproductive Treatment Act be amended to remove any discrimination against married women who wish to access assisted reproductive treatment following separation, and the second recommendation was that the Status of Children Act be amended to remove the redundant reference in the current provision setting out who can provide required counselling and include a new provision for parties to a surrogacy arrangement to receive counselling from a counsellor who provides counselling on behalf of a registered assisted reproductive treatment provider or an independent counsellor who meets specified qualification criteria and has relevant experience and skills.

The question has been raised as to why the government has pushed ahead with legislative change about these requirements, and in particular consent requirements for women who are separated from their husbands. On the contrary, the government did not want to wait for the final report of the review to address this important issue. It moved to abolish an outdated rule that allows men to control the reproductive rights of women by introducing the Assisted Reproductive Treatment Amendment (Consent) Bill 2019. This key election commitment will ensure that a married woman who is separated but not divorced can access assisted reproductive treatment using donor sperm without the consent of her spouse. It was also important to act quickly on this issue as the Federal Court ruled in September last year that the requirement to seek consent in the circumstances of the specific case discriminated against the woman on the basis of her marital status.

The Gorton review also went on to make a further 80 wideranging and complex recommendations, and the government is considering the recommendations in detail. The government will also move quickly to make other important changes in response to the recommendations of the review, while the detailed analysis of the more complex issues is also underway. The government recently received the final report of the review, which included a number of recommendations for legislative amendments, and I have touched on some of those already, so the notion that moving swiftly is a hasty decision of the government just does not bear out when you look at the urgency.

Ms Crozier interjected.

Ms TERPSTRA: Well, the Federal Court has ruled that the laws discriminated against married women, and so the consideration of these laws has meant that the Andrews government has acted swiftly to remove discriminatory laws that prejudice married woman. That is something that we have acted quickly upon. It is not ill-conceived and it is well thought out.

Having said that, I just might correct the record in regard to an earlier contribution from Ms Crozier in regard to consultation. On the contrary, it was during the development of the bill that the government consulted the Victorian Assisted Reproductive Treatment Authority and the County Court. The authority has indicated support for the amendments to the Assisted Reproductive Treatment Act and the Status of Children Act. The County Court’s feedback has been taken into account in the drafting of the amendments to the counselling provisions in the Status of Children Act. In addition, the interim report of the Gorton review was informed by extensive public consultation, including a consultation paper, 40 written submissions, 191 survey responses and approximately 40 meetings involving more than 120 stakeholders. Clinics were also consulted during the development of the bill.

The policy was announced by the Premier as a key election commitment in November 2018 and, as I mentioned earlier, aligns with previous recommendations from the interim report. The Victorian Assisted Reproductive Treatment Authority consulted a representative group of clinics in relation to the time clinics would require to implement the changes, including updating their consent forms. Two issues were raised by the Monash IVF clinic and the IVF directors group. They further bear out the level of consultation the government undertook in regard to developing this bill and the legislative changes necessary.

The purposes section of the bill explains all the consequences of the amended definition of ‘partner’. So the purposes section sets out the main purpose of the bill. If the bill is passed, this section will help to interpret the meaning of the act. It is not intended to encompass every aspect of the bill. Additionally, the gendered language in the purposes section of the bill helps in the removal of discriminatory practices, so the amended definition of ‘partner’ in the bill is no longer discriminatory. The amended definition will apply equally to women in heterosexual and same-sex marriages. The amendment addresses an aspect of the existing act that the Federal Court found to be discriminatory. The Federal Court found that the act treats married but separated women differently from women in de facto relationships. The current definition of ‘partner’ includes a person’s spouse. The amendment will clarify that a partner does not include a spouse from whom a person is separated. However, the consequence of this amendment, which is outlined in the purposes section of the bill, is that the existing consent required in section 10 of the act, which relates to a woman undergoing a treatment procedure, will mean that a woman will not require the consent of her spouse to access assisted reproductive treatment where the woman has separated from her spouse. Additionally, the amendments in the bill do not affect a person’s ability to enter into a surrogacy arrangement.

I might leave my contribution there in the sense that it has addressed some of the issues that Ms Crozier raised in her submission. The changes that the government is seeking to implement address an election commitment that was made by the Andrews Labor government to women who were seeking assisted reproductive technology. I commend this bill to the house.

 Ms PATTEN (Northern Metropolitan) (16:47): I am pleased to rise to speak to the Assisted Reproductive Treatment Amendment (Consent) Bill 2019. I must say I did not think it was something I was really planning to speak on or to be involved with. Oddly enough my interest in this bill was drawn out of the spent convictions inquiry that is being undertaken by the Legal and Social Issues Committee, and I will get onto that in a moment.

This bill does meet recommendation 4 of the Gorton review, which recognises that married women are discriminated against and married women within the Assisted Reproductive Treatment Act 2008 are treated differently to single women and women in de facto relationships or women leaving de facto relationships. Specifically, women separating from marriage are treated differently, and this bill goes to rectifying that. I think that is commendable. I think it is a very outdated provision; it has that notion that the man still has control over the woman’s body. I do not think there is anyone here in this chamber who would disagree with this. I do understand that in some circumstances this refusal of consent has been around family violence and has been around male domination, which have been some of the reasons why these women have separated and have left their marriage.

And as previous speakers have mentioned, this was highlighted in the Federal Court decision in EHT18 v. Melbourne IVF last year. That case also found that this provision was inconsistent with the commonwealth Sex Discrimination Act 1984, but they only ruled on that specific case and did not broaden their ruling to say that all married women in a situation of separation could rely on that decision. In this context I am pleased that the government is moving swiftly on this matter. Anecdotally I am aware of six or seven women who are being negatively affected by the provision right now, so I am pleased that we can act quickly in this Parliament today to assist them.

Looking at some of the issues that were raised by the sector in a letter that was sent to us last month, certainly in my eyes the response from the minister’s office to the questions that the Scrutiny of Acts and Regulations Committee raised goes a long way to answering the concerns of the sector. I think it is also important to note that this is a recommendation from the Gorton review, which actually consulted with the sector very broadly. So I do not think this should come as any surprise.

I suspect there is some disappointment in the sector that they are not seeing all of the Gorton review implemented as swiftly as they would like, because the Gorton review found that this legislation is in desperate need of renovation. It is not really, as they would say, particularly fit for purpose. But I have spoken to the minister about this and she assures me that there is a tranche of reforms that will be coming through shortly and quickly to really meet a lot of the issues that were raised in the Gorton review.

But one issue, and the issue that certainly piqued my interest in this from a personal and a professional perspective, was the use of police checks and working with children checks as part of the application process for accessing IVF. We know that it is a very stressful time for families undertaking IVF, and this adds just another absolute level of stress. While the Gorton review said that this was outside the scope of their review, they made note, and I would just like to quickly quote a section from the review looking at ‘Presumptions against treatment’:

In terms of presumptions against treatment, many responses to the Review’s consultations suggested that Victoria’s system of conducting police and child protection checks for all people undergoing ART and establishing a presumption against treatment could be reconsidered. As reported in the Review’s Interim Report, this requirement received more comment during the public consultations and survey conducted in 2018 than any other issue with the exception of cost.

So this was the biggest concern. During the Gorton review those police checks were the highest concern of any other issue, probably equal to cost. The report goes on to say:

In later consultations with stakeholders, including clinics, patients and service users, this issue continued to be raised. The Review has heard many reports of the cost, burden, delay and distress caused by this requirement. The Review has not heard any evidence of the effectiveness of this system in preventing the abuse of children. The system could be dismantled without creating significant risk to children, or revised to better target the risks of family violence and the risks to children.

And this would be welcomed. I thought that this was a perfect vehicle to meet those concerns and to finally put to rest this burdensome and unnecessary regulatory hurdle that families and women are having to undertake. I think this is absolutely urgent.

We know that allowing separated women to access assisted reproductive treatment now is also urgent. We know it is always a time game—time is of the essence in the circumstances—so any barriers and anything that causes delays should be, as much as we possibly can, reviewed. I was talking to someone who was talking about women with cancer having to urgently freeze their eggs before they could undertake treatment. As they now have to wait for a police check and a working with children check before they can do this, this adds an extraordinary amount of stress. So I have formulated an amendment which would remove this discriminatory requirement under the act, because I think it is an important one. I am wondering if my amendments could be circulated quickly now.

Fiona Patten’s Reason Party amendments circulated by Ms PATTEN pursuant to standing orders.

Ms PATTEN: While that is being distributed—obviously I have clarified what that main amendment is—today the minister presented me with documentation that they have now put out a review process to consider this. I guess I am an impatient person, and I suspect most of the people on IVF are impatient people too. Well, not impatient; they have probably been working very patiently towards conceiving, but when they are undertaking IVF, every second, every minute, every hour can matter, so I do think that this is an urgent reform. I am encouraged that the minister has sent out a background paper with an option for removing this requirement.

I have to say, in going back and looking at the Gorton review, that I think it is very clear what the sector has to say about this, and while it might have been outside the scope of the review it was the most common issue that was raised in that review, so I will accept that the minister is doing this and accept her proposal, which is in response to the feedback that was received in the Gorton review, that the government is now considering removing this requirement for police and child protection checks as a precondition to accessing assisted reproductive treatment. I accept that, and I look forward to hearing the minister make some assurances on the floor about how that process will happen because, as I mentioned, very often we know women do access IVF later in life, when they have realised that other options have failed them or have not come to pass, so we know that all burdens and all things that delay the process delay that person undertaking treatment and just make it more difficult.

I look forward to seeing further amendments. I look forward to seeing this act being renovated and this program being renovated wholeheartedly in line with, I think, some of the very sensible suggestions from the Gorton review. Apart from that, I am happy to lend my support to the bill.

 Dr CUMMING (Western Metropolitan) (16:59): Speaking briefly to the Assisted Reproductive Treatment Amendment (Consent) Bill 2019, many here know that I am a doctor of Chinese medicine. For many years I have actually treated women with fertility problems as well as having the pleasure of helping women while they are using IVF to actually get their wish of having a baby.

Members interjecting.

Dr CUMMING: I love listening to the giggles in the back. It is always fun to listen to them. There is plenty of IVF research around Chinese medicine and using Chinese medicine as part of IVF. There are actually very good results with clinical trials using point-specific protocols in acupuncture at the pre-embryonic or post-embryonic transfer stage. Using acupuncture and Chinese herbs improves pregnancy rates and has been proven with research. A lot of women and men experiencing infertility problems have a high level of anxiety, and I hope this bill goes some way towards helping those people calm their minds, because obviously a calm mind and reducing people’s anxiety when they are going through IVF increases success rates. I just really briefly want to say that we as a Parliament do not need to cause any more undue stress on people who are going through their fertility problems. If in any way possible as parliamentarians we can actually help people who are going through IVF to make their chances of having a baby more successful, we should. I am supportive of this amendment.

I am looking forward to future ways that we can actually help people who are going through IVF as a Parliament, and I also look forward to the Minister for Health and this current government’s proposals to help people and families in all their different ways, shapes and forms by helping in some way with the cost, which can be a problem when people are going through the process of IVF. As I was saying, being a doctor of Chinese medicine, not everyone can afford to look at using natural therapies and acupuncture even though the Monash IVF clinic actually recommends that women use acupuncture before, during and after transfer of their embryos because there is an increased success rate.

As a Parliament we should do everything that we can to help, and hopefully—maybe in the future as a progressive Parliament and a progressive society—we will go down the path of, say, Norway, Sweden, Denmark or even New Zealand and Germany, where there are thousands of midwives who actually complete acupuncture courses and help people in hospitals while they are going through labour. One day I can only hope that our medical system looks at all of the natural medicines that are out there and has them integrated with our Western medicine and that they help families to achieve their goals of healthy babies.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (17:04): I am very pleased to rise and say a few words in relation to this really important bill. This is a bill that has come about as a result of both a very considered review of ART laws in this state as well as a federal court decision and, following that, an election commitment by our government. In April 2018 the Andrews Labor government commissioned a landmark independent review of assisted reproductive treatment in Victoria, and in November 2018 the interim report by independent reviewer Michael Gorton, AM, was released, with the final report released in July 2019. I take this opportunity to thank Michael Gorton and his team for delivering a very important report to Victorians and to our government in terms of how we can make improvements to ART services and laws in this state.

The amendments in the bill deliver on two of the recommendations from Michael Gorton’s interim report, which as I mentioned was handed down in November last year. The first recommends that the Assisted Reproductive Treatment Act 2008:

… be amended to remove any discrimination against married women who wish to access assisted reproductive treatment following separation.

The second recommends the Status of Children Act 1974 be amended to remove the now redundant reference in the current provision setting out who can provide the required counselling, and it also states:

A new provision should allow for parties to a surrogacy arrangement to receive counselling from a counsellor providing services on behalf of a registered ART provider or an independent counsellor who meets specified qualification criteria and has relevant experience and skills.

As a government we did not think it was appropriate to wait for the final report of the review to address the important issue of consent requirements for women who are separated from their husbands. We moved to abolish an outdated rule that allows men to control the reproductive rights of women, by introducing this bill. This was a key election commitment: to ensure that a married woman who is separated but not divorced can access reproductive treatment using donor sperm without the consent of her spouse.

It is also important to acknowledge that we did want to act quickly on this issue following a Federal Court ruling in September last year that the requirement to seek consent in the circumstances of the specific case discriminated against the woman on the basis of her marital status. I want to acknowledge the courage of Joy, who took this matter forward to the Federal Court and had this success, not just for her benefit but for all future Victorian women who may be in this predicament. For this reason I have always referred to this as Joy’s bill, because it is a tribute to her and the courage that she had to take this matter forward to the court. I think it is important to acknowledge her courage and also to thank her and her legal team at Maurice Blackburn for taking this matter on and highlighting this as an important issue that needed to be addressed.

I also want to acknowledge that whilst we have received this final report now from Michael Gorton, there are 80-odd wideranging and complex recommendations in this report. I did make the comment when I released the final report to the public in July of this year that the government is considering the recommendations in detail, as one would expect, but that it will also move quickly to make other important changes in response to the recommendations of this review whilst this detailed analysis of the more complex issues is underway. So it is very likely that we will be looking at these broader issues at some point again in the future, because it is important that we do whatever we can to support women and families to get access to quality ART services in this state.

There will be a lot of issues that will be canvassed, no doubt in the course of the committee stage, and I am very happy to acknowledge those issues. I just want to make the point that this is a really important reform. We are very mindful of the fact that for people who have had challenges with their fertility and do want to either start or grow their family, it is very important that they can access ART treatment in a timely manner. This is why I am appreciative of the support of the members in the house today to enable us to do exactly that—to get on and address this particular issue that has come to light and make sure that there is no impediment to women being able to access ART services and being able to do so without anachronistic requirements sitting on the statute book as an impediment.

It is really quite discriminatory and inappropriate to have a woman needing to seek the consent of her former spouse. We know that that has no place in our contemporary society. We know that women can leave marriages—or relationships, for that matter—for a range of reasons and that sometimes they include issues around family violence. We have had a lot to say about that issue in this Parliament in recent years, and we know what a scourge that is on our society. I cannot think of absolutely anything worse than a woman who has left a marriage due to family violence then—under the current law—having to seek the consent of her former partner in order to undertake ART treatment with donor sperm. I just think that is absolutely inappropriate and appalling and inherently discriminatory.

We know that divorce proceedings can take time, and women do not want to lose that precious time that they do have to undergo treatment. This is why it is important that we remove these provisions, especially when we consider also that this same requirement would not apply to a woman in a de facto relationship. So we have got women with different relationship statuses being subject to different requirements under this law. We will get rid of this anachronistic requirement, and I acknowledge those people who have had the courage to come forward and advocate on this issue, but particularly Joy. I thank her very much for having the courage to take this issue on. I wish her—I wish every woman, every family for that matter, undertaking ART treatment—every success.

We know how much people’s hopes and aspirations for their lives are centred on issues around starting and having and growing a family. It is so important to so many people, and of course we want to make sure we can act swiftly on this issue but also make sure that we have got an ART sector here that fulfils people’s aspirations to parenthood. We support that sector and support those families and those women by making sure that those aspirations can be fulfilled. This is why we have also made commitments as a government to establish public IVF services in our state. It is something I am tremendously proud of. It is something we are doing work on, and I look forward to having more to say to the house about that in due course. But with those words, I am grateful for the fact that people have been supportive of this bill, and I look forward to addressing the issues that have been raised in more detail during the committee stage.

Motion agreed to.

Read second time.

Ms Patten: I would just like to say that I will withdraw my notice of motion and amendments.

Committed.

Clause 1 (17:16)

Ms CROZIER: Minister, could I just make a couple of comments in relation to some issues that I want to raise with you and also go to Ms Terpstra’s point. She spoke about the fact there is obviously a degree of urgency around this legislation because of the Federal Court ruling, which I alluded to too in relation to why the government proceeded with the legislation. But in the Gorton review, at recommendation 4, which this bill goes to, one of the main points is that it would also be appropriate for government to consult with key stakeholders on the specific legislative approach. I know that you have been speaking to various stakeholders, but I would like to understand who. As Ms Terpstra said, the County Court, I think she mentioned, and the Victorian Assisted Reproductive Treatment Authority (VARTA) were the only two that were consulted in this process. I am wondering if you could please provide me with details of anyone else who was actually consulted in this process.

Ms MIKAKOS: As I explained in my summing up, we had an interim report handed down by Michael Gorton to the government, and it was subsequently publicly released in November. The interim report of the Gorton review was informed by extensive public consultation, including a consultation paper, 40 written submissions, 191 survey responses and approximately 40 meetings involving more than 120 stakeholders. There were a range of stakeholders that were involved as part of those consultation processes. I do not have an extensive list, but I can give you a bit of a sample. They included obviously the regulator, VARTA, the Reproductive Technology Accreditation Committee (RTAC), the Fertility Society of Australia, IVF directors, ART clinics and clinicians, fertility nurses, Access Australia, Rainbow Families, LGBTIQ+ representatives, legal groups, the health complaints commissioner, service users, counsellors, Surrogacy Australia and professional groups such as the AMA. So there was very broad-ranging input into this process as well as, of course, from consumers themselves. That very extensive process led to these interim recommendations that we have been discussing.

It is also worth mentioning that the policy to make this change was announced by the Premier following the release of that interim report. It was very publicly flagged as an election commitment in November last year and therefore should not have taken anybody by surprise for that reason. VARTA as the regulator also consulted a representative group of clinics in relation to the time clinics would require to implement the changes, including updating their consent forms. I understand that those discussions are still ongoing of course as VARTA finalises what the consent forms will look like as part of these changes. Of course I am happy to confirm the information that Ms Terpstra alluded to, which was that there had been consultations with the County Court and VARTA as well, and the consultation and the feedback from the County Court was incorporated into the drafting of those amendments.

Following the passage of this bill—hopefully that happens today—there will be further discussions by VARTA in consulting with clinics on the guidance material that they will be issued as to how these changes will operate. So VARTA as the regulator will continue to work with the sector around the implementation issues of the bill.

Ms CROZIER: Thank you, Minister, and thank you for that clarification in relation to who was consulted. I said during the debate that there was disappointment that the private sector were not consulted through the process even though they had submitted to the Gorton review around the consent area. To go to one of the submissions by Monash IVF, where they had very strong views agreeing with what you are intending to do:

The current wording of these sections results in a discriminatory situation whereby: a woman is prevented from undergoing treatment as a single woman if she is separated from her spouse but not divorced, however, the partner can undergo treatment prior to the divorce if they re-partner.

So it goes to your point about the intent of the bill. But as I said in the debate, with close to 30 000 or over 30 000 cycles, they are not an insignificant partner, and it is disappointing that they were not consulted in this process. What I want to know is: do you have the assurance that that was provided by your staff to the private directors today, this afternoon, after they did not receive the letter that you sent out that was dated yesterday?

Ms Mikakos: We sent it yesterday.

Ms CROZIER: It was dated yesterday, 14 August, but it was not received. It was not received, they have told me. I am taking it on face value. They have looked but no-one has received it.

This is a day before we are passing this bill. My point is that it was in relation to the concerns that they have that your staff have made guarantees to them in relation to the issues around separation and protection from potential litigation that that will be undertaken. Can you provide that assurance?

Ms MIKAKOS: We have got an awful lot that has been put into that preamble that I need to respond to.

Firstly, this is a very straightforward bill that primarily relates to a matter that was covered both in the interim Gorton report, which we have talked about already, and the Federal Court decision. The interpretations that providers may have put on the provisions are ones that we do not agree with. If you look at the 12 pages of response—

Ms Crozier: You have misled me and you’ve misled them.

Ms MIKAKOS: No. Let me finish, Ms Crozier. You are getting ahead of yourself. If you look at the 12 pages of response that I provided to the Scrutiny of Acts and Regulations Committee (SARC) addressing all of their potential concerns about this, and if you look at the letter that Minister Donnellan sent responding to those IVF providers’ concerns, you will see that all those assurances have already been given in the past. And the letter that I sent yesterday—that was in fact emailed yesterday—is a letter summing up what came out of a meeting between my department and the IVF directors group last Wednesday.

In terms of the concerns that have been raised, I am happy to go into those in considerable detail, but the point that I want to make to the member is that issues have been raised by providers that do not relate to this bill. Issues have been raised that relate to other issues around consent, and it is those issues that we have given a commitment to looking at as part of the considered response that the government will undertake in looking at the full gambit of Michael Gorton’s recommendations and his review report.

I am happy to go through in detail the concerns that have been raised and why they are not well founded, because that is where I can put those assurances on the record and give them those assurances. For example, as I understand it there was a concern raised about why there was not a definition of ‘separation’ in the bill. In our conversations you have articulated those concerns to me, and what I can advise you—and I am happy to read it into Hansard—is that Minister Donnellan sent a letter as acting Minister for Health dated 15 July addressed to the IVF directors group where he addressed this issue at some length. I am happy to read that so that is on the record. The view that we take is that the term ‘separation’ is a commonly understood one under family law, and as soon as you try and codify a term like that in legislation you run the risk of inherently narrowing it down, because we know that separation can mean different things. I quote from the letter from Minister Donnellan to the IVF directors group dated, as I said, 15 July 2019:

I note your concern that the Bill does not include a definition of the term ‘separated’, and that this may place a burden on clinics in having to determine whether a person is separated from their spouse. The term ‘separated’ is not defined in the Bill, so has its ordinary meaning. This allows for a person to be considered separated based on the advice they give about their circumstances, rather than on set criteria. The ordinary meaning of ‘separated’ in this case is that the couple have stopped living as a married couple without becoming divorced. That is, that the two people are no longer in a relationship together. This means that the specific circumstances of the couple will determine whether they are separated. For example, a married couple may be separated even if they are both still living in the family home, if they have genuinely stopped living as a couple. Similarly, a married couple who live in separate residences will not be separated if they are genuinely living as a couple.

The point that Minister Donnellan made and that I reiterate here is that the concerns that have been raised—and I acknowledge the concerns that have been raised—are not well-founded ones, because as soon as we put a definition in the bill, that will inadvertently create other potential problems where you limit or try and codify something that is understood also under family law.

Minister Donnellan went on in his letter to say the following:

Consistent with current requirements that relate to de facto couples that have separated, it will be the responsibility of a person seeking assisted reproductive treatment to identify if they have a partner as part of the requirements to provide consent. A person who wishes to access treatment will need to confirm their relationship status on the consent form provided by the assisted reproductive treatment clinic.

I note that section 38 of the Act makes it an offence for a person to knowingly or recklessly give false or misleading information or omit to give material information in an application or consent made under the Act.

He went on to say:

The Victorian Assisted Reproductive Treatment Authority will provide guidance material to the clinics about the changes and to help clinics make any necessary changes to consent forms. I have asked the department to work with the Authority in relation to this guidance material.

So it is very clear. I understand that the concern—or perceived concern, as I understand it—is that IVF providers will need to go off and do some fact finding of their own to satisfy themselves as to whether someone has genuinely separated or not—

Ms Crozier: Why should they? Why should they be doing an investigation—

Ms MIKAKOS: No, Ms Crozier, I am just trying to tell you that they will not need to do that. Can you just settle down a little bit?

The point I am making is that I understand that that is the perception that exists and the concern, and perhaps that is your concern. The point I have just made in quoting this letter that was sent out in the middle of July is that there is an offence provision under the act now—not in this bill, now—that makes it an offence for a person to knowingly or recklessly give false or misleading information or to omit giving material information when they sign an application or give consent under the act. So that is currently a provision. If people want to be patronising and somehow suggest that women are going to lie and provide incorrect information, then that is something I think people need to have a good, hard think about.

At the moment de facto couples who have separated sign these consent forms, and it is all undertaken in the exact manner as will occur following this bill. So that is happening now. De facto couples separate, a woman will sign the consent form indicating that she has no partner and then they are able to access ART treatment. There is no knocking on doors and satisfying themselves independently. The consent form is what is provided. That is what happens now for de facto couples who separate, and that is what will happen in the future. That is what happens for a woman in a de facto relationship who has separated, and that is what will happen for a married woman who separates. It is going to be exactly the same. There are already offence provisions in there. People do these things through a declaration, and that is what is going to happen here. I do think people are getting very anxious about something that is relatively straightforward, because that happens now, and that is what is going to happen under this bill as well. I think it is really important to be very clear about that.

That was the one issue that has been raised around the definition of ‘separation’, and I have responded to that, but there have been other issues raised that relate to consent issues more broadly, and these are complex. There are a range of recommendations in Michael Gorton’s report that go to the issue of consent, and they go to the issues around the use of gametes and embryos following the separation of a couple. That is quite a different scenario to what we are talking about in this bill. In this bill we are talking about a woman who is separated but not divorced who wants to do ART using donor sperm, okay? The issues that have been raised go to a scenario where a couple separate and want to use their own gametes and use embryos that have been created jointly. There are already provisions in the act that relate to those situations. Michael Gorton has made some recommendations that go to these issues, and we will look at these broader issues. That is the assurance that has been provided by my office to the providers. We will look at these broader issues that they have raised, which do not relate to the subject matter of this bill, as part of the broader piece of work that we will be doing in response to Michael Gorton’s report.

I do think, Ms Crozier, you are a bit confused about what directly relates to the bill. This is a very straightforward bill. It relates to married women who are separated but not divorced and what will apply to them. That is what we are addressing. If people want to litigate and make the case for broader changes to the act that relate to a broader range of consent issues and other issues, then that is fine. I am happy to have those conversations with the sector around those broader issues. We will sit down and have those discussions with the sector around those broader issues. We will be doing that as part of the response to Michael Gorton’s report, which, as I said, has a number of recommendations in it beyond the ones that we are dealing with today that go to complex consent issues.

I have set out in a lot of detail these issues around consent, and I am happy to come back and quote from my correspondence and Luke Donnellan’s correspondence to the IVF directors group and my correspondence to SARC. Clearly people have taken a particular view of the provisions. I am very happy to put these things on the record and refer to that correspondence because it clearly resolves these issues and makes the point that for these other scenarios that have been canvassed there are no changes. I am happy to quote from Minister Donnellan’s letter further because it goes to those broader issues.

Ms Crozier interjected.

Ms MIKAKOS: I think we can resolve a lot of these issues, Ms Crozier, by putting this letter on the record because this is what has gone to the providers and I want to reiterate it here tonight.

Ms Crozier interjected.

Ms MIKAKOS: Ms Crozier, I absolutely refute that. I have just made it very clear—

The DEPUTY PRESIDENT: Order! Minister, can we please go through the Chair, and can we just have the answers to the questions rather than the debate across the chamber, please.

Ms MIKAKOS: I am explaining the complexity of the issues, and I have dealt with one issue that has been raised—

Ms Crozier interjected.

Ms MIKAKOS: No, no.

The DEPUTY PRESIDENT: Minister, now you are arguing with me. Can we just please return to the answer to the question.

Ms MIKAKOS: Sure. I am trying to explain to Ms Crozier that there were essentially two issues, thematically, that were dealt with. One related to the term ‘separation’, and I have just explained that at some length. Then I have explained that there have been extraneous issues that do not relate to this bill which have been raised and which have also been addressed in the correspondence. That is why I want to refer to that part of the correspondence because it goes to that particular issue which, as I have explained, does not relate directly to this bill. Minister Donnellan went on to say, under the heading ‘Use of gametes and embryos following separation’:

I note your concerns about the use of a previous partner’s gametes, or embryos that were created by a couple accessing assisted reproductive treatment, who then separate. I am advised that where a woman and her spouse are accessing assisted reproductive treatment and then separate, neither the former partner’s gametes, or an embryo created while they were accessing treatment as a couple, should be used in a new treatment procedure without the renewed consent of both parties.

This is because, under common law, informed consent is required before a medical procedure is undertaken. This would include having to provide consent again if circumstances have changed since consent was last provided. This would currently apply to de facto couples who separate or married couples who divorce while accessing assisted reproductive treatment.

In addition, the 2017 National Health and Medical Research Council’s Ethical guidelines on the use of assisted reproductive technology in clinical practice and research, require that valid consent must be obtained from all relevant parties for each specific procedure or treatment. The guidelines also require clinics to manage disputes between individuals for whom embryos are stored.

So in that part of the letter Minister Donnellan is clearly explaining that in these scenarios, these examples that have been raised and concerns that have been raised, there is no change to these consent provisions and that they have already been addressed. But I did talk about the fact that Michael Gorton in his report has made a raft of recommendations around the complexity of consent issues across a range of scenarios. He talked about separation, he talked about posthumous use of gametes and embryos and he talked about storage periods for personal and donated gametes. He talked about a whole range of issues, and all of those will be considered in due course as well.

The DEPUTY PRESIDENT: Just before we proceed, can I acknowledge a former member in the gallery, Ms Nina Springle. Welcome, Nina.

Ms CROZIER: Minister, you basically called clinicians patronising because at times people misrepresent the truth.

Ms Mikakos: No, I was suggesting that you might be patronising.

Ms CROZIER: You said that just then.

The DEPUTY PRESIDENT: Minister, can we just go back to the questions and answers, please?

Ms CROZIER: Do you believe it is up to the clinics or the clinicians to investigate a woman’s status when she provides that on a consent form?

Ms MIKAKOS: I think we are going to have to introduce the VAR—Mr Ondarchie will understand what that means—because I have got to go back 10 minutes to replay what I just said to you 10 minutes ago.

The DEPUTY PRESIDENT: Can we please just have the answers?

Ms MIKAKOS: I actually said to the chamber 10 minutes ago that IVF providers will not need to satisfy themselves of these matters, because people will provide a declaration in a form, as currently occurs for couples who are in a de facto relationship and separate. They do that now, and that is what is going to occur for married women who separate and are not divorced. They are going to provide a declaration, and that is what will be sufficient. I explained that there is no knocking on the door, there is no investigation, and any suggestion otherwise, that people might be lying—I think that is patronising. That was the point that I was making to you, Ms Crozier. So I think I have addressed this issue already—10 minutes ago.

The DEPUTY PRESIDENT: To both the minister and the member, it is getting very late on a Thursday and everyone is getting tired and a little bit cranky, but I think we can progress this more quickly if we can take the emotion out of the debate, please, or out of the questions and answers.

Ms CROZIER: These are important aspects. I understand your comments, but there have been considerable concerns raised by stakeholders who feel very strongly about this. I am trying to get some clarification from the minister regarding their concerns, because the minister provided an assurance to them—well, the minister’s office did—in relation to their concerns about their protection from litigation. I do not believe the minister has provided an adequate answer. It goes to the point where they have had no consultation and received a letter—well, they have not even received it—that was written by the minister last evening.

Ms Mikakos: It was sent yesterday.

Ms CROZIER: Minister, I believe the clinicians when they say they have searched high and low. I have got it here, the letter, and I am going to refer to it now. They said, ‘We did not receive that until we received it from you’—meaning me. Now, if I could go to the second-last paragraph of your letter:

Regarding concerns the IVF Directors Group raised at the meeting about clinics’ potential for liability in relation to the consent process, the Act provides that if a person has carried out a treatment procedure and consent was withdrawn before the procedure occurred, that person is protected against civil or criminal liability if they did not know and could not reasonably be expected to have known that consent had been withdrawn. This provision extends to clinics.

Could you please provide for me clarification—I think you mentioned section 38—of where the act is that enables that provision that extends to clinics?

Ms MIKAKOS: That is a different matter altogether. I will come to that in a moment. So the letter was sent yesterday by me to the IVF directors group—and it is not my fault if people did not find the email, okay? It was sent yesterday. I will quote from that letter:

Regarding concerns the IVF Directors Group raised at the meeting—

and this is the meeting that I referred to earlier with my department last week—

about clinics’ potential for liability in relation to the consent process, the Act provides that if a person has carried out a treatment procedure and consent was withdrawn before the procedure occurred, that person is protected against civil or criminal liability if they did not know and could not reasonably be expected to have known that consent had been withdrawn. This provision extends to clinics.

So that assurance was already given.

Ms Crozier: Which part of the act is it in is my question.

Ms MIKAKOS: Well, that was already given in relation to the issue of liability. It was given in the meeting, and it was reiterated in writing by me yesterday. I just want to finish. The issue around section 38 that you refer to is the criminal offence provisions, but I will just get some further advice.

I understand it is the Deputy Clerk’s birthday. Happy birthday. I know you want to spend your birthday here with me and all of us! So we are going to get you out as quickly as possible, aren’t we, folks?

Section 117 of the Assisted Reproductive Treatment Act 2008 says:

(1)   This section applies if—

(a) a person has carried out a treatment procedure for which consent was required; and

(b) before the treatment procedure was carried out, the consent was withdrawn under this Act.

It goes on to say:

(2)   No civil or criminal proceeding lies against the person because of the withdrawal of the consent if, at the time the treatment procedure was carried out, the person did not know and could not reasonably be expected to have known that the consent had been withdrawn.

So this has been a longstanding provision in the act. I gave that assurance yesterday, and I am happy to reiterate that today.

Ms CROZIER: Thank you, Minister. I have got section 117, which you have just read. It is my understanding, though, that this was designed to protect clinicians, patients, everybody involved and the clinics but because the consent aspect has been changed this will now no longer cover that. Is that the case or not? That is the understanding of the clinics. It used to protect them, but now that the consent element will be changed it will no longer protect them. That is what I need clarification on.

Ms MIKAKOS: Section 117 of the act will continue to apply; it remains part of the act. I have just also read out the advice that I have provided to the clinics—that reassurance that a person is protected against civil or criminal liability if they did not know or could not reasonably be expected to have known that consent had been withdrawn. So I am able to give that reassurance.

Ms CROZIER: Thank you for providing that reassurance, Minister. If I can just go back to your letter, on the first page at the last paragraph it states:

In my view it remains appropriate not to include a definition of ‘separated’ in the Bill. This allows for a person to be considered as separated based on the advice they provide about their circumstances, rather than based on set criteria or a set time period. Consistent with current requirements relating to de facto couples that separate, it will be the responsibility of a person seeking assisted reproductive treatment to confirm their relationship status. This is because their partner, if they have one, will be required to sign the consent form prior to a treatment procedure occurring.

Now, we have been through this in the last few minutes. We have discussed this, so I understand that the onus is on the person. But my question is: how do you prove that someone is actually separated, or do clinics need to prove that?

Ms MIKAKOS: I think I have already addressed this issue. I have made the point now on a number of occasions that the person undertaking the treatment completes a declaration form. That is sufficient. I do not know how many times I need to say that the IVF clinics do not need to undertake their own inquiries, because the declaration is what is used now and that is what will occur following the passage of this bill.

Ms CROZIER: Thank you, Minister, for providing that assurance to clinics and clinicians who are dealing with patients in sometimes, as has been highlighted, stressful periods. It is a very emotional time and it is a very stressful time, and as others have said they have got huge amounts of paperwork to fill out, which is very complex. So in relation to streamlining, I am sure that clinics and clinicians, more importantly, who are undertaking this work on behalf of their patients, will be very assured that you say that this legislation protects them from any litigation.

I would just like to ask finally, because I know people do not want this to be extended to any degree: in relation to the Gorton review there was reference to the storage of sperm, eggs and gametes. Currently there is a time period associated with storage of 10 years. For children who may be, for instance, 15 or 16 years who have undertaken cancer treatment and who have put their eggs or donor sperm in storage for use later down the track, it is critical to them that those eggs and sperm are not destroyed because of the time period applied under the broader legislation. I believe that is an urgent issue that needs to be addressed—that those people do not have those time frames or that there is a mechanism whereby their eggs and sperm are not destroyed unnecessarily and therefore they are denied the ability to have children. I wonder what the government’s priorities are in relation to that aspect.

Ms MIKAKOS: Well, we are really digressing from the bill now because this does not relate to the subject matter of the bill. But what I can say to the member is that there are in fact, as the member has acknowledged, recommendations from Michael Gorton’s report that go to the issue of storage of personal as well as donated gametes. As I explained earlier, the government is giving appropriate consideration now to these recommendations and will have more to say about that in due course. It is important that the member understands that this needs to be done in a considered fashion. I am giving consideration—

Ms Crozier interjected.

Ms MIKAKOS: Well, Ms Crozier, I will take up that point. In my summing-up I explained that there was a process that led to the recommendations in the interim report, and we have wanted to expedite an election commitment and a response to a Federal Court decision. It is about a very straightforward matter, and the fact that some people seem to have made it sound as if it is far more complicated than it actually is is unfortunate. But the point is that there is consideration being given to all of the recommendations from Michael Gorton’s review. I am giving consideration to the priority recommendations that will come forward as part of that process.

What I can advise the member is that a person can apply to the Patient Review Panel to have the storage period extended. That is currently the case. Ms Crozier, it is a shame that you are too busy muttering to your colleague to listen to my response, which you said was an important issue—

The DEPUTY PRESIDENT: The minister, through the Chair.

Ms MIKAKOS: Currently section 33A of the act enables the Patient Review Panel to approve further storage periods if there are exceptional circumstances. That currently is the case. So in those types of scenarios that you indicated people would be able to do that currently, but we are giving appropriate consideration now to other recommendations that have been made that go to these issues and to other issues.

The DEPUTY PRESIDENT: Are there any other questions on clause 1 of the bill?

Ms MIKAKOS: I might just take this opportunity. I know Ms Patten had some issues that she wanted to raise, and just in her absence I am happy to put some assurances on the record. I know she was keen for me to do that. This really goes to the issues that Ms Patten raised in her contribution earlier around the issue of police and child protection checks. I want to acknowledge that Ms Patten has had a discussion with me about these issues and has expressed her very deep concern at the fact that under the current act patients—consumers—undertaking or wishing to undertake ART need to first undergo a police and child protection order check. I did explain to Ms Patten that there were provisions put into the legislation following a Victorian Law Reform Commission recommendation, but I do think it is very timely that we have a good look at this issue.

When Michael Gorton considered the broad issue of ART this particular issue was outside his terms of reference; however, it was the second-most commented upon issue that he received in his submissions. Clearly people who have undertaken ART themselves have felt discriminated by virtue of these provisions. When I released Michael Gorton’s final report I did talk on that day about how in essence we are viewing one class of parents with some inherent suspicion, regarding them having to go through some additional hurdles and hoops that we do not require of people who are blessed and able to conceive naturally. So it is appropriate that we look at these issues more deeply.

This is why I am happy to put on record to the house and to reassure Ms Patten that I have released a background paper to stakeholders, including IVF providers, the commissioner for children and young people, Victoria Police and other interested parties around this specific issue, and I am looking forward to receiving the feedback from this consultation process soon. My department will be undertaking some face-to-face consultations later this month as well on this particular issue, and I will have more to say about it once the consultation process has been completed. But I do think it is important that we give members of the community the opportunity to have their say about this issue, bearing in mind that inevitably people will have had a broad range of views about this issue, as they did on the conscience vote when the first ART bill was passed in this chamber back in 2008.

I look forward to updating the house about this matter in due course, but I do assure Ms Patten and other members that it is an issue that is receiving active consideration from the government at the moment.

Clause agreed to; clauses 2 to 10 agreed to.

Reported to house without amendment.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (17:58): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (17:58): I move:

That the bill be now read a third time.

It is with great pleasure that I do so in supporting Joy’s bill.

Motion agreed to.

Read third time.

The DEPUTY PRESIDENT: Pursuant to standing order 14.27, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.