Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill – Second Reading speech

Tuesday 20 February 2024 

S.E. ANDREWS (Gibson) (11:51): The Assisted Reproductive Treatment (Posthumous Use of Material and Donor Conception Register) Amendment Bill 2023 seeks to modernise legislation in line with evolving community expectations, empower individuals and extend fairer access to important information and technology. Unfortunately, the joys and challenges of parenthood are not naturally available to all adults in South Australia. Therefore, it is important that we have a safe, robust and progressive assisted reproductive treatment and donor conception process in South Australia. 

I understand the anxiety and distress that parents face when they are informed they are unable to conceive and may have to seek IVF treatment. It is appropriate that, when hopeful parents and donors are entering the process, they are fully aware. This bill will specifically look at the rights of donors and those born as a result of donated material. It is important that both parties in the process have rights and it is therefore appropriate to introduce legislative reforms to provide a person who is born as a result of donated material with the ability to access information about their donor. 

This bill seeks to enhance the operation of the Donor Conception Register that records information in relation to people born through the use of donated human reproductive material by allowing donor conception participants access to certain types of information, overturning the historical preservation of anonymity of donors. The bill also seeks to legalise the posthumous use of an ovum or embryo in similar circumstances to what is already permitted in respect of posthumous use of sperm. I will return to this later, but this is, once again, a Labor government delivering in relation to equality for all. 

In 2017, highly regarded academic in the field of assisted reproductive treatment and donor conception, Professor Sonia Allan, conducted the state government's review of the Assisted Reproductive Treatment Act, a piece of work initiated by the previous Labor government. Professor Allan's recommendations included the establishment of a donor conception register in South Australia, and providing donor-conceived people, aged 18 years and over, the right to access identifying information about their donors. 

Recognising changing views, South Australia established the Donor Conception Register in November 2021 in accordance with amendments to the Assisted Reproductive Treatment Act, as moved by the Hon. Connie Bonaros in the other place in 2019. The register currently holds information on donors, the recipient parent of this donated human reproductive material, and any person who is born as a result of the donated material. 

This bill seeks to enable the Donor Conception Register to function retrospectively and enable safe as well as supported access to the information that it holds. South Australia will join jurisdictions including Victoria, New South Wales and Western Australia which all have donor conception registers available to donor-conceived people, providing information for these South Australians about their donors and allowing connection, if desired, by both parties. 

Additionally, South Australia will also follow Victoria in legislating the retrospective disclosure of a donor's identifying information for donors prior to 2004. This additional information will allow donor-conceived people to access information about their donor irrespective of when they were born. Where the information is verified, the identity of the donor will be disclosed, providing donor-conceived people the right to their genetic parentage. I acknowledge that historical donors made donations on the understanding they would remain anonymous. However, it is important to note these amendments place no requirement on any donor to have contact with their donor-conceived offspring, but they do provide the option. 

As with all legislative changes of this magnitude, the government has given careful consideration to legislate a retrospective donor conception register. The government has sought expert input and has undertaken extensive consultation with those whom this legislation will impact, including the donor conception community and our state's fertility clinics, as well as stakeholders across Australia. The state government's consultation included the SA donor conception reference group and national advocacy group, Donor Conceived Australia, who supported the development of this bill and helped ensure the model proposed for South Australia is workable and allows disclosure of personal information in a safe, respectful and ethical way. 

The Labor government notes the increased access and use of at-home DNA testing and services, including AncestryDNA, which have contributed to donor-conceived people being able to find out the identity of their donor. However, this approach does not provide the systems, support and assurances that will be present under the proposed regulatory system for South Australia. In recognising the particular impacts that may be felt by pre-2004 donors, the government will make important counselling and intermediary support services available to this group. Therefore, I endorse these changes to our legislation in South Australia. 

The second aspect of this bill brings equality to the posthumous use of human reproductive material, which is currently restricted to the posthumous use of sperm. The amendment included in this bill will make the legislation equitable for men whose female partner has died and for same-sex couples. As one would expect, strict conditions apply to the use of posthumous human reproductive material, including the deceased having consented to the use of their material prior to their death and the partner seeking to use the deceased's material having lived in a genuine domestic relationship with the deceased prior to their death. 

These conditions are, obviously, very important to respect the rights of the deceased to have control over their body and their human reproductive material and, additionally, their right to decide on who at least one parent of their child is, including that they are someone with whom they were in a genuine domestic relationship—which, we hope, had a foundation of love and shared values and outlook. This amendment would also bring South Australia in line with Victoria and New South Wales, the other jurisdictions that allow posthumous use of reproductive material. 

The amendments to the Assisted Reproductive Treatment Act, and consequential amendments to the Births, Deaths and Marriages Registration Act, the Family Relationships Act and the Surrogacy Act, are proposed to: 

provide donor-conceived people aged over 18 years, regardless of when they were born, with access to information about their genetic parent—the donor; 

ensure the effective operation of the Donor Conception Register; 

provide donor-conceived people with options for the inclusion of donor information on birth certificates; and 

provide gender equity for the posthumous use of human reproductive material when certain conditions are met. 

In summary, this government recognises how important it is for all donor-conceived people to have access to information about their genetic heritage. It not only plays a significant role in the development of a person's identity and sense of self but also enables them to access important medical and genetic information. It is the Malinauskas government's view that this bill strikes a balance between upholding a person's welfare as paramount, and safe and respectful disclosure of donor identities in a regulated environment. I commend this bill to the house.