Assisted Reproductive Technology and Surrogacy Bill 2025
Second Reading Speech in Legislative Council 14 October 2025.
Second reading
Resumed from 18 September.
Hon Nick Goiran (Leader of the Opposition) (1:27 pm): I rise as the Leader of the Opposition as we consider the Assisted Reproductive Technology and Surrogacy Bill 2025. To the extent that it is necessary, I indicate at the outset that I am not the lead speaker for the opposition on this matter. I also indicate for the record that opposition members have what is customarily referred to as a conscience vote on this matter. No-one should read anything into the sequence of speakers or indeed who is a lead speaker or otherwise.
The bill presently before the house, or the decision to have this matter considered by the house this afternoon, is of course a matter entirely for the government. Members will be aware that the government elects the order of bills that the house will consider this week. Members will be familiar with today's business program, which indicates that there are six bills that could be considered today, but the government has decided that this will be the priority for the Legislative Council. I reiterate, particularly for those outside the chamber, that that is a matter for the government of the day, and it is for it to decide whether this is to be the top priority or not.
For what it is worth, and this is my personal opinion, the Assisted Reproductive Technology and Surrogacy Bill 2025 is not, objectively, the single greatest priority of legislation before the house at the moment. I hope that in the brief time that I have, I can give some indication as to why I have come to that conclusion.
As I said, this is for the Liberal Party a conscience vote matter. I am conscious that the majority of members in this place will not have experienced yet a conscience vote debate.
It is in that context and in my capacity as the longest-standing Liberal Party member of Parliament in either house that I have given careful consideration to what contribution I might usefully make to the house as members exercise their conscience vote. I understand that the two major parties have made the decision to allow a conscience vote for their members in this legislation, and it is obviously for other parties to indicate their positions in that regard at some later point in time.
In that context, I have come to the conclusion that there are probably three things I feel I could usefully contribute to the debate that will begin in earnest this afternoon. The first is to make some remarks about the experience of the Legislative Council with conscience vote debates. I will make those comments with due deference, of course, to Hon Kate Doust, who is away from the chamber on urgent parliamentary business. No-one has had more experience than her in these matters, so my comments should be considered in that context. The second thing I think I can usefully bring to this debate this afternoon will be to re-tell members—particularly the overwhelming majority of members who were not here in 2019—what actually happened six years ago with the bill that might be described as the precursor to the bill that is before us today. I might humbly say, for reasons that will become obvious relatively quickly, that no-one is in a better position than me to re-tell that story. The third thing I feel I can bring to this afternoon's debate is what might be described as the legal considerations of the bill before us, which is 214 pages in length—on any measure, a large bill—with 369 clauses spread across 17 parts. When we get to the legal considerations, most of my comments this afternoon will be on the surrogacy portion of the bill, but it should be observed by members at the outset that this bill will do much more than simply deal with surrogacy. That is one significant part of it. Members might ask rhetorically why all these matters have been combined into a single bill and not split into separate matters.
With those introductory remarks having been made, I will begin with the first of the three areas that I would like to cover this afternoon, which is to re-tell my observations on the experience of this chamber in dealing with conscience vote debates. As I said, I note that approximately half of the members in this chamber have never been involved in such a debate to date. I had the opportunity earlier today to speak to some of my colleagues about that particular type of experience. This will be more elaborate than that. The first observation I make in respect of conscience vote debates is that frequently there have been calls for them to be conducted respectfully. Almost without exception, when these debates have been instigated by the other place, they have been accompanied by a statement, usually by a senior political figure, calling for the debate to be respectful. My observation is that too often that call for a respectful debate has not been adhered to—most notably by those who actually call for it. I observe, in passing, that is regrettably already the case with this legislation, in respect of a small minority of individuals in the other place. That is ultimately a matter that has been recorded in Hansard, and I would say it is to those members' shame. Nevertheless, I have consistently observed that in these types of debates there is a call for respect, yet the people who call for that typically do not adhere to that standard. I might quickly say that the experience in this chamber has been quite different. Pleasingly, I have noted that the overwhelming majority of members of the Legislative Council have engaged respectfully in these types of debates. Members have often made the observation, after debate has concluded, how very different the atmosphere and engagement is in the Legislative Council in these types of debates, compared with the robust nature in which we engage on other matters on a weekly basis.
As I say, I make two quick observations. Firstly, that there is often a call for respectful debate by individuals who have then not adhered to that call; and, secondly, that the overwhelming majority of MPs have engaged respectfully in these debates. The third thing I have observed is that these debates can often be emotional. Newer members will probably need to brace for that, in relation to how these debates can unfold. The fourth thing is that members will find there is far greater public and media interest in these types of debates than in almost any other debate that members will be engaged in. The fifth and final point is that these types of debates can be particularly fatiguing, mentally and physically, for members. So at the outset of this debate this afternoon my message to all members, regardless of their political party, is to look after themselves, and particularly to remember that ultimately they can control only their own contributions and actions in this debate, and not those of others—least of all those from the other place.
I move now to the second area in which I feel I can make a useful contribution this afternoon, and that is to recount for members what happened in 2019. I am mindful that of the 37 honourable members now in this place only 10 were members in 2019. I acknowledge and welcome back Hon Tim Clifford in particular, who is one of those 10 members from the 40th Parliament and who has now returned to the chamber. If I were to try to sum up the 2019 experience, which I think most political observers would say it was pretty unique—they might use a number of other descriptors for it, but it was certainly a unique experience in 2019—there are three things I would summarise for members. The purpose of this is to dispel any of the myths, legends, fabrications and the like that have emerged over the years in respect of what happened six years ago.
There are three things I would say about the 2019 experience—22 hours, the Allan report and the Standing Committee on Legislation. I elaborate as follows. The "22 hours" is in reference to the duration of the speech I gave as the lead speaker for the opposition on the 2019 bill. For most members and most fair-minded observers, if all they heard was that a member spoke for 22 hours, they might reasonably come to the conclusion it was extraordinary and that it was some form of gigantic delaying tactic; they might even come to the conclusion that it was disrespectful. If they did not know anything else, it would be reasonable for a person to come to those conclusions.
Here is what actually happened six years ago in respect to that debate. The bill came on in February 2019, as it is coming on now, as a decision by the government of the day. It began on Thursday 14 February and it enabled me, as the lead speaker on that particular day, to speak for 29 minutes. There is no criticism there; it just happened to be the sequence of events. It came on towards the end of the day and I spoke for 29 minutes.
It quickly became apparent that I was in no mood for the government of the day to be, what I described as, hiding a taxpayer-funded report into surrogacy and reproductive technology. In my possession I have a two-part report by Sonia Allan, entitled The Review of the Western Australian Human Reproductive Technology Act of 1991 and the Surrogacy Act 2008—part 1 and part 2. They are massive documents that Hansard will not have the benefit of properly recording into the record.
That is what the 22 hours were all about. I began the debate in February 2019 calling for the government to release this review, which cost taxpayers $225,000. In short, members, because I have limited time today and I would like to get to some of my concerns in respect of this matter, I said to the government of the day, "I'm not going to stop talking until such time as you release this taxpayer-funded report." I can only suspect that in the first instance the government perhaps thought that I was bluffing in respect to this matter. After eight hours and 40 minutes spent over the course of three days—14 February, 19 February and 21 February—it obviously became apparent to the government that this was no bluff.
I draw to members' attention—this is why I started my remarks earlier about the calls by some for respectful debate—that the media reported on what was referred to as a filibuster, and there was an article on 21 February 2019 by Watoday, entitled, "WA MP's filibuster has already taken one day: here's why he won't stop talking." If members would like to read it at another stage, they can do so. I draw this article and the following quote to members' attention:
Health Minister Roger Cook said the government would not release the review at this stage, because it was not yet ready to be released and was not related to the amendments currently before Parliament.
The article goes on to say:
Mr Cook said Mr Goiran was just trying to frustrate the bill.
"He is simply bringing an ideological perspective to it, which is extreme, and doing everything he can to frustrate the process," he said.
"I emphasise this is just about making us compliant with the Commonwealth Sex Discrimination Act.”
That was after about eight hours of debate, and at that particular point in time in February, this gigantic, two-volume document, which I have in my possession, was not tabled in the Legislative Council.
Members will be aware that we have times of recess, some weeks when we do not sit. That bill was not brought on for a single minute of debate for the entire month of March 2019, though we had some sittings. It stood adjourned. At the end of that month, this report—which cost taxpayers $225,000 and which the health minister at the time said was not ready to be released and was not related to the amendments currently before the Parliament—was tabled.
It took about three seconds to open the index of that review report and note that, amongst other things, in part 2 of the report under chapter 3, sub-chapter 3.4, it said, "Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018", starting at page 58. It continued on with findings on pages 60 and 61. How can a fair-minded person conclude anything other than when the health minister said that the review was not ready to be released—let us park that for a moment—and was not related to the amendments currently before the house, how can we conclude anything other than that was untrue? Plainly, objectively, this matter had something to do with the amendments before the house.
In March the report was finally tabled. Then there was a call by an independent member of the crossbench who was now obviously suspicious about what had transpired after the government had said, "No, we don't have the report. It doesn't yet exist. It's not ready for review. It's got nothing to do with the matters before the house." Now it had suddenly been tabled and suddenly has a lot to do with the matter before the house. The independent member then said, "Well, I'd like a little bit of time to consider this report. Look at the size of it."
Interestingly, by that stage in time, the government had had it for two months, so the honourable member wanted a bit of time. The government said, "No. No further time will be provided. We will be dealing with this matter now and then." The continuation of my speech proceeded during the month of April for another 13 hours and 20 minutes. To cut a long story short, the outcome was a move from me, as the lead speaker for the opposition, to move that the bill be referred to the legislation committee. The record reflects that that move by me was opposed by the government. The move was successful by one vote.
We had a bill that started in February 2019 with me saying, "I'm not going to stop talking until you release this taxpayer-funded report." The government did not release it until March. In April a member of the crossbench said that they would like a bit of time to consider it, and the government said no. I moved for it to go to the legislation committee. That vote was successful by one solitary vote. What happened after that? After that, the Standing Committee on Legislation, which was chaired by Hon Dr Sally Talbot MLC—for the record, a member of the then government—tabled the 40th report. It now had the job—by one solitary vote—to consider the bill that was before the house.
I do not have time to go through all that committee said, but I will draw findings 13 and 14 to members' attention. For the record, the report has 117-odd pages. It is a significant report. Finding 13 states:
The advice provided to the Committee is that the amendments proposed by the Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018 to section 23(1)(a) of the Human Reproductive Technology Act 1991 would be inconsistent with section 22 of the Sex Discrimination Act 1984 (Cth) because they would create discrimination against women not currently present.
In other words, members, if we proceeded with the bill it would create unlawful discrimination against women. Yet, what were the public comments by the health minister of the time? Mr Cook was on the record saying,
"I emphasise this is just about making us compliant with the Commonwealth Sex Discrimination Act."
Well, objectively, that was false. But, apparently, it was only about one particular individual seeking to frustrate the bill.
Finding 14 states:
If the Human Reproductive Technology and Surrogacy Legislation Amendment Bill 2018 is passed extending eligibility for surrogacy to single men and male couples for ‘social reasons’, this would likely result in unlawful discrimination against women as a result of the existing requirement for women to have ‘medical reasons’. This cannot be avoided other than by a fundamental change to the policy of the Bill, and to the existing policy of reproductive capability as the basis for the availability of in vitro fertilisation procedures.
Remember what I said at the outset today? It is entirely up to the government of the day to decide what bills the chamber considers. After that report was tabled in June 2019, the government never again brought the bill on for debate.
For the duration of the 40th Parliament—another two years—it could have brought it on at any time. It did not come up. That was not because of an individual member. Let us keep in mind that my contribution had concluded by that stage. Under the standing orders I was not able to say another word in respect to the second reading debate.
The government did not bring it back on. I note, in passing, that the government also never brought in any such bill during the entirety of the 41st Parliament.
In retelling that story of 2019, I humbly say to members that I do not think there is another member who is better placed to speak about what happened in those particularly unique circumstances. I have told the story so that when members consider their conscience vote in this matter, they might block out the noise that might emanate from the other place, which might suggest a different set of circumstances happened in 2019. I have sometimes noticed in passing that the media likes to report, incorrectly, that somehow the entire bill was stopped because of one member. That is simply not true. A majority of the Legislative Council referred the bill to the Standing Committee on Legislation, and the legislation committee found that the bill was so fundamentally flawed that it was unable to proceed. Evidently, by the government's own actions in never bringing the bill on for debate again, the government had to concede that point. That is what happened in 2019. It may be incredibly inconvenient for some members in the other place, but that is what the record reflects.
I now turn to the third area in which I hope I can make a useful contribution this afternoon. Members should consider this bill on its merits. They need to read the bill and consider its implications. They also need to block out the noise from the other place, where the suggestion might be that the bill before them is a flawless piece of art that ought not to be critiqued. I will try to make some legal considerations in regard to this matter. I accept at the outset that legal considerations are not the only considerations to be taken into account with this bill. There will also be ethical considerations, which I have no doubt members will want to raise, and there may well be members with lived experience who will want to raise particular issues, but as a retired lawyer and now member of Parliament, I feel I can make some contribution this afternoon in terms of the legal considerations before us.
I will begin by asking a rhetorical question: What exactly are we being asked to do? I reiterate to members that the majority of my comments at this point are with respect to the surrogacy aspect of the bill. I do not for a moment forget that there are many other elements of this bill, and, if time allows, I will hopefully get to some of those things. With regard to the surrogacy elements of the bill, which are covered particularly in part 6 of the bill, I would describe what we are being asked to do is the creation of a statutory regime for an unenforceable contract. I qualify that comment by drawing clause 110 of the bill to the attention of members who are particularly interested in this matter, and I encourage them to turn to it. Clause 110 of the bill, under the heading "Limited enforcement of surrogacy arrangement", reads as follows:
(1) A surrogacy arrangement is not enforceable except to the extent that the arrangement provides for an obligation to pay or reimburse surrogacy expenses.
Members can plainly see that this thing that is called a surrogacy arrangement is not enforceable. That is the very reason it is called a surrogacy arrangement and not a surrogacy contract, although it does provide for this very limited circumstance—this sort of one-way street—in terms of how it can be enforced, being any surrogacy expenses. We are being asked to sign off on a statutory regime for a largely unenforceable contract. That is not to say that that is wrong, but it should make us pause and ask ourselves what could possibly go wrong with an unenforceable contract.
Let us begin by considering who are the parties to this unenforceable contract. First of all there are the intended parents, or maybe an intended parent, singular; secondly, the surrogate mother; and, thirdly, the person affected by all of this, being the child or, indeed, the children, because multiple births could result from this particular arrangement. They will be the parties to this unenforceable contract. It is worth considering what would be a breach of contract. After all, the intended parents will contract with the surrogate mother by saying, "We would like you to carry this child for us and then hand over parentage of that child to us." That is the purpose of the contract or the arrangement. What would a breach look like? It might be that the intended parents separate and no longer want to take delivery of the child. Would that be a breach of contract? How would that be dealt with in an unenforceable contract scenario? What if the intended parents separate and then fight over or dispute what might be described as the custody of the child who is the product of the arrangement? What will happen if the intended parent or parents die? What will happen if the surrogate mother changes her mind? What will happen if the intended parent is unhappy with the child that is the product of this arrangement? These are serious matters that need to be considered, and that is why there are protections under existing laws.
Let us be clear here: surrogacy arrangements and surrogacy law already exist in Western Australia. This bill is not introducing them for the first time; a protection regime is in place in Western Australia at the moment. Members should ask what those protections are and what they will be once this bill passes. Will they be the same or stronger protections, or are protections being removed? How important is it for members, in any scenario, that there be informed consent? A regular principle that is employed in any medical procedure is that there be informed consent. Might I be so bold as to suggest to members that if we know that we will be creating a statutory regime for an unenforceable contract, perhaps the notion of informed consent needs to be elevated higher than it was before so that people understand exactly what they are getting into, and that we ensure there is an absence of duress, undue influence and unconscionable conduct.
Having raised some of those problems, members might ask what is the solution to address some of these concerns, noting that we already have a regime of sorts in Western Australia. How we might deal with it moving forward is by ensuring that the law provides for oversight both pre-pregnancy and post-birth. If we are going to create an unenforceable contract between parties for the provision of a child, the best way to mitigate and protect against the risks I have outlined and the prospects of what might happen with breaches and the like is to ensure rigorous oversight prior to pregnancy and a regime post-birth. How does the current law militate against this risk pre-pregnancy? It does that in one substantial way, and that is through the independent oversight and approval of the Reproductive Technology Council. What will this bill before us do? This bill will abolish the Reproductive Technology Council.
That independent body that oversees and at the moment approves surrogacy arrangements pre-pregnancy to mitigate problems will no longer exist if this bill passes unamended. Questions should be asked why. There will be members in this place who may be firmly supportive of the notion of surrogacy and there will be others who will be firmly opposed to the idea of surrogacy. But might it be the case, President, that everybody is in favour of ensuring that parties are not unnecessarily traumatised, that people are entering into these arrangements genuinely with informed consent and that all the protections are there in place. Might it be the case that every member might want that to be the final result? This particular protection is being abolished by this bill. I have said in other debates that before any lawmaker asks me to tear down a fence or gate that has been put there as a protection, I would like them to explain to me why the gate and the protection was there in the first place. That notion does not originate from me; GK Chesterton said that many years ago. But it is important as lawmakers to understand, and the serious lawmaker will want to understand, why that fence or gate has been put in place before they agree to tear it down. My question to members as they contemplate exercising their conscience vote this afternoon is: Why in 2008 when the law for surrogacy was first put in place in Western Australia was the Reproductive Technology Council put in the position that we said, "We want you to look into these matters, we want you to oversee it and we want you to approve the surrogacy arrangement before pregnancy." Why was that done? If members can answer that question and then indicate why it should be taken away, I will be very interested in having that debate and discussion. What concerns me is when lawmakers decide to tear down a fundamental protection like that without being aware that it even exists in the first place or why it exists. Instead, this bill will tear down the Reproductive Technology Council, it will abolish it and it will no longer be there pre-pregnancy. Let us keep in mind that the best protection here is pre-pregnancy. It is all a bit hard after the event, because what do people do when a child is in place? The best protection is pre-pregnancy. It is being torn away and instead it is being replaced by this.
I encourage members to look at clause 108 of the bill, which I would describe as a checklist of six things that the bill says needs to happen, left on the basis of, "Well, we hope for the best." Clause 108 says:
When is surrogacy arrangement valid
It says that it is valid if the arrangement:
(a) is not for reward; and
(b) includes the contents of a … arrangement … under section 109; and
(c) is in writing; and
(d) is signed by the surrogate and each intended parent; and
(e) is entered into after the surrogate and each intended parent —
(i) received counselling from a qualified counsellor about the arrangement and its social and psychological implications; and
(ii) obtained independent legal advice, in writing, about the arrangement and its implications;
and
(f) is entered into before the surrogate becomes pregnant …
That is the checklist. What happens if someone does not tick all the boxes on the checklist? Does anybody care? Does anybody check, or do we just proceed anyway? For example, what happens if the surrogate and each intended parent do not receive counselling? The bill says that we would like them to do that, we hope that they do it, but we will not have a Reproductive Technology Council there anymore to make sure that they have done it and to approve the arrangement once it is confirmed that they have done it. We are not going to do that anymore, we are just going to hope for the best. Might I offer to members that that should be a point of concern, irrespective of what they think about surrogacy?
Secondly, it has to be acknowledged that there is a regime in place under the current law and also under this bill for some form of post-birth oversight, but as I said, how do we protect against and mitigate the issues post-birth once the child is already in existence? Ultimately, we cannot; but we still have to do something and so the way in which this regime proposes to deal with that is as it is at the moment, which is through the Family Court. A Family Court judge is ultimately responsible for deciding who is going to be the parent and make what is referred to as a parentage order. It is in that context that I refer to members this comment by His Honour Chief Judge John Pascoe.
I quote from page 6 of the 2015 federal Standing Committee on Social Policy and Legal Affairs' inquiry into surrogacy. Chief Judge John Pascoe from the Family Court in 2015 says:
… it is almost impossible for the Courts to determine that it is not in that child's best interest to remain with the commissioning parents even if they have broken the law.
That is what the Chief Judge says. When we talk about this gatekeeper and this post-birth overseer, he is effectively saying that as the Family Court, once the child exists and they are with the commissioning parent, even if the commissioning parents have thumbed their nose at the law—in other words, that checklist that I referred to earlier, those protections that we as a chamber are saying are very important, we want to make sure that the surrogate mother has had counselling, there has been independent legal advice and so forth, and that they have done that as well; even if that does not happen, even if the law is broken—it is almost impossible for the courts to determine that it is not in the best interest of the child to stay with the commissioning parents. I raised that simply to reinforce the point that any sort of post-birth oversight is almost meaningless. It is not completely meaningless, but it is nowhere near as strong a protection as what might exist pre-pregnancy, which is why we have the Reproductive Technology Council in Western Australia and serious questions need to be asked of those seeking to abolish the Reproductive Technology Council.
What about some of the other protections that are in existence in the current law in Western Australia? I note that in section 17 of the current law, the Surrogacy Act 2008, sets out that in order to be eligible to be a surrogate mother, the woman must be at least 25 years of age and, unless a special exemption has been given, must have given birth to a live child. I am going to again rhetorically ask the question, and this is important for us as lawmakers because we are being asked to remove that. That is not the case in this bill. This bill says "Don't worry about 25 years of age. The new age is 18. Don't worry about whether you've given birth to a live child beforehand or not. We don't care about that anymore; it's no longer a requirement." The serious lawmaker, irrespective of whether they are pro or opposed to surrogacy, will ask themselves the question: Why did lawmakers in 2008 decide 25 years was the right threshold? Why should it now be 18? Perhaps, might I suggest to members, even more so, why did the lawmakers in 2008 decide that it was important for a woman who would be eligible to be a surrogate mother to have first given birth to their own live child? Why was that the case? It is an important thing for us to think about. Having thought about it and why somebody might put that protection in place, we then consider whether we are going to take that protection away. I make no bones about it: I am in the camp that says that makes a lot of sense to me. Why we might have a woman considering volunteering to be a surrogate mother first having had the experience of delivering their own child, that makes a lot of sense to me.
As a male with zero experience, obviously, that makes a lot of sense to me. I will be interested to hear what other members have to say about that particular point. The point here is that that protection will no longer exist. It was considered important by the lawmakers in 2008. Is it considered an important point in 2025?
Members will be aware that amongst other things, the Assisted Reproductive Technology and Surrogacy Bill 2025 will repeal a range of acts—the Artificial Conception Act 1985, the Human Reproductive Technology Act 1991, the Human Reproductive Technology Regulations 1993, the Surrogacy Act 2008, the Surrogacy Regulations 2009, and will revoke the Human Reproductive Technology Directions 2021 and the Surrogacy Directions 2022. All these will be taken away. Direction 9 of the surrogacy directions prohibits the recruiting of birth mothers. What will this bill do? This bill expressly allows for not just the recruiting, but also the advertising for birth mothers. That is a fundamental shift from a direction. It will revoke a direction that says "You ought not be out there recruiting surrogate mothers" to a regime that says "Not only can you recruit, but you can advertise for them." Is that what we want? Is that the right thing to do? Are there any implications for that—legal, ethical, or otherwise? This is, of course, in the context that the bill will ostensibly prohibit commercial surrogacy from taking place, yet, almost with sleight of hand, will allow advertising for surrogate mothers.
Is there anything else that we can learn from the Family Court experience? I mentioned briefly moments ago the submission from His Honour Chief Judge John Pascoe. Time will not allow me to fully ventilate all the issues set out in that submission, but I do want to draw to members' attention a couple of small points, starting at page 14 of his submission. Under the heading of "Government oversight" he says:
The surrogacy industry is ripe …
Remember who this is. This is not the Leader of the Opposition making these comments; rather, it is His Honour Chief Judge John Pascoe, Chief Judge of the Family Court, who is one of the overseers of parentage orders in the Family Court. He says:
The surrogacy industry is ripe for abuse and exploitation of vulnerable women and children. Governments have an obligation to protect fundamental rights and prevent human rights violations. It is government responsibility to protect the poor and vulnerable, especially women and children in surrogacy arrangements, pursuant to local welfare laws and international covenant obligations.
There are currently inconsistent approaches across states and territories all surrogacy matters. There is need for consistency and coherence in any regulation of surrogacy.
I pause there to note in passing that the Australian Law Reform Commission is currently doing exactly that. The Australian Law Reform Commission, as I understand it, has been commissioned by the Federal Government to look at all the surrogacy laws across the nation to determine whether there might be some kind of uniformity. The Chief Justice is saying there are inconsistent approaches across all of those jurisdictions. One might ask the question: Why are we doing this now and not after the Australian Law Reform Commission has concluded its work, which I understand is due to take place in the middle of the next year.
The Chief Judge continues on page 15 under the heading "Regulatory requirements for intending parents, health care providers, welfare services and other service providers". This is his checklist. This is the person who sees the problems at the end. This is the person who has been given the job in the Family Court of making these kinds of parentage orders and sees the implications after the fact. What is the very first thing he says in the checklist? Bullet point one is:
Background checks of the commissioning parent(s) needed.
I hope that some member can show me where in these 369 clauses we achieve that first point of the checklist from the Chief Judge for background checks on the commissioning parents need. It goes on to say:
Checks of the surrogate mother may also be needed.
Home checks or assessments of the family may be needed.
Clinics must keep effective records of every child's genetic history and names of all involved "parents" …
Records should be kept indefinitely rather than for only a certain period of time.
Adequate medical care and legal protection if either surrogate mother or child suffers any physical, emotional, legal or financial harm.
Regulations should also ensure that surrogate mothers are properly informed prior to entering the agreement and thus capable of giving fully informed consent. This will require legal advice of a neutral party.
I pause there, President. Who is checking? In this bill, who is checking to make sure that the independent advice that is provided to the surrogate mother is independent? Does anybody check, or are we hoping for the best? At the moment in Western Australia, the Reproductive Technology Council is the gatekeeper in these things to make sure that nobody is exploited and that there is no necessary harm as a result of it.
Time marches on, so I move to the next area that I would like to quickly address, which is some legal considerations from someone who might be described as a true expert—a Family Court judge—and what they have had to say in respect to this matter. Can I ask members, during the course of this debate, which will take some time this afternoon, to consider the implications of report 66 of the Standing Committee on Environment and Public Affairs tabled in August of last year, entitled Broken Bonds, Fractured Lives: Report on the inquiry into past forced adoption in Western Australia. It is a huge report, but at page 155, a very pertinent finding is been made by the committee. Finding 9 is very simple:
Separation was experienced as trauma by both mothers and infants.
The question I encourage members to think about in this debate now is the extent that we can distinguish between the two and if there has been a voluntary arrangement where a surrogate mother hands over the child to the intended parents whether that is not a forced adoption for the mother. I will leave it to others to discuss whether there might still be some trauma about having been separated from the child that they have birthed. That is not a forced adoption, but every single one of these—every single one—is a forced adoption for the child. In the ordinary course of events, if a child is adopted because of some family tragedy that has taken place—some abandonment—then we want the child to be looked after by the next best available person. That is why we have an adoption process. That is why we have fostering system in Western Australia. That is not what is going on in this bill here. What is going on in this bill? Is the intentional creation of a child, for the express purpose of having them, in effect, adopted to another person. We are expressly creating the very trauma for the child that report 66 on broken bonds, fractured lives, spoke about. We are doing it on purpose.
What about the rest of the bill? I have less than seven minutes to go for my contribution to this debate and it is not my intention to seek an extension—not least, given the circumstances that occurred last time—so I will quickly make this point. I refer members to part 16 of the bill. Much of what I have said so far this afternoon relates to part 6, on surrogacy, but I ask members to have a look at part 16, and particularly clause 326. What is sought under clause 326? It allows for what is described as the "Removal of reproductive material after death". It will allow for a regime under which reproductive material can be extracted from a deceased person without their consent and used by others. That is what we are being asked to agree to. Members from the two major parties have been given a conscience vote. Does this exercise our conscience? Do we say that that is okay? That is not a legal consideration; I am asking an ethical question now: is it okay for another person to have access to someone's body? This is not just any old organ, I might add, in the organ donor sense, but material that can be used to create a child. Should that be allowed without the express consent of the person? That is the pathway that is being allowed here.
I encourage members to familiarise themselves with part 16 of the bill, and particularly clause 326. This really goes to my earlier point about the conflation of all these matters into this package of a bill. If members have a look at the Surrogacy Act 2008, which is the current law in this state, they will see that it is less than 50 pages long. I think, from memory, when I was looking at it last night, that it might be 48 pages, or something to that effect. The bill before us—which admittedly includes much more than surrogacy—is 214 pages long, so it is important for members to ask the question: Why? Why are we conflating all those different elements into one package? There may be members in here who say, "Look, actually, I agree with the surrogacy laws, but I'm not too sure about this business of allowing people to have, you know, in the case of males, the sperm extracted from a dead male for the purpose of being able to have a child. Not too sure that I agree with that." Well, it is all combined in the same package. Why is that the case? Why has the bill not been split?
I say, respectfully, that that is an unnecessary way of dealing with this law. There was nothing to stop the government segmenting those laws; we see that all the time. We see amendment bills before the house and we see other different bills. At the moment I think there might be a couple of different bills dealing with mining and the like. Why are we conflating an arrangement relating to assisted reproductive technology in general with surrogacy? Why are we then adding on amendments in respect of the Human Tissue and Transplant Act 1982 and the extraction of reproductive material from deceased people? Why are all those things being dealt with in the same bill? The extraction of reproductive material from a deceased person really has nothing to do with people's legal, ethical and social considerations in respect of surrogacy, yet that is all in the same bill.
I will conclude by providing nine reasons why I will be voting against the second reading of the bill. Firstly, the bill unnecessarily amalgamates those suites of issues into a single bill. It was unnecessary for the government to do that. The government could have split the bill, but has chosen not to.
Secondly, this bill, with respect, seeks prematurely to change the law in Western Australia ahead of the work of the Australian Law Reform Commission, which is not due to report until the middle of next year. Why are we changing the law now, when we know that there is an active review underway at a federal level? I might say quickly, in passing, that it cannot be because it is urgent, because if it was so urgent, why is it that no bill was brought in during the entirety of the 41st Parliament, and why has nothing been dealt with since 2019?
Third, this bill ignores something I referred members to earlier: the 66th report of the Standing Committee on Environment and Public Affairs of the 41st Parliament, Broken Bonds, Fractured Lives: Report on the Inquiry into Past Forced Adoption in Western Australia and the findings in that report. What will the bill do as a result of that, members? It will increase the number of children who will suffer from that particular trauma. That has to be the case. If there is automatic trauma when a child is separated from their birth mother, this bill will increase the number of occasions on which that is going to happen.
Fourth, this bill removes existing protections for surrogate mothers. Why is the Reproductive Technology Council being abolished as a result of this bill? The eligibility requirements will also be abolished, not least the requirement for live childbirth to have already occurred.
Fifth, this bill masquerades as a bill that bans commercial surrogacy, yet in the same breath facilitates an almost unlimited compensation scheme. If the bill goes into Committee of the Whole, I hope to be able to expand further on that.
Sixth, this bill continues to resist child protection screening. Despite all we now know, after all these years, about child protection and child abuse, this bill continues to resist the statutory requirements for screening.
Seventh—and this is a great curiosity for me—this bill removes the existing law under which there is a maximum five-year imprisonment sentence for facilitating commercial surrogacy—gone; not in this bill anymore.
Eighth—keeping in mind that providers profit from providing this service—this bill expressly allows service providers to advertise for surrogates, including people of the age of 18. Consider for a moment, members, that we now have 18-year-olds in high school.
Ninth, this bill allows posthumous collection of gametes, even in circumstances in which the express consent of the deceased person has not been granted.
I hope that in the short time that I have had to contribute this debate this afternoon I have been able to provide a useful contribution to members about how these types of conscience vote debates have happened historically; the culture that has occurred as a result of that; what actually happened in 2019; and some of the legal considerations that I hope members will give to the bill before the house.