Sunday, January 29, 2017

South Australia plays catch up on reproductive rights and surrogacy

South Australia has a Bill before its Parliament to remove discrimination in its laws against LGBTI couples and single people, which will for the first time enable singles and LGBTI people access to surrogacy in that State- if passed. It will for the first time remove discrimination in the provision of assisted reproductive treatment in that State.

I want to make it plain that the changes have not yet passed. The current discrimination under South Australian law remains as to reproductive rights for LGBTI couples and singles.

History of how we got here

South Australia made plain that when it came to reproductive rights and surrogacy, those who were not in heterosexual relationships were unable to obtain assistance, or if they could do so, they could only do so with difficulty.

South Australia did this in two ways:

  • on penalty of losing their licence and copping a huge fine, fertility doctors had to only provide fertility treatment to women who were medically infertile. The standard definition of that has been unprotected sexual intercourse for a year that does not result in a pregnancy. South Australia attempted to exclude unmarried women, but following a Mrs Pearce (she was divorced) taking the State Government and one of the IVF clinics to court, that attempt failed. The Full Court of South Australia ruled that the Federal Sex Discrimination Act overruled the South Australian law, so Mrs Pearce could have treatment. The Federal Government then allowed discrimination to remain under exemptions to the Sex Discrimination Act until 1 August 2016, when the jig was up. Until that happened, fertility doctors in SA could not assist lesbian couples (when there wasn't that traditional medical infertility) or any single men or gay couples. Because SA doctors were the ones providing IVF in the NT, the discriminatory rules were exported there too.
  • The only people who could access surrogacy in SA were (and I should say still are) either heterosexual couples who were either married or living in a domestic partnership- the latter being for a minimum of 3 years. Singles and LGBTI couples (if the latter were not deemed to be heterosexual) cannot access surrogacy in SA.
In 2014 moves were under way to reform SA's surrogacy laws. My view was that the most urgent change was to remove discrimination in those laws. That change did not happen. One Labor Minister, Ian Hunter, who is openly gay, voted against those laws on that basis.

And then the UN stepped in...

In late 2015, the Australian Government told the Human Rights Committee of the UN in Geneva that it would remove the exemptions for discrimination against LGBTI people under State laws by 1 August 2016- and (with the exception of WA) did so. In early August 2016, the SA health authorities wrote to the IVF clinics in that State advising of the changes. IVF clinics were then faced with a dilemma:

  • did they comply with their licences- and refuse treatment- and therefore possibly act unlawfully under the Sex Discrimination Act (which would open them up ot the possibility of damages and untold bad publicity)?; or
  • did theycomply with the Sex Discrimination Act- and risk losing their livelihoods and a huge fine?
My understanding is that IVF clinics have, properly, done the former. But this still did not solve the issue about surrogacy.

Then Jay Weatherill stepped in. He declared that SA had to find out what its discriminatory laws were- and get rid of them. SA was lagging behind, he said. He was right. Other States had gone through this exercise - Queensland for example in 2002-3- as had the Commonwealth under Kevin 

And thus the SALRI review was set up

The South Australian Law Reform Institute (with the wonderful acronym SALRI) then reviewed the laws- and recommended wholesale changes to end discrimination. I made both written and oral submissions about reproductive rights in SA, seeking to end the discrimination.

The result?

There is now the Relationships Register Bill to reform the law in SA. When it comes to assisted reproductive treatment, discrimination will go, because it will be a licence condition
prohibiting the IVF doctor from refusing to provide assisted reproductive treatment to another on the basis only of the other's sexual orientation or gender identity, marital status, or religious beliefs. The old definition of infertility will also go: "if it appears to be unlikely that, in the person's circumstances, the person will become pregnant other than by an assisted reproductive treatment".

The law that governs surrogacy in South Australia is the Family Relationships Act. The Bill makes plain that those eligible for surrogacy in SA are singles, married couples or those in registered relationships, or those in a marriage-like relationship who have lived together for at least 3 years. Those who are married or in registered relationships do not have a time frame of eligibility save that they have become married or their relationship has been registered- they could be eligible that day, even if they have not previously lived together.

What is not known

It's not known whether the Bill will be passed, and if passed when it will take effect. In the meantime those seeking to have children via ART or surrogacy in SA (and their doctors) have to wait and see. Hopefully MP's will support this sensible scrapping of discriminatory laws that are in breach of our international obligations, and brings SA into line with most other States in this area.

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