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Legislative Assembly for the ACT: 1997 Week 13 Hansard (4 December) . . Page.. 4630 ..

MS TUCKER (continuing):

The Government also ignored a recommendation of the CLRC that a provision in similar terms to the Family Law Act be inserted, providing that the court, in deciding whether to make a parentage order in relation to a child, must regard the best interests of the child as the paramount consideration. They also spelt out the criteria that the court could consider.

The CLRC also recommended that the Bill be amended to enable a provision to be made enabling an order for separate representation to be made by the court on its own initiative or on the application of the child, the Director of Family Services or the Community Advocate. The Government's response to these recommendations was that existing legislation already deals with the issues, for example, the Children's Services Act. However, the Children's Services Act deals with only parental obligations on the issue of parentage itself; so it is of grave concern that these issues have been largely overlooked.

A further recommendation was that there should be close monitoring and research of the legislation. Among the issues they said must be monitored were: The interests of those not yet born; the status of embryos created pursuant to IVF procedures and not implanted; the rights of parties involved relating to the responsibilities of parentage, who has care of the child and who has legal control of the child who has been involved; the birth mother, especially the rights and responsibilities of the birth mother; and the emotional, psychological and financial burdens for parties to substitute parent agreements, particularly in circumstances where the process is unsuccessful.

The Government's response to this seems to indicate that, because the ACT's IVF clinic is private, this would be hard to implement. Mr Speaker, in discussions about this legislation, one of the issues raised is: Why should the legislation apply only to a situation where both the woman and the man donate their gametes? Why should it not apply where the birth mother donates the egg? The approach the Government has taken means that the proposed parentage orders will be available only to couples involved in conception by in-vitro fertilisation. They will not be available where the birth mother provides the egg, for example. The Community Law Reform Committee therefore came to the following conclusion:

... the primary focus of "the Bill" should be the best interests of any child born as a result of a substitute parent agreement rather than proprietary interests of either the genetic or birth parents. The Court should be accessible to either or both of the genetic parents.

Further:

Where an application is made by the birth mother who is also the genetic mother or where either or both of the commissioning parents are not the genetic parents this circumstance might be dealt with as part of the initial assessment ... and considered by the Court in determining an application.

The Government did not agree with that. That is another example, I believe, of the complexity of this issue and why I believe it is inappropriate to be passing this legislation today.

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