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Legislative Assembly for the ACT: 2004 Week 01 Hansard (Tuesday, 10 February 2004) . . Page.. 124 ..

Specific presumptions apply when a woman conceives a child using assisted reproductive technology. By using the inclusive term “domestic partnership”, this bill ensures that the presumptions apply regardless of the gender of the woman’s partner. This not only removes discrimination against same-sex couples but also redresses the legal position of their children because many of those children have been in the position of having only one parent recognised by the law.

The bill reproduces existing provisions about substitute or surrogate parentage. The Law Reform Commission report, which has been distributed to members, recommends some changes to the law in relation to substitute parent agreements. The government does not propose to make changes to this bill as a result of those recommendations.

The Law Reform Commission, while recommending the retention of legislative provisions making all substitute parent agreements void, proposes that the usual conclusive presumption that a couple undergoing an assisted reproduction procedure are the parents of the resulting child could be altered if there is a substitute parent agreement. Rather than making the substitute parent agreement void, this would give it special validity. That would run directly counter to the notion that substitute parent agreements are void and have no effect.

The parentage order provisions in this bill allow the normal conclusive presumption of parentage to be overridden by an order of the court in that very limited number of cases where, as the result of a surrogacy arrangement, genetic parents of a child may apply to the Supreme Court for an order making them the legal parents in place of the birth parents. After the court order has been made, there is no conflict with the parentage presumption arising from the fact that the child was conceived using assisted reproductive technology.

The Law Reform Commission’s second recommendation is, effectively, that in deciding whether to make a parentage order about a child the Supreme Court should be satisfied that the order is in the best interests of the child. The government agrees that the best interests of the child should always be paramount and are paramount. That requirement is reflected in clause 26 of the bill.

The third recommendation of the commission is that the government should provide education in high schools and colleges about substitute parent agreements. The government does not support this recommendation because, again, it runs counter to the provision making all substitute parent agreements void and to the general policy of discouraging people from entering such agreements.

The Law Reform Commission’s fourth recommendation is for the names of gamete donors to be included on birth certificates. The issue of providing a record of gamete donors for children conceived through assisted reproductive technology is a separate one from those covered in this bill. It will be considered separately as part of the development of a more general policy relating to the use of assisted reproductive technology.

The sunset clause relating to the operation of provisions allowing for a parentage order under extremely limited circumstances also has not been carried over into this bill.

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