SpeechesPride, Joy and Law Reform
09/06/2005
by Helen Szoke
Chief Executive
Equal Opportunity Commission Victoria
Discrimination and Reproductive Technologies - Thursday 9th June 2005
Thank you for the opportunity to talk today.
May I commence by acknowledging the traditional owners of the land, the Kulin nation.
This is an important opportunity to talk about the issues of discrimination, and to try and unpack the complexities associated with the use of reproductive technologies. One of the things that I will miss from my previous role as CEO of the ITA is the challenge of ensuring that the media perception of what is going on in the area of assisted reproduction is accurate.
The events of the last week in relation to the issue of donor assisted families is a good example of that, where the complexities of a regulatory regime and compressed into simplistic and inaccurate representations and then packaged into a statement about rights. We have a dark history of dealing with the interests of children in Australia that should convince people that keeping secrets is not in the best interests of the child. We know this from the adoption experience, we have heard about it in the stories of the Stolen Generation, in the documentaries about the boys who were shipped out from Liverpool after the Second World War, the experience of people in orphanages. In all of these cases the assumption, in my view is not that biology or genetics is paramount, but that the protection of the right to access information if you so choose is what is at stake.
What is important in the debate about assisted reproductive technologies is that children are born through assisted means, and that the issue of rights has to be viewed in that context. The children are the non-consenting party to any arrangement, and prospective considerations of their rights are important.
This is not something that is a revelation to this audience here. The benefits of regulation, which offered information and counselling and also protection of birth origin information for children born as a result of donor treatment, were often lost in the question of who may access infertility treatment. The recent release of the Victorian Law Reform Commission's Options Paper addressing the issue of eligibility to assisted reproduction is to be commended for placing the interests of the children as a paramount concern.
Before I hop off the media question, I want to reflect on one other point, if you will allow me to indulge myself. There were two fascinating articles in the Sunday Age. The first was about Alan Trounson's comments in relation to utilising diseased stem cells to understand how to treat illness. The second was about genetic testing and predominantly about the views of Julian Savuelscu. Nothing new in the latter but the resurgence of the issue and the sensitivities surrounding it. The reason that I raise these two stories is not so much because they are about the topic that is for discussion today, but because they are examples of the media fascination with these stories and how important the media is in influencing community views, and as a consequence the views of nervous backbenchers in marginal seats.
Take Alan Trounson's comments. Alan is a master tactician lobbying for legislative change - in this case at the Federal level. What he understands is that you need to get the scenarios, no matter how scary, out into the public view. If you start this early enough, and then follow through with research arguments, ethical arguments, common sense arguments, then people start to feel more comfortable, more accommodating of the opportunities of these technologies rather than the challenges. This is an important point in looking at the law reform process ahead of us in Victoria, and the role that we all play in using the media, talking to our respective constituencies and seeking to have sensible changes made to the use of reproductive technologies.
We also know that for each advance in relation to the use of technologies of these sorts, there is often a public policy response - it won't always result in a regulatory or statutory response, but the ripples will be felt. This is from my past presentations at the Infertility Treatment Authority, but summarises the matter well.
So what we have at the moment are lighting rods for community attention - reproductive technologies that captivate community interest and that we know everyone has a point of view about, proposals to form families in a considered and regulated manner that may not reflect the depiction of families shared by the more conservative political parties, lesbian women wanting to form families utilising these technologies - there are plenty of grounds for demystification and a lot of work yet to be done to ensure that the stigma already experienced by these women and men is not perpetuated.
About the Law Reform Commission Process
As I have stated before, the Victorian Law Reform Commission consultation is incredibly important, because it has been the first state government sponsored consultation process about the use of these technologies and treatments since 1991. It is critically important that not only the laws are sorted out about assisted reproduction, but that the community is kept apprised of their possibilities, the opportunities created and the benefits that they may offer to women and men who seek to use them to make their families.
We see the importance of this demystification not only in the area of treatment, but also in the areas of screening and genetic testing. All new health technologies pose challenges, and where technology is used to assist or inform reproduction this is never more the case. Even in the case of donor insemination, where there is no real 'technology' administered, there is still the additional step of changing what might be considered the general view of procreation, and this warrants attention for that reason.
In Victoria, there is an incredibly important window of opportunity to look at how assisted technologies are regulated, and to seek to have a system of regulation which places the interests of children as central, which does not discriminate and which is facilitative in order to protect the parties to the procedures by providing checks and balances in the system. This is the new challenge, but it will be a significant one.
I know from the past work of the Equal Opportunity Commission that the opportunities to raise these issues must be viewed in the context of the political, social and sometimes international context of the time. In the Equal Opportunity Commission's important report of 1998 the issue of access to assisted reproduction or adoption for family formation by same sex couples was left as a matter for further debate and discussion. At the time of the report the Infertility Treatment Act specifically excluded anyone other than heterosexual couples or married couples from treatment, until this was challenged in 2000 in the Federal Court Case . Legal reform cannot occur in a vacuum of community understanding, and it was clear that the time for reform in that area was not right.
What relevance do International human rights instruments have to this issue?
There are various international instruments that many of you will be familiar with that expressly address family formation, the protection of families and the protection of children. For example:
- Art 12 of the Universal Declaration of Human Rights includes protection from arbitrary interference with family and home.
- Article 16.3, the family is identified as the natural and fundamental unit of society which is entitled to protection by society and the state.
- The widest possible protection and assistance should be accorded to the family, particularly for its establishment and while it is responsible for the care and education of children.
- Specific protection exists for children, most specifically special measures of protections on behalf of all children and young people without any discrimination for reasons of parentage or other conditions. And so it goes on.
There is no one definition of 'family' and the definition may differ from state to state. It is left up to the States to define their own concepts of family. But when a group of persons is regarded, in legislation and practice, as a family by a State, it must be given protection under Article 23. The UN imposes an obligation on States to report on how they define or construe the concept and scope of family in their own society and legal system. Where diverse concepts of the family, 'nuclear' or 'extended', exist within a State, a State should explain the degree of protection afforded to each. In view of the existence of various forms of family, such as unmarried couples and their children or single parents and their children, States parties should also indicate whether and to what extent such types of family and their members are recognised and protected by domestic law and practice. This is the case for legal protections and clarification.
How is this applied in Australian law?
In the Equal Opportunity Commission's response to the Victorian Law Reform Commission enquiry into assisted reproduction, it recognised that even though these infertility treatments are highly specialised services, and accessed by a relatively small number of people (or potentially accessed), they are nevertheless services that people have a right to. Denial of access exacerbates the experience of stigmatisation which is already experienced by people wishing to form families. Such denial of access also means that the benefits of regulation are also denied to this group, including clarification of the legal status of the child born as a result of donor treatment, the provision of counselling and information and the recording on the Central Registers details of the biological and social parents of the child.
The Options Paper 1 released by the Victorian Law Reform Commission is an important step forward in moving away from one form of discriminatory behaviour - and the interests of single women and lesbian women wishing to utilise assisted technology are addressed in a framework which is about facilitative regulation rather than discriminatory practices.
However, there are two points of caution in the direction that the Options Paper proposed. The first is to be wary about replacing one form of discrimination with another. In taking the interests of the child to be born as paramount, caution has to be taken to avoid other sorts of prejudicial assumptions about parenting capacity. So for example, in recommendation 2 (b) of the report, where physical or mental health of a person seeking access to ART (or that of his or her partner, if any) is a relevant criteria for assessing the risk of abuse or neglect. Such assessments must not be made in aggregate or blanket ways, just as has occurred in the past about the capacity of single women or lesbian women to parent. The risk of abuse or neglect should be assessed on an informed, case-by-case basis and not accordingly to discriminatory assumptions about the parenting capacity of particular groups of people.
The second cautionary point relates in our terms to goods and services. Under the EO Act discrimination on the basis of goods and services continues despite adverse publicity. It is generally recognised that discrimination by services providers is not always motivated by malice or prejudice. In the case of assisted reproduction, providers of services are caught between the requirements of different laws, irrespective of their own views about who should access these services. Further, the application of a goods and services analogy is complex when it relates to the donation of sperm or eggs or embryos, and the provision of treatment that will result in new life being created. We have also seen this in the case of directed donations. If someone is going to donate their sperm or eggs or embryos to someone else, should they be able to specify the class of person or the type of person to whom that donation should occur? Particularly in the context of Victorian legislation which requires the recording of birth origin information so that the child may access identifying information on attaining the age of 18 years. The allocation of 'goods' in this respect is discriminatory, and if a complaint was lodged it would be addressed by the Commission. However, again, as children are involved, we must ask 'what is the package of reform that is needed to address issues such as these?' Is it appropriate to apply black letter law to these cases? When we talk about health technologies that are life creating, do we apply the simple test of discrimination or are their broader questions that have to be asked? I think this aspect of the Options paper requires much more thought and discussion, notwithstanding the trends that have occurred in policy in other states.
The VLRC Options Paper places a primary emphasis on the interests of the child who is to born. Changes in laws are a significant step to looking at their rights but there needs to be a comprehensive and integrated strategy to build community understanding and acceptance. The children born into families as a result of assisted reproduction, whether it is to single women, older women, women in same sex relationships or heterosexual couples should be born into an informed and accepting community, so that they do not battle stigma and difference in a manner that may not occur for children born through unassisted means.
Public Policy and Human Rights
The legal solutions are important. However, I am not a lawyer and my background is in public policy, so I am always interested in what the total context is in relation to achieving reform, particularly in complex areas where human rights challenge uninformed or underdeveloped community attitudes. In public policy terms, we are experiencing one of those times where a significant window of opportunity for reform is opening.
In Victoria, we are about to embark on an important community consultation about whether or not we should have a Charter or Bill of Human Rights and Responsibilities, whether there are more effective ways of addressing systemic discrimination and whether there needs to be concerted public education campaigns to alleviate discriminatory patterns of behaviour to raise the understanding of human rights. The Attorney- General has announced a panel of eminent persons who will undertake this community consultation. The panel is chaired by Professor George Williams who is an academic lawyer, Dr Rhonda Galbally who is the chair of the Disability Advisory Council among many other hats, Andrew Gaze who is a recently retired basketball player of some note and Haddon Storey who interestingly was Attorney General in the Liberal Government in 1981 when the decision was first made to set up a Committee to look at the ethical issues associated with reproductive technologies. This was then subsequently enacted by the Cain government in 1982. Michelle Burell, the past Deputy Director of NCOSS, has been appointed to head up a project team who will manage this process.
This is a significant opportunity for the Victorian Community to update and modernize the way our human rights framework operates, but also to raise community awareness about human rights. This is a significant initiative in the process of reform not only of legislation, but also of public policy and ensuing impact on community attitudes.
More importantly, however, it occurs at a time when other public policy initiatives and legal reforms have occurred.
- There have been significant reforms which to various extents legally recognize different family formations, including those where same sex relationships form the basis of those relationships.
- The process of the Law Reform Commission enquiry addresses further law reform following two years of discussion papers, open forums and community debate. The recording of the birth of a child in a same sex relationship, the recognition of social and biological parents in such relationships are all challenges which are still to be addressed.
- Victoria will be involved in the first extensive discussion about human rights in the most inclusive manner probably since the formation of our state.
We accept that human rights are the conditions necessary for people to live lives of dignity and value, but they are rights which should be removed from the agenda of short term political thinking and encapsulated in a law that informs all other law making.
What a difference a year makes. Last year I was in a different position, but so was the policy debate about who should be able to access assisted reproduction to help form families. Public policy theory identifies such windows of opportunity for change as significant in achieving various public policy reforms. This time is incredibly important as we see the coalescence of review of legislation regulating assisted reproduction and donor treatments, review of the legal recording of the birth of children born is same sex relationships, and a more extensive discussion about human rights. This process will continue the important role of community debate and discussion which will challenge exclusiveness, stigmatization and stereotyping, and this is important, for all sorts of reasons, but also for children who are born as a result of the use of assisted technologies. But the thing about windows of opportunity is that they are open for a period of time. We must make the most of this time to ensure that a human rights perspective is brought to consideration of what constitutes a family and how that family is constituted. And we must use the opportunity for a community debate about human rights to ground this into very simple concepts of tolerance, acceptance of diversity as an opportunity and inclusiveness in the way we live our lives.
My own view is that there are many important aspects of the current regulatory framework for assisted reproduction that should offer facilitation and protection of people who access treatment through the provision of medically assisted reproduction. These are technologies and treatments that assist in the creation of new life and there should be checks and balances on their use. Where the general case of procreation does not always provide an opportunity for reflection and assessment, these assisted technologies by definition require deliberation to their use. Counselling, information, and support to all of the parties to the procedure should be provided, and there should be regulation of the 'business' which has developed through these technologies. However, with those checks and balances, there should be a broader recognition that families come in all shapes and sizes, and that just as our community is pluralistic and acknowledging of all sorts of diversity, that this should be extended to families.
