Kay Patterson (Victoria, Liberal Party) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard and to table an explanatory memorandum relating to the bill.

Leave granted.

The speech read as follows—

The Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006 amends the Prohibition of Human Cloning Act 2002 (PHC Act) and the Research Involving Human Embryos Act 2002 (RIHE Act).

The RIHE and the PHC Acts required that both Acts be reviewed by an independent committee by December 2005.

Sub-clause 25(1) of the PHC Act provided that the Minister was required to cause an independent review of the Act to be undertaken commencing two years after it received Royal Assent. A similar provision was included in the RIHE Act. Provisions in the RIHE Act ensured the reviews of both Acts were undertaken concurrently and by the same people.

The terms of reference for the Committee was set out in both Acts and the intention in 2002 was that the Acts be reviewed together and the full terms of reference provided to the Committee by the Minister for Ageing are:

(1)

The Legislation Review Committee —Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002 —is required to consider and report on the scope and operation of each of the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002 taking into account:

(i)

the following statutory requirements:

(a)

developments in technology in relation to assisted reproductive technology;

(b)

developments in medical research and scientific research and the potential therapeutic applications of such research;

(c)

community standards;

(d)

the applicability of establishing a National Stem Cell Bank; and

(ii)

the following additional matters in relation to the national legislative scheme:

(a)

consideration of relevant aspects of State and Territory legislation corresponding to the Research Involving Human Embryos Act 2002;

(b)

the role played by State and Territory statutory bodies that regulate assisted reproductive technology (ART) treatment as well as the role of national organisations including, but not necessarily limited to, the Fertility Society of Australia and its Reproductive Technology Accreditation Committee (RTAC);

(c)

the effectiveness of monitoring and compliance under the Research Involving Human Embryos Act 2002 in particular, but also in relation to the Prohibition of Human Cloning Act 2002 to the extent that issues may arise in relation to the latter Act;

(d)

the ongoing appropriateness and effectiveness of changes to the Customs regulations to regulate the export of human embryos derived through ART and the import of viable materials derived from human embryo clones;

(e)

options for regulation of the import and export of human embryonic stem cells;

(f)

the implications of cost recovery; and

(g)

implications for Australian science and economic activity.

(2)

The Legislation Review Committee is required to consult the Commonwealth, the States, the Australian Capital Territory and the Northern Territory and a broad range of persons with expertise in or experience of relevant disciplines.

(3)

The reports must, to the extent that it is reasonably practicable, set out the views of the Commonwealth, the States and Territories and those other persons consulted.

(4)

Each report must contain recommendations about amendments, if any, that should be made to the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002, whichever is applicable.

(5)

The Legislation Review Committee is required to give a written report to the Council of Australian Governments and both Houses of the Parliament on the independent review of the operation of the Prohibition of Human Cloning Act 2002 no later than Monday 19 December 2005. The Legislation Review Committee is required to give a written report to the Council of Australian Governments and both Houses of the Parliament on the independent review of the operation of the Research Involving Human Embryos Act 2002 as an accompanying report to the report on the review of the operation of the Prohibition of Human Cloning Act 2002.

In June 2005 the Hon Julie Bishop MP (the then Minister for Ageing with portfolio responsibility for human cloning and stem cell research) appointed a six-member Legislative Review Committee. All the appointments to the Committee were agreed by each State and Territory as the Acts required.

The Legislative Review Committee was chaired by the late John S Lockhart AO QC, a former Justice of the Federal Court of Australia. The other members were Associate Professor Ian Kerridge (New South Wales) a clinical ethicist; Professor Barry Marshall (Western Australia), a specialist gastroenterologist and community advocate; Associate Professor Pamela McCombe (Queensland), a clinical neurologist; Professor Peter Schofield (New South Wales), a neuroscientist; and Professor Loane Skene (Victoria), a lawyer and ethicist.

Sadly John S. Lockhart AO QC died very shortly after the Legislative Review Committee (more commonly known as the Lockhart Review Committee) provided the Minister with its report. I was not privileged to know John Lockhart but I think it would be remiss of me not to relay a comment made to me by one of the other members of the Lockhart Committee—“he was an extraordinary fellow who imbued the entire process and report with a deep respect for all parties and a deep tolerance of divergent viewpoints”.

The Committee “consulted the community extensively through a review website, written submissions, face-to-face meetings with key stakeholders, public hearings and some private meetings (at stakeholders’ requests), facilitated stakeholder discussion forums, and selected site visits. In addition, the Committee reviewed the latest results of focus group and telephone survey research by the Public Awareness Program of Biotechnology Australia, and a literature review (commissioned by the NHMRC on behalf of the Minister for Ageing) of recent scientific and technological advances in human cloning, human embryo research and related matters, including stem cell technologies.” (page xiii)

“Throughout the consultation, the Committee heard from a broad range of people about the implications of legislation for assisted reproductive technology (ART), including in vitro fertilisation (IVF), and for human embryo research. The purpose of this public consultation was to seek the views, values and ‘standards’ of the community regarding the reviews of the Prohibition of Human Cloning Act 2002 (PHC Act) and the Research Involving Human Embryos Act 2002 (RIHE Act). In doing so, the Committee came to the view that Australian society should not be characterised as being a single, homogeneous community, but instead is composed of many different ‘communities’, each of which may have its own perspectives, interests and values, and that any one individual may be a member of many different communities at the same time. Thus, a person may be a committed Christian, a scientist, a shareholder, and the relative of a person with a serious illness —’communities’ that may have very different perspectives or ‘standards’ regarding the development and use of embryos for research.

“The Committee also observed that the ‘standards’ evidenced by these communities varied enormously both between and within communities in terms of the extent to which they were clearly developed or articulated; the degree to which they were felt to bind members of the community; and the degree to which they changed over time or with developments in science and medicine. Consequently, the Committee considers that the social and moral concerns raised by ART and embryo research cannot be explained simply by reference to a single ‘standard’ or a single set of values, beliefs or interests held by a single community.

“In looking for common ground, the Committee noted that there are certain moral values that are held in common by all communities, such as a commitment to social justice and equity, and to the care of vulnerable members of society. This is reflected in broad support for medical research aimed at understanding, preventing or treating disease. The Committee also noted widespread support for medical research to assist people to have children (including a general acceptance that this process may involve the ‘wastage’ of some embryos). Hence, the Committee came to the view that considerations regarding the use of embryos for research needed to take account of both the value that different communities attach to the embryo, and the social and moral value that communities attach to the treatment of disease and the amelioration of infertility.

“It is clear that there are wide-ranging views on embryo research and human cloning, with the exception of human reproductive cloning, which appears to be widely condemned. Some people consider that human embryos have the moral status of an adult and so should not be subject to destructive research in any circumstances, regardless of medical benefit. Others hold a view that human embryos deserve some special consideration by virtue of their moral or social/relational status, but should not be accorded the same status as humans after birth. People who hold this view consider that embryos may be subject to research in certain circumstances, such as when they are judged to be excess, nonviable or unsuitable for implantation. A third group supported research on human embryos before implantation into the body of a woman and urged an extension of what is currently permitted because of the potential medical or scientific benefits that may result from such research. Each of these views is sincerely held and it was apparent to the Committee that all those who made submissions were motivated by a desire to do what is best for our society. However, it was also clear to the Committee that these views could not always be reconciled. Therefore, the challenge for the Committee has been to make recommendations that are consistent with shared values and take into account the needs, beliefs and concerns of the whole community.” (page 161)

“In framing the recommendations, the Committee considered that the higher the potential benefits of an activity, the greater the need for ethical objections to be of a high level and widely accepted in order to prevent that activity. Conversely, where there is evident or possible harm, or where there is widespread and deeply held community objection, a total prohibition through the legal system may be justified. The Committee’s view is that it does not necessarily follow that even though some people think that an activity is unethical, it is necessary to make that activity illegal. Furthermore, the wider the range of ethical views on a particular activity, the weaker the case becomes for declaring that activity to be illegal, with all the attendant consequences of criminal conduct.” (page 162)

The Committee noted that “despite the divergent views received by the Committee during the reviews, both proponents and opponents of embryo research agreed that the current system of legislation is valuable. Therefore, it recommended a continuation of national legislation imposing prohibitions on human reproductive cloning and some other ART practices, as well as strict control and monitoring, under licence, of human embryo research”. (page xiv)

The Minister for Ageing received the Legislation Review: Prohibition of Human Cloning Act 2002 and Research Involving Human Embryos Act 2002 in December 2005.

In summary, the proposed amendments to the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002:

• retain existing prohibitions on activities such as:
• placing a human embryo clone in the human body or the body of an animal;
• importing or exporting a human embryo clone;
• creating a human embryo by fertilisation of a human egg by human sperm, for a purpose other than achieving pregnancy in a woman;
• creating or developing a human embryo by fertilisation of human egg by human sperm which contains genetic material provided by more than 2 persons;
• developing a human embryo outside the body of a woman for more than 14 days;
• making heritable alterations to a human genome;
• collecting a viable human embryo from the body of a woman;
• creating or developing a chimeric embryo;
• developing a hybrid embryo beyond 14 days;
• placing a human embryo in an animal, a human embryo into the body of a human other than into the female reproductive tract or an animal embryo in a human; and
• importing, exporting or placing in the body of a woman, a prohibited embryo.
• enable certain types of research involving embryos to be permitted provided that the research is approved by the NHMRC Licensing Committee (in accordance with legislated criteria) and that the activity is undertaken in accordance with a licence issued by the NHMRC Licensing Committee. In summary, a person may apply for a licence to:
• use excess ART embryos;
• create human embryos other than by fertilisation of a human egg by a human sperm, and use such embryos;
• create human embryos (by a process other than fertilisation of human egg by human sperm) containing genetic material provided by more than 2 persons, and use such embryos;
• create human embryos using precursor cells from a human embryo or a human fetus, and use such embryos;
• undertake research and training involving the fertilisation of a human egg, up to but not including the first mitotic division, outside the body of a woman for the purposes of research or training;
• create hybrid embryos by the fertilisation of an animal egg by human sperm, and develop such embryos up to, but not including, the first mitotic division provided that the creation or use is for the purposes of testing sperm quality and will occur in an accredited ART centre; and
• create hybrid embryos by introducing the nucleus of a human cell into an animal egg, and use of such embryos.

Unless a shorter time is specified, the uses of embryos that may be authorised by a licence may only be authorised for development up to 14 days (excluding any period during which development is suspended). In no circumstances can any embryo be developed, outside the body of a woman, beyond 14 days.

The amendments in this bill are based on the recommendations of the Lockart Review (Legislation Review: Prohibition of Human Cloning Act 2002 and Research Involving Human Embryos Act 2002, Reports, December 2005, Legislation Review Committee (www.lockhartreview.com.au)

In 2002, when I was the Minister for Health and Ageing, I had the responsibility of taking the Prohibition of Human Cloning Bill and the Research Involving Human Embryo Bill through the Senate on behalf of the Government.

As I have said, the Acts required that they be reviewed, and one of the terms of reference required that the “reports must contain recommendations about amendments, if any, that should be made to the Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos 2002, whichever is applicable”.

In 2002 I said in the debate on the bills, “If the review gives rise to possible amendments to the legislation, any such amendments must come before parliament, and at that time, whoever is here will have the opportunity to consider in detail any proposed changes to the legislation”.

This bill provides that opportunity. It is not an easy issue and people hold diametrically opposed views. It is important that the public and parliamentary debate on this bill is considered and considerate—everybody, whatever their view, has a right to express that view without being subjected to ridicule or personal abuse.

Incorporated at the end of this speech are the Lockhart recommendations and a response to each recommendation indicating if legislative changes are required and how they are dealt with in the bill.

This bill, Senator Stott Despoja’s Exposure Draft Bill and the Lockhart Review have been referred by the Senate, on my motion, to the Community Affairs Committee for inquiry and consideration. After the examination of the bill by the Community Affairs Committee and at the end of the second reading speeches I will have an opportunity to comment on matters raised in the hearings and on honourable senators’ contributions to the debate. In addition, I am sure that the various issues and points of view will be comprehensively covered in the debate and the consideration of the committee of the whole.

Summary of Lockhart recommendations and how these are addressed in the bill