Human Assisted Reproductive Technology (Storage) Amendment Bill

Dr PAUL HUTCHISON (National—Hunua) Link to this

It gives me pleasure to continue speaking on the Human Assisted Reproductive Technology (Storage) Amendment Bill. As I was saying, this bill came about after media inquiries to the Minister of Justice. There was concern that clinics acting in good faith could be storing embryos and gametes—that is, sperm and eggs—illegally. The whole point about this bill is to make the rules around storage absolutely clear; that, indeed, has successfully been achieved by this legislation. The bill now clarifies the rules around storage. This is very, very important because of the hugely emotional area that this bill encompasses, particularly for patients, and, of course, because of the very important legal issues for clinics. That part of it has been very satisfactory.

In terms of the various parts of the bill, one of the aspects that people raised their eyebrows about a little was the issue of gametes and embryos that are stored in other countries. Indeed, it was vital to ensure that we dealt with this area accurately, because storage outside New Zealand clearly must be counted as part of the 10-year period. International tourism is literally going on with regard to in vitro fertilisation around the world; in the order of 10,000 couples a year travel from one country to another. So it is particularly important to ensure that the storage rules are very clearly defined.

There were calls during the debate to provide a review mechanism for the Act, but the view was that generally this legislation has worked very well so far, that there have been no complaints, and that because it is relatively new legislation and because it requires flexibility, it is not appropriate at this stage to consider a review. But it is important that we keep that matter in mind in the future.

One aspect of the debate that stood out was the concerns expressed by the Māori Party. Te Ururoa Flavell said in the first reading of the bill: “The Māori Party has a considerable sense of sadness that we even have bills like this in front of the House … I cannot say that anyone in the Māori Party is at ease with the discussions around assisted reproductive technology,”. Further to that, Hone Harawira cemented in those views and made known some fairly strong concerns about the technology, and said that Māori were being left out. He cited a variety of papers in his speech, which I took the bother of looking up, and I was quite surprised by them. The first one was by Mārewa Glover and Benedicta Rousseau, ‘Your child is your whakapapa’. I found this paper to be very convoluted, wordy, full of sociological verbiage, and lacking in any precise conclusion. To give members an example, one of the pages in this report is entitled “Strategic Naturalizing and the Fluidity of Relatedness”. I found this very hard to understand. It says: “It is important to stress here the preliminary nature of the data on which this article is based. The majority of the participants involved in hui did not have direct experience of AHR, or necessarily infertility. They were a predominantly self-selected group of interested people who, through the research process, became ‘informed lay people’.”

What I am concerned about is that the members actually admitted to me that they were merely parroting references that they had been given to speak about in their written speeches. One of the others cited was Te Tauranga Waka, an action plan for addressing Māori concerns about the system and process for the ethical review of issues relating to human participation in research and innovative technologies. That was slightly more practical in its key actions and recommendations. But the message that I would give to the Māori Party is that there is a tremendous amount of thinking behind the human-assisted reproductive technology legislation. Philosophers, ethicists, lawyers, clinicians, and scientists have for years worked to get this legislation in New Zealand as good as it could be. I urge the Māori Party to look at the writings from the Advisory Committee on Assisted Reproductive Technology, and from the Ethics Committee on Assisted Reproductive Technology, as well. The concerns to ensure that thought is given to Māori aspects are right at the forefront. In fact, the Human Assisted Reproductive Technology Act requires that everyone exercising powers or performing functions under the Act must be guided by its principles, including the principle that the needs, values, and beliefs of Māori should be considered and treated with respect. I believe there is a reciprocal responsibility for members of the Māori Party to take the time to read the very well-considered literature in this area.

I will end by making mention of the fact that on 4 October the Nobel Prize committee awarded to Dr Edwards the Nobel Prize for medicine or physiology. It was, of course, in 1978 that the first test-tube baby was born, and since then something like 4 million babies—the population of New Zealand—have been born through the use of these technologies. I think it is important to remind the House just how remarkable these technologies can be for people who are affected by infertility. In fact, Professor Edwards said that in his view the most important thing in life is having a child. Nothing is more special than a child. From my point of view, there is no doubt that for those who have trouble conceiving—and it is almost one in five couples—birth technologies are amazing and positive, provided they are used with humanity and are used ethically and wisely. I believe this amendment bill, which we have been discussing over the last few months, is part of New Zealand’s contribution towards ensuring that we clarify the rules as much as possible, that we have a strong ethics background to back them up, and that our clinics around New Zealand give wise counsel to the many patients who come to them.

IAIN LEES-GALLOWAY (Labour—Palmerston North) Link to this

I suspect my speech will get cut off fairly shortly as we head to the dinner break, but in the few seconds that I have available I will start by saying that Labour will continue to support the Human Assisted Reproductive Technology (Storage) Amendment Bill, as we have throughout its progress through the House thus far. Of course, it makes amendments to the Human Assisted Reproductive Technology Act, which was originally introduced by the previous Labour Government in response to the facts and concerns that Dr Hutchison touched on: that the technology around in vitro fertilisation was moving very quickly.

Hon STEVE CHADWICK (Labour) Link to this

I am pleased to take a call in the third reading debate on the Human Assisted Reproductive Technology (Storage) Amendment Bill. I think that most of the issues have been canvassed, but I too want to put on record that in 2004 the Human Assisted Reproductive Technology Act was leading-edge legislation. I worked with Dr Paul Hutchison at the time, and Sue Kedgley was on the Health Committee. We were very aware that technology was moving faster than those in the clinical field, and that there was a real need at that time to look at the environment, which needed policies, regulation, and the law. I acknowledge Di Yates for the legislation. It resulted from a member’s bill, and it was remarkable to have such leading-edge legislation come forward as a member’s bill, so I want to acknowledge her and put that on the record.

In New Zealand the first baby born as a result of in vitro fertilisation treatment was born 26 years ago. That occurred in New Zealand not long after the first baby in the world was born as a result of that treatment. I think about 4 years later we developed the same technology in New Zealand. We started to move very fast, because New Zealand clinicians are very nimble in the field, to pick up global trends. It is amazing to think that from 2004 to 2010—6 years later—really there are only minor amendments to the legislation. We always said we would come back to have another look at the legislation. The call for this amendment did not come from the field, from clinicians; it came, I understand, from a legal opinion that went to the Minister, seeking clarification. I understand the Health Committee worked really well together again on this bill.

There is another issue that I would like to raise. It relates to a provision that I am pleased to see is maintained in this bill and has not been knocked out, and that is the empowerment of the Advisory Committee on Assisted Reproductive Technology to issue and promulgate guidelines. When we first discussed the legislation that was an issue for us, because guidelines were not developed at that stage, and we thought they needed to be developed in order to keep up with the really rapid trends in in vitro fertilisation. It is great to see that the guidelines remain part of the advisory committee’s function, because it was very important for the Ethics Committee on Assisted Reproductive Technology to be advised on that matter. It is difficult to put guidelines into primary legislation, but the right to review guidelines and keep them current is still here.

I think that in vitro fertilisation is an issue for people. The research is moving rapidly. I read in research just a couple of weeks ago that fresher gametes may lead to a greater growth in height. We had never heard of that when we considered the legislation in 2004, so we can see how the technology really ramps along, and how we learn about best practice, safety in practice, and quality of practice in this field.

This is a good amendment. I think that at the time we always felt the limit on storage was 10 years, and never retrospective from the date, in 2004. There were issues then, and there are some interesting issues now, when we talk to a younger generation of women like Nikki Kaye and others like my daughters, who say they may not have found the perfect partner yet to have a child with, so they will put their eggs on ice. I think, heavens, that is something we would not have considered. I can see Georgina looking bemused, but that is how young people use the market, health research, and health practice to make decisions now. They do so because they might be 38 or 40 and a bit over the edge by the time they look at having a child, so they will put an egg on ice now and it will be pretty fresh when it is thawed. Those are things that we do not even think of as legislators. The mind boggles, really, about where the technology could go in the future. At the time, I can remember Di Yates being very concerned about the cloning of the human embryo, and we kept that at the top of our minds too, as something that would be banned in New Zealand.

On this bill, I say “cheers” to those who worked on the 2004 legislation and got it pretty much right. It is great that we get legal opinions to say we need to keep up with advice or give clarification. We are very happy to support this bill. I was on the select committee, and I was called in one day when the committee was talking about the grace period of 6 months for storage before the disposal of the gamete. I think that is sensible. If, in 6 months’ time, we have not found the donor of either the sperm or the egg, I think disposal is probably acceptable, and we thought that 6 months was a sensible time. I wonder whether in 6 years’ time we will be back here and saying we need to make some more amendments to this legislation. I am sure that we will, because the technology in the clinical field races ahead of legislators. I congratulate all those who work in this field. At the time I can remember that the environment was one of being rather scared of this legislation; even in 2004 people were timid and cautious about the future, and how fast we were going into the future. But, again, New Zealanders are seen being as quite leading edge in our approach to human-assisted reproductive technology. I congratulate the practitioners and all those in the field, and say we support this bill. Thank you.

KEVIN HAGUE (Green) Link to this

On the occasion of the second reading of the Human Assisted Reproductive Technology (Storage) Amendment Bill, one of the other bills that we were debating in the Chamber was the Motor Vehicle Sales Amendment Bill. I raise the issue for a particular reason. The context of our debate on the Motor Vehicle Sales Amendment Bill was that the original Motor Vehicle Sales Act had been written with a review clause in it, so the bill that we were debating on the night of the second reading of this bill was one that had arisen out of a review of the Act that had been mandated by the Act itself. The field of motor vehicle sales is obviously a complex and fast-moving one, with a whole series of cutting-edge scientific, and no doubt commercial and ethical, issues, so of course it was an area that required a section that provided for a review to be undertaken. It was no surprise that when that review of that Act occurred, it threw up some issues with regard to the operation of the Act that required amendment.

In the case of human-assisted reproduction it is at least arguable, I think, that this field is at least as fast-moving and complex as motor vehicle sales. It could even be that it has some scientific and ethical issues that are trickier to handle than the area of motor vehicle sales, yet the existing Act was written without a review clause. In the second reading debate on this bill I devoted some time to the issue of a review, and I said I would come back to it in the third reading debate.

Members of the House will have noted that the very first version of this bill, which we considered in our first reading, was quite a simple bill. It was just a few clauses long, with quite straightforward language. Then, when it came back to the House from the Health Committee, the bill was no longer a simple, straightforward one. The “track changes” version of the bill had lots and lots of additions, deletions, and new framing, and the reason for that was that what had appeared to be a simple issue turned out to be quite a lot more complex than that. The Green Party argues that the same principle applies to other aspects of the in vitro fertilisation area of human endeavour, so we were disappointed to learn during the select committee process that the original Act had not provided for review as an automatic process as part of its implementation, as the Motor Vehicle Sales Act had done. Then we were disappointed that the Minister, in introducing this amendment bill, had not taken the opportunity to incorporate a review process, because that could easily have been done. Now we are in the process, assuming that this bill passes tonight, of urging the Minister to conduct a review of the operation of the Act and its fitness for purpose.

As an example of some of the issues that have arisen since this Act was passed in 2004, I draw the House’s attention to a report of the Law Commission that was published in March 2006 and called New Issues in Legal Parenthood. The Law Commission made 29 recommendations. At least 12 of them relate directly to the issues that are canvassed in this Act. They could have been dealt with in a review and could have been dealt with in this bill, but they were not. For example, the Law Commission made recommendations about agreements between donors and parents. It made recommendations about counselling and education. It made recommendations about information regarding parentage and parenthood—for example, what should appear on birth certificates, what should appear in information registers, and the kind of access to information that people should have. The Law Commission made a large number of recommendations—some 29 of them.

I have been contacted, since this bill was introduced to the House, by a man who is a sperm donor. He has donated sperm for some years and is the biological father of, I think, four children in multiple families. His concern was that there is no requirement to record on birth certificates the involvement of a third biological parent. He was asking about some of the issues that might arise from that, because the information that he had—and I have no reason to doubt this—is that only a minority of parents actually tell their offspring about the involvement of a third biological parent, about the involvement of a sperm donor. So he is saying he has biological children out there who do not necessarily know that he is their biological father, and who have half-siblings whom they also do not know about. He is asking what the situation would be if those individuals formed a relationship, and whether they should have the right to know about their background.

These were the kinds of issues that the Law Commission raised in its 2006 report, which occurred since Parliament passed the Act in 2004. These are the kinds of issues that could be addressed in the process of a review. The Law Commission has raised some pretty serious issues, and some pretty serious issues have also been raised from other quarters. My view is that this House has a responsibility to ensure that there is an appropriate forum for the consideration of those kinds of issues. So far, one has not been created. We urge that the Minister now takes the opportunity to institute a review of the operation of the Act, to consider the recommendations of the Law Commission, to consider all of the other issues that have arisen subsequently, and to ensure that this Act is fit for purpose.

We are confident now that this bill does in fact correct one of the aspects of the original Act that required clarification. Doing that turned out to be more complicated than we had thought it would be. My suggestion to this House is that that may well prove to be the case for other aspects of the Act also. We urge that there be a review.

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

The Human Assisted Reproductive Technology (Storage) Amendment Bill amends the Human Assisted Reproductive Technology Act 2004 to make it clear that human in vitro gametes or in vitro embryos must be disposed of before the expiry period of 10 years, or at any later date approved by the ethics committee.

If I say it fast, it is almost possible to avoid the fact that we are talking here about the origins of all human life. The Māori Party has addressed three particular priorities in our contribution to the debate throughout the readings of this bill. The first is the concern that there has not been opportunity for Māori to debate the tikanga of this field. The second is about the precious and unique status of whakapapa, and the third is the critical issue of participation in decision making. For tangata whenua, as a partner of the Crown, Te Tiriti o Waitangi stands to remind ethics committees of a constitutional obligation to ensure Māori participation, protection, and partnership when considering approval for research applications.

I will discuss each of these in turn. When we think about the tikanga of this field, it is important to note that a separate Ethics Committee on Assisted Reproductive Technology has been established to review and approve research involving new technologies or treatments for human reproduction and infertility. One of the ethics committee’s seven guiding principles is that “the needs, values, and beliefs of Māori should be considered and treated with respect”. That is a very positive start, but it has to translate into tikanga—tikanga that must be applied at all stages, from the decision to enter into the process of fertility treatment to the completion and return of āhua kahukahu, the unripened seed of a human child, in whatever form that might take.

As a case in point, the tikanga for destroying an embryo might take into account several tikanga at play: the movement from living to not living; the preparation for burial, cremation, etc.; the actual burial; and the entry into the portals of the world of being and light. Similarly, the tikanga for when whānau hand over their embryos and gametes would be the tikanga of gifting. This would include the sharing of whakapapa, and the whakatau settling process into the storage facility. This is the handing over or passing over of a life-force. Such a tikanga provides a level of accountability and responsibility on the part of the agency to accept the Māori level of commitment. It also provides for the right of Māori to collect the embryo and gamete, should the original agreement not be upheld. The point I am making is that it is one thing to talk about these matters; it is quite another to sit down and give expression to the tikanga that makes the words real.

The second critical aspect of our decision making is around whakapapa. We believe that the law should facilitate the rangatiratanga of whānau over their whakapapa material. Discussions of assisted reproductive technology amongst Māori are rarely confined to the intricacies and mechanics of particular technological interventions; they are about what constitutes human life and relationships, the need for Māori to continue to exist, and the uniqueness of Māori identity. Māori have a different view of reproduction from its being just a matter of eggs and fertility; it is about whakapapa. This means in practice that it should be up to the people from whom the in vitro gametes and embryos have come to decide how long they should be stored for, what they should be used for, what happens in the event of their death, etc. It should not be up to a few people on a committee to decide. The decision about whether to continue to store for longer than 10 years should be made by the whānau and not by some committee. The reason is very simple: the eggs, embryos, and foetuses belong to the whānau, not to scientists, and always should do. That means that if donors decide to let their eggs or sperm be used by someone else, any left afterwards should be returned to the whānau.

I come now to the issue of ethics. Some of the main issues that this amendment presents are to do with what happens to unused eggs after the 10-year period, who owns the eggs, and how decisions are made. How do we gather and report data that is relevant and meaningful for Māori? Māori need to be engaged in a very real way; having a few Māori on a committee or engaged in writing submissions is not enough to constitute proper engagement. We also need robust information and relevant statistics, such as declining Māori fertility rates. Agencies should invest in process—for example, hui or kōrerorero—to raise awareness; to clarify, and gather consensus on, the meaning of consultation and consent for Māori whānau, hapū, iwi, and community; and to develop resources for dissemination amongst whānau, hapū, and iwi.

Finally, we seek the opportunity to raise our own questions to consider whether human embryos used in research should help sustain us or contribute to our demise. It is about Māori partnership in decisions and actions to ensure cultural integrity in whakapapa and the institution of whānau. There must be freedom from abuse, from harm, and from change without knowledge and informed consent.

Despite this being the third reading, I needed to articulate these heartfelt concerns shared by our caucus about this legislation right through this bill to indicate the profound respect we place on any matters related to whakapapa. The material should always be seen as ultimately belonging to the donor and able to be returned if available. The ownership of whānau should always be maintained, and laws should facilitate that understanding. We want to ensure that whānau are better involved in decision making concerning their whakapapa material. We cannot support this bill.

NICKY WAGNER (National) Link to this

It is with great pleasure that I rise to support the Human Assisted Reproductive Technology (Storage) Amendment Bill at its third reading. In essence, this is a simple bill. The aim is just to make clear that gametes and embryos stored before the Act came into effect in 2004 must be disposed of before the expiry of 10 years of that date or such later date as approved by the Ethics Committee on Assisted Reproductive Technology. It also clarifies the powers and duties of the ethics committee when it considers extensions of storage times and confirms that the ethics committee must be guided by the Advisory Committee on Assisted Reproductive Technology when considering longer periods of storage.

I have already said that this is a simple bill, but simple things are often difficult to legislate for. The Health Committee took some time to make sure that this bill would be effective in an area of technology that is changing very rapidly. Although the bill limits the storage of human eggs or sperm gametes and embryos to 10 years only, the select committee recommended provision of a grace period of 6 months after the expiry date of the 10-year storage limit. The amendment was simply for practicality, as organisations that stored reproductive material were concerned that an absolute deadline, without any leeway, could be difficult to manage. But the select committee also made it very clear that material could not be used for any other purposes during those 6 months.

We also considered the situation of stored gametes used to create embryos that then themselves are stored. The select committee recommended that the permitted 10-year storage period for embryos created by stored gametes ran from the earliest storage date of the gametes, which gave consistency to the storage period regardless of the form of reproductive material when it was first stored. We also considered the situation of gametes and embryos stored in other countries, and again, for consistency, we recommended that storage time outside New Zealand be taken into account when calculating the 10-year storage period. The Act allows for the ethics committee to approve an extension of storage time, and the select committee recommended amendments in the bill to clarify the functions of that committee when making those decisions. Finally, the bill makes it very clear that the ethics committee must act on guidelines and advice offered by the Advisory Committee on Assisted Reproductive Technology when making decisions on extended storage periods.

Assisted reproductive technology is responsible for the birth of about 900 babies in New Zealand every year, and its use is increasing. About 15 in every 100 couples in New Zealand have difficulty conceiving a child, and about five in every 100 have in vitro fertilisation—IVF—treatment. With older parents and lower sperm counts in New Zealand men, the demand for in vitro fertilisation in New Zealand is growing, so it is important that our legislation on the storage of gametes and embryos is clear. The select committee has considered the issues very carefully and has made some practical and well-thought-out amendments. I commend the bill to the House.

Dr JACKIE BLUE (National) Link to this

I am pleased to be speaking to the third reading of the Human Assisted Reproductive Technology (Storage) Amendment Bill. It is not a contentious bill, as we have heard tonight. It has arisen because of concern that there is a lack of clarity regarding when gametes and embryos stored before the Human Assisted Reproductive Technology Act came into effect in 2004 must be disposed of. Specifically, we have heard that the problem is that the principal Act prohibits storage of a human gamete or embryo for longer than a set period, which is defined as 10 years, or longer if approved by the Ethics Committee on Assisted Reproductive Technology. The prohibition in the principal Act applies to gametes and embryos that have been in storage since before November 2004. This means that there are fertility clinics holding gametes and embryos illegally, and this is certainly an unintended consequence of the Act. The Health Committee addressed this lack of clarity, and this bill now clarifies that sperm, eggs, and embryos stored before 2004 can be stored until 2014. If fertility clinics have clients who wish to extend storage beyond 2014, they will require approval from the ethics committee before the 10-year storage limit is up. In vitro fertilisation is a rapidly changing area and it is vital that we have clarity in the legislation. I commend this bill to the House. Thank you.

Hon DAMIEN O’CONNOR (Labour) Link to this

I am speaking in this debate on the Human Assisted Reproductive Technology (Storage) Amendment Bill as a new member of the Health Committee. Like every New Zealander—and, I guess, Australian too—I am deeply interested in the area of assisted reproductive technology.

I did not know whether it was a joke when I was asked to speak, because I have had jokes made by my colleagues about me as the proud and lucky father of five daughters. They always have me on about trying to restrict reproduction in my family. I have to say that I am lucky I did not have the challenges faced by the many, many people whom we are trying to assist. Since 1994, 100,000 people in New Zealand and Australia exist because of this new technology. That is something to truly rejoice in and celebrate.

This bill is a relatively minor amendment bill. It tidies up some misunderstandings that have occurred as a result of the passage of the Human Assisted Reproductive Technology Act in 2004. In reading through the notes—not the entire bill itself—I could not help but come up with a few points and questions. Firstly, I have to acknowledge Di Yates. I can remember her in caucus going on and on about this—

MICHAEL WOODHOUSE (National) Link to this

As the newest member of the Health Committee I often get to the point where I am the last speaker in a debate, and when it comes to the last spot in the third reading of any bill there is often very little to be said that has not already been said. As I am not one to unduly prolong debates for the sake of it, unlike some of my 2008 colleagues on the other side of the House, I will keep my comments relatively brief.

I acknowledge the Health Committee, whose members I think have worked very cooperatively on this most important, albeit technical, amendment to the Human Assisted Reproductive Technology (Storage) Amendment Bill, and I acknowledge also the very good support we received from the officials at the Ministry of Justice, who provided excellent advice to us. This was one bill that had on the face of it a pretty straightforward purpose: to clarify the 10-year start date as the date the Act came into effect, but as is often the case the issues traversed by the committee went well beyond that scope, although in the end we did constrain ourselves to its original purpose. We had some quite robust discussions about some of the ethical issues and some of the technical issues, and also, as Mr Hague mentioned, some of the Law Commission’s issues were raised.

Mr Hague also mentioned again in his call the Green Party’s request for a review of the bill to be built into the legislation. Those two things, I think, intertwine. Firstly, the purpose of this bill was not to address the Law Commission’s recommendations, and I am absolutely certain the very hard-working Minister of Justice will come to that point in the not too distant future, in his very long tenure as Minister of Justice—I predict there are years and years still to go.

It is for that reason that I think a review is quite unnecessary and could be cumbersome, because, as many speakers on this bill have said, the science is very dynamic. It is changing all the time, and a review period in the Act could actually be arbitrarily restrictive and not timely enough if indeed issues like this are raised again in the future. We think we have it right this time, but fresh eyes and new legal opinions may require us to tweak it again. So I do not support the call for a review for that reason.

The one thing we did do, of course, was to put some discretion around what was previously a quite hard 10-year time limit. In my examination of that issue I came across a really good document from the Australian Infertility Treatment Authority, which I commend to any of the officials who are required to put guidelines around how that extension period might go. There is a very good section covering people who have gametes or embryos in storage and who cannot be located, and I would be happy to refer it to them if they were interested in that. It sets out a very good pathway for dealing with the very issue that the select committee attempted to address with the amendment that was put in during the Committee stage.

Finally, I commend the very many thousands of couples around the country who go through the stress and trauma of infertility and the uncertainty that fertility treatment brings. There is a great movie by British writer and producer Ben Elton called Maybe Baby. I do not know whether any members have seen it but it gives a terrific insight into what that journey is like. It is very funny, but it is also very emotional. It gives some insight into the emotional roller coaster that couples go through. This bill takes away one of those potential problems that could have arisen if this bill did not clarify the time limit. For that reason it is a good bill, and I commend it to the House.