Human Assisted Reproductive Technology Bill

People might think that Part 4 does not matter much, but, of course, it does because it is about enforcement. Enforcement will matter a lot in this bill because the structure is so loose. There are a few hurdles that a new procedure has to get over, and Part 4 puts the whole of the burden of enforcement and practical monitoring on the so-called “authorised person”. That authorised person referred to in clause 64 is defined in the interpretation clause as including the Director-General of Health or someone authorised in writing by the Director-General of Health. The first issue I want to raise is a technical one. For the first 9 months of this legislation the Director-General of Health is both the rule maker and the enforcer. I do not think that will work, and I hope officials and the Government are aware of that.

Clause 75 designates the Director-General of Health as the advisory committee for the first 9 months. The Director-General of Health is also the authorised person who has the powers to enter premises to label things, to take jars away, and that seems to me to be a pretty fundamental conflict of interest for the initial period of the legislation; I would be interested in the Government giving some explanation of why it thinks that that would work.

The second thing is that we are in the odd situation where the transitional provision in clause 75 looks to me to be much more desirable than the permanent one settled in Part 3, because at least a transitional provision makes the advisory committee accountable. The Director-General of Health is someone we can have in front of a select committee, he or she is subject to a purchase agreement with the Minister, and can have his or her own advisory capacity within the Ministry of Health while carrying on as the advisory committee. That matters, because in that 9 months it will not be a committee of the great and good that is potentially making very important decisions that I believe this Parliament should make; it will be the Director-General of Health.

Let us look at the kinds of decisions that the Director-General of Health will be able to make. He or she will be able to decide whether people will be able to use gametes derived from deceased persons, and to decide what the requirements are for informed consent. It is my contention that those decisions ought to be made by the Parliament, but because Parliament has voted to support Part 3 those decisions will be made by some vague, formless, and maybe well-intentioned committee—decisions over embryo splitting, and the selection of embryos using pre-implantation genetic analysis; every one of them an ethical and public policy minefield and on which one does not need to be an expert to have an opinion.

The transitional provisions, depending on one’s point of view, either make it worse, because they put in charge a civil servant subject to political direction—a civil servant subject to political direction will make those decisions; or one can decide that it is a good thing, as I think perhaps it is, because the Director-General of Health is personally accountable for the decisions in a way that the advisory committee never will be, because the Director-General of Health is subject to the accountability procedures of this Parliament.

I would like to see the term of 9 months extended to 5 years, because we would then have a start-up period where the Parliament can get at the people who make the decisions—in this case, the Director-General of Health. Nine months is not a long enough transitional period as far as I am concerned. I would make some recommendations to the Director-General of Health in the time that he or she will be the advisory committee—that is, not to rush off making decisions about these things except to be conservative and cautious. The Director-General of Health in her capacity as the advisory committee should not allow any of these new procedures to occur.

Part 4 indeed does deal with enforcement and miscellaneous provisions. The Hon Bill English has once again asserted that the structure of the bill is too loose. The strength of the bill is due to the fact that it caters for the broad spectrum of conditions and techniques that are available and it allows flexibility. When he talked about transitional provisions, and clause 75, which covers the powers of the Director-General of Health, I think he should be reminded that the existing situation has worked very well for the last 20 years or so without any specific legislation. As we know, a variety of Acts influence this area, but now, for the first time, specific legislation is being applied.

The other point that I think should, hopefully, give Mr English some degree of security is the fact that the clinics themselves are all very much affected by the fact that they belong to the Australasian reproductive technology accreditation group. That is a requirement of their being able to register and function. That group in itself has very, very strict guidelines as to standards, quality, and information gathering, and it has really served New Zealand and New Zealanders extremely well. It is because of the fact that we—unlike other countries like Canada, UK, and Australia—have not had specific legislation in this area that this bill has finally come into being after 9 years of gestation.

While there is indeed under clause 75 the period of 9 months whereby the advisory committee will then come into power, in the meantime some very strong safeguards are already in existence. The Hon Bill English should be assured or reminded of the fact that there has not been any major concerns in terms of people breaking the law with the whole spectrum of activities that are available. As I said, Part 4 does indeed deal with enforcement, and there are some pretty clear enforcement requirements.

Clause 64 states: “An authorised person who believes on reasonable grounds that any assisted reproductive procedure is performed or any human reproductive research is conducted in a place, may at any reasonable time exercise any of the powers in section 65 reasonably necessary to ascertain all or any of the following matters:”—and clause 65(1) lists a wide number of powers: to inspect, to make copies of extracts, and, if suspicions are great, to “(d) search for and seize—(i) any equipment or device … (ii) an in vitro gamete: (iii) an in vitro embryo or an in vitro foetus: (iv) a document or record …”. There is a long list of specific things that an authorised person can indeed do. It is right and proper that these enforcement requirements are there and that these powers are there, and there are penalties for their being used inappropriately.

There is no doubt that the bill does have a sufficiently wide span of enforcement instruments available to it, and they include the clinics themselves, entry of dwelling houses where it might be suspected that inappropriate activity is taking place, and the ability to be able to seize equipment and look after it, etc.

One other area is clause 72, which relates to the regulations under the heading “Miscellaneous provisions”. Again, a wide number of regulations can be applied by the Governor-General, by Order in Council, that include prescribing requirements for informed consent, and providing for the use or destruction of in vitro gametes or in vitro embryos.

I rise to discuss an amendment to clause 72 that has been proposed by the Green Party. Basically, we are providing a procedure whereby regulations would first of all have to be laid before Parliament, so that Parliament could examine the proposed regulations and provide some response. It does not require the Minister to follow the advice of Parliament, but if the Minister did not and chose to ignore Parliament, he or she would have to provide reasons. There is also a provision, which would placate Dr Hutchison, that would allow regulations to be promulgated without first being laid before Parliament if they were minor or if they protected a person’s health and safety. All this is seeking to do is say that there should be some provision for regulations to be laid before Parliament before they are enacted. Basically, this clause is taken from Canadian legislation, and, as I have previously pointed out, Canada does not have the very vague guidelines that we have been talking about all night. It has very specific regulations. In Canada, all the policy surrounding this highly contentious area is in regulation, and those regulations must be discussed by both Houses of Parliament in Canada. Similarly, we know that in England there is a licensing regime and there are regulations.

This is a last-ditch effort by the Green Party to introduce some—just some—minor scrutiny by Parliament and some accountability into this bill. At the moment, once the bill is passed, in the next few weeks, it will be the end of Parliament’s involvement in this whole contentious area. We will have an unelected and unaccountable committee making policy in the form of rather vague guidelines in these highly contentious areas. It will make policy that is, of course, technically illegal, because our laws say that only Parliament should set policy. Committees, like the ministerial advisory committee, should only implement policy that is set by Parliament.

This legislation, as we pointed out in our minority report, is in clear breach of parliamentary procedures, which say that only Parliament should be setting policy. In fact, once this legislation comes into effect Parliament will abdicate its role and its ability to make policy in this highly significant area—an area that is full of ethical minefields. If there is any area that Parliament should be able to set policy in, it is this area. But no, once this bill is passed, Parliament will be abdicating its role, and leaving it totally to an unaccountable and unelected committee.

As I have previously pointed out, the guidelines issued by the ministerial advisory committee 2 days ago on a highly contentious area of pre-implantation genetic diagnosis do not even suggest that that committee make decisions in this area, but instead delegate it to the fertility clinics of New Zealand. It is quite extraordinary. So this amendment is an effort to say that we should at least have some mechanism by which reports and regulations would be laid before this Parliament. The Health Committee could then examine the contentious issues and make recommendations. The Minister would not be obliged to follow those recommendations or the advice of Parliament, but would have to provide reasons if he or she chose to ignore them.

Our amendment would introduce a small degree of accountability and a small degree of scrutiny. I suspect that it will be defeated, as previous amendments we have put forward tonight will be. So we will be setting up the most permissive and the weakest regime for assisted human reproductive technology in the Western World, and we in this Parliament will be abdicating our ability to set policy in this highly contentious and controversial area. I think we all need to be absolutely clear that that is what we are doing here tonight.

Part 4, which deals with the regulations and transitional provisions, the role of the Director-General of Health, and compliance, is different from what was originally proposed in the first two bills, because of the Health and Disability Services (Safety) Act. Previously, the two bills that were adapted by the Supplementary Order Paper had a quite considerable amount in them about licensing of the actual facilities that are performing fertility services. One member made the point that we have been boxing along quite nicely for all this time and we have not had any legislation in this area, but, of course, science is moving on and developing, and there is the possibility that cloning could occur in New Zealand. If other countries in the world stop those procedures, then people will look to a country that did not have—

The CHAIRPERSON (Ann Hartley): I am sorry to interrupt the member, but the time has come for me to report progress.

Progress reported.

The House adjourned at 9.55 p.m.