Important Update to Transplantation and Anatomy Act 1979 (Qld)

I am delighted that the Health and Other Legislation Amendment Bill 2021 (Qld) proposes to amend the Transplantation and Anatomy Act 1979 (Qld) so that breast milk will no longer be treated as human tissue. This has been a vexing issue for some of our clients for some time now. I have taken the view that breast milk is tissue within the meaning of the Act. Clarifying the definition to exclude breast milk is the right decision.

There is a general shortage of breast milk available to new parents. The benefits of breast milk over formula are well known. There has been an increase in demand for breastmilk, when it is clear that there has not been an increasing supply, for example:

• Sadly, some women are unable to provide breastfeed.
• Due to better outcomes for children, more children are surviving pre-term. I agree with the Minister for Health: “human milk can be critical for the treatment of vulnerable infants.”
• Those who become parents through surrogacy, for example, gay couples, too often do not have access to breast milk.
• There has been an increasing number of transmen giving birth, as seen for example in Coonan v Registrar Births Deaths and Marriages [2020] QCAT 434. While they are able to stop taking their medication, fall pregnant and then give birth, transmen will then revert to their medication, and not be in a position to breastfeed.

Any steps that help alleviate the shortage of breast milk, such as changing this definition, are positive steps for children, and clearly in their best interests.  The proposed change is consistent with article 6.2 of the International Convention on the Rights of the Child: “States Parties shall ensure to the maximum extent possible the survival and development of the child.” 

I agree with the human rights statement by the Government:

“Families are recognised as the fundamental unit of society and are entitled to protection. Every child has the right, without discrimination, to the protection that is in their best interest as a child.The amendments to the Transplantation and Anatomy Act promote the right to protect families and children by ensuring the Act does not inappropriately capture human milk as tissue and apply restrictions when it is being used legitimately. The amendments will provide clarity for hospitals and milk banks who are providing human milk, which is a recognised treatment for certain conditions to which pre -term infants are vulnerable. It is anticipated the amendments will provide greater access to human milk to support the treatment of infants and as a result, support the families of those infants.”