Published on March 26, 2014
[Insert Title] Presented by [Insert Speaker] [Insert date as: Day, # Month Year] Foetal Personhood and Abortion Law in Australia Julie Hamblin National Medico-Legal Conference 27 March 2014
Outline of existing abortion law in Australia The position in NSW and Queensland Zoe’s Law and the notion of foetal personhood Implications of Zoe’s Law for abortion and other medical procedures Overview
Each State and Territory has different requirements for lawful abortion Only the ACT has fully decriminalised abortion Only 3 jurisdictions – Victoria, Tasmania and ACT – permit abortion on request, and different gestational age limits apply (24 weeks in Victoria, 16 weeks in Tasmania) SA, WA and NT have amended their criminal law to permit lawful abortion in specified circumstances – in general, must be evidence of serious risk to the woman’s physical or mental health if the pregnancy continues The Abortion Law Jigsaw Puzzle
Only SA and NT recognise serious foetal anomaly as a basis for lawful abortion (and WA after 20 weeks) More restrictive tests apply to late term abortions, but no consistency as to what is considered “late” – varies from 14 to 24 weeks The remaining two States – NSW and Queensland – still have the original criminal offences from last century The Abortion Law Jigsaw Puzzle (cont’d)
Abortion is a criminal offence on the part of both the doctor and the woman, unless certain conditions are satisfied. NSW Crimes Act, sections 82 and 83: “Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.” “Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.” Current abortion law in NSW
Criminal liability of either the doctor or the woman under sections 82 and 83 depends on the meaning of “unlawfully”. R. v. Davidson  VR 667 (the Menhennitt Rules). For an abortion to be lawful: “… the accused must have honestly believed on reasonable grounds that the act done by him was: (a) necessary to preserve the woman from a serious danger to her life or her physical or mental health … and (b) in the circumstances not out of proportion to the danger to be averted.” Meaning of “unlawfully”
Menhennitt Rules were adopted in NSW in R. v. Wald (1971) 3 DCR (NSW) 25: “… it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health.” Only a few cases have gone to court since that time: Superclinics (1995); Harriton v. Stephens (2006); R. v. Sood (2006) Leach prosecution in Cairns in 2010: First trimester abortion, self-administered RU486 Queensland Crimes Act very similar to NSW. Crown had to show RU486 was “noxious” to the mother not just the foetus. Led to amendment of the Qld Crimes Act to bring medical abortion in line with surgical abortion.
Abortion remains a criminal offence. Lawfulness depends on judicial interpretation of the facts of each case While prosecutions are rare, Leach case showed that both doctors and patients remain legally vulnerable Abortion is in a grey zone – not fully mainstream like other medical procedures Most abortions are performed in the private sector – resulting issues of access and cost Disconnect between what the law says and what most people think it says Concerns with abortion law in NSW and Qld
Would amend most of the “grievous bodily harm” offences under the NSW Crimes Act For the purpose of these offences, a foetus of 20 weeks or more would be considered to be a “living person” The Bill excludes medical procedures and things done by or with the consent of the mother States that it will not make anything a crime that is not a crime already The Zoe’s Law Proposal
Would be the first time anywhere in Australia that a foetus has been given the legal status of a living person – significant departure from the “born alive” rule Would mean that a person could be charged with two counts of GBH rather than one – arguably resulting in a higher sentence (is this desirable or appropriate?) Why distinguish between GBH offences and murder or manslaughter? Or between a 20 week foetus and one of 19 weeks? Elsewhere, foetal personhood laws have been used to override the autonomy of pregnant women What are the implications of Zoe’s Law?
Scope of the exemptions remains unclear, e.g. what about things not done in the course of medical procedures? NSW does not have a stable test for the lawfulness of abortion – depends on judicial interpretation and discretion Despite exemptions, Zoe’s Law could be used to argue for a more restrictive interpretation of the existing criteria for lawful abortion May finally provide impetus for proper review and amendment of NSW’s abortion laws Implications of Zoe’s Law (cont’d)
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