14mm spine ON A O ON A O ON A O L A W O ON F A B O A O R T I O ON N F in A O a l R e ON p o r t A O ON A O ON GPO Box 4637 Melbourne Victoria 3001 Australia A O DX 144 Melbourne, Vic Level 10, 10–16 Queen Street LAW OF ABORTION Melbourne Victoria 3000 Australia Final Report Telephone +61 3 8619 8619 Facsimile +61 3 8619 8600 1300 666 555 (within Victoria) TTY 1300 666 557 [email protected] www.lawreform.vic.gov.au 15 Printed on 100% recycled paper Published by the Victorian Law Reform Commission The Victorian Law Reform Commission was established under the Victorian Law Reform Commission Act 2000 as a central agency for developing law reform in Victoria. This report reflects the law as at 1 January 2008. ©March 2008 Victorian Law Reform Commission. This work is protected by the laws of copyright. Except for any uses permitted under the Copyright Act 1968 (Cth) or equivalent overseas legislation, no part of this work may be reproduced, in any manner or in any medium, without the written permission of the publisher. All rights reserved. The publications of the Victorian Law Reform Commission follow the Melbourne University Law Review Association Inc, Australian Guide to Legal Citations (2nd ed, 2002). National Library of Australia Cataloguing-in-Publication Victorian Law Reform Commission. Law of Abortion: Final Report Bibliography ISBN 9780975846605 (pbk) 1. Abortion – Law and legislation – Victoria. 2. Fetus – Legal status, laws, etc – Victoria. 344.94504192 Ordered to be printed Victorian Government Printer No 88 Session 2006–08 LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAWF OinFa lA RBepOoRrt T15ION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O LAW OF ABORTION LAW OF ABORTION LAW OF ABORTION ABORTION LAW OF ABORTION LAW OF ABORTION LAW O Victorian Law Reform Commission GPO Box 4637 Melbourne Victoria 3001 Australia DX 144 Melbourne, Vic Level 10, 10–16 Queen Street Melbourne Victoria 3000 Australia Telephone +61 3 8619 8619 Facsimile +61 3 8619 8600 TTY 1300 666 557 1300 666 555 (within Victoria) [email protected] www.lawreform.vic.gov.au Contents 3 Abbreviations 46 Current and Future Access Issues 4 Preface 47 Rural and Regional Issues 5 Terms of Reference 48 Training and Availability of Staff 5 Terminology 49 RU486—Mifepristone 6 Executive Summary 50 Regulation of Medical Practice of Abortion 8 Recommendations 50 General Regulation of Health Practitioners 52 Registration of Clinics—DHS Regulation 9 PART 1: CURRENT LAW AND PRACTICE 52 Registration of Births and Deaths 11 Chapter 1: Introduction 52 Public Hospitals 12 Scope of Report 53 Professional Organisation Guidelines 12 What is Not Under Review 12 Victorian Context 55 PART 2: COMMUNITY VIEWS 12 Our Process 57 Chapter 4: Surveys of Community Attitudes 12 Information Paper 58 Community Attitudes Data 12 Consultation 58 Review of Surveys 13 Submissions 58 Australian Survey of Social Attitudes 13 Medical Panel 59 Australian Election Study 13 About this Report 60 Southern Cross Bioethics Institute Survey 61 Australian Federation of Right to Life Associations Survey 15 Chapter 2: Current Law 63 Marie Stopes International Survey 16 Introduction 64 Opinions by Population Subgroup 16 Charter of Human Rights and Responsibilities 64 Unadjusted Analyses 16 Crimes Act Provisions 66 Adjusted Analyses of AuSSA 2003 18 Menhennitt Rules 66 Key Findings 20 Interstate Development of the Menhennitt Rules 68 Conclusions 21 Abortion Law in other Australian Jurisdictions 21 New South Wales 71 Chapter 5: Commission’s Consultation Outcomes 21 Queensland 72 Submissions 22 South Australia 72 Consultation Meetings 22 Northern Territory 72 Ethical and Legal Principles 23 Western Australia 74 Policy Objectives 24 Tasmania 76 Grounds for Lawful Abortion 24 Australian Capital Territory 78 Gestational Limits 24 Common Law 79 Determining Gestational Limits 25 Abortion Law Overseas 80 Medical Profession Gatekeeping 25 United Kingdom 81 Notification Scheme 26 New Zealand 81 Counselling 27 Canada 81 Child Destruction 27 United States 81 Penalties 28 Related Legal Issues 82 Conclusions 28 Consent to Treatment 83 PART 3: LAW REFORM 31 Chapter 3: Current Clinical Practice 85 Chapter 6: Options for Reform 32 Overview 86 Terms of Reference 32 Incidence of Abortion 86 Legislative Options 34 Abortion Services 86 I Introduction 34 Public Providers 87 Model A 35 Private Providers 90 Model B 36 Abortion at Later Gestation 93 Model C 36 Current Practice 40 Relevance of Viability 95 Chapter 7: Child Destruction 41 Fetal Testing: Abortion and Disability 96 Introduction 41 Diagnosis of Abnormality 96 The Offence 42 Access to Testing 97 Background to the Offence 42 Reaction to Test Results 98 Problems with the Offence 44 Fetal Abnormality in Abortion Law? 98 A Non-existent Problem 2 Victorian Law Reform Commission - Law of Abortion: Final Report Abbreviations 98 Criminalising Medical Decisions ACT Australian Capital Territory 99 Lack of Clarity in the Law AES Australian Election Study 100 The Offence in Victoria AFRTLA Australian Federation of Right to Life 101 Is Reform Needed? Associations 101 Complexity of the born alive rule 102 Legal Uncertainty about Late Therapeutic AIHW Australian Institute of Health and Welfare Abortions AMA Australian Medical Association 103 Submissions and Consultations ART assisted reproductive technology 103 Abolish AuSSA Australian Survey of Social Attitudes 104 Retain but Enforce 104 Confine to Childbirth cl clause 105 Amend to Tighten Cth Commonwealth 105 Options for Reform CAT Convention against Torture and Other 106 Option 1: NSW Model Cruel, Inhuman or Degrading Treatment 107 Option 2: ACT Model or Punishment 108 Option 3: UK Model CEDAW Convention on the Elimination of all forms 108 Commission’s Recommendation of Discrimination against Women CERD Convention on the Elimination of all forms 111 Chapter 8: Other Legal and Policy Issues of Racial Discrimination 112 Issues Where Legal Change is Justified 112 Conscience Clause CRC Convention on the Rights of the Child 116 Issues Adequately Dealt with by Existing Law and CRPWD Convention on the Rights of Persons with Practice Disabilities 116 Mandatory Information HREOC Human Rights and Equal Opportunity 118 Counselling Commission 126 Cooling-off Periods ICCPR International Covenant on Civil and 127 Targetted Regulation of Abortion Providers Political Rights 128 Should There be Limits on Where Abortions are CESCR International Covenant on Economic, Performed? Social and Cultural Rights 132 Notification Schemes 133 Adverse Events Register DHS Department of Human Services 134 Additional Consent Requirements J justice 137 Anti-coercion Legislation MSI Marie Stopes International 137 Substantive Issues Beyond the Scope of this Reference n footnote 137 Truth in Advertising 138 Bubble Zones NHMRC National Health and Medical Research Council APPENDICES NSW New South Wales 142 Appendix A: History of Abortion Law Policy NT Northern Territory 148 Appendix B: Ethics of Abortion PAS Pregnancy Advisory Service 158 Appendix C: Legal Developments pt part 162 Appendix D: Human Rights and Abortion 172 Appendix E: Consultations Qld Queensland 173 Appendix F: Submissions r regulation RANZCOG Royal Australian and New Zealand College of Obstetricians and Gynaecologists s section (ss plural) SA South Australia SCBI Southern Cross Bioethics Institute UDHR Universal Declaration of Human Rights UK United Kingdom VBDR Victorian Birth Defects Register VCAT Victorian Civil and Administrative Tribunal VAED Victorian Admitted Episode Dataset WA Western Australia 3 Preface Chairperson In late September 2007 the Attorney-General asked the commission to provide advice about options for reform of the law of abortion and report back by 28 March. That advice was to be guided by the Professor Neil Rees Victorian Government’s commitment to decriminalise abortion and by its objective to modernise the law so that it is clear, widely understood, and reflective of current community standards. The terms of Part-time Commissioners reference also indicate that while the government does not seek to restrict current access to services, Paris Aristotle AM reform of the law should not lead to an increase in the rate of abortion. Her Honour Judge Jennifer Coate* Unlawful abortion has been a crime since Victoria became a self-governing colony more than 150 years ago. Despite many calls for reform of the law, the Victorian Parliament has permitted the offence The Honourable Justice David to remain on the statute book, unchanged, since 1865. Harper The commission was directed by its terms of reference to consider existing legal principles that govern Her Honour Judge Felicity Hampel abortion practices in Victoria. Those principles are not clear. For this reason, and for many others, it is Professor Sam Ricketson unlikely that the principles are strictly adhered to in practice. His Honour Judge Iain Ross AO The commission was also directed by its terms of reference to consider ‘existing practices concerning termination of pregnancy by medical practitioners’. To undertake this task, and to ensure that the * Judge Coate did not participate in commission was familiar with a broad range of medical issues associated with this reference, a panel this review. of experts from the relevant health professions was established. Dr Christine Tippett, the President of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, chaired that panel. Other panel members were: Dr Charles Barfield, Dr Andrew Edwards, Professor Fiona Judd, Dr Paddy Moore, Professor Michael Permezel, Dr Di Palmer, Associate Professor Les Sheffield, Associate Professor Beverley Vollenhoven, Dr Andrew Watkins, and two people who have chosen to remain anonymous. People were invited to join the panel because of their high professional standing, rather than any direct involvement in the provision of abortion services. I wish to thank all of the medical panel members for giving generously of their time and expertise to assist the commission. Two academic lawyers—Dr Bronwyn Naylor (Monash Law School) and Professor David Studdert (Melbourne Law School)—acted as consultants to the commission. Both Dr Naylor and Professor Studdert provided invaluable advice and assistance. All members of the commission belonged to the division responsible for this reference, other than Her Honour Judge Jennifer Coate, who was unavailable. I wish to express my gratitude to my fellow commissioners for the very thoughtful manner in which they dealt with this complex and sensitive reference. A similar expression of gratitude is due to the many members of the commission’s staff who worked on the reference. Without their energy, commitment, and skill it would not have been possible to produce this report within such a short period. Abortion is a topic which generates a strong response from some people. The commission met many people who have been leading advocates in the abortion debate. We also met people who are providers of abortion services. Without exception, the people we met were courteous and cooperative. I express my gratitude to them for the manner in which they conveyed their views to the commission. It reflects well on the governance of our community that a topic such as abortion has been referred to an independent body for background information and advice about reform options before it is debated in parliament. I hope that this report will be of assistance to all members of the Victorian Parliament and the broader community when abortion law reform is considered. Professor Neil Rees Chairperson Victorian Law Reform Commission 4 Victorian Law Reform Commission - Law of Abortion: Final Report Terms of Reference Terminology The Law GoVeRninG TeRminaTion of PReGnanCy fetal abnormality We use the term ‘fetal abnormality’ because it is used by I, Rob Hulls MP, Attorney-General for the State of doctors to describe a positive test or indication for certain Victoria, refer aspects of the law governing termination genetic or other conditions. We do not wish to imply that a of pregnancy to the Victorian Law Reform Commission. fetus which is diagnosed with such conditions is in any way The commission is to provide advice on options to: abnormal. 1. Clarify the existing operation of the law in relation to fetus terminations of pregnancy. We use the spelling of fetus without the o, despite this being 2. Remove from the Crimes Act 1958 offences relating common usage in Australia. This is not a preference for to terminations of pregnancy where performed by a the American spelling, but rather recognition of the word’s qualified medical practitioner(s). derivation from the Latin word fetus and its widespread use in In providing this advice the commission should have medical literature. regard to the following: While there are several descriptions used in medical literature A. Existing practices in Victoria concerning to refer to the fetus, depending on the different stages of termination of pregnancy by medical pregnancy, we use the term fetus exclusive of all other terms. practitioners. interests B. Existing legal principles that govern Throughout this report, the term ‘interests’ is used. This term termination practices in Victoria. does not imply any legal rights or status, rather, it has been used to describe where a person may have a concern or attach C. The Victorian Government’s commitment ethical significance to an act. to modernise and clarify the law, and reflect current community standards, without altering late abortion current clinical practice. This term is used to refer to abortions which take place after about 24 weeks gestation. D. Legislative and regulatory arrangements in other Australian jurisdictions. medical abortion Abortion performed using drugs rather than surgery—includes The commission should report no later than 28 March prostaglandin drugs (such as misoprostol), methotrexate, and 2008. mifepristone (RU-486), alone or in combination BaCkGRound: neonatal The Crimes Act 1958 (Vic) provides that it is a criminal The term ‘neonatal’ is used to describe children in the first offence to bring about, or to attempt to bring about, month after birth. or to assist a person to bring about, an unlawful perinatal termination of pregnancy. The circumstances in which The term ‘perinatal’ is used to describe the period between a termination of pregnancy is lawful has been left to 20 week old fetus and a child aged up to 28 days. judicial determination. positions in abortion debate For many years in Victoria a woman has been able Many descriptions abound to characterise the various to lawfully seek a termination of her pregnancy by a positions held by groups involved in the abortion regulation medical practitioner in certain circumstances. Nearly 40 debate. We characterise groups according to their stance on years have passed, however, since the primary Victorian decriminalisation, so refer to anti- or pro-decriminalisation or case which explained the operation of the law and decriminalisation supporters or opponents. described the circumstances in which a termination of surgical abortion pregnancy would be lawful. Abortions performed using surgical procedures. It is essential that the law is modernised, clear and widely therapeutic abortion understood. This reference is designed to provide the The term used in the law to refer to abortions performed by government with recommended options to have in qualified medical practitioners. place clear laws which reflect current clinical practice and community standards. The government’s aim is that reform should neither expand the extent to which terminations occur, nor restrict current access to services. Terms bolded in the report appear in the Glossary. 5 Executive Summary This report is concerned with reform of the law of abortion in Victoria. The commission was asked to provide legislative options to decriminalise abortion when performed by a medical practitioner. The offence of abortion remains in the Crimes Act despite a 1969 ruling by Justice Menhennitt that medical practitioners may lawfully perform abortions in some circumstances. The report contains three legislative models for reform of the law of abortion and several recommendations about associated legal matters. The report is divided into three parts. Chapter 2 provides an overview of the current law of abortion in Victoria and describes where it lacks clarity. The development of the Menhennitt rules is outlined, and information provided about abortion law throughout Australia and other countries. In Chapter 3 we describe the incidence and availability of abortion services in Victoria. Only estimates of the rate of abortion are available. National studies show the Victorian rate to be below the national average, and possibly to have fallen in the past 12 years. The commission gathered considerable information about current clinical abortion practice to ensure the government was provided with options for reform that fit within its stated aim of not expanding or restricting current abortion services. Abortion is readily available in Melbourne through public and private providers. There are no private abortion clinics in regional Victoria, and only a small number of regional public hospitals provide abortion. Most women in regional Victoria must travel to Melbourne to access abortion services. Abortion is regulated by health legislation, hospital regulations, and laws that govern the health profession. These laws are comprehensive and the commission does not recommend any further specific regulation of abortion services. The second part of the report looks at community views about abortion. We analysed community attitudes data on abortion in Australia to develop options that ‘reflect current community standards’. While the available survey data has various strengths and weaknesses, it shows that the majority of Australians support a woman’s right to choose whether to have an abortion. The commission conducted broad consultation for this review, meeting with 36 groups and individuals with differing views on decriminalisation of abortion. We received 519 submissions, also covering the full range of views on this issue. In this part we analyse the responses received in consultations and submissions. These responses informed all of the commission’s work on this review and, therefore, are referred to throughout the report. Part three of the report examines reform of abortion law. We present three possible models for reform of abortion law that take into account the government’s intentions and objectives. The terms of reference state: abortion is to be decriminalised when performed by a medical practitioner; the new law is to be clear; the law should reflect current community standards; current clinical practice is not to be altered; and the law should not restrict current access to services or expand the rate of abortion. All three models sit within health legislation rather than the Crimes Act. With each model we describe the legislative changes that would be required for its implementation. Model A codifies the Menhennitt rules and subsequent judicial rulings in other parts of Australia on the legality of abortion. Under this model an abortion is lawful with the woman’s consent, and when a doctor determines that the abortion is necessary because of a risk of harm to the woman if the pregnancy is not terminated. Three options are provided within this model for determining risk of harm. The first restates the Menhennitt rules: abortion must be a necessary and proportionate response to the risk of harm faced by a pregnant woman. The second restates NSW case law, which adds a description of the range of matters impacting on a woman’s physical or mental health that may be taken into account when determining risk of harm. These are economic, social, or medical matters that may arise during pregnancy, or later. The third option simplifies the determination of risk of harm. Model B provides for a two-staged approach to regulation, with different rules for early and late abortions. Late abortions are defined as those where the pregnancy has exceeded 24 weeks gestation, which is consistent with current clinical practice. Abortions before that gestation period are regulated in the same way as any other medical procedure. The only requirements are the woman’s consent and that the procedure be performed, or supervised, by a medical practitioner. Once a pregnancy passes 6 Victorian Law Reform Commission - Law of Abortion: Final Report 24 weeks gestation, abortion would be lawful if a doctor (or two doctors) determined that it was necessary to prevent risk of harm to the woman if the pregnancy continued. Risk of harm could be formulated in any of the three ways outlined in Model A. Model C regulates abortion in the same way as all other medical procedures. In this model abortion is lawful with the woman’s consent, and if performed by a medical practitioner. This model places decision-making responsibility with the woman, and service availability with the medical profession. It is the same as abortion legislation in the ACT. ReCommendaTions Several changes are required to decriminalise abortions performed by medical practitioners, regardless of which of the three models for reform is chosen by parliament. Sections 65 and 66 of the Crimes Act should be repealed and a provision included to make it clear that any common law offences relating to abortion cannot be revived and are abolished. A medical practitioner who performs an unlawful abortion should be liable to a professional rather than a criminal sanction. It should remain a criminal offence for an abortion to be performed by an unqualified person. This may be achieved by including a new offence in the Crimes Act, or by amending the relevant health legislation. A pregnant woman who has an unlawful abortion should not be liable to any sanction. The commission also recommends that the offence of child destruction in section 10 of the Crimes Act be repealed regardless of the model chosen. The offence lacks clarity and causes unnecessary complexity. Section 10 overlaps with section 65 because it could apply to late abortions, although it has never been used for this purpose in Victoria. It creates considerable uncertainty and may possibly leave medical practitioners who perform late therapeutic abortions vulnerable to criminal liability. The equivalent English offence was ‘quarantined’ from abortion law by a legislative amendment in 1990 to overcome these difficulties. If the Victorian Parliament wishes to regulate late abortion, it should do so through one of the models for abortion law reform set out in Chapter 7 rather than through complex and unclear child destruction laws. Section 10 has been used in Victoria to prosecute assaults on pregnant women, late in the pregnancy, that are intended to harm the fetus. The commission recommends that this behaviour be covered by an amendment to the Crimes Act to make it clear that destruction of a fetus (ie, stillbirth) caused by assault of a pregnant woman falls within the definition of ‘serious injury’ to the woman. This will allow prosecution of reckless as well as intentional behaviour. An assault causing harm to the fetus short of destruction can be prosecuted after the child is born if it is clear that the assault on the mother caused the injury. When an assault on the mother results in the fetus being born alive and then dying, manslaughter may be charged. In part three of the report we also make recommendations about additional legal issues related to abortion law that arose during the review. We recommend inclusion of a conscience clause in the new abortion law. This makes it clear that individual health professionals have no duty to provide or assist with an abortion procedure, but must inform the patient of the conscientious objection and make an effective referral to another provider. For all other issues that arose, the commission recommends no changes or additions to legislation because current laws are adequate. These issues include: provision of mandatory information to patients before an abortion; mandatory abortion counselling; specific regulation of abortion providers; mandatory reporting of abortions and adverse events; and specific requirements for consent by an adult when a young person seeks an abortion. The report contains four appendices that provide background information to the review. The appendices describe: the historical development of the policy framework of abortion law in Australia and England; the major ethical arguments on abortion; the legal status of the fetus, and law concerning the relationship between a pregnant woman and fetus; and the applicability of international human rights law to abortion law. 7 Recommendations The commission has been asked to provide the government with advice on options for decriminalisation, as such the commission is not recommending one option over another. The full details of the three options for reform are in Chapter 6. Regardless of the option the government chooses, the commission makes the following recommendations to improve the clarity of the law. 1. Section 10 of the Crimes Act 1958 should be repealed. 2. Section 5 of the Crimes Act 1958 should be amended to make the following addition to the definition of ‘serious injury’: Serious injury includes: the destruction (other than in the course of a medical procedure) of the fetus of a pregnant woman, whether or not the woman suffers any other harm. 3. The Health Act 1958 should be amended to include a provision as follows: •  Save for medical emergency, no person is under a duty to carry out or assist in carrying out an abortion. •  A requirement that the person inform the patient of their conscientious objection and make an effective referral to another provider. •  The provision should be clearly drafted to only apply to individuals who are part of the clinical therapeutic team. It should not apply to administrators, corporate services staff or to organisations. 4. Any new abortion law should not contain mandated information provisions. 5. Any new abortion law should not contain a requirement for mandatory counselling or mandatory referral to counselling. 6. Any new abortion law should not contain a compulsory delay or cooling-off period before an abortion may be lawfully performed. 7. Any new abortion law should not contain restrictions on where abortion procedures may be performed. Existing health regulation is sufficient. 8. The Crimes Act 1958 should be amended to include a provision that it is unlawful to perform an abortion unless the abortion is performed by, or under the supervision of a registered medical practitioner; or the Health Services Act 1988 should be amended to include a provision that an abortion can only be lawfully performed by a medical practitioner. 9. It should not be an offence for a woman to perform or attempt to perform an abortion upon herself. 10. It should not be possible for a woman to charged as an accessory to an unlawful abortion performed upon her by an unqualified person. 11. A woman should not be liable to any legal sanction if she knowingly permits a medical practitioner to perform an unauthorised abortion upon her. 12. Mandatory reporting of abortions and outcomes by private providers occurs under the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2002, and by public providers as part of their responsibilities under funding agreements. No further legislative requirement is necessary. 13. Adverse event reporting and management occurs under existing public health protocols and as a condition of registration under the Health Services (Private Hospitals and Day Procedure Centres) Regulations 2002. No further legislative requirement is necessary. 14. The existing law governing consent and confidentiality for young people is adequate. No further legislative reform is required. 15. The Children, Youth and Families Act 2006 requires registered doctors and nurses to notify the Department of Human Services or Victoria Police if they are of the reasonable belief that a person under 17 years is in need of protection. No further legislative requirement is necessary. 16. Any new abortion law should not include a specific anti-coercion provision. 8 Victorian Law Reform Commission - Law of Abortion: Final Report