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 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.

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