Law of Abortion: Recommendations

In August 2007, the Commission was asked to provide the government with advice on options for decriminalising terminations of pregnancy.

The Commission delivered its report to the Attorney-General on 28 March 2008. The Commission provided three options for reform. Full details of these options are in Chapter 6 of the final report.

The Commission made 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 Section 10 of the Crimes Act 1958 should be repealed.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.

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