Regulating abortion and pre-implantation genetic diagnosis in the Australian states of New South Wales, Victoria and Western Australia: comparing and contrasting regulative approaches
6 Regulating abortion and pre-implantation genetic diagnosis in the Australian states of New South Wales, Victoria and Western Australia: comparing and contrasting regulative approaches
Kerry Pextersen
Introduction
In Australia, the state governments have residual powers over criminal and health matters such as abortion, pre-implantation genetic screening (PGS) and pre-implantation genetic diagnosis (PGD)1 and the laws concerned with abortion and PGD vary from state to state. In the nineteenth century, abortion was regulated in all the States and Territories by criminal legislation which was based on the English Offences Against the Person Act 1861. Since then, abortion laws have been modified by the common law as well as legislation. Nevertheless ‘unlawful’ abortion remains a criminal offence in all States except Victoria. In contrast, PGD does not have a criminal law background, but belongs to the so-called ‘reproductive revolution’ of the late twentieth century and is a product of scientific advances in assisted reproductive technologies (ARTs). PGD is regulated in some States by ART statutes and in others by the National Health and Medical Research Council (NHMRC) Ethical Guidelines.2 These Guidelines deal with social and ethical questions rather than clinical practice3 and non-compliance can lead to the loss of accreditation, the loss of a clinic’s licence and de-registration.4 Nevertheless, in YZ v. Infertility Treatment Authority5 Justice Morris emphasised that the NHMRC Guidelines are not legally enforceable.6
In the case of abortion, a woman chooses to terminate a pregnancy for a range of personal, medical or social reasons, or to avoid having a child with disabilities after an adverse prenatal test. In the case of PGD a woman chooses to undergo in vitro fertilisation and a diagnostic procedure in order to enhance her chances of having a healthy child. Abortion and PGD are both controversial medical procedures concerned with sanctity of life principles and reproductive autonomy rights. The subject of decision-making in both procedures is an embryo/foetus; that is, a human entity without any independent legal rights as it is not defined as a legal person prior to live birth.7 Abortion is concerned with a human entity which develops in utero over a period of 36–40 weeks’ gestation. PGD involves the genetic testing of embryonic cells which have been removed from an eight-cell IVF embryo for specific defects.
The embryo/foetus is not a rights bearer in a legal sense, but most agree that it is entitled to some respect from the point of fertilisation, and to an increasing degree of respect as it becomes a foetus and gradually grows and develops towards live birth. This gradualist approach which was specifically articulated in the Warnock Report8 has been adopted by courts in Australia and the United Kingdom.9 Two decades after the Warnock Report was published, the UK House of Commons Science and Technology Committee endorsed this approach and described it ‘as the most ethically sound and pragmatic solution’10 to classifying the status and interests of the embryo/foetus. Nevertheless, as McLean points out, even though an embryo/foetus is not as morally relevant as a child or adult ‘whatever status we concede to the [embryo or] foetus is directly relevant to the status which we accord to the woman carrying it’11 and has the potential to trump ‘the interests of others, most notably the pregnant woman’.12
Reproductive autonomy is classified as a negative right – the liberty or freedom to exercise reproductive choice without unjustified interference. In the case of Secretary, Department of Health and Community Services v. JWB and SMB13 the majority of the High Court held that there is no fundamental right to reproduce and warned that it is impossible ‘to spell out all the implications which may flow from saying there is a right to reproduce, expressed in absolute terms and independent from a right to personal inviolability’.14
The reproductive autonomy of a pregnant woman to make reproductive choices is recognised in abortion laws in Victoria15 and to a lesser degree in Western Australia16 under the mantle of health legislation. However, in New South Wales, abortion statute law and case law is not based on reproductive autonomy but on the criminal defence of necessity which requires a medical practitioner to decide in good faith whether or not an abortion is necessary to safeguard the woman from the dangers of proceeding with a pregnancy.
Reproductive freedoms and the legal status of the foetus have influenced courts presiding over ‘paternity’ cases in Australia and the United Kingdom where biological fathers have applied for injunctions to prevent a pregnant woman from terminating a pregnancy.17 In the High Court case, Attorney-General (Qld) (ex rel Kerr) v. T, the court refused the putative father of a foetus the right to prevent a woman from having an abortion.18 Gibbs CJ held: ‘There are limits to the extent to which the law should intrude upon personal liberty and personal privacy.’19 In the Australian Family Court case, In the Marriage of F the court refused a husband’s application for an injunction to prevent his wife from having an abortion.20 Lindenmayer J. emphasised the physical proximity between the pregnant woman and her foetus. He said:
The fact that the foetus must grow within the wife’s body, not the husband’s cannot in my opinion be overlooked. To grant the injunction would be to compel the wife to do something in relation to her own body which she does not wish to do. That would be an interference with her freedom to decide her own destiny. Whilst it may be said that to refuse the injunction will permit the wife to interfere with the destiny of the intended child, I have already held that the unborn child has no legal rights to be born which this court can protect.21
Reproductive autonomy rights in the context of abortion have long been significant for those concerned with abortion laws and policies and more recently in the context of technologies such as PGD. The autonomy rights of a woman wishing to become pregnant with the assistance of PGD do not fit absolutely into the traditional concepts expressed in these ‘paternity cases’, in part because the woman consents to IVF taking place outside her body and the selection of a healthy embryo in order to give birth to a child. In the (UK) Quintavalle case,22 the House of Lords held that the Human Fertilisation and Embryology Authority (HFEA) has the authority to grant PGD licences because PGD is a treatment service provided for the purpose of ‘assisting women to carry children’. The judgments delivered by the House of Lords in Quintavalle were essentially supportive of autonomy rights being respected in reproductive decision-making, at least in this area.23
As access to reproductive technologies and PGD has become more socially and ethically acceptable, it is also becoming increasingly clear that the concept of reproductive freedom is broad enough to include PGD where the technology is chosen to avoid a child being born with a genetic disorder or to reduce the risk of miscarriage. PGD has become a means of enabling a woman to have children in cases where otherwise she may not have embarked on a pregnancy. In these circumstances, refusing a woman this opportunity would interfere with her right to reproductive autonomy and her destiny in the same way as compelling a woman to continue with an unwanted pregnancy interferes with her freedom.
This chapter compares abortion and PGD regulation in the three states of New South Wales Victoria and Western Australia in order to throw some light on the role of women’s reproductive autonomy rights in regulatory frameworks dealing with abortion and the use of PGD. These states represent three models regulating abortion and PGD in Australia. The main concern in this chapter is to assess and compare the scope and limits of a woman’s reproductive autonomy in the patchwork of abortion and PGD laws and policies. It is argued that abortion and PGD represent two sides of the reproductive autonomy coin and even though there are differences between the reasons for the two procedures, they are both concerned with the scope of reproductive liberty and the legitimate degree of state intervention in reproductive decision-making.
Abortion: context
In Australia, abortion is a common, safe and publicly subsidised medical procedure and although there is no national reporting system, the number of abortions has been estimated to be 80,000–85,000 per annum.24 The majority of abortions are surgical first-trimester procedures.25 In Western Australia, Victoria and New South Wales, abortions are available from private clinics and there is limited availability in public hospitals.26 When compared to nine other developed countries, Australia has the third highest rate of abortion after the United States and New Zealand.27
On the question of general community attitudes in the highly polarised abortion debate, the Victorian Law Reform Commission (VLRC) recently concluded that:
• A majority of Australians support a woman’s right to choose to have an abortion.
• A subset of those supporters regard the rights as capable of limitation, with restriction of choice based on factors such as gestational age and women’s reasons for seeking the abortion. However, there is insufficient evidence to estimate the size of that subset.
• Several socio-demographic characteristics are associated with positive (and negative) views of abortion. For example, there is less support for abortion among persons with religious beliefs than among persons without religious beliefs; nonetheless, even among persons with religious beliefs, supporters remain in the majority.28
In another study of community attitudes, De Crespigny et al. found that ‘Australians are supportive of both access to abortion, including later abortion in many circumstances, and liberal law reform.’29
It is a routine aspect of prenatal care in Australia (as in most Western countries) for health professionals to offer women screening and testing for complications which could affect the pregnant woman’s health or that of the foetus, with the option of abortion when permitted by law. The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) advises that ‘[a]ll women, irrespective of their geographical location, resources or chosen model of antenatal care, are entitled to informed prenatal screening and diagnostic testing for fetal abnormalities or genetic conditions that may impact on the future life and health of their baby.’30 RANZCOG further advises: ‘In the event of the diagnosis of an anomaly, the woman and her partner may choose to terminate or continue with the pregnancy.’31 Medical developments have expanded the options for reproductive choice, and have also influenced abortion debates because advances such as ultrasound technology, ‘visualise’ or ‘personify’ the pregnancy and present the foetus as separate physical identity – that is, separate from the pregnant woman.32 Available investigations may also include chromosomal tests and scans which provide information about foetal abnormalities later in a pregnancy.33
Abortion: legal frameworks
Women have sought abortion since time immemorial and it is usually a safe and simple procedure today, due to advances in medicine. The abortion debate is based on arguments about reproductive autonomy rights, the duty to protect the interests of the embryo/foetus, and the conflict between the right of the woman to control her body and the interests of the foetus to continued life. Absolutist pro-choice advocates prioritise the woman’s interests over foetal interests until live birth; and absolutist anti-choice advocates prioritise foetal interests over woman’s interests from fertilisation. However, a third way – which appeals to the majority – is to balance the interests of the unwillingly pregnant woman with the interests of the foetus in the context of the woman’s health, the woman’s personal and social circumstances, and the gestational age and health of the foetus. This approach is followed in most legal regimes. As already noted, Australian abortion laws vary between jurisdictions. It can be added that many of these laws are outdated and confusing.34 This section of the chapter examines the scope and limits of reproductive autonomy in a criminal model and two reform or ‘health’ models of abortion law in Australia. It commences with legal developments in New South Wales, and is followed by Western Australia and Victoria. In general, parliamentarians avoid legislating in areas such as abortion because it is usually a conscience vote and the constituents they represent will have diverse views. However, in Western Australia and Victoria, liberal reform statutes have been passed after much public debate and with sufficient ‘political will’ to succeed.
New South Wales
Sections 82, 83 and 84 of the Crimes Act 1900 (NSW) are essentially the same as the three offences set out in the Offences Against the Person Act 1861 (Eng.).
In New South Wales sections 82, 83 and 84 of the Crimes Act 1900 make it an offence for a woman to have an ‘unlawful’ abortion, for a person to ‘unlawfully’ perform an abortion and for a person to ‘unlawfully’ supply the means for an abortion. The legislation does not clarify when an abortion is unlawful. The original abortion statute has not been amended, reformed or repealed, unlike all of the other Australian States. Furthermore, as New South Wales is a common law State, the courts have played an instrumental role in legal developments and changes in abortion law have taken place within a criminal law framework without any express recognition of women’s reproductive autonomy rights.
In CES v. Superclinics (Australia) Pty Ltd,35 the Court of Appeal accepted that R v. Wald36 represents the law on abortion in New South Wales. The Wald case,37 involved a trial of five medical practitioners who were charged under section 83 of the Crimes Act 1900. In his ruling, Judge Levine drew on the earlier Victorian case of R v. Davidson38 in formulating the test of unlawfulness but expanded the reasons justifying abortion to include economic and social factors. Levine CH.QS stated:
[F]or the operation to have been lawful in this case the accused must have had an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life or physical or mental health, which the continuance of the pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted. The Crown of course bears the onus of establishing that the operation was unlawful.39
This test of unlawfulness contains two limbs: the first being an honest belief on reasonable grounds that the operation was necessary for the woman’s life and health and the second concerning proportionality. It has been widely accepted that in the Davidson case both limbs are framed as subjective tests, meaning that the Crown must prove beyond reasonable doubt that the accused did not hold an honest belief on reasonable grounds, but the ruling in the more recent R v. Sood (Ruling No. 3)40 suggests that the proportionality test is subjective.
In R v. Sood (Ruling No. 3),41 Dr Sood was charged with two offences under section 83 of the Crimes Act 1900 (NSW). Dr Sood had been consulted by a young woman aged 20 who was nearly 24 weeks pregnant and desperate to have an abortion. It was found that Dr Sood had agreed to perform the procedure without carrying out a physical examination, discussing any alternatives to a termination or discussing the reasons for her patient seeking a late-term abortion. Dr Sood gave the woman some medication but as a result of ‘mismanagement’, the woman delivered a live baby in a toilet bowl at home, and the newborn baby died shortly after the delivery. The jury found that Dr Sood did not act in good faith because she failed to form the requisite honest beliefs about necessity and proportionality for the abortion to be lawful. Justice Simpson pointed to a discrepancy between the rulings in Davidson and Wald. She said that the Wald ruling might ‘fairly be read as imposing a subjective test in respect of the first limb – that is focussing on the actual belief said to have been held by the accused person’,42 whereas, the second test of proportionality may be read as framing an objective test which does not incorporate the subjective belief of the accused person.43 This would mean that the assessment as to whether or not the danger of an abortion was, or was not, out of proportion to the danger of continuing the pregnancy, could be based on a reasonable grounds test rather than an honest belief test. However, Justice Simpson ruled that whether or not the second limb should be approached as a subjective or objective test must be decided according to principle, not solely upon the authority of either Wald or Davidson.
Dr Sood was convicted of performing an unlawful abortion, given a two-year behaviour bond and was de-registered by the New South Wales medical board. The Sood decision is a significant development in New South Wales abortion law, because although Justice Simpson did not hold that the appropriate test for the second limb was subjective, she did not rule that it was objective. If a future court in New South Wales were to apply an objective test to the second limb, the prosecution would have to prove that a reasonable person would not have honestly believed that the risk of continuing the pregnancy exceeded the risk abortion in the circumstances. Currently, abortion services continue to be available in private clinics in Sydney as well as some regional cities under the common law Wald ruling with few restrictions being imposed on medical practice.44
Victoria: abortion
The Abortion Law Reform Act 2008 (Vic.) decriminalised abortion in Victoria. The main purposes of the Act are: to reform the law relating to abortion, to regulate health practitioners, to repeal the provisions relating to abortion in the Crimes Act (Vic.) 1958, to abolish common law offences relating to abortion and amend the definition of serious injury to include the destruction of a foetus in the Crimes Act (Vic.) 1958.45 The Act clearly establishes that abortion is prima facie lawful, albeit subject to gestational limits. Under section 4 of the Act ‘a registered medical practitioner may perform an abortion on a woman who is not more than 24 weeks pregnant’. The Act provides women with a negative right based on reproductive choice principles which excludes State interference with the decision-making process between a patient and doctor during the prescribed gestational time period.46 Apart from the two medical opinions needed for late-term abortions, the Act does not impose any special conditions concerning places where abortions can be performed, nor consent or counselling requirements.47 It is an offence under the Crimes Act 1958 (Vic.) for an unqualified person to perform an abortion, but a woman who consents to an abortion in these circumstances is not guilty of an offence.48
If a woman is more than 24 weeks pregnant, a registered medical practitioner may decide that an abortion is appropriate after consulting with another registered medical practitioner and considering all relevant medical circumstances as well as the woman’s current and future physical, psychological and social circumstances.49 This provision permits a medical practitioner to consider a wide range of circumstances when deciding whether or not to perform a late abortion. There is no specific reference to a foetus, but the Act does not exclude the relevant medical circumstances of the foetus and therefore can be interpreted as including cases of foetal abnormality. Cases where the woman’s psychological health is endangered by the prospect of giving birth to a child with disabilities would also appear to come within the range of permitted circumstances.50 However, while there is legislation specifying reasons for abortion, there will also be different interpretations of statutory terminology which can lead to uncertainty.
The current Victorian abortion law protects and strengthens the reproductive interests of the pregnant woman and restricts clinical freedom by closing the door on a well-trodden medical escape route whereby doctors who refuse to assist women have also refused to refer them to a pro-choice doctor or a facility where abortion services are available. The Act requires registered health practitioners who have a conscientious objection to abortion to inform the woman about their views and to refer her to another ‘registered practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion’.51 This new provision should reduce the delays experienced by women dealing with antagonistic doctors. Furthermore in an emergency, where an abortion is necessary to preserve the life of pregnant women, a registered medical practitioner is required to perform an abortion and a registered nurse has a duty to assist the medical practitioner in performing it.52
The Abortion Law Reform Act 2008 was passed after the VLRC conducted an inquiry and published a report addressing the law of abortion in Victoria. The new law is based on Model B – one of the three models recommended by the VLRC53 and it is founded on the right to reproductive autonomy, within limits. However, if the Parliament had chosen Model C, a repeal model which regulates abortion in the same way as other medical procedures (an approach which has been followed in the Australian Capital Territory (ACT)), the decision-making responsibility would have been placed with the woman and the clinicians in all cases of an unwanted pregnancy. In practice, hospital policies and the attitudes of medical practitioners continue to influence the provision of abortion services, particularly post first trimester abortions in the public sector, because this is a matter which continues to be politically sensitive.
Western Australia
In Western Australia, Dr Victor Chan and Dr Hoh Peng were charged with procuring an unlawful abortion in February 1998.54