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On O a on O a on O a on O a on O a on O A 14mm spine ON A O ON A O ON LAW OF ABORTION A O ON A O Final Report Final ON A O ON A O ON A O GPO Box 4637 ON Melbourne Victoria 3001 Australia DX 144 Melbourne, Vic A O Level 10, 10–16 Queen Street Melbourne Victoria 3000 Australia LAW OF ABORTION Telephone +61 3 8619 8619 Final Report Facsimile +61 3 8619 8600 1300 666 555 (within Victoria) TTY 1300 666 557 [email protected] www.lawreform.vic.gov.au Printed on 100% recycled paper 15 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 ABORTIONLAW OF ABORTIONLAW OF ABORTION ABORTION LAW OF ABORTION LAWFinal OF ABORTION Report 15 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 LAWABORTION LAW OF OF ABORTION 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 101 Is Reform Needed? AFRTLA Australian Federation of Right to Life 101 Complexity of the born alive rule Associations 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 111 Chapter 8: Other Legal and Policy Issues CERD Convention on the Elimination of all forms 112 Issues Where Legal Change is Justified of Racial Discrimination 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 Performed? CESCR International Covenant on Economic, 132 Notification Schemes Social and Cultural Rights 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 Professor Neil Rees for reform of the law of abortion and report back by 28 March. That advice was to be guided by the 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 The Honourable Justice David years ago. Despite many calls for reform of the law, the Victorian Parliament has permitted the offence Harper to remain on the statute book, unchanged, since 1865. Her Honour Judge Felicity Hampel The commission was directed by its terms of reference to consider existing legal principles that govern 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.
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