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COPYRIGHT and USE of THIS THESIS This Thesis Must Be Used in Accordance with the Provisions of the Copyright Act 1968 COPYRIGHT AND USE OF THIS THESIS This thesis must be used in accordance with the provisions of the Copyright Act 1968. Reproduction of material protected by copyright may be an infringement of copyright and copyright owners may be entitled to take legal action against persons who infringe their copyright. Section 51 (2) of the Copyright Act permits an authorized officer of a university library or archives to provide a copy (by communication or otherwise) of an unpublished thesis kept in the library or archives, to a person who satisfies the authorized officer that he or she requires the reproduction for the purposes of research or study. The Copyright Act grants the creator of a work a number of moral rights, specifically the right of attribution, the right against false attribution and the right of integrity. You may infringe the author’s moral rights if you: - fail to acknowledge the author of this thesis if you quote sections from the work - attribute this thesis to another author - subject this thesis to derogatory treatment which may prejudice the author’s reputation For further information contact the University’s Copyright Service sydney.edu.au/copyright THE LEGAL STATUS OF PRENATAL LIFE IN AUSTRALIA ANNA WALSH A thesis submitted in fulfilment of the requirements for the degree of Master of Laws Faculty of Law, University of Sydney, 2015 Walsh_al_Masters examination_pdf.doc 1 Declaration of originality I hereby certify that this thesis is entirely my own work and that any material written by others has been acknowledged in the text. The thesis has not been presented for a degree or for any other purposes at the University of Sydney or at any other university of institution. Walsh_al_Masters examination_pdf.doc 2 TABLE OF CONTENTS Page no. Chapter One Introduction 6 Chapter Two Third party crimes against pregnant women 14 2.1 Introduction 14 2.2 The born alive rule 15 2.3 The offence of child destruction 21 2.3 (a) Queensland, Northern Territory, Western Australia, Australian Capital Territory 25 2.3 (b) Victoria, Tasmania 28 2.4 Destruction of the fetus in utero 30 2.4 (a) Queensland 31 2.4 (b) New South Wales 33 2.4 (c) Victoria, Tasmania and The Australian Capital Territory 41 2.5 Summary 43 Chapter Three The materno-fetal conflict 47 3.1 Introduction 47 3.2 Approaches to perceiving pregnancy 49 3.2 (a) Separate entity approach 49 3.2 (b) Relational analysis approach 52 3.3 Duty of care to the unborn child 54 3.3 (a) Negligent Driving 54 3.3 (b) Reckless maternal behaviour during pregnancy 58 3.3 (c) Maternal refusal of medical treatment 61 3.4 Summary 71 Walsh_al_Masters examination_pdf.doc 3 Chapter Four Maternal health concerns as the sole basis for lawful abortion 73 4.1 Introduction 73 4.2 New South Wales 77 4.3 Queensland 84 4.4 Summary 91 Chapter Five Gestational age and maternal health as the basis for abortion 94 5.1 Introduction 94 5.2 Use of gestational age for abortion in the USA and UK 95 5.3 Western Australia 99 5.4 The Northern Territory 101 5.5 South Australia 103 5.6 Summary 105 Chapter Six Fetal disability as the basis for lawful abortion 109 6.1 Introduction 109 6.2 Western Australia 111 6.3 The Northern Territory 113 6.4 South Australia 115 6.5 Related legal issues regarding disabled prenatal life 116 6.5 (a) Wrongful birth claims 116 6.5 (b) Disability in the embryo 118 6.5 (c) End of life decisions for neonates 122 6.6 Summary 125 Chapter Seven Abortion on demand 128 7.1 Introduction 128 7.2 Victoria 129 7.3 Tasmania 133 Walsh_al_Masters examination_pdf.doc 4 7.4 The Australian Capital Territory 134 7.5 Social sex selection 135 7.6 Summary 138 Chapter Eight Conscientious objection by doctors to abortion 141 8.1 Introduction 141 8.2 International Covenants 142 8.3 International Decisions 144 8.2 Legislative overview of conscientious objection 147 8.5 Abortion in obstetric emergencies 151 8.6 Participation in abortion 153 8.6 (a) South Australia 153 8.6 (a) Victoria 154 8.6 (b) Tasmania 157 8.7 Summary 160 Chapter Nine Conclusion 164 Bibliography 171 List of Tables Table 1 Comparison of criteria for lawful abortion in Australia 75 Table 2 Recognition and limitations to conscientious objection to abortion148 Walsh_al_Masters examination_pdf.doc 5 CHAPTER ONE INTRODUCTION In Australia, birth is recognised in all jurisdictions as the time when a human being becomes a legal person with legal rights.1 In the prenatal period, the legal situation is less clear. Lacking a legal personality, the fetus cannot be the victim of a crime, yet its destruction may be recognised as unlawful in certain circumstances, in some jurisdictions. The way in which Australian law punishes or condones destruction of the fetus is the subject of this thesis. The aims of this thesis are to consider how the Australian law characterises the fetus and to ascertain whether there is a consistent position on when it is lawful to destroy a fetus. Specifically, this thesis reviews destruction of the fetus in four contexts chosen for their contrasting perspectives on the fetus; Firstly, third party assaults against the pregnant woman, where the fetus is a separate entity wanted by its mother and unjustly destroyed; Secondly, maternal duty of care to the unborn child, where the mother’s autonomy to behave as she wishes is in conflict with the well being of the fetus; Thirdly, abortion, where the mother intentionally wishes to destroy the fetus; and Fourthly, conscientious objection by doctors to performing lawful abortion, where the doctor requires the law to acknowledge their belief about the value of the fetus even though it may conflict with how the law values the fetus. This thesis predominantly presents a doctrinal analysis of the legislation and case law in Australia in these four areas. The central thesis of this work is that ‘The legal status of prenatal life in Australia is relative.’ This thesis will demonstrate that in Australian law, the legal status of the fetus is flexible and subject to change, with the context of fetal destruction as well as factors intrinsic to the fetus, relevant to determining the issue. This thesis demonstrates that there is a disparate approach between the jurisdictions as to what factors are consistently relevant in deciding this issue. 1 Crimes Act 1900 (NSW) s 20; Crimes Act 1900 (ACT) s 10; Criminal Code)1899 (Qld) s 292; Criminal Code Compilation Act 1913 (WA) s 269; Criminal Code Act 1983 (NT) ss 1C sc1(2)(a)-(c); R v Hutty [1953] VLR 338, 339. Walsh_al_Masters examination_pdf.doc 6 It concludes that laws affecting destruction of the fetus in Australia, although valid, are weak because of the law’s inability to commit to a position on what the fetus is and to carry that through in all scenarios that involve its destruction. The destruction of human life is a moral issue as well as a legal issue. As life is a continuum, laws regulating destruction of prenatal life can impact society’s views about human life generally. It is arguable, therefore, that these laws should enunciate clear principles. The natural law theory argues that we can know objective truths through the use of reason via a set of basic, unchanging practical principles and a set of general moral standards.2 Accordingly, natural laws should sit neatly together, because the soundness of law is said to derive from unchanging principles.3 Positive law would appear to underpin Australian laws on destruction of the fetus. According to Hart, as nobody can know objective truths or morals, so long as the lawmaker has the authority to make the law, the law need not necessarily reflect morality or justice. 4 As a consequence of this position, positive law may be changed without reference to notions of what is right or what is moral.5 Accordingly, awkward contradictions that arise from the fetus having a relative status in law do not make the law invalid. However even with positive law, Kelsen notes it must still be able to demonstrate an ethical minimum to achieve a measure of justice as well as respect in the community.6 Additionally, Fuller notes that ‘good’ law needs to display, amongst other things, consistency and generality in application.7 By its critique of the legal status of prenatal life in Australia, this thesis will demonstrate that Australian laws affecting the destruction of prenatal life present a confused picture of the value of the fetus and when and why it may be destroyed. This calls into question whether changes should be made to achieve ‘good’ law. Weak laws with unclear principles as to when and why destruction of the fetus is unlawful may have a broader impact on other laws dealing with life and death issues. This is particularly so in quality of life versus sanctity of life arguments that arise in end of life decisions. 2 nd John Finnis, Natural Law and Natural Rights (Oxford University Press, 2 ed, 2011) 23. 3 Finnis, above n 2, 351. 4 nd HLA Hart, The Concept of Law (Oxford University Press, 2 ed, 1994) 185-6. 5 Ibid. 6 Hans Kelsen, Introduction to the Problems of Legal Theory (Clarendon Press, 1994) 22. 7 Lon L. Fuller, The Morality of Law (Yale University Press, 1964) 48, 63. Walsh_al_Masters examination_pdf.doc 7 This thesis has several limitations. Firstly, although the term ‘prenatal life’ is used throughout this thesis, it does not address the issue of human embryos created outside the woman’s body through assisted reproductive technologies.
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