Abortion Decriminalisation

This article was produced by the Commission and appeared in the May 2008 issue of the Law Institute Journal. 

 

The Victorian Law Reform Commission delivered three legislative options for abortion decriminalisation in a report tabled in Parliament last month, and recommended the abolition of the child destruction offence.

On 20 August 2007 the state government announced it would ask the Victorian Law Reform Commission for legislative advice on the decriminalisation of terminations of pregnancy.

The reference followed widespread community debate ignited by Candy Broad’s introduction in the Legislative Council of a Private Member’s Bill to decriminalise abortion. Ms Broad withdrew her Bill following the government's announcement the Commission would investigate decriminalisation options.

The Commission received terms of reference for the project on 26 September 2007 and was asked to deliver its report to Parliament by 28 March 2008.

The terms of reference required the Commission to devise legislative options to decriminalise abortion with regard to current clinical practice, current legal principles, community standards, laws in other Australian jurisdictions and the government’s desire to modernise and clarify the law.

The three options the Commission has come up with reflect the terms of reference and community views on decriminalisation.

Option A
A doctor would have to assess whether an abortion posed a risk of harm to the woman.

Three options for the definition of the risk of harm that reflect current practice and legal decisions are included in the report.

A doctor who performed or oversaw an unlawful abortion would face professional misconduct proceedings.

Unlawful abortions would include those conducted without the woman’s consent, those conducted by unqualified people and those where the doctor has not established a risk of harm to the woman.

Option B
The woman’s consent is all that is needed for a doctor to provide or oversee an abortion up to 24 weeks gestation. After this point one or two doctors would have to agree that the abortion posed a risk of harm to the woman, using one of the definition options in Option A.

The 24-week deadline is based on the timelines used in other jurisdictions and current clinical practice in Victoria.

A doctor who performed or oversaw an unlawful abortion would face professional misconduct proceedings.

Unlawful abortions would include those conducted without the woman’s consent, those conducted by unqualified people and those conducted after 24 weeks gestation where the doctor has not established a risk of harm to the woman.

Option C
The woman’s consent is all that is needed for a doctor to provide or oversee an abortion.

A doctor who performed or oversaw an unlawful abortion would face professional misconduct proceedings.

Unlawful abortions would include those conducted without the woman’s consent and those conducted by unqualified people.

 

Other suggestions about abortion law reform are discussed in the report, as are community views about abortion, human rights arguments and abortion law in other states and countries.

As well as putting forward the legislative options, the Commission has recommended a change to the Crimes Act 1958 to remove the offence of child destruction in favour of changing the definition of serious assault to clearly include attacks on pregnant women that destroy the foetus.

The child destruction offence has only ever been used in Victoria to prosecute people who assault pregnant women, despite being introduced to deal with people trying to circumvent abortion laws.

Serious assault carries the same maximum penalty as child destruction and anyone who harmed a foetus that was born alive and later died would still be charged with manslaughter.

The Commission has recommended against the introduction of some US-style abortion law provisions such as anti-coercion laws, mandatory counselling and cooling-off periods because it felt current law on consent was sufficient to deal with the concerns that prompted the suggestions.

It has recommended an amendment to the Health Act to make it clear that no person has a duty to carry out or assist in carrying out an abortion, and that clinical staff who have a conscientious objection to abortion should be required to inform patients and make effective referrals to another doctor or clinic.

There were two issues raised that were outside the Commission’s terms of reference but resulted in recommendations for the Minister for Health and the Attorney-General to investigate them further. These were full disclosure of interests in advertisements for pregnancy counselling services and the protection of staff and patients in clinics where people protest or stage vigils against abortion.

The government has not yet indicated whether it will adopt any of the Commission’s options but has announced it will introduce legislation to reform abortion in this parliamentary year.

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Date published: 
01 May 2008

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