This article was produced by the Commission and appeared in the July 2008 issue of the Law Institute Journal.
Eight months after receiving a reference from the government, the Victorian Law Reform Commission tabled its final report on abortion in late May.
The final report follows publication of an information paper in September 2007, which attracted over 500 submissions to the Commission.
The Commission held 36 targeted consultations, convened a panel of medical experts to provide advice on current clinical practice in Victoria and monitored the outcomes of recent abortion law review in the United Kingdom.
On releasing the report, Chairperson of the Commission Professor Neil Rees said abortion is a matter that raises strong opinions and emotions in the community.
He commended those who contributed to the reference for presenting their views in a courteous and constructive manner and hoped the on-going debate would continue in the same way.
Professor Rees also acknowledged the reference was the first time any Victorian government has sought to reform abortion law and he commended the government for addressing this issue.
He said that until now it had been left to the courts to determine in what circumstances an abortion is lawful, with the 1969 Menhennitt ruling the latest statement of the law in Victoria.
Professor Rees said the Menhennitt ruling does not provide clarity concerning the circumstances in which an abortion is lawful and reform is required to create clarity and certainty for women and the medical profession.
The Commission has provided advice on three models to decriminalise abortion within the specific terms of reference given to the Commission which directed it to develop options which reflected current community standards and which did not alter current clinical practice:
- A doctor would have the lawful authority to perform an abortion when the doctor was of the opinion that continuation of the pregnancy posed a risk of harm to the woman.
- Three options to define risk of harm; one option codifies the Menhennitt ruling while the other two reflect evolution of the law in other jurisdictions since 1969.
- A doctor who performed or oversaw an abortion without being satisfied that there was risk of harm to the woman in continuing with her pregnancy would be guilty of professional misconduct.
- A women’s consent provides lawful authority for an abortion up to 24 weeks gestation.
- After this point, an abortion would be lawful only when there was a medical determination that continuation of the pregnancy posed a risk of harm to the woman.
- Risk of harm would be defined as in Model A and there is an option of having either one or two doctors make this determination.
- The 24-week deadline is based on the timelines used in other jurisdictions and current clinical practice in Victoria. The British Parliament recently re-confirmed this time period in their abortion laws in a vote taken only last week.
- As in Model A, a doctor who performed or oversaw an abortion without being satisfied that there was risk of harm to the woman in continuing with her pregnancy would be guilty of professional misconduct.
- A woman’s consent provides lawful authority for an abortion throughout her pregnancy.
- Unlawful abortions would include those conducted without the woman’s consent and those conducted by unqualified people.
The Commission’s report also contains a recommendation to repeal the offence of child destruction which was introduced nearly 60 years ago to deal with circumstances which have never arisen.
The offence, which has been copied from an earlier English statute, was designed to deal with killing a fetus in the process of childbirth.
The offence has only been used in Victoria for a purpose which no one had in mind when it was first introduced – assaults upon pregnant women with an attempt to harm the fetus.
The Commission believes criminal behaviour of this nature can be dealt with more directly and recommends expanding the definition of ‘serious injury’ in the Crimes Act to specifically include attacks on pregnant women that are intended to harm the fetus.
The maximum penalty for causing serious injury is the same as child destruction so the punishment of perpetrators would not change under the Commission’s recommendations.
In addition to the models outlined above, the Commission makes 16 other recommendations including the introduction of a conscience clause that makes it clear that individual doctors and nurses do not have to perform or assist with an abortion.
Attorney-General Rob Hulls tabled the report and said there would be briefings and focussed discussions for Members of Parliament before the government drafted a Bill for introduction into parliament later this year.
The government and opposition parties have both indicated that there would be a conscience vote on the Bill.
The full report is available online at: www.lawreform.vic.gov.au