LFM

The Law & Life Issues

ABORTION (Current as at May 2011)

Abortion, the deliberate killing of an unborn child, is a criminal offence in New South Wales, although in practice it is widely tolerated and rarely prosecuted.  Although sadly this law is ignored in practice, in principle the law against abortion upholds the value of the life of both a mother and her unborn child and sends an important message about the value that we as a community place on human life and pregnancy.  It is vital that our State retains its law against abortion and strives to reduce the number of abortions by providing better support and positive options for women facing unexpected pregnancy.

The legal position taken on Abortion in NSW is found both in statute and in common law. The legislation dealing with abortion in New South Wales is found in sections 82-84 of the Crimes Act 1900. The sections proscribe the unlawful administration of any drug, noxious thing, other instrument or means, to a woman, with the intent of procuring a miscarriage (by the woman herself in section 82 and by any other person under section 83). Section 84 prohibits supplying or procuring drugs or other instruments with knowledge that it will be used with the intent of procuring a miscarriage.

While this law, on its face, upholds the dignity of all human life, including those smallest human beings in the womb, it has been interpreted for specific purposes by Australia’s judicial system. The legislation was interpreted by a court in 1969 in the case of R v Davidson[I], in Victoria where a judge found that “for an abortion to be lawful, a medical practitioner must have honestly believed on reasonable grounds that the abortion was necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; and that, in the circumstances, the danger of the abortion was not out of proportion to the danger to be averted.”[II] In 1971 in the NSW case of R v Wald[III] Justice Levine, in the District Court refined this interpretation, noting it would be for a jury to decide “whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which a medical practitioner could honestly and reasonably believe there would result a serious danger to the woman’s physical or mental health which the continuance of the pregnancy would entail.”[IV]

Since this decision, the legislation has been narrowly applied; however, this application has highlighted its importance in providing legal safety for a woman who is treated wrongly in the process of obtaining an abortion. In 2006 a doctor, Suman Sood, was prosecuted under the law for unlawfully causing a woman to take drugs designed to induce a miscarriage, without the proper counseling (to see if the abortion would have been lawful under the common law directions). The woman took the drugs which induced labour and gave birth to her son the next day, who died 5 hours after he was born.[V] The doctor was deregistered; with a number of allegations being filed against her including cases where she had left abortions in part incomplete and been negligent in counseling women or outlining the possible effects of abortion.[VI]

Removing these criminal provisions would seriously reduce the legal recourse women have in instances where they are put in grave danger because of acts of registered doctors. The provisions therefore, are essentially about protection of the women, providing a legal avenue to hold doctors and practitioners accountable where they do not conform to common law requirements which include providing counseling and establishing reasonable grounds which suggest an economic, social or medical reason for providing an abortion. The law is also important as it consistently upholds the value of human life in all its stages. More could be done around this, for example, by legislating the requirement for counseling before women undergo an abortion, which outlines the various effects abortion can have on a woman physically, emotionally and psychologically.

 

EUTHANASIA (Current as at May 2011)

Euthanasia is governed by State laws, which forbid assisting someone to commit suicide. In NSW under s31C of the Crimes Act (1900) the state sets out the penalty for aiding or abetting the attempted suicide of another.

While the issue is governed by individual states, it is significant that no State or Territory has legalised Euthanasia. In the case that one State or Territory did legalise Euthanasia, it is likely this would undermine Australia’s strong opposition to terminating the lives of those debilitated, elderly, vulnerable and often suffering members of our community. Australia’s firm response to the issue of Euthanasia was seen in 1997, where the Federal Government overrode an act by the Northern Territory legalizing assisted suicide, and prevented the Territories from making laws to legalise this act in the future.

 

THE HUMAN EMBRYO (Current as at May 2011)

Sadly, as well as the destruction of “leftover” or “imperfect” human embryos as a result of IVF treatments, New South Wales law permits the experimentation and cloning for therapeutic purposes of human embryos.  The Human Cloning for Reproduction and Other Prohibited Practices Act 2003 permitted the following practices if authorised by a licence:

  • Creating a human embryo by cloning or method other than fertilization, and developing such an embryo 
     
  • Creating or developing a human embryo containing genetic material provided by more than two persons 
     
  • Using precursor cells from a human embryo or a human fetus to create a human embryo and developing such an embryo 
     
  • Developing a hybrid embryo.

 

[I] R v Davidson (1969) VR 667.
[II] Bird. S, Abortion and the law in Australia, Australian Family Physician Vol. 35, No. 11, November 2006
[III] R v Wald [1971] 3 NSWDR 25
[IV] Bird. S, “Abortion and the law in Australia”, Australian Family Physician Vol. 35, No. 11, November 2006, taken from R v Wald [1971] 3 NSWDR 25
[V] “Abortion case 'not a referendum', court told” Sydney Morning Herald, 12 July 2006,
http://www.smh.com.au/news/national/abortion-case-not-a-referendum-court-told/2006/07/12/1152637714461.html
[VI] Tankard-Reist M., “Are abortionists a protected species?” Online Opinion, 15 Sept 2006, http://www.onlineopinion.com.au/view.asp?article=4908

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