Australian law was traditionally based on the English Acts, the first of which in 1803 made abortion after ‘quickening’ a crime. ¹‘Quickening’ is the first movements of the foetus felt by the mother (from approximately 16 weeks gestation). The 1803 Act made it an offence for any person ‘unlawfully to administer any noxious and destructive substance or thing with intent to procure the miscarriage of a woman quick with child’. The intention of this Act was to protect the as yet unborn foetus. The later 1929 Act made the intentional, wilful destruction of the life of a child, capable of being born alive, a felony. ² This is known as the offence of child destruction which acts to protect the foetus during birth. These two offences potentially overlap. The 1929 Act also introduced justification for a termination of pregnancy for the purpose of preserving the life of the mother. Hence the differentiation of a lawful or unlawful abortion.

The significant case which established the principles governing abortion is the English case of R v Bourne.³ MacNaghten J considered that the meaning of the word ‘unlawful’ in the legislation was of vital and decisive significance. His Honour was influenced by the defence of ‘necessity’, used in child destruction cases where the head of the foetus was collapsed to save the mother’s life. ⁴ His reasoning was that to procure an abortion was defensible if it was necessary to save the life of the mother, ‘the unborn child must not be destroyed except for the purpose of preserving the yet more precious life of the mother’. ⁵ When MacNaghten J considered the life of the mother, he went beyond the physical fact of life and included its quality. Thus, in this case the medical practitioner undertaking the abortion was acting ‘lawfully’ if he acted with an honest belief that the intervention was to preserve the life of the mother. Furthermore, the concept of ‘life of the mother’ included both the mental and physical health of the woman. The law clearly made the decision a medical one.

The laws in several states and territories are still based on the old English laws. ⁶ The framing of criminal legislation to make abortion unlawful led the courts to develop specific criteria in the late 1960s and early 70s to enable a ‘lawful’ abortion. For example, in Victoria in R v Davidson⁷ the court ruled that for an abortion to be lawful there were two criteria: first, the accused (the doctor) must have honestly believed on reasonable grounds, that the act was necessary to preserve the woman from a serious danger to her life or physical or mental health (not merely being the normal dangers of pregnancy and childbirth) and, second, in the circumstances the termination was not out of proportion to the danger to be averted. This decision was accepted and extended in the New South Wales case of R v Wald⁸ where the court stated that it would be for the ‘jury to decide whether there existed … any economic, social or medical grounds or reason … which an accused could honestly and reasonably believe would result in a serious danger to (the woman’s) physical or mental health’. ⁹ Commentators suggest that the role of the law is to place obstacles in the way of women seeking an abortion, making doctors the key gatekeepers to decide the risks. ¹⁰

In South Australia¹¹ and the Northern Territory¹² the legislation has given meaning to the word ‘unlawful’ by establishing the circumstances in which an abortion is lawful. In both jurisdictions, before an abortion can be undertaken, two doctors must have examined the woman and agreed that to continue with the pregnancy would involve greater risk to her physical or mental health than to terminate it, or that the child would suffer such physical or mental abnormalities so as to be seriously handicapped. When making the assessment the doctors may consider the mother’s actual or reasonably foreseeable environment. In South Australia there is a requirement that the woman must have been a resident of that state for at least 2 months. The South Australian legislation also provides a maximum sentence of life imprisonment for the termination of a pregnancy where the foetus is capable of being born alive, set at 28 weeks gestation. ¹³ However, this provision does not apply when the abortion is necessary to save the life of the mother. Hence, the statutory requirements are not applicable in an emergency.

New South Wales relies on the ruling in Wald’s case, mentioned above. The law was re-stated in R v Sood [2006], ¹⁴ a termination occurring between 22–24 weeks gestation. Dr Sood failed to physically examine the woman, ask the patient her reasons for wanting the abortion or discuss possible alternatives with the patient. The medical practitioner told the patient that bleeding more heavily, and for a longer period, were the only likely complications. The doctor inserted a prostaglandin tablet into the patient’s vagina, provided her with further tablets and instructed her to take them orally. The patient was directed to return the next day for the procedure. The woman went into labour that night and gave birth to the child in the toilet. The court held that the person must honestly believe on reasonable grounds that the termination was necessary to protect the mother from a serious danger to her life. It was held that the medical practitioner had not made adequate enquiries as to the need for the abortion; had she done so, she would be able to form a reasonable belief about the associated risks. The medical practitioner was convicted for an unlawful abortion.

In the Northern Territory there is a time frame established, of no more than 14 weeks gestation, when an abortion may be undertaken. This time limit is extended to 23 weeks gestation if the doctor believes in good faith that an abortion is ‘immediately necessary’ to prevent grave injury to the woman’s physical or mental health. Moreover, if the woman’s life is in immediate danger, then no time limit applies. The Northern Territory is the only jurisdiction to impose a time limit on when a pregnancy may be terminated. Where the woman is under 16 years of age the consent of the guardian is required. The Northern Territory and South Australian legislation specifically allow a pregnancy to be terminated when the foetus has a serious hereditary disorder. ¹⁵

In Queensland and Tasmania abortion will be permitted in particular circumstances. For example, in Tasmania the Criminal Code Act 1924 was amended in 2001; section 164 makes it clear that a ‘legally justified’ abortion is not a crime. ¹⁶ This section requires two tests to be satisfied: (1) two medical practitioners must certify in writing that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the woman, than if the pregnancy were terminated; and (2) the woman must provide informed consent, unless it is impracticable to do so.

The Queensland Criminal Code 1899 provides that:

In R v Bayliss and Cullen¹⁸ this section has been interpreted in accordance with the Menhennitt judgment in Victoria in the case of R v Davidson [1969] VR 667. However, section 282 of the Criminal Code considers the use of surgical intervention, and with the introduction of drugs to induce abortion, the law was arguably unclear. In 2009 in Queensland criminal charges were pursued against a young couple for obtaining the drug Misoprostol (a drug used in conjunction with RU486) to bring about a medical abortion. It was alleged that the woman performed an abortion by administering the drug to herself and that she was aided and assisted by her partner. This produced significant public debate regarding the abortion laws in Queensland. Section 282 of the Criminal Code was amended in 2009 to extend the exemption for doctors to perform terminations using abortion drugs. The revised section now reads:

In Western Australia abortion is illegal under the Criminal Code (WA), s 199, unless it is performed by a medical practitioner in accordance with s 334 of the Health Act 1911. It is not an offence if the medical practitioner carries out the abortion in good faith and where:

Wherever possible the woman must provide ‘informed consent’ unless, in the latter two situations (listed above), it is impractical for her to do so. Informed consent is defined as ‘freely given consent’ where a second medical practitioner has provided counselling regarding the medical risks of both termination and continuation of the pregnancy. If the gestation is more than 20 weeks then two doctors, specifically designated by the Health Minister, must agree that the mother or foetus has a severe medical condition justifying the termination. In addition, the procedure must be undertaken in an approved health facility. If the woman is less than 16 years of age, and therefore a minor, she has no legal capacity to provide an ‘informed consent’. In this situation the woman’s custodial parent must be informed and offered the opportunity to be included in the process.

In 2002 the Australian Capital Territory introduced the Crimes (Abolition of Abortion) Act which removed the crime of abortion from the criminal law. The Health Act 1993 (ACT) requires that only a medical practitioner may carry out an abortion and that it must be carried out in an approved facility. ¹⁹ The Act also makes provision for a health professional to refrain from performing or assisting in the performance of an abortion. ²⁰ Likewise, Victoria introduced the Abortion Law Reform Act 2008 which repeals abortion as a crime from the Crimes Act 1958. The new legislation allows a medical practitioner to perform an abortion on a woman who is not more than 24 weeks pregnant. ²¹ If the woman is more than 24 weeks pregnant the Act requires two criteria to be fulfilled: (1) the medical practitioner reasonably believes that the abortion is appropriate in all the circumstances; and (2) the medical practitioner has consulted at least one other medical practitioner who also reasonably believes the abortion appropriate. In considering whether the abortion is appropriate the doctors may consider all of the relevant circumstances and the woman’s current and future physical, psychological and social attributes. ²² The Act also specifies the obligations of a health practitioner who has a conscientious objection. ²³

Before a foetus is born alive it has no legal rights and is generally considered to be part of the mother’s body. Legal recognition is granted when the foetus is ‘born alive’ which requires some indication of life, such as a pulse in the umbilical cord, movement, coughing or breathing. The child can still be attached to the umbilical cord and be considered alive. If the child is born alive but later dies from a prenatal injury the criminal law may be invoked against the person who caused the injury. ²⁴

In the case of A-G (ex rel Kerr) v T²⁵ the biological father sought a restraining injunction to prevent the woman with whom he had conceived a child from seeking an abortion. The court denied the injunction and applied the principles established in an English case, ²⁶ using the guiding principles that the father and foetus have no identifiable rights. ²⁷ The law is clear in relation to the rights of the foetus and the father. There is no rule in common law or statute which gives the father the right to be consulted about a termination. Furthermore, the courts distinguish the father’s relationship in terms of biological and not marital status.

The criminal offence of child destruction exists in most Australian jurisdictions. The offence involves the deliberate destruction of the foetus that is capable of being born alive. In the Northern Territory an offence exists for killing an unborn child, or for preventing a birth, where a person is about to be delivered of a child. ²⁸ Western Australia, the Australian Capital Territory and the Queensland Criminal Code also make it an offence to ‘stop the child being born alive’. ²⁹ In South Australia the separate offence of ‘child destruction’ is committed when a person ‘destroys the life of a child capable of being born alive, by any wilful act, or unlawfully causing such child to die’. ³⁰ Tasmania and the Northern Territory also have legislation in this area. ³¹ New South Wales and Victoria do not have a specific offence of child destruction. There are no judicial rulings on child destruction cases in Australia.

The legislation emphasises the deliberate intention of the person undertaking the act of ‘destruction’. The issue of a child capable of being ‘born alive’ is relevant. The presumption is that the gestational age of a foetus capable of being born alive is 28 weeks or more. There is no judicial interpretation in Australia hence the courts may refer to the English courts for guidance. ³² The issue of the precise age a foetus is capable of being born alive has not been resolved. As Skene³³ argues, the gestational age at which the death of a stillborn must be registered is a significant stage for the purposes of establishing the offence. In Victoria, for example, a medical practitioner must notify the Registrar of Births, Deaths and Marriages if a child dies after the 20th week of gestation or weighs 400 grams or more. ³⁴

In the Royal Women’s Hospital v Medical Practitioners Board (Vic) ³⁵ medical practitioners became the focus of professional misconduct allegations after they were involved in a 31-week termination of a pregnancy. The woman was referred to the Women’s Hospital after her foetus was diagnosed with skeletal dysplasia (dwarfism). This diagnosis was confirmed after further testing. Following counselling, a psychiatrist recommended that termination take place to preserve the health of the mother, several medical practitioners who had also been consulted, concurred. The board cleared the medical practitioners of unprofessional conduct and stated that it was not the role of the board to determine whether specific clinical decisions were appropriate, but whether the conduct of the medical practitioners in making that decision had been professional. No criminal charges were brought against the medical practitioners.

Practices relating to the sterilisation, diagnosis and advice provided in relation to pregnancy and foetal abnormality, have led to three groups of actions in negligence (refer to Chapter 5, Negligence). The actions can be grouped as follows.

Four states have legislated to address the areas of reproductive technologies — South Australia, Western Australia, Victoria and New South Wales. There are similarities in that each state Act has established an authority or an equivalent entity to grant licences to those scientists and medical practitioners wishing to undertake this work. The established authority advises the relevant Minister on matters relating to the various practices including experimental procedures. The requirements and prohibitions for the regulation of fertilisation are incorporated into each states’ legislation and associated regulations. For example, in South Australia the Reproductive Technology (Code of Clinical Practice) Regulations 1995 deal with issues of consent, storage, disposal, eligibility criteria and record-keeping. The Code prohibits mixing gametes from different sources or culturing or maintaining an embryo outside the body.

Where there is no legislative framework or the technology falls outside the state legislation the National Health and Medical Research Council (NHMRC) ethical guidelines are utilised. The guidelines address a number of areas affecting practice, including the need for approval of all procedures by an institutional ethics committee and the requirements include the maintenance of registers with data relating to success or failure of procedures, parentage and attempted pregnancies. There should be no commercial component such as the selling of embryos. The Fertility Society of Australia’s Reproductive Accreditation Committee also have a code of practice. ⁴⁴ It is important to note that guidelines and codes of practice may well be examined by the courts but do not have the same status as legislation.

The common law recognises the procedure of donor sperm being introduced into the woman’s reproductive system. The regulation focuses on approved or licensed personnel and premises where the procedure occurs. The states with legislation include:

The federal government passed legislation in 2002 relating to human cloning. The Research Involving Embryos Act and the Prohibition of Human Cloning Act were passed to ban human cloning. The Lockhart Committee was appointed in 2005 to consider the legislation and made 54 recommendations, including overturning the ban. Somatic cell nuclear transfer (SCNT), also called ‘therapeutic cloning’, for research purposes is now permitted in Australia subject to licence from the NHMRC. ⁴⁵

A woman who gives birth to a child as a result of reproductive procedures is the legal mother of that child. This is regardless of whether donor gametes were used. The woman’s husband or de facto is the legal father assuming he is a consenting party. The converse is that those individuals who donated gametes will remain anonymous unless, for example, the infertile couple have family members donating gametes. Regardless of whether the donors are known they will normally have no legal connection with the child.

In Re Patrick⁴⁶ a mother and her lesbian partner applied to remove orders for contact between a child and his sperm donor father. The court placed significant emphasis on the discussions between the parties prior to conception. The sperm donor argued that he had been intended to be known to the child as a father figure. The court was influenced by the donor’s commitment to the conception, there were 27 attempts, and to his ongoing involvement with the child. While it was recognised that their agreement was not binding, Justice Guest stated ‘He has at all times … demonstrated by both sacrifice and concession a sensitive tolerance of a secondary role to the mother and co-parent’. ⁴⁷ The court ordered that the child continue to have contact with the donor father and that this should increase to include every second week end and half of all school holidays. The court’s decision reflected acceptance that the sperm donor was the child’s father but was not a parent.

This can occur where either parent dies after gametes have been previously taken and frozen, or both parents die when there are pre-existing embryos, or when gamete tissue is taken from a dead parent (e.g. when on life support). Early cases demonstrate the courts have been less inclined to allow removal. ⁴⁸ In 2005 a woman’s application was rejected by a Victorian court to remove sperm with the purpose of becoming pregnant. ⁴⁹ However, she was successful in having her dead husband’s sperm removed and transported to another state, where it was legal to implant. ⁵⁰ The NHMRC ethical guidelines outline the necessary considerations, indicating that gametes should not be used unless:

Surrogacy occurs when a woman agrees to be inseminated, either artificially or naturally, with the intention the child will be given up, usually to the sperm donor and his partner. The laws regulating surrogacy have been incorporated into the legislation of those states with reproductive legislation; the remaining states and territories have enacted specific legislation. Commercial surrogacy agreements have been outlawed in the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria. The Queensland and South Australian legislation also specify that gratuitous surrogacy agreements are illegal.