LWB483 – Medico Legal Issues Abortion Wk 8
Semester 2, 2003
ABORTION
1. OFFENCE
· Section 224 Queensland Criminal Code (‘QCC’) makes abortion in Qld an offence.
Section 224 – Attempts to procure abortion
Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.
· Section 225 QCC creates a similar offence in relation to an act by a woman who with intent procures her own miscarriage.
· Section 226 QCC makes it an offence for any person to unlawfully supply or procure for any other person any thing whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman.
2. DEFENCES to the Offence of Abortion
· Section 282 QCC has been used as the basis for a defence to the crime of abortion.
Section 282 – Surgical Operations
A person is not criminally responsible for performing in good faith and with reasonable care and skill a operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.
· The issue therefore of criminal liability so far as abortion is concerned depends in large part upon the doctor’s interpretation of the patient’s physical and mental state at the time.
Unlawfulness of Abortion
· In R v Davidson, Menhennitt J stated the test of determining lawfulness of abortion in a two-fold test as part of the common law doctrine of necessity:
The accused person must have honestly believed on reasonable grounds that the act done was -
(i) necessary to preserve the woman from serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and child birth) which the continuation of the pregnancy would entail; and
(ii) in the circumstances not out of proportion to the danger to be averted
· In R v Wald, the NSW District Court extended the ambit of what would constitute a danger to the woman’s “physical and mental health” to include any economic, social or medical ground or reason.
· The Ct in R v Wald however did limit this extension to during the pregnancy-
“It may be that an honest belief be held that the woman’s mental health was in serious danger as at the very time when she was interviewed by a doctor, or that her mental health, although note then in serious danger, could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy, if uninterrupted.”
· In CES v Superclinics Australia Pty Ltd, Kirby P in the NSW Court of Appeal favoured extending the test for unlawfulness to take into account apprehended danger to the patient’s mental health after the birth of the child, owing to economic or other adversity.
· However the law in Qld is that as expressed in R v Davidson: Re Bayliss and Cullen.
· Arguably the further extensions per R v Wald not yet law in Queensland
· However, as a result of the decision in Veivers v Connolly, where the QLD Supreme Court held that continuing with the pregnancy did expose the mother to serious danger to her mental health, which crystallised after the birth of a seriously affected rubella baby.
· This seems to indicate that the Qld law would include the post-pregnancy considerations of the factors highlighted by Kirby P in CES v Superclinics.
3. Abortion Law in Other Jurisdictions
Western Australia
· Abortion law has been decriminalised in WA by the introduction of the Acts Amendment (Abortion) Act 1998 (WA).
· This Act amended the Criminal Code 1913 (WA) to remove offences relating to the procuring of abortion.
· Section 199 of the Code now permits doctors to perform an abortion provided-
- the abortion is performed in good faith and with reasonable care and skill; and
- the performance of the abortion is justified under s.334 Health Act 1911 (WA).
· Section 334 Health Act provides that abortion will be justified –
- if the woman concerned had given informed consent; or
- will suffer serious danger to her physical or mental health if the abortion is not performed.
· Informed consent cannot be given unless a medical practitioner has adequately counselled the woman about –
- the risks associated with abortion;
- the woman has been offered the opportunity of referral to appropriate counselling; and
- the woman has been informed that adequate counselling would be available to her.
· Under the WA scheme, where the woman is 20 weeks or more into her pregnancy, an abortion is not justified unless –
- 2 medical practitioners agree that the mother, or the unborn child has a severe medical condition which warrants the procedure; and
- the abortion is performed in a facility approved by the Minister.
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