Flashcards in Abortion Deck (11)
Section 224-226 of the Criminal Code (Qld) 1899 outlines the implications of abortion for three different people: a person; the mother or a treating person. What are they?
224 - Any person with the intent to miscarry a woman is liable to imprisonment for 14 years.
225 - Any women with the intent to procure her own miscarriage is liable to imprisonment for 7 years.
226 - Any person who unlawfully supplies anything to procure a miscarriage of a woman is liable to imprisonment for 3 years.
Section 282 of the Criminal Code (Qld) 1899 outlines when a person/doctor is not criminally responsible to abort a pregnancy. What are these conditions?
Women are not entitled to abortion on demand. Abortions can only be done lawfully, if done in good faith for the patient's benefit, or to preserve the mother's life.
Lawfulness of an abortion depends on the anticipated effect of having a child on the health of the mother.
What is child destruction?
The crime of child destruction is committed by any person who intentionally causes the death of ‘a child capable of being born alive’ before it has an independent existence of its mother, unless the act is done solely to preserve the mother’s life.
Section 313 of the Criminal Code (Qld) 1899 states:
(1) Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.
(2) Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime. Maximum penalty – imprisonment for life.
Briefly review the Sood Abortion Trial
Abortion is legal in NSW if a doctor genuinely believes that continuing the pregnancy would endanger the mother’s life, or her physical or mental health.
Dr. Sood provided prostagladin to a 20yr woman with a 23w pregnancy. The premature baby was found to be alive at the hospital, despite ambulance officers thinking that he had died.
He acted illegally as he provided prostagladin without necessary counselling - thus he could not have judged whether the termination would be necessary to preserve her life.
When can a doctor choose not to perform an abortion (given that it is lawful)?
A doctor does not need to perform an abortion if they have moral or religious objections.
However, they should also inform the patient so that they can seek treatment elsewhere.
Why are doctors rarely prosecuted in relation to abortion?
it is extremely difficult to prosecute doctors as they have to prove beyond reasonable doubt that there were no reasonable grounds for an honest belief that the termination was necessary to avoid the serious danger to the mother's physical and mental health.
- The test is a subjective one, you need to prove that the doctor did not believe what they said they believe.d
- The onus is upon those who assert the unlawfulness to negative the belief.
What is wrongful birth?
Wrongful birth is one brought by the parent(s) of an initially unwanted/unintended child (with or without disability) as a consequence of negligence before birth.
Can a doctor be held accountable for the costs of raising a child in a wrongful birth claim?
The Queensland government enacted Sections 49A and 49B of the Civil Liability Act (Qld) 2003 - which prevents damages for the costs of raising a child in wrongful birth cases.
What is wrongful life?
Wrongful life is one brought by (or on behalf of) a child complaining of negligent conduct before birth which results in its birth when had there been no negligence it would not have been born.
Essentially, the child would have been better off not born at all.
Wrongful life is not a valid action in Australia.
Discuss the cons in accepting wrongful life in Australia.
- Damage is hard to recognise because one cannot compare non-existence with life with disability.
- Disability may not be doctor's fault as they may not have been able to prevent the exposure, but only compelled the mother to terminate.
- Policy concerns - parent might be sued by child for wrongful life.
- Decision would devalue lives of people living with disabilities.