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Reproductive Health » Abortion and Legal Status of Foetus


Crimes Act 1900 (NSW) ss82-83 NSW
Recognition of the concept of ‘unlawful’ as opposed to ‘lawful’ abortion. Thus women do not have a right to abortion on demand.

Toolkits and Protocols

Pregnancy -  Framework for Terminations in NSW Public Health Organisations
NSW Health


CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47 NSW
Kirby J extended the test in Wald to include serious endangerment to health even after the birth of the child.

R v Davidson [1969] VR 667 Vic
not publically available
Case provided the ‘Menhennit Rules’ for the provision of abortion services: the abortion must be necessary to preserve the woman from a serious danger to her life or her physical or mental health and that the danger of the operation must not be out of proportion to the danger to be averted.

R v Sood [2006] NSWSC 1141 NSW
Concerned the offence of termination of a viable fetus.

R v Wald (1971) 3 DCR (NSW) 25   NSW
Extended the test in Davidson to include economic social or medical grounds or reasons that would result in a serious danger to her physical or mental health. There did not need to be a serious danger to her health at the time of consultation, merely that her health could reasonably be expected to be seriously endangered at some point during the pregnancy.

R v Bourne [1937] 3 All ER 617 UK
Concerned abortion for a rape victim. Court said abortion could take place when it was necessary to prevent threats to the mother’s physical and mental health.

Attorney-General (Qld) (ex rel Kerry) v T (1983) 57 ALJR 285
A woman cannot be stopped from having an abortion by a person representing the foetus.

In Marriage of F (1989) 13 Fam LR 189 Cth
A husband and wife separated when the wife was approximately 13 weeks’ pregnant. She had indicated an intention to terminate both the pregnancy and the marriage. The husband sought an injunction to prevent her from terminating the pregnancy. The court held that the foetus had no right at common law which could be enforced on its behalf by the husband. The court also held that, on balance, the legitimate interest of the husband in having his intended offspring was subordinate to the legitimate interest of the wife in being free to decide a matter which affected her far more than it did the husband.

Talbot & Norman [2012] FamCA 96 (24 February 2012) Cth
A potential father sought an injunction to prevent his former partner from leaving Queensland to have an abortion. Murphy J found that the Family Law Act 1975 (Cth) could only apply to children once they were born. As such, there were no grounds for the court exercising its jurisdiction.

Hassan v Minister for Health (No 2) [2008] WASCA 149 WA
The woman was admitted to hospital for an induced labour to remove her foetus, which had died in utero. The patient was invited to participate in a clinical trial of prostaglandin, in the form of the drug misoprostol. The patient had a massive haemorrhage and a total hysterectomy was performed to stop the bleeding but the patient was left sterile. The plaintiff alleged that the doctor had failed to warn her of the risk that she might have to have a hysterectomy by choosing to induce labour, and failed to inform her of alternative procedures such as dilatation and evacuation (D&E). Both the trial judge and the Court of Appeal agreed there was a duty of care but they did not find that there had been a breach of that duty which had caused the hysterectomy. The hysterectomy was found to have been an unavoidable complication, given the patient’s obstetric history.

KT v PLG [2006] NSWSC 919 NSW
A woman had sought a surgical termination of pregnancy but had experienced extensive pelvic damage and a torn uterus with her right fallopian tube and ovary having been completely ripped out. She was rendered infertile and suffered physical and psychological injuries. The cause of the injuries appeared to have been an incorrect assessment of duration of pregnancy. The doctor and clinic were found to have been negligent in the failure to properly examine the plaintiff.

Paton v British Pregnancy Advisory Service [1979] QB 27
An unborn child cannot be made a ward of the court, even on the father’s application to prevent its abortion.

Medical Board of Queensland v Freeman [2010] QCA 93 QLD
The Queensland Health Practitioners Tribunal found that an obstetrician and gynaecologist had engaged in unsatisfactory professional conduct by performing a mid-trimester termination of a patient as an out-patient.

Medical Board of Australia v FA (No 2) [2012] QCAT 288 QLD
A specialist was alleged by the Board to have engaged in unprofessional conduct or professional misconduct for posting material to a website (<www.safehomeabortion.com.au>) on how to terminate pregnancy without medical supervision.

Medical Board of Queensland v Whittaker [2010] QCAT 312
QCAT found a doctor guilty of unsatisfactory professional conduct for failing to report the death of a foetus, as required by the Registration of Births, Deaths and Marriages Act 1962 (Qld), s 30, when he performed 24 late-term abortions between 1997 and 2002.

Roe v Wade 410 US 113 (1973) USA
The United States Supreme Court found that the right to access abortion was a fundamental right protected by privacy rights under the 14th Amendment.

Planned Parenthood v Casey 505 US 833 (1992) USA
State control over abortion practice.

Gonzales v Carhart 550 US 124 (2007) USA
The Supreme Court upheld a ban on late-term abortions via the method of intact dilation and extraction (which is often referred to as partial birth abortion). The majority found that the procedure was only one of a number available at late term and, given there was no medical consensus that the method was necessary, Congress was free to ban the procedure.

Legal status of foetus

St George’s Healthcare NHS Trust v S [1998] 3 All ER 673 UK
A foetus is not a legal person, but it is considered to be both human and alive, and hence worthy of protection in both the criminal and civil law.

Re A-G’s Reference (No 3 of 1994) [1998] AC 245 UK
The foetus has been said to be unique organism which is separate but connected to its mother.

Elliot v Lord Joicey [1935] AC 209
Foetuses are considered to be children of the marriage for testamentary purposes and can take up an inheritance if they are born alive.

Re Elm [2006] NSWSC 1137 NSW
Orders were made before the child’s birth to take the child into care immediately upon birth for the purpose of administering treatment against HIV transmission.

Re F (In Utero) [1988] Fam 122 (CA) (mother with poor mental state and nomadic lifestyle).
A woman cannot be injuncted from indulging in a lifestyle harmful to the foetus.

Born -alive rule

R v F (1993) 40 NSWLR 245 NSW
A child was born prematurely and died after its mother was involved in a car accident caused by the defendant. The issue for the court was whether the child was a ‘person’ within the meaning of s 52A of the Crimes Act 1900 (NSW), which deals with death caused by impact with a motor vehicle. Court noted the common law position was where an unborn child receives injuries, is born alive but dies of those antenatal injuries, the perpetrator may suffer criminal liability for homicide (R v Senior (1832) 1 Mood CC 346; 168 ER 1798; R v West (1848) 2 Cox CC 500).

Re A-G’s Reference (No 3 of 1994) [1998] AC 245 UK; R v Iby [2005] NSWCCA 178 NSW
Foetuses cannot be murdered but, if they are born alive and later die from pre-natal injuries, the assailant may be guilty of murder or manslaughter.

R v King (2003) 59 NSWLR 472 NSW
The father of an unborn child attacked the mother after she had refused to have an abortion. The father’s intention was to cause a miscarriage. The child was not born alive. The court accepted that the foetus was part of the mother’s body for the purpose of the law of assault occasioning grievous bodily harm, so that its death was an assault on the mother.

Whelan v R [2012] NSWCCA 147 NSW
A pregnant woman was injured in a car accident, suffering a placenta abruption. The foetus was unharmed. The child was born prematurely and died after 33 days. The defendant appealed his conviction under s 52A on the basis that there was not sufficient evidence to connect the accident to the death of the child. The Court of Criminal Appeal upheld the conviction, finding that the accident had caused the child’s death.

Barrett v Coroner’s Court of South Australia [2010] SASCFC 70 SA
The Full Court held that the Coroner was correct in deciding that he had jurisdiction to proceed to hold an inquest following a child’s death at a homebirth. The midwife involved challenged the jurisdiction of the Coroner to investigate the death. The born alive rule was said to be satisfied by any sign of independent life and the indicia of life recognised under the rule were not limited to those which have been applied in previous cases. The presence of PEA was sufficient in the present case to be regarded as a sign of life.

Dobson (Litigation Guardian of) v Dobson [1999] 2 SCR 753; 174 DLR (4th) 1 CAN
Refused to find that a mother owed her unborn child a duty of care, on the grounds that it would severely curtail the rights of pregnant women.

Watt v Rama [1972] VR 353 VIC
The foetus can bring a civil action against a third party for injuries suffered in utero, but only after it has been born alive.

Lynch v Lynch (1991) 25 NSWLR 411 NSW
Action for negligence allowed against a mother on the basis that the claim was made against a mother with third party insurance which covered her against negligent driving.

Bowditch v McEwan [2002] QCA 172 QLD
Queensland Court of Appeal found that a duty could be owed by pregnant mothers in motor vehicle accidents. The reason given was that the woman’s autonomy was not affected by the imposition of a duty in cases of motor vehicle negligence, and on that basis the case could be distinguished from cases concerning the lifestyle and social choices of the mother when pregnant.

Papers, Reports and Books

Abortion and the Law in NSW
NSW Parliament Library Research Service (2005)

Abortion: time to clarify Australia’s confusing laws
de Crespigny et al
Medical Journal of Australia 181 (2004)

A Defense of Abortion
(1971) Philosophy and Public Affairs 1(1)
Author: Judith Jarvis Thomson
A moral philosophy essay printed in 1971. Starting from the hypothetical premise that the foetus has a right to life Thomson argues for the moral permissibility of induced abortion.

Gillick Competence and the Termination of Pregnancy: A commentary on the challenge to the Department of Health’s guidance on confidentiality in dealing with adolescents requesting termination of pregnancy.
Authors: Charles Foster and the UK Clinical Ethics Network

Life’s dominion : an argument about abortion, euthanasia, and individual freedom
1993. Author: Ronald Dworkin
This book provides an insight into why abortion and euthanasia spark such controversies within our society. Looks at moral viewpoints behind the issues and the legal status of human life.

The Law and Ethics of Abortion
BMA Views
British Medical Association
Abortion is a very sensitive issue and one on which members of the BMA hold a wide diversity of views. As with all ethical dilemmas, decisions must be reached by weighing the benefits and harms. Doctors must act within the boundaries of the law and of their own conscience. The BMA recommends that doctors should not be encouraged to stretch practice to the boundaries of what is legally permissible.

Is the ‘Born Alive’ Rule Outdated and Indefensible?
Savell, Kristin, (2006) 28(4) Sydney Law Review 625

The Offence of Child Destruction: Issues for Medical Abortion
Rankin, Mark J (2013) 35(1) Sydney Law Review 1

Views and practices of induced abortion among Australian Fellows and specialist trainees of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists
de Costa, CM, dB Russell, et al (2010) 193(1) Medical Journal of Australia 13-16.

Pregnant women with fetal abnormalities: the forgotten people in the abortion debate
de Crespigny, JL and J Savulescu (2008) 188(2) Medical Journal of Australia 100-93.

Australian attitudes to early and late abortion
de Crespigny, LJ, dJ Wilkinson, et al (2010) 193(1) Medical Journal of Australia 9-12.

Early medical abortion: legal and medical developments in Australia
Petersen, KA (2010) 193 (1) Medical Journal of Australia 26-9.

Conscientious objection and the Council of Europe: The right to conscientious objection in lawful medical care. Resolution 1763 (2010).
Resolution adopted by the Council of Europe’s Parliamentary Assembly
Campbell, M, (2011) 19(3) Medical Law Review 467-75.

Law of abortion: final report.
Victorian Law Reform Commission (2008) Melbourne, VLRC.



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