Part 2 – Legal Recognition of Sex and Gender

2.2.50 by medical practitioners are now principally regulated by the Reproductive 2.2.50 by medical practitioners are now principally regulated by the Reproductive Health Act. The Act allows medical practitioners to terminate the pregnancy of a woman in the following circumstances:

• terminations performed not more than 16 weeks into a pregnancy, with the woman’s • terminations performed not more than 16 weeks into a pregnancy, with the woman’s consent (s 4). For terminations performed after 16 weeks, where two medical practitioners reasonably • believe continuing the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated (s 5).

2.2.51 failure to comply with the framework established by the Reproductive Health Act is 2.2.51 failure to comply with the framework established by the Reproductive Health Act is generally subject to professional sanctions, rather than criminal ones. Section 51(1A) of the Criminal Code supports this new framework, allowing a 2.2.52 termination to be lawfully performed ‘on a woman by a medical practitioner if it is performed in good faith, with reasonable care and skill and with the woman’s consent.’

########## Criminal provisions

2.2.53 178D of the Criminal Code makes it a crime to perform a termination on a woman 2.2.53 178D of the Criminal Code makes it a crime to perform a termination on a woman unless the person performing the termination is a medical practitioner or the pregnant woman. A woman who consents to, assists in, or performs a termination on herself is not guilty of a crime (Reproductive Health Act s 8). It is also a crime to perform a termination on a woman without the woman’s consent 2.2.54 (Criminal Code s 178E). No prosecution will be instituted against a medical practitioner who reasonably and in good faith performs a termination on a woman who is unable to give consent, provided the termination is for the woman’s benefit. In relation to each of these provisions, ‘woman’ is defined as ‘a female person of any age’ 2.2.55 (Criminal Code ss 51(1B), 178D(3), 178E(3); Reproductive Health Act s 3). These provisions would not extend to a pregnant person with a registered gender other than female. This could have the following consequences: 2.2.56

• medical practitioner who performs or assists in a termination on a person whose • medical practitioner who performs or assists in a termination on a person whose registered gender is other than female will not be protected by the authorisations provided in s 51(1A) of Criminal Code or ss 4 and 5 of the Reproductive Health Act.

- By the same reasoning, offence provisions relating to terminations would also not apply to terminations performed by someone other than a medical practitioner or without the consent of the woman on whom the termination is performed. However, a medical practitioner could potentially be charged with assault offences but for the authorising provisions in the Reproductive Health Act and the Criminal Code.

• pregnant person who has a registered gender other than female and who performs their • pregnant person who has a registered gender other than female and who performs their own termination may commit an offence against s 178D, as the termination will not be performed by a medical practitioner or a ‘pregnant woman’. In that situation, the person would not be protected from criminal charges by s 8 of the Reproductive Health Act.