Prenatal Diagnosis and Late Termination: A Legal Perspective
Authors: Skene Loane 
Published: February 2008

Summary: :The purpose of prenatal screening is obviously to identify genetic and other disorders before a child is born. In the majority of cases, the intention is that the pregnancy should be terminated if the child is found to be affected by a serious disorder.

Despite this expectation, the law in Victoria does not recognize fetal abnormality as a ground for abortion. For an abortion to be lawful, the doctor must honestly believe, on reasonable grounds, that the abortion is ‘necessary to preserve the woman from a serious danger to her life or her physical or mental health’ and that the abortion is ‘not out of proportion to the danger to be averted’ (the Menhennitt rules). Although the danger to health has been extended to include danger on economic and social grounds, it is still necessary for a doctor to base the decision to abort on the risk to the mother's health, and not on the abnormal fetus.

When the fetus is older, a doctor may be charged with child destruction as well as abortion. This requires proof that the doctor ‘unlawfully cause[d] such child to die and acted’ with intent to destroy the life of a child capable of being born alive*. These terms are open to interpretation but it is not necessarily a defence that the child had a serious abnormality.

This paper argues that the law in Victoria and New South Wales should be changed so that it is clearly lawful for a doctor to terminate a pregnancy on the ground of serious fetal abnormality.

FOOTNOTES

1. For a fuller discussion of the law throughout Australia, see Cica N. The Inadequacies of Australian Abortion Law, Australian Journal of Family Law 1991; 37–67.

2. The original sentence in section 65 (up to 15 years imprisonment) was amended by section 109(1) of the Penalties and Sentences Act 1991 (Vic).

3. Rv Davidson [1969] Victorian Reports 667; R v Wald (1972) 3 New South Wales District Court Reports 25; CES & another v Superclinics Australia Pty. Ltd, No 14479/88, New South Wales Supreme Court, April 18,1994, before Newman J. In the last case, the judge confirmed that unlawful abortion is still a criminal offence under the Crimes Act 1900 (NSW), so that a woman was not entitled to be compensated for failure to diagnose pregnancy until it was too late to terminate the pregnancy. The judge said that there was no evidence that the pregnancy would have presented a serious threat to the mother's physical or mental health and so would not have been lawful within the test in Davidson and Wald.

4. R v Wald, n 3 above at 29. See too: K v Minister for Youth & Community Services [1982] 1 New South Wales Law Reports 31. The accused need not have believed that the woman's health was ‘in serious danger’ at the time of consultation, merely that her health '… could reasonably be expected to be seriously endangered at some time during the currency of the pregnancy!R v Wald at 29.

5. Cica N. op cit, n I above, at 47 and references quoted, id n 83.

6. Section 82a(l)(a)(ii) Criminal Law Consolidation Act 1935 (SA); s 174(l)(a)(ii) Criminal Code Act 1983 (NT). In the Northern Territory, abortions are limited to pregnancies of no more than 14 weeks unless the doctor believes in good faith that an abortion is ‘immediately necessary to prevent grave injury to the [pregnant woman's] physical or mental health’ (when it may be performed up to 23 weeks); or life (when it may be performed at any time).

7. Cf the Northern Territory legislation, n 6 above; also the decision of the Supreme Court in the United States of America in Roe v Wade 410 US 113 (1973) which limits lawful abortions (except to save the life of the fetus) to the first 2 trimesters.

8. The sentence is Level 5 imprisonment, prescribed by section 109(1) of the Penalties and Sentences Act 1991 (Vic).

9. [1987] All England Reports 1230.

10. Id at p 1242 per Sir John Donaldson Master of the Rolls; discussed by Cica N. op cit at p 40; she concludes that ‘The possibility exists that third trimester abortions [25 weeks from date of last normal menstrual period] may be held to be automatically unlawful under the Infant Life (Preservation) Act 1929 (UK) s 1 and its equivalent’id at p42.

11. Mason K. Abortion and the law. Ed McLean S. Legal Issues in Reproduction. First edition. Aldershot. Dartmouth. 1990. Chapter 3. Page 50. However, with future improvements in neonatal intensive care, this may be reduced.

12. Section 3 (definition of ‘still‐born child’, 19(1A) Registration of Births Death and Marriages Act 1959 (Vic). A gestational age of 20 weeks or 400 g in weight is also the test of a previable fetus for the purposes of medical research: National Health and Medical Research Council, Statement on Human Experimentation Supplementary Note 5: Research involving the Human Fetus and the Use of Human Fetal Tissue. Australian Government Publishing Service 1983, paragraph 6.

13. Ranee v Mid‐Downs Health Authority [1990] New Law Journal 325 at 326.

14. R v Davidson [1969] VR 667 at 672 (per Justice Menhennitt). If that were so, the doctor could be convicted of unlawful child destruction.

15. The test of ‘balance of probabilities’ was adopted in the English case of Ranee v Mid‐Downs Health Authority [1990] New Law Journal 325 at 326.

16. Cica N. op cit at 417, n 84 citing Waller L, Any Reasonable Creature in Being. Monash Law Review 1987; 13: 31 at 44.