ACT Right to Life Association N E W S L E T T E R

First Quarter 1999 (January - March)

 

Inside This Issue

Informed Consent
President's Report
Karinya House
A Pill to Die For?
In Brief
Abortion: A Failure to Communicate
Australian Law and the Unborn Child
Right to Reply

Australian Law and the Unborn Child

By Michael McAuley
(Michael McAuley is a Sydney barrister who has represented a number of women in legal action against abortion providers)

An abridged copy of the speech given at the Association's Annual General Meeting on Tuesday, 20 October 1998

Theoretically the unborn child has no status under Australian law, not being a legal person, and therefore having no rights as such.


The fiction that the unborn child is not a legal person dates from medieval times, and is influenced by a primitive biology.  Influenced by Aristotle, the unborn child was popularly thought not to develop human characteristics for some time, possibly at quickening, when the mother first felt the movements of the child within her. Another popular view was that the unborn child was simply part of the mother. In 1788 the first English text book on medical jurisprudence written by William Farr, MD, demolished the old wives' tales stating:

"Life begins...immediately after conception."

But by 1788 the legal fiction that the unborn child is not a legal person was part of English law.

LEGAL FICTIONS

Legal fictions can be useful. The legal fiction that corporations or companies are legal persons, capable of suing and being sued, of entering into contracts, of committing wrongs, capable even of committing crimes, is useful. It is hard to imagine how a modern economy could operate without such a fiction.

INCONVENIENT CONSEQUENCES

The courts have recognised inconvenient consequences could result from the fiction that the unborn child is not a legal person, and have sought to avoid those consequences. Thus an unborn child once born can claim under an estate, can sue in respect of the death of a parent, can claim workers' compensation in respect of the death of his or her father, can sue for injuries in a motor accident before birth. Where a person injures an unborn child so that after birth the child dies of injuries suffered, the person who injured the unborn child is guilty of a criminal offence. Reconciling these decisions with the theory that the unborn child is not a legal person, and therefore has no rights, is not easy.

For this reason, Justice Gillard in the Supreme Court of Victoria in 1972 recognised the unborn child as a legal person. But Justice Gillard's recognition of the unborn child as a legal person does not represent the consensus of legal opinion. The law in failing to recognise the unborn child as a legal person has been influenced by a primitive biology, failing to perceive that whoever is conceived by human parents is human. Nevertheless, the courts have enhanced that status of the unborn child by refusing to give the legal fiction that the unborn child is not a legal person practical effect.

UNBORN CHILD AND ABORTION LAW

In Greek and Roman times abortion, and especially infanticide, were socially and legally accepted. Primitive Christianity rejected both from the beginning. When Christianity became the religion of the Roman Empire, the condemnation of abortion and infanticide was enforced by law.

In medieval England, abortion was a crime punished by the ecclesiastical courts. After the Reformation, and the decline of the ecclesiastical courts, the common law courts punished abortion. In 1803, the protection provided by the common law for the unborn child was expressed in statute, Lord Ellenborough's Act, being passed by Parliament. [This] was later amended to strengthen the protection provided to the unborn child.

In 1861 the British Parliament passed the Offences Against the Person Act which is the basis of the modern legislation.

Thus, traditionally, the law has sought to protect the unborn child from abortion.

CRIMES ACT

The law presently applicable in the ACT and NSW is the Crimes Act 1900, the relevant provisions of which are derived from the Offences Against the Person Act.

One cannot understand the law of abortion without considering the words of s.43 of the ACT Crimes Act:
"A person who, unlawfully and with intent to procure a woman's miscarriage (whether or not she is pregnant):
(a) administers a drug to the woman or causes a drug to be taken by the woman; or
(b) uses any instrument or other means
is guilty of an offence…"

BOURNE'S CASE

The exceptional circumstances under which the courts have regarded abortion as lawful is illustrated by Bourne's Case (1938). A 14 year old girl had been repeatedly and violently raped [and] became pregnant. The medical evidence was that the continuation of the pregnancy was likely to cause her to be a physical and mental wreck. Dr Bourne performed an abortion and was charged.

In instructing the jury, MacNaughten J stated abortion to be "a very grave crime" [and] directed the jury that "the burden rests on the Crown to satisfy you beyond reasonable doubt that the defendant did not procure the miscarriage of the girl in good faith for the purpose only of preserving her life."

DAVIDSON'S CASE

In Davidson's Case (1969), Menhennit J in the Supreme Court of Victoria, held that for an abortion to be performed unlawfully, the Crown must establish either the accused did not honestly believe on reasonable grounds that

(1) the act done by him was necessary to preserve the woman from a serious danger to her life or physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or
(2) the act done by him was in the circumstances proportionate to the need to preserve the woman from a serious danger as above.

The Menhennit decision can be said to be the most decisive Australian case on abortion.

WALD'S CASE

In Wald's Case (1972), Levine J in the NSW District Court rejected a submission that it is lawful for a doctor to perform an abortion upon a pregnant woman "without cause".

Levine followed Menhennit J in Davidson but also accepted economic or social reasons during the pregnancy as providing grounds for a danger to the mother's health.

ABORTION ON DEMAND

That [abortion on demand] is the case was accepted by Kirby J in the NSW Court of Appeal in CES v. Superclinics (1995) where Kirby J referred to medical evidence from a specialist in "family planning" that in the past 23 years he could not recall an occasion when an abortion did not take place following a referral.

In CES v. Superclinics the plaintiff sought damages for the lost opportunity to have an abortion. Newman J found that there was no serious danger to the mother's physical or mental health, and therefore held that abortion would have been unlawful.

The plaintiffs successfully appealed to the NSW Court of Appeals where Kirby and Priestley JJ held that they might successfully recover damages for the lost opportunity to have an abortion...

CES v. Superclinics found its way on appeal to the High Court of Australia. Unfortunately, before the argument was concluded, and before a decision could be handed down, the case was settled, thus depriving us of an authoritative statement of the law.

WHAT ABOUT THE ACT?

...Not one of the cases ... is a decision of a court of the Australian Capital Territory. Why should the decisions... apply in the Australian Capital Territory - which has its own system of courts?

The short answer is - Australia's is a unified legal system derived from that of England with lawyers having substantially a common outlook and a common approach, regularly relying on principles enunciated in courts of other states. ...[T]he above decisions ...reflect a broadly consistent approach which a judge of the Supreme Court of the ACT is unlikely to challenge.

ENFORCING THE LAW?

...[T]he law as explained in Bourne, Davidson, Wald and even CES v. Superclinics is still restrictive. All that is required is for the courts to enforce the law.

The preferred approach for those who would respect the unborn is not to change the law, but to encourage police and politicians to enforce the law.

...[I]n the past 30 years there have been very few prosecutions for abortion in any state of Australia. In part this is because juries in a community where there are profound differences about fundamental values are unlikely to convict. The police have abandoned any routine attempt to enforce the statutory prohibition against abortion. Judges are unlikely to instruct juries in such a way as to obtain convictions.

Above all, given the law as it stated in, say, Wald, it is just too difficult for the prosecution with limited resources to obtain a conviction.

Given that the litigation lawyers commonly obtain an expert to champion almost any opinion, and given the requirements of proof in criminal cases beyond reasonable doubt, given the requirement that juries be unanimous in their verdict, the law as to abortion as expounded by the courts is unenforceable.

OSBORNE BILL

This Bill, in my opinion, restricts the right to an abortion, establishing a regime which is somewhat more restrictive than the present law.

The Bill requires women considering an abortion to be provided with important information as to the medical risks associated with abortion.

There are provisions to ensure consent, and ensure that the woman has time to reflect on what is a most important decision. Records are to be kept by abortion clinics which records will assist in policy making.

It has been suggested that this Bill is a Bill for easy abortion. I do not believe that to be the case. Rather it seems to me that it is legislation which seeks to overcome the open slather approach which is characteristic of the present law.

Whilst the Osborne Bill does not go as far as one might wish, it attempts to limit the harm caused by the law as it now is.

Right to Reply

Slogan #3: The world is overpopulated.

At first glance, this does not seem like a slogan that someone will use to justify abortion, yet it does occasionally come up.  Usually it will be followed up by something like: "The world can't produce enough food to feed everyone." The rather tenuous (and tortuous) logic seems to be that the world is allegedly overpopulated and people are starving because they can't get enough food; therefore we should have legal abortions so that we don't exacerbate the problem. The facts, however, are considerably different.

When dealing with the issue of overpopulation you can point out that it has been on the mind of many people since around 500 B.C. when Plato, Aristotle and Confucius worried about it. So, the concern is nothing new. If we look at the reality we will see that the world is not overpopulated and that food production is not a problem.

Around 75% of the population live on just 3% of the land. If every man, woman and child on the planet was given 1500 square feet of space, they could all fit into the state of Texas. Even if the world's population continued to grow at its present rate for the next two centuries, human settlement would still occupy only 8% of its land surface. Hardly, what one would expect if the world was overpopulated. In fact, one just needs to drive from Canberra to any of our nearest capital cities to see that we are not overpopulated.

So why is there overcrowding if the world is not overpopulated? People have always tended to crowd together in order to facilitate the exchange of goods and services. Once you leave the cities, however the overcrowding disappears.

The question that you might receive then, is that if the world is not overpopulated, why are so many people starving? Surely, it's because the world cannot produce enough food to feed everybody? Well, in a word, no. In fact, one needs just to look at a set of bathroom scales or walk through the food hall in any shopping centre to note the discarded half-eaten hamburgers, etc to know that there is a surfeit of food.

Statistics compiled by organisations such as the U.S. Department of Agriculture, show that world food production per capita has been increasing steadily since 1950. Colin Clark (former Director of the Agricultural Economic Institute at Oxford University) has estimated that the earth could produce enough food for an American-type diet for over 35 billion people - or 7 times the current world population. Even with this volume of food, nearly half of the land surface could be left in conservation areas.

In third world countries, the problem is more to do with the distribution of food. Due to the frequent wars and conflicts, the food is either left to rot because no-one can get to it; or it is used to feed troops; or it is sold to buy arms. With fertiliser and irrigation schemes many, if not all, of these 'hotspots' could adequately feed themselves. Unfortunately, rather than assisting in these areas (ie, fertiliser and irrigation) the UN and other bodies (such as Planned Parenthood) prefer to ship in condoms and set up abortion and sterilisation clinics. It has been estimated that more fertiliser is used on U.S. golf courses and front lawns than in all of the third world.

Even if overpopulation was a problem, it is not a just or acceptable response to allow people to kill the next generation in order to alleviate it.  After all, if our ancestors had adopted the same approach, we would not be here. ·