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

Third Quarter 1999

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Inside This Issue
Senate Inquiry into Australia's Refugee and Humanitarian Program
President's Report
Right to Reply
Euthanasia in the Netherlands
Developments in Foetal Photos

Senate Inquiry into Australia's Refugee and Humanitarian Program

In June 1999 the ACT Right to Life Association made a submission to the Australian Senate's Inquiry into the Operation of Australia's Refugee and Humanitarian Program.  Among other things, the Inquiry was established to investigate the claims that pregnant Chinese women were being deported by Australia and on their return to China these women were being forcibly aborted by the authorities.  Extracts from the Association's submission follow...

The ACT Right to Life Association exists to protect human life from conception till natural death.  The Association's interest in this Inquiry is principally in:

• how Australia treats women who suffer persecution because they wish to bear children;
• how Australia views the forced abortion of their unborn children; and,
• whether the Australian Government will develop a humane and compassionate approach to this problem by allowing women under threat of this treatment to be granted refugee status.

There is ample evidence that coercion exists in China's population control policy.  This coercion ranges from economic sanctions for women and their unauthorised children to government officials taking women with an unauthorised pregnancy to a hospital for a forced abortion.  This coercion is part of state policy, as detailed in such documents as the Hunan family planning rules and regulations and in the Sichuan province family planning regulations.

The forced abortions being carried out in China are therefore a part of state-sponsored persecution of women who wish to have more than one child.  This is a significant violation of human rights.

Women have their right to bear children guaranteed under international law:

• 'men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family' (Article 16, Universal Declaration of Human Rights, 1948); and,
• 'the right of men and women of marriageable age to marry and to found a family shall be recognised' (Article 23(2), International Covenant on Civil and Political Rights 1966).

Unborn children also have protection under international law:

• 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth' (Declaration of the Rights of the Child, 1959);
• 'State parties recognise that every child has the inherent right to life', 'State parties shall ensure to the maximum extent possible the survival and development of the child' and 'as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity needs special safeguards and care, including appropriate legal protection, before as well as after birth"' (Convention on the Rights of the Child 1989, Articles 6(1), 6(2) and preamble);
• 'sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women' (Article 6(5), International Covenant on Civil and Political Rights 1966).  Fleming and Hains note that the main reason this article was included in the International Covenant on Civil and Political Rights was to save the life of an innocent unborn child (Fleming, J and Hains, M, (1997) What rights, if any, do the unborn have under international law?  Australian Bar Review, December).

Yet there are reports that unborn children are being aborted late in a pregnancy and newborn children are being killed, in an indiscriminate effort to try to control population numbers in China.

By trying to evade the one child policy, women are defying the government and challenging its authority.  By disagreeing with the Chinese government's policy, and acting on that disagreement, they become political dissidents.  Having a child in China is a political act.  The failure of the Australian Government to recognise women who have unauthorised children as dissidents might be explained by the fact that bearing children is not regarded as a political act in Australia.  Alternately, the failure or refusal to recognise the politicised nature of having a child in China might be more related to the Australian Government's reluctance to upset a major trading partner.

It is often implied, by those opposed to recognising the plight of Chinese women, that if we allow one refugee into Australia on the basis of persecution related to the one child policy, thousands of Chinese women will become pregnant in order to seek asylum in Australia.  This argument does not take into account the fact that:

• it takes a brave woman to defy the Chinese state, as sanctions are severe, both for the woman and her children;
• it is no more or less significant to become a political dissident by spreading ideas judged by the Chinese state to be subversive than it is to subvert the authority of the state by having unauthorised children, though the latter is perhaps a subversion undertaken more by ordinary people than by intellectuals; and,
• the United States Government allows the one child policy as grounds for asylum, without being overrun by Chinese women.

President's Report

As I recently enthusiastically congratulated a friend on the news of her pregnancy I was surprised to see her start crying.  She explained that she was moved by my enthusiasm for her pregnancy as her news had not been welcomed as warmly by other members of her family and friends.  Whilst she and her husband had not planned the pregnancy they were thrilled to be having a baby.  She shared that she found it hard to feel positive and excited about the baby as many people around her were not positive or excited by her news.  She has even had a number of people ask why she didn't have an abortion and wait for a more convenient time to have a baby.

What has really been the impact of Australia's rising abortion rate and who is it affecting?  I would argue there would be very few people in Australia who haven't been directly or indirectly affected by the change that abortion-on-demand has had on Australians' attitude to pregnancy.

It is an appalling reality that many women today are being asked to justify their pregnancies.

Nicola Pantos
President

Right to Reply

Dealing with anti-life slogans

Slogan #5: You don't care if women die!  Do you want a return to "coathanger/backyard" abortions?

The thrust of this slogan is that pro-lifers don't care about women because they are forcing them to go to "backyard" abortionists and thereby run the risk of dying when they should be able to have "safe", legal abortions.  (Of course, a "safe" abortion is a contradiction in terms -- we know at least one person will die each time.)

Before his conversion, the former US abortionist Dr Bernard Nathanson was fond of quoting figures of 5,000-10,000 deaths from illegal abortions in the USA each year in the period preceding Roe v. Wade.  He freely admits that the figures were made up but nobody questioned them and, with enough repetition, they were accepted as fact.

We don't know how many women died as a result of "backyard" abortions and even if it was only one woman, that would be one woman too many.  However, abortions are never the answer.

It is difficult to find out how many women die as a result of "safe" abortions because in some cases the deaths occur after the woman leaves the abortion facility.  The deaths are then attributed to other causes.  So rather than quote figures it may be more useful to try another approach.

If pro-lifers don't care about women, why do they operate pregnancy counselling services and crisis pregnancy centres?  In Canberra, Karinya House was specifically set up to help women who were facing a difficult pregnancy.  Whereas the abortion providers receive government funding, Karinya House was established entirely through volunteer fundraising efforts.  Surely that indicates that pro-lifers care about women.

Pregnancy counselling services obtain no money from the woman for the advice and assistance they provide.  They often receive no government funding either and are staffed by volunteers who generously give up their time to help in this important work.  So if the pro-lifers receive no money, why do they do it?  Obviously because they care.  Can the abortion facilities claim the same?  If they received no money from the government or from the women would they continue to provide abortions?  Obviously not, so their real motivation may be financial rather that altruistic.

The final contradiction to the pro-abortion advocate's position is that around half of the babies aborted each year are women.

Euthanasia in the Netherlands

Dr John Keown, lecturer in the law and ethics of medicine at the University of Cambridge, spoke at the National Convention Centre, Canberra, on 13 July 1999.  The event was co-hosted by Right to Life Australia and the ACT Right to Life Association.  What follows is an edited version of his address.

There is only one country in which euthanasia is officially condoned and widely practiced:  the Netherlands.  Although euthanasia is proscribed by the Dutch Penal Code, the Dutch Supreme Court held in 1984 that a doctor who kills a patient may, in certain circumstances, successfully invoke the defence of necessity, also contained in the Code, to justify the killing.  In the same year, the Royal Dutch Medical Association (KNMG) issued its members with guidelines for euthanasia.  Since that time the lives of thousands of Dutch patients have been intentionally shortened by their doctors.

A requirement central to both the legal and medical guidelines has been the free and explicit request of the patient.  Defenders of the guidelines have claimed that they permit voluntary euthanasia but not euthanasia without request; that they are sufficiently strict and precise to prevent any slide down a 'slippery slope' to euthanasia without request, and that there has been no evidence of any such slide in the Netherlands.

The question addressed in this address can be simply put:  does the Dutch experience of euthanasia lend any support to the claims of supporters of voluntary euthanasia or does it, rather, tend to support the claims of opponents of voluntary euthanasia that it leads down a 'slippery slope' to euthanasia without request?

The 'slippery slope' argument is often thought of as one argument but it is more accurately understood as comprising two independent yet related forms:  the 'logical' and the 'empirical'.  In its logical form, the argument runs that acceptance of voluntary euthanasia leads to acceptance of at least non-voluntary euthanasia (that is, the killing of patients incapable of requesting euthanasia such as newborns or those with advanced senile dementia) because the former rests on the judgement that some lives are not 'worth' living, which judgement can logically be made even if the patient is incapable of requesting euthanasia.  Doctors are not automata who simply execute their patient's wishes, however autonomous.  They are professionals who form their own judgement about the merits of any request for medical intervention.

A responsible doctor would no more euthanase a patient just because the patient autonomously asked for it any more than the doctor would prescribe anti-depressant drugs for a patient just because the patient autonomously requested them.  The doctor, if acting professionally, would decide in each case whether the intervention was truly in the patient's best interests.  A responsible doctor would no more kill a patient who had, in the doctor's opinion, a life 'worth' living any more than he would prescribe anti-depressants for a patient who, in the doctor's opinion, was not depressed.  Consequently, the alleged justification of voluntary euthanasia rests fundamentally not on the patient's autonomous request but on the doctor's judgement that the request is justified because the patient no longer has a life 'worth' living.  And, if a doctor can make this judgement in relation to an autonomous patient, he can, logically, make it in relation to an incompetent patient.  Moreover, if death is a 'benefit' for competent patients suffering certain conditions, why would it be denied incompetent patients suffering from the same conditions?

In its empirical form, the 'slippery slope' argument runs that even if a line can, in principle, be drawn between voluntary and non-voluntary euthanasia, a slide will occur in practice because the safeguards to prevent it cannot be made effective.  A common illustration of the argument in this form is the story of decriminalised abortion in England, where the law allowing therapeutic abortion has conspicuously failed to prevent widespread abortion for social reasons.

The empirical argument is, of course, dependent on empirical evidence.  Invaluable evidence about euthanasia in Holland has of late been provided by a large-scale survey carried out on behalf of a Commission appointed by the Dutch Government to investigate medical decision-making in Holland at the end of life. 

First, an important word about terminology.  A standard definition of 'euthanasia' is 'the intentional putting to death of a person with a incurable or painful disease'.  It is common to refer to euthanasia carried out by an act as 'active' euthanasia and euthanasia by omission as 'passive' euthanasia.  A common further sub-division is between 'voluntary', 'non-voluntary' and 'involuntary' euthanasia, which refer respectively to euthanasia at the patient's request, where the patient is incompetent, and where the patient is competent but has made no request.

Dutch definitions of 'euthanasia' are, typically, markedly narrower, such as 'the purposeful acting to terminate life by someone other than the person concerned upon request of the latter'.  It will be apparent that this is narrower than the usual definition in two respects:  it is limited to cases of active killing where there is a request by the patient.  In short, the Dutch definition corresponds to what is normally called 'active, voluntary euthanasia'.

In a series of decisions straddling [the landmark 1984 case referred to earlier], lower courts have laid down a number of conditions which have hitherto been understood as being required for a doctor successfully to avail himself of the necessity defence, though there is increasing uncertainty as to which, if any, are required.  Subject to this important caveat, they were listed in 1989 … as follows:

(1) The request for euthanasia must come only from the patient and must be entirely free and voluntary.
(2) The patient's request must be well-considered, durable and persistent.
(3) The patient must be experiencing intolerable (not necessarily physical) suffering, with no prospect of improvement.
(4) Euthanasia must be a last resort.  Other alternatives to alleviate the patient's situation must have been considered and found wanting.
(5) Euthanasia must be performed by a physician.
(6) The physician must consult with an independent physician colleague who has experience in this field.

A leading Dutch defender of euthanasia has claimed (a claim reproduced with uncritical, almost robotic repetition in many newspaper articles on this subject) that the Guidelines are 'strict' and 'precise'.  However, even a cursory examination indicates that this is not the case.

… [A]s Professor Leenen, a leading Dutch health lawyer (and supporter of legalised euthanasia) has observed, concepts such as 'unbearable pain' (a fortiori, one might add, 'suffering') are open to subjective interpretation and are incapable of precise definition.

A hypothetical case may help highlight their inherent vagueness.  A leading Dutch practitioner of euthanasia, who is highly respected in Holland, has said that he would be put in a very difficult position if a patient told him that he wanted euthanasia because he felt he was a nuisance to his relatives who wanted him dead so they could enjoy his estate.  Asked whether he would rule out euthanasia in such a case, the doctor replied:

'I think in the end I wouldn't, because that kind of influence - these children wanting the money now - is the same kind of power from the past that…shaped us all.  The same thing goes for religion…education…the kind of family he was raised in, all kinds of influences from the past that we can't put aside.'

If such a leading practitioner of euthanasia, can interpret the Guidelines requiring an 'entirely free and voluntary request' and 'unbearable suffering' as possibly extending to such a case, little more need to be said about their inherent vagueness and elasticity.  In short, because of their vagueness and the fact that they entrust the decision-making to the individual practitioner, the Guidelines are simply incapable, of ensuring that euthanasia is carried out in accordance with the criteria they specify.

Further details of Dr Keown's work can be found in Euthanasia Examined:  Ethical, Clinical and Legal Perspectives, edited by John Keown.  Cambridge University Press, 1997.

Development in Foetal Photos

In late July negotiations were still ongoing within the ACT Legislative Assembly to determine the final content of the informed consent booklet for women considering an abortion.

At present it seems that regulations proposed by ACT Attorney General Gary Humphries MLA and Urban Services Minister Brendan Smyth MLA will substantially improve the draft booklet issued in June.  It also appears that these improvements will include foetal photographs.  While there are indications that nine of the seventeen MLAs will support the changes, this number will not be tested until there is a debate on the new regulations when Assembly sittings resume on 24 August.

The booklet is intended to give women considering abortion full information, including the medical risks of abortion and the development of their unborn child.  The hope is that better informed women will be less likely to seek an abortion.

The provision of an official information booklet is significant, as until now the abortion facility or its owner --Family Planning ACT -- despite having an obvious conflict of interest, has provided much (if not all) of the information that many women received when considering abortion.

An Advisory Panel on Abortion Information was formed in April.  This seven member panel included three members nominated by the Calvary Hospital Board.  However the panel appears to have quickly accepted many of the arguments put forward by abortion lobbyists.  Documents obtained under Freedom of Information legislation by the ACT Right to Life Association indicate that on the Panel's first meeting on 27 April, they agreed:
· to use information from the Western Australian information pamphlet as there was no time for research;
· to drop foetal photographs from the information to be given to women because they are "irrelevant and in some cases could be counterproductive and cloud the issues";
· to only ask two groups for comment on the early drafting of the booklet -- the abortion facility and the ACT Division of General Practice.  Both these groups had opposed the Osborne legislation.

The Western Australian information booklet, Medical Risk of Induced Abortion and of Carrying a Pregnancy to Term, is unsatisfactory because it equates the significance of undergoing an elective procedure to end an unborn life with a normal pregnancy ending in a new baby being born.

The Department had emphasised the lack of time because they were already behind their schedule which appears to have only allowed two or three weeks for the Advisory Panel to consider, draft and approve the informed consent pamphlet.

The Health Minister, Michael Moore MLA, issued the new booklet to coincide with the date the legislation came into effect on 11 June.  Just over three of the twelve pages were approved by the Advisory Panel.  The balance of the booklet was comprised of either information approved by the Health Minister or information provided by the ACT Department of Health and Community Care.

A number of MLAs expressed surprise that foetal photographs were not included in the information despite there being an expectation from the legislation that the photographs would appear.  In order to answer criticism from these pro-life MLAs, the Health Minister wrote to all the MLAs to ask them their view of the intention of the Assembly.

President of the ACT Right to Life Association, Nicola Pantos, wrote on 14 June to the MLAs who had supported the Osborne legislation, urging them to support the call for foetal photographs to be included, as well as asking for a number of other amendments to the booklet.  Ms Panto's letter went into great detail describing the problems of the booklet, including pointing out:
· the inclusion of pictures would do no more than provide accurate factual information;
· women should not be kept in the dark by excluding this information from the booklet;
- You may have heard a radio interview during last year's debate on this issue where a former counsellor for Women Hurt by Abortion stated that many young women were not aware of foetal development, and were devastated after their abortion when they found out.
· the decision making process surrounding an abortion is a very upsetting time.  Excluding information such as foetal pictures will not diminish the stress involved, but will prevent women from giving full informed consent;
· the booklet adopts the standard story of the abortion lobby that post abortion grief is very rare and is the result of an abortion being sought under pressure from others, or because the unborn child had a disability;
- The incidence of post abortion grief is difficult to gauge, as it has not been adequately studied or recognised officially.  The present booklet denies many women who have sought an abortion the right to have their grief legitimised.  Evidence from many counselling agencies confirms this type of grief is widespread.
- The contents of the booklet also contrast with comments made by Professor David Ellwood, who said "I think it's important that women who are choosing abortion are aware of the fact there will be psychological consequences.  They will go through some degree of grieving following the procedure and it is often difficult for each individual to assess just what the psychological consequences could be." (ABC Radio 2CN, 19 November 1998).
· The booklet does not mention the possible increased risk of breast cancer associated with abortion.  The debate over the link between abortion and breast cancer was covered in detail during community debate on the Osborne legislation last year.
· There is a general use of the language of choice which in parts does not make adequate reference to the law.  This text is misleading to women reading the booklet, as an abortion is not a choice that can be made without reference to the law.  Some examples are:
- 'For women who decide to take up the responsibilities of parenthood' (page 2); and
- 'You can make a decision to continue your pregnancy or seek a termination under medical supervision.' (page 3).

These statements should be rewritten and qualified by the requirements of the law.

The booklet also raises a number of questions for women to consider.  One of these questions, which asks how having a child might affect a woman's education or career, blatantly reinforces discriminatory attitudes in our society by encouraging abortion, rather than changing discriminatory structures in order to accommodate women's reproductive lives.  All women, whether they have children or not, should be able to pursue their education or career.

The Association recently made a submission to the Human Rights and Equal Opportunity Commission's Inquiry into Pregnancy and Work which explores these issues in more detail.  (Copies of the submission are available on our web site, or by phoning our office.)

The booklet implies that it is legal to seek an abortion because the unborn child has a disability (page 5).  These are not legal grounds, even in the broadest interpretation of the law, for an abortion.  A civilised society is about sharing our common humanity and acknowledging the value of all the people in our community.

The demonising of disability is aptly demonstrated by the often-used phrase 'severe foetal abnormality'.  What this phrase really means is that all unborn children who can be detected with a disability, whether it be Spina Bifida, Down Syndrome or another condition, will be in danger of abortion.  Both Spina Bifida and Down Syndrome are disabilities which present great challenges, but with which many people in our community live happy lives.  These people are not the monsters implied by the offensive term 'severe foetal abnormality'.