CD Week 19 Julia’s DilemmaPPD

To discuss..1. Legal and moral status of the fetus

Legal and moral issues associated with abortionPerspectives of the fetus, mother, father,

religious and cultural influences

2. Current legal status of abortion laws in Australia

3. Adoption in Australia

Legal and moral status of the fetus and the issues associated with termination of pregnancy.

• Scenario 1

Ms. A is 19 y.o, 25 weeks pregnant. During a prenatal visit she reveals that her partner is bisexual and may have been exposed to HIV. Her physician advises her to have a HIV test, explaining that is she is seropositive, treatment is available that may slow the disease process. Furthermore, treatment may reduce the risk of HIV transmission to the fetus. In spite of this information, Ms. A refuses HIV testing.

What do you do?

• Scenario 2

Ms. B is 24 y.o has been in labour for 18 hours. The cervical dilatation has not progressed past 3 cm. The fetal heart rate has been worrisome but is now seriously abnormal, showing profound bradycardia of 65bpm. This bradycardia does not resolve with conservative measures. Repeat pelvic examination reveals no prolapsed cord and confirms a vertex presentation at 3cm dilatation. The obstetrician explains to Ms. B that caesarean section will be necessary in view of the fetal distress. Ms. B absolutely refuses, saying ‘no surgery’.

What do you do?

Scenario 1:• Ms A may fear if she is HIV positive that her partner may abandon her?• Physical or psychological abuse from her partner?• Issues of possible prejudice or bias with regard to employment, insurance,

housing may impact on decisions of HIV testing.• As the treating clinician cannot legally force mandatory HIV testing.

Scenario 2:• Further information tells you Ms B is terrified of anaesthesia as her

mother died from anaesthesia. If she refuses surgery the clinician would be obliged to respect her decision despite the serious risks to the fetus.

Maternal-fetal Dilemmas

• The physician is presented with a moral obligation to protect the fetus from harm conflicts with the moral obligation to respect the patients autonomy.

• Considering scenario 1 and 2, should state intervention interfere in either?

Ethics• Reproductive freedom people have the right to make their own reproductive

choices.• Religious, cultural, pro-life groups may believe that the woman’s rights to end a

fetal life is not overridden by the fetus’ right to life. In this context, the fetus is viewed as human.

• Women bringing their pregnancy to term do not want damaged babies- but - sometimes women make choices out of ignorance or informed by religious or personal beliefs that preclude certain decisions, or strong social and psychological pressures.

• These factors may prevent the woman from acting in the best interest of her fetus.

• Is it fair to pose such restrictions/coerce women, such as Ms A and Ms B when in our society people participate in many behaviours in which can ultimately harm a fetus?

eg addictions, malnutrition, violence, lack of medical care, obesity, poverty etc.

Dealing with maternal-fetal dilemmas

• Respect the competent woman’s right to patient autonomy, but still acknowledge fetal interests.

• Inappropriate to coerce a patient to undergo an intervention or to abandon her even if you are viewing a fetus die or become irreparably harmed when an could have been prevented.

• The most common reason for rejecting medical advice is fear of the unknown. Others include denial, negative past experiences, bias and a lack of trust in the medical profession.

Law• Informed consent is a legal necessity• In common law in Australia, the fetus does not have equal rights

as the mother until it is born alive.

WHY LAWS AGAINST ABORTION?• Protect life• protect mother’s health from induced (backyard) abortion

LAWFUL ABORTION Not criminal offence if: • Performed for the preservation of mum’s life• Performance of operation reasonable• Dr has regard for the patient’s state at the time and to all

circumstances of the case.

2. ABORTION LAWS IN AUSTRALIAHistory..• Before federation 1901, abortion remained an offence under the British Offences

Against the Persons Act of 1861.• Abortion was illegal under any circumstance• Laws changed late 1960s- early 1970s. Overtime has incorporated women’s mental

health to which an unwanted pregnancy is interpreted as clinically injurious.

• Current law on abortion is not uniform for each state and territory.• Suggested future law reform for clarity.• In practice, early-term surgical abortions are available and procedure partially

rebatable under Medicare.• RU8486 is a drug widely used overseas to induce abortions. Was illegal in Australia

until February 2006.• Politicians that have spoken out against abortion include senator Ron Boswell,

Senator Barnaby Joyce and Tony Abbott. When Tony Abbott was the health minister under the Howard government he described abortion as a ‘national tragedy’.

VICTORIA• Since 1958 law states that a woman with child with the intent to bring on her own

miscarriage (poison, noxious substances, instruments) shall be guilty of an offence, liable to level 5 imprisonment (10 years maximum).

• Since 1969 the Victorian law states that the termination of a pregnancy Is lawful if the doctor believes on reasonable grounds that the operation must be necessary to preserve life of the woman from a serious danger to her life or health which would occur with continuation of pregnancy. These dangers don’t just include normal dangers of pregnancy and childbirth but include other physical and mental factors, which could jeopardise the woman’s health.

• Similar to Victorian legislation. • 2006 re-evaluated what is meant by ‘unlawfulness’ following a case where 5

medical practitioners were on charges for unlawful abortions.‘for the operation to be lawful .. the accused must have had an honest belief on reasonable

grounds that what they did was necessary to preserve the women involved from serious danger to their life or physical or mental health which the continuation of pregnancy would entail’.• Judge acknowledged economic, social and medical grounds to form honest belief

on reasonable grounds. The question of lawfulness and unlawfulness of an act depends on the law of necessity (allowing for justifications of their actions).

NSW

QLD

• Common law acknowledges abortion is lawful if performed after forming an honest belief on reasonable grounds that the abortion is necessary for the life and health of the woman.

• Although the common law defence of necessity is not generally applicable in QLD, abortion is an exception to the rule.

• Suggested that the law in QLD is not as clearly defined, unlike NSW and VIC.

WA• Abortion not legal >20 weeks gestation unless at least 2 of the 6 medical

practitioners on a panel (appointed by minister) agree that the mother or unborn fetus has severe medical condition.

• A woman who is a dependent minor (under 16 years and supported by custodial parent/s) shall not be regarded as given informed consent. Custodial parent must be informed, opportunity to participate in counselling process.

• A pregnant dependent minor is allowed to apply to the children’s court for an order that a custodial parent should not be informed.

• ACT was the first jurisdiction to remove abortion from its’ criminal statues. • Since 1993, abortion unlawfully, intentionally or recklessly - criminal acts.• Specific recording requirements and regulations about counseling, including

the provision of specific medical information (a regulation under the Act sets out the material that the information must include)

• ‘Cooling off’ period of 72 hours after counseling

ACT

NT• 2006: abortion law comparable to SA and the UK legislation. • Legalized abortion in NT if the risk to the woman’s life or health outweighed. • Unlike ACT and NSW, abortion must be approved by two medical

practitioners and preformed in a hospital, not a private abortion clinic. • The abortion must take place within the first 14 weeks, except if the physical

life of the mother is in jeopardy, then up until the 23rd week.

TASMANIA• 2001: legislation allows for abortion if 2 medical practitioners certify in writing that the

continuation of a pregnancy would involve greater risk of injury to the physical or mental health of the woman than if the pregnancy was terminated.

• The woman must give informed consent.

SA• Only state to gather abortion statistics. • Showed majority of abortions occur ~ 14 weeks.• If a Dr. has a conscientious objection to performing an abortion,

they are excused except in circumstances where there is immediate danger to the life and health of the woman (also the case in WA).

• SA act states abortion is legal when performed by qualified medical partitioners in a prescribed hospital.

• Like NT and WA, the act requires at least 2 medical practitioners to examine the woman and concur risks outweigh.

NB: a woman must have resided in SA for 2 months prior to having an abortion.

ADOPTION IN AUSTRALIAWhat is the process of Adoption in Australia?

• Adoptions are handled by state and territorial government agencies.• Substantial decline in the number of adoptions in Australia since the

early 1970s. • In 1971/72 there were 9,798 adoptions, which declined to 1,052 in

1991/92, and 576 in 2005/06.• A report by the Australian Bureau of Statistics attributes this decline to

the introduction of welfare for single mothers, increased legal access to termination of pregnancy, family planning services, access to child care and improved participation of women in the workforce.

• Forced adoption of tens of thousands of Aboriginals and the children of single mothers ended after 1972.

Intercountry Adoptions

• Began in 1975 during Vietnam war• Approx 300 children adopted from OS each

year• Australia has open programs with Bolivia,

Chile, China, Colombia, Ethiopia, Fiji, Hong Kong, India, Lithuania, Philippines, South Korea, Sri Lanka, Taiwan, and Thailand.

• Lengthy process ~ 2 years

How does a pregnant woman access this option?

Each state and territory has a service to contact regarding adoption for mothers and future parents.http://www.ag.gov.au/Intercountryadoption/Pages/AustralianandStateandTerritoryCentralAuthorities.aspx

Does she have any rights, or any support in the process?Benevolent Society- provides informaiton, counselling, and other support services. Post adoption resource centers in NSW, ACT and QLD.Other non for profit groups across Australia.