Latest newsletter #164 Click to read online


Dr. Rachel Carling-Jenkins, DLP

It is a privilege to present the Infant Viability Bill 2015. When I first stood up in this place, I made a commitment to the human flourishing of all members of our society. This bill focuses on, promotes and supports the human flourishing of mothers and their viable, preborn children. It is built upon a life-affirming approach. It is as much pro-woman as it is pro-child - achieving a balance not often achieved in legislation relating to abortion. It treats, protects, and assists both mother and baby when they are at their most vulnerable.

The Infant Viability Bill makes necessary reforms to the way mothers and their preborn children are cared for in the later stages of pregnancy. It is a bill which promotes holistic care for women, promoting a support structure - a deliberate, person-centred approach - to address the current gaps in our inadequate pregnancy healthcare system. It is a bill which supports babies from the time they have reached the age of viability - promoting again a complementary approach of deliberate, person-centred care. In order to achieve this aim the Infant Viability Bill makes necessary reforms to the Abortion Law Reform Act 2008 and to the Crimes Act 1958, which are currently out of step with world common practice, with medical advances, including the progress in neonatal practices, and with community expectations.

Victoria's abortion laws are extreme in comparison to those of most countries in the Western world which acknowledge viable preborn babies. For example, 43 states in the US prohibit abortion after a specified point in pregnancy, most commonly from 20 to 24 weeks. There is now a federal push to ban late-term abortion across the US. In Europe most countries, including those known to be strong on social liberty, such as Belgium and the Netherlands, only allow abortion on demand during the first trimester, after which restrictions and regulations increase the later a pregnancy progresses.

In Victoria our current laws do not place adequate restrictions on abortions, which have been recorded as occurring at as late as 37 weeks gestation for psychosocial reasons, according to a 2011 report by the Consultative Council on Obstetric and Paediatric Mortality and Morbidity. In Victoria preborn babies are dying at the age of viability - for no other reason than that they are yet to be born. It is traumatising our medical practitioners, who are life-affirming in their approach to patients. It is leaving families in horrendous situations, where they feel that the abortion of their much-loved and anticipated child, who has now been diagnosed with a life-shortening condition, is their only option. It is leaving mothers with post-abortion grief.

The death of a preborn child is recorded in our road toll from late gestation, and we mourn their loss. Public sympathy flows for parents and families - as it should. A life cut short is grieved for. But many do not stop to think of, and mourn for, babies or their parents and families who suffer from abortion in the later stages of pregnancy. This simply is not right. This is not what a compassionate, civilised society should be doing. A focal point of this bill is the distinction of 24 weeks gestation. The decision to go to 24 weeks was not an arbitrary one - it was based on consultations with medical professionals and took into account the distinction already made in the Abortion Law Reform Act of 2008. The decision was made predominantly on the basis of 24 weeks gestation being, in practice here in this state, accepted as the point of viability for infants. It is at this point that many members of our community do not expect abortions to be occurring.

In March of this year a Galaxy poll was taken here in Victoria regarding abortion. It posed a number of questions. When respondents were asked if they were in favour or opposed to abortion when the pregnancy is past 20 weeks, 64 per cent of respondents were opposed, and 11 per cent did not have a defined position. Only 25 per cent of the respondents were in favour. Why then do we continue to have legislation supported by only 25 per cent of the population? The majority do not support or expect late-term abortions to take place. Even people who would consider themselves to be pro-choice are opposed to late-term abortion. I suspect the number of respondents who did not support late term abortion would have been much higher if an emotive question had been asked, like, 'Do you believe that babies, once they have reached the age of viability in the womb, should be allowed to be aborted?'. This bill is a more balanced, reasonable approach to what is the current practice. It provides a care structure to support its aims. I now turn to the specific provisions of the bill.

Holistic care
The first section of this bill is devoted to the provision of holistic care. This bill obligates medical practitioners, who are specified in this bill as doctors, nurses and psychologists, to facilitate the provision of access to holistic care in certain circumstances. Holistic health care is a comprehensive person-centred care system which takes into account the physical, emotional, social, economic and spiritual needs of a person. It is to be delivered immediately, as a response to distress, according to the guidelines set out in this bill. Unfortunately this type of care is not necessarily current practice. For example, The Age reported on 22 October last year, in an article titled 'Suicidal mother pleads for late term abortion at Royal Women's Hospital', that the mother seeking a late-term abortion was given an appointment with a social worker scheduled for four and a half weeks later. While after some effort this appointment was brought forward by request, it is simply not good enough for a woman to be made to wait that long so late into her pregnancy.

Many families have recounted to me the poor communication of their options, especially when their child has been diagnosed with a disability. I have long been an advocate for people with disabilities and have heard many stories about the struggles which are caused by social barriers - barriers which impose judgements and restrictions on their lives. The lack of information, the slow referral process and the 'not knowing where to turn' are all features which cause additional and unnecessary distress to parents who are told that their child may have a disability.

The current laws are in deficit because they do not provide for immediate access to holistic care for women in distress. This can be addressed in policy, but as a member of a party not in government a legislative approach is all that is available to me in order to address this pertinent issue. It will be incumbent upon the current and future governments to ensure that women are receiving the health care they need when they need it under this legislation.

Under this bill, if a woman in distress seeks medical advice, or care, and is known to be 24 or more weeks pregnant, the doctor, nurse or psychologist (who is the first point of contact) to whom she has presented must provide comprehensive care to the mother. The health professionals may find this to be within their area of expertise, and so may assist her personally. Or they may refer her on.

For example: if she is suffering from a health condition, refer her to specialist health services; if she is homeless, ensure access to housing support services; if she is experiencing family violence, arrange for support and crisis intervention; if she is struggling to afford the expenses of a child, refer her to pregnancy support services which can provide material and social support to the family; if she is struggling with a diagnosis of disability, refer her to disability support services who can provide her with an understanding of the quality of life her child will enjoy, and her options for care and support under the incoming NDIS scheme.

This referral system does not need to be overly burdensome to healthcare professionals. The Department of Health and Human Services can provide a list of services to ensure that up-to-date services can be accessed quickly and easily. This should become a more professional referral process, as opposed to the ad hoc processes currently in place. It seems ludicrous to me that in 2016 there is one group of women still being discriminated against in health care - they are mothers. We have been mothers since time began - it is not a modern phenomenon which we are unprepared for! It is time for governments to value motherhood and adequately provide for holistic care that meets the true need of mothers.

In preparing this bill I have consulted widely with medical academics, general practitioners, nurses, obstetricians, gynaecologists, midwives, psychologists and psychiatrists. In the expert opinion of the medical professionals, there is no reason why once a preborn child has reached the age of viability at 24 weeks gestation that the child's life must be sacrificed for the sake of its mother's.

As a result, this bill covers the premature delivery of a live child from 24 weeks gestation, should a medical emergency arise. This ensures that comprehensive care is provided to babies from 24 weeks gestation. In cases where there is a substantial risk to the mother's health, such as hypertensive disorders (e.g. pre-eclampsia), cardiac problems (e.g. heart failure), or haemorrhage (e.g. placenta praevia), then a registered medical practitioner will usually perform a premature delivery in a hospital that has neonatal care facilities. There are three levels of neonatal care available here in Victoria - tertiary level NICUs (or neonatal intensive care units), of which there are 4; secondary level special care nurseries, of which there are 18; and primary level neonatal care, provided within hospitals with labour wards.

This bill is not just about formalising practice already in place, although the structures are certainly already there. It is about providing legislative support for this level of care. It is about inspiring a life-affirming culture for mothers and their babies. Women upon whom a late-term abortion is performed are at risk to their health, including their mental health. In 2015, Dr Elizabeth Johnson stated that the stresses that led women to seek abortions 'are not fundamentally alleviated or ameliorated by late-term abortion. Late-term abortion places these women at greater risk of surgical complications, subsequent preterm birth and mental health problems, while simultaneously ending the life of an unborn child'. Quite simply, women deserve better. The risks women are being exposed to are unnecessary. I refuse to choose between women and children - I do not think this is a choice that needs to be made in our civilised society. This bill works to systematically eliminate the need for a late-term abortion, by providing the care and support required to continue a pregnancy. It upholds the principles of non-violence, nondiscrimination and justice for all.

As Serrin Foster pointed out: 'Early feminists argued that women who had abortions were responsible for their actions but that they resorted to abortion primarily because, within families and throughout society, they lacked autonomy, financial resources and emotional support'. Early feminists - who focused on legal issues, especially around women's suffrage - recognised abortion as a symptom of deeper, underlying problems within society. To them, true feminism was about addressing the underlying problems. This bill does just that, by promoting a comprehensive care structure which will facilitate autonomy, improve access to resources, and ensure that women and their preborn children receive the support they actually need.

Neonatal care
The second aspect of this bill focuses on neonatal care. Within this section of the bill, I have introduced an obligation to take reasonable steps to preserve a child's life. A registered health practitioner will be required to take all reasonable steps to ensure that babies born alive from 24 weeks gestation are provided with appropriate neonatal care to preserve the child's life - however long, or short, that may be. This will encourage approaches to be taken that respect the dignity of the baby's life - something that is not often talked about.

Since 2008, there have been many medical advances. Premature babies now have a better chance of surviving, with fewer complications than ever before. We know that around two-thirds of babies born at 24 weeks gestation who are admitted to a neonatal intensive care unit will now survive to go home. In cases where a baby may not have much hope of long-term survival, they can still be comforted before their death. This is in stark contrast to what happens currently when a baby survives a late-term abortion here in Victoria where they are denied appropriate care, including the denial of comfort and pain relief.

Babies born - either prematurely or at full term - who may be deemed as incompatible with life can be provided with perinatal palliative care, also known as perinatal hospice - a holistic care option which surrounds the mother, the family, and the baby with comfort and support through the baby's diagnosis, birth and death. The aim is to help parents embrace whatever life their baby might be able to have, before and after birth. It provides comfort therapies that will allow the parents time to bond and make meaningful memories with their infant.

A study published in 2013 in the Journal of Obstetric, Gynaecologic & Neonatal Nursing found that perinatal palliative care is an emerging focus of care aimed at achieving the best possible quality of life for the family as they await the conclusion of their pregnancies, providing seamless, comprehensive, and holistic support during and after the delivery process.

Some of the most up-to-date studies such as one published last year in the Prenatal Diagnosis journal show that women who terminated their pregnancy following a prenatal diagnosis of a lethal fetal defect, reported significantly more despair, avoidance and depression than women who continued with their pregnancy.

Abortion does not resolve cases where a lethal fetal anomaly exists; abortion destroys one of the patients - the youngest. Patients and their families can and should be offered the option of perinatal hospice to support them in the same way we do families with an adult member for whom treatment has become futile. I am a firm believer that every life deserves a lifetime - no matter how short, no matter how complicated, and whatever disability we may have. It is important to note here that many abortions of children with disabilities do not involve diagnoses that are likely to be fatal - they include conditions such as Down syndrome, cystic fibrosis and spina bifida. This is a form of disability discrimination, especially when it occurs so late in pregnancy that these babies, if born alive, would be able to survive.

Amendment of other acts
The last section of this bill covers amendments to other acts. Once preborn babies have reached the age of viability, they should receive the full protection of the law, and be treated with dignity and with respect. Many receive such dignity, even in death, such as victims of road trauma, or those who pass away peacefully after a period of perinatal palliative care, or those who are stillborn, who are placed with dignity and respect into 'cuddle cots' - refrigerated cots which allow parents and family members to say goodbye. However, there is a minority - a significant, but silenced number - who do not. This bill gives this minority a voice, by limiting the operation of the Abortion Law Reform Act 2008 to less than 24 weeks.

The amendments made by this bill are simple. Sections 5 and 7 of the Abortion Law Reform Act 2008, which provide for abortions after 24 weeks, are repealed. There are two sets of penalties within this bill: one is directed at the person performing the late-term abortion - usually the doctor. They will be responsible for ensuring that abortions are not performed from 24 weeks gestation. If they breach this condition, they are liable to level 6 imprisonment, which carries a maximum term of five years. This is certainly not an overly harsh penalty. It is, in fact, the same penalty as for the offence of recklessly causing injury.

The second penalty is directed at the operator of the hospital or clinic at which the late-term abortion is performed. The operator must, therefore, practise due diligence to ensure that late-term abortions are not occurring under their roof. This is not a large or burdensome penalty, but I believe it is sufficient to encourage compliance.

There is a clear prosecutorial exclusion over a woman upon whom a late-term abortion is performed. This bill will not prosecute women. I will not criminalise women who are at a vulnerable point in their lives. This bill promotes a supportive approach to women in distress, not a heavy-handed one. I will never support legislation where mothers are criminalised for having an abortion.

This bill is about supporting mothers and their viable children, children who are on the threshold of birth. It treats babies, from the preborn state of viability, and their mothers, with dignity and with respect. I celebrate the intrinsic value of each individual life - no matter how short, or complicated, or difficult; it is that simple. Babies of viable age have a natural right to their life, which is recognised in this bill. This bill also defends the rights of mothers to be given the care and support they deserve.

I understand, and empathise with, despair. Despair in pregnancy, despair in devastating diagnoses, despair with life. Where there is despair, this bill brings hope. When a mother despairs, this bill will ensure that she is surrounded by the hope, support and comfort she needs. It ensures that she does not have to travel this journey alone. It ensures the hope of life for herself and for her preborn child. It is time to stop denying mothers this hope. It is time to make a stand for the hope which comes from life. It is time to become a society which treats its most vulnerable members with the dignity they deserve.
I commend this bill to the house.

<< Back to newsletter