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Decriminalising abortion will make Victorian women even more vulnerable to medical malpractice, warns Charles Francis QC.

The Bill introduced into the Victorian parliament by Candy Broad, MLC, to decriminalise abortion in Victoria appears to proceed upon the naïve and mistaken belief that it will benefit women. Nothing could be further from the truth.

Under the present law (based on the 1969 Menhennitt ruling), even if the pregnancy constitutes a quite minimal risk to the woman's health, the state does not intervene. To doctors performing abortions, the present law poses no problems whatever.

Physical and mental harm done to women by abortionists should be the real concern of our MPs. In my experience as a lawyer who acted for some of these women, most abortionists take no adequate medical history from their patients, nor do they give them any adequate counselling or warning of the many risks of abortion.

Psychological damage

High on the list is psychological damage. Overseas research - in particular, that of Dr David Reardon of the Elliott Institute, in the USA (www.afterabortion.org), which studies abortion complications - indicates that, in at least 10 per cent of cases, the psychological damage is severe and counselling is required. There are many other known physical risks as well.

In the USA and Australia, most abortionists seem to be motivated not by the welfare of their patients but rather by greed. Amendments to Victoria's 1958 Wrongs Act (Part V) make it very difficult in this state to sue abortionists for medical negligence. Decriminalising abortion will make Victorian women even more vulnerable to medical malpractice.

The case of Sydney doctor, Suman Sood (2006 NSW Supreme Court 1141), who was convicted of performing an illegal abortion, is instructive. A woman, 23-weeks pregnant, contacted Dr Sood's Australian Women's Health Clinic at Fairfield, NSW. Although several clinics had declined to terminate the pregnancy because it was so far advanced, Dr Sood agreed to perform the abortion for $1,500. She administered prostaglandin, an abortion-initiating drug, and told the woman to come back next day.

That night the woman went into labour and gave birth to a male baby in the toilet. An ambulance officer fished the baby out of the toilet and took it to hospital where doctors noticed it was taking gasping breaths every few minutes. A heartbeat could be seen through the translucent skin but could not be heard with a stethoscope. (This possibly prevented a manslaughter conviction). The baby was dressed and given to his mother who named him. He was pronounced dead about five hours after birth.

Prosecutors said Sood acted illegally because she neither examined the patient nor questioned her about her medical, social or economic circumstances or why she wanted the abortion. Contrary to the evidence of the woman, Sood denied administering the prostaglandin or giving her pills.

Crown prosecutor Mark Tedeschi QC alleged Sood was motivated by greed rather than the welfare of her patient. The woman told the jury that, on the morning she had given birth, Sood telephoned her at the hospital and asked her for a further $100, allegedly owed for medication.

Previously, Dr Sood had been the subject of a long history of complaints, court cases and investigations involving other patients. Despite this, however, the NSW Medical Board had not struck her off the NSW Register of Medical Practitioners.

After her conviction, she was voluntarily struck off, which led to a very lenient sentence. The NSW Premier Morris Iemma rejected calls for the decriminalisation of abortion and gave assurances there would be no changes to existing laws.

Also noteworthy was the Abortion Providers' Federation of Australia's choice of US abortionist, George Tiller, as a keynote speaker at its 1999 conference. On June 28 this year, Tiller was charged in the state of Kansas with 19 criminal counts of illegal abortions. Kansas law prohibits post-viability abortions, except where there are serious physical complications. It is alleged Tiller aborted viable foetuses for virtually any reason.

Tiller is having difficulty finding and keeping assistants. Except for the abortionists themselves, none of Tiller's staff are licensed medical workers. Tiller gives them only two weeks' training - even the women who assist with dangerous late-term abortions and other surgery.

The work environment is unpleasant and stressful. One worker described her job re-assembling aborted baby parts as disturbing, and that the stench from the incinerator where the babies' bodies are burned is sickening.

Women vulnerable

Removal of abortion from the Victoria's Criminal Code would leave women even more vulnerable to the Soods and Tillers of the abortion industry.

Rather than decriminalising abortion, there needs to be amendment to Section 10 of the Child Destruction Act 1958. This section recognises that a termination of a pregnancy of 28 weeks or more is not merely abortion but the destruction of a child capable of being born alive.

In the light of medical advances today, this offence of Child Destruction should apply whenever a foetus of 20 weeks or more is aborted.

- Charles Francis, AM QC, is a retired Melbourne barrister and former Victorian state MP.