Abortion for Fetal Abnormality?

Abortion remains a crime for most Australians. Laws are inconsistent between states. In contrast, long ago the UK Abortion Act 1967 repealed and replaced its antiquated legal statutes on which much of Australian abortion law is still based.

The government in the state of Victoria asked the Law Reform Commission to provide legislative options to decriminalize abortion. Law reform is expected later this year.

They presented three possible models for reform (1). An abortion is lawful:

Model A: with the woman’s consent when a doctor determines that the abortion is necessary at any gestation, or
Model B: prior to 24 weeks gestation with the woman’s consent. After 24 weeks if a doctor determines that it is necessary to prevent risk of harm to the woman if the pregnancy continues, or
Model C: with the woman’s consent, at any gestation.

The report is a detailed analysis of abortion and is strongly commended to readers in all legal jurisdictions.

This comment addresses one major aspect in which the recommendations differ from British law: should abortion be allowed on the grounds of fetal abnormality?

Section 3.91 states that legislation that specifically allows abortion for fetal abnormality is open to criticism for devaluing the existence of people who live with disabilities (1). It quotes the UK Disability Rights Commission who said of the UK legislation:

The section is offensive to many people; it reinforces negative stereotypes of disability and there is substantial support for the view that to permit terminations at any point during a pregnancy on the ground of risk of disability, while time limits apply to other grounds set out in the Abortion Act, is incompatible with valuing disability and non-disability equally (2).

The Australian report noted: The formulation of public policy and law about abortion on the basis of fetal characteristics is quite different from a woman deciding that in her circumstances she is unable to take on the tasks of raising a child.

The commission was strongly of the view that that abortion law should not contain a specific ground of serious fetal abnormality. While there was generally no support in consultations and submissions for the inclusion of a specific ground of fetal abnormality, there was support for legislation to be framed for the continuation of current medical practice that provides for such abortions.

Concern was also expressed about defining ‘serious handicap.

Surveys in UK and Australia show that in clinical practice service providers offer abortion to selected women depending on the clinician’s personal view of the severity of the abnormality (3, 4). Women attend a doctor without information on their doctor’s view of what abnormalities are ‘severe enough’ at the differing gestational ages to make abortion acceptable. Such discrimination in according a right to life depending on the severity of disability would not be considered acceptable after birth. In addition, current access to abortion often depends on the doctor’s view of the abnormality, not the woman’s view as to whether she as the future carer will be able to manage. 

This author supports a ‘maternal /family interests view’ (3, 4) that assumes that the fetus does not have moral status. This allows late-abortion for fetal abnormality but also for some normal pregnancies. This view thus escapes the criticism that can be leveled at current practice around late termination that there is discrimination against fetuses with disability.

It is unclear what arguments might justify a discriminatory practice before birth. Either such arguments need to be developed, or physicians’ practice in determining what abnormalities are ‘severe enough’ to warrant abortion must be reviewed.

Lachlan de Crespigny

1 The Victorian Law Reform Commission Final Report. The Law of Abortion.

2 Disability Rights Commission, Statement on section1(1)(d) of the Abortion Act (5 July 2003) quoted in Kristin Savell, ‘Turning Mothers Into Bioethicists: Late Abortion & Disability’ in Belinda Bennett et al (eds) The Brave New World of Health (forthcoming 2008).

3 Savulescu J. Is current practice around late termination of pregnancy eugenic and discriminatory? Maternal interests and abortion. J Med Ethics 2001; 27: 165–71

4 de Crespigny L and Savulescu J. Is paternalism alive and well in obstetric ultrasound?
Helping couples choose their children
Ultrasound Obstet Gynecol 2002; 20: 213–216

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