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An Ethicolegal Analysis On Late Termination Of Pregnancy In Australia

Introduction

Women pregnant are mostly confronted late in terms of pregnancy with information where child has a stern aberration. This could be described as a condition, which is unsuited in life. These are probably to be encouraged to have early induction, and could get a grief for having a healthy child. Late termination of pregnancy (TOP) in simple terms includes physiological risks pertaining to mental health of the mother who chooses it (Sedgh et al. 2011). TOP however is defined as the stage during termination of pregnancy when the child is normally being born alive. While the gestation age is obvious, that is relative to medical ability, which advances with availability of technology (Dommergues et al. 2010). The late termination could also matter due to employment, financial conditions and irresponsibility. In case, if the state puts major restrictions on TOP, many women would find helpless and might resort to unethical practices for terminating pregnancy. It has been indicated that there are several risk and situations been involved because of this.

As per the Medical Practitioner Board of Victoria, late termination of pregnancy is defined as those, which are undertaken at the week 20 or in gestation. While one such effect of legislative change shown in Western Australia is a mandatory collection of the annual statistics on the induced abortion (Jones and Jerman, 2014). However, it is projected that the provision of TOP in Australia is subjected to universal body of laws that control practice of medicine. Thus, it is assumed that provision of Criminal Code of Jurisdiction would be same as that of a parallel provision in that Criminal Code.

 

Main Body

Law surrounding TOP in Australia

According to Lee (2012), TOP is regarded as a focus of Criminal law in the Australian states, except their Capital provi ........

Late termination of pregnancy (TOP) in simple terms includes physiological risks pertaining to mental health of the mother who chooses it (Sedgh et al. 2011). TOP however is defined as the stage during termination of pregnancy when the child is normally being born alive. While the gestation age is obvious, that is relative to medical ability, which advances with availability of technology (Dommergues et al. 2010). The late termination could also matter due to employment, financial conditions and irresponsibility. In case, if the state puts major restrictions on TOP, many women would find helpless and might resort to unethical practices for terminating pregnancy. It has been indicated that there are several risk and situations been involved because of this.

As per the Medical Practitioner Board of Victoria, late termination of pregnancy is defined as those, which are undertaken at the week 20 or in gestation. While one such effect of legislative change shown in Western Australia is a mandatory collection of the annual statistics on the induced abortion (Jones and Jerman, 2014). However, it is projected that the provision of TOP in Australia is subjected to universal body of laws that control practice of medicine. Thus, it is assumed that provision of Criminal Code of Jurisdiction would be same as that of a parallel provision in that Criminal Code.

 

Main Body

Law surrounding TOP in Australia

According to Lee (2012), TOP is regarded as a focus of Criminal law in the Australian states, except their Capital province. The author from the above argument states that each territory and state has his or her own legislation that prohibits the unlawful TOP. As argued by Costa et al. (2015), in other states, the general law interpretations of Criminal Code or Crimes Act had a result of making the legalized abortion accessible to large women. While Children by Choice believe that late termination in pregnancy is a problem that concerns women’s health and rights, and any such legislation, covering this process must not be limited within the Criminal Code.

From the argument of Kirkman et al. (2011), in Queensland, it is said that TOP is a sort of crime under the criminal code, even though from case law abortion is defined as lawful if it is executed to avoid serious threat to woman’s metal and physical strength. In order, a pregnancy could also be terminated if defect in foetus is considered as inconsistent. Likewise, an abortion is only possible during first 22 weeks in case of a pregnancy after initial consultation with family doctor. In order, Phillips et al. (2012) have commented that Section 282 of Criminal code tends to describe lawful medical process, which does not related to abortion. From the above argument, the author states that this mainly is used as a defence for the doctors while they take charge with illegal abortion.

In NSW, TOP is observed as lawful, as it is executed in order to avoid any serious threat that is caused to women’s physical and mental health. This mostly includes social and economic pressures. Culwell and Hurwitz (2013) commented that the abortion services are only available for weeks 18-20 of pregnancy. Woman of 12-15 ages could give informed approval for abortion if the doctor believes her to be mature. Under 14 years of age for women, they require consent from their guardian or parent or from the Supreme Court before they could have TOP. Both NSW and Queensland, the legitimacy for abortions is only based on a universal law that interprets Criminal code. In order, the author from his argument intends that whatsoever being the women with the child, this would unlawfully administer herself any drug or harmful thing, which uses a tool to secure her miscarriage, and should be capable to severe servitude for 10 years. Thus, this is considered as per Section 82.

In Victoria, Abortion Law Reform Act in 2008 allows stipulation of abortion in demand by competent medical practitioners, pharmacist and nurses. Doran and Nancarrow (2015) has commented that if the female is less than 24 weeks pregnant, and after 24 weeks, a subsequent practitioner should agree that the execution is in best curiosity for patients, which are to be performed legally. Besides, from Wellbeing Amendment and Public Health Bill 2015, the legislation is in result after it is being approved by the Victorian Parliament in Nov. 2015. According to de Costa and Douglas (2015), this prohibits intimidating, threatening and harassing behaviour within 150m of the abortion provider basis. Prior to 2008, TOP was being governed by such necessities in Victorian Crimes Act and by Case law after 1969 as per the authors from above argument. Later, under the Crimes Act in 1958, 1965 and 1966, only the illegal abortions were definite (Dickens, 2014). As in Queensland and NSW, it was just left to the courts for deciding on what situation abortion will be lawful.

On the other hand, in South Australia, Abortion could just be legal up to 28th week in case of pregnancy. As argued by Senat et al. (2003), this is where opinion of the two doctors should have to be sought in, and the abortion must have to be placed in an approved clinic. From the above argument, the author comments that abortion is available lawfully under some situations only in South Australia because some restrictions continue the same. In case, there are lot of penalties that are agreed by law of illegal abortion (Keogh et al. 2016). From Criminal Law Consolidation Act 1935, section 81(2) has outlined the situations on which a lawful abortion has to obtained should be approved out inside 28 weeks on outset in a approved hospital by the lawfully qualified remedial practitioners.

In Tasmania, abortion is only allowed in an accepted hospital or clinic within support of two doctors. Under new law, abortion has to be lawful on appeal up to 16 weeks in conception to point made with conformity of two doctors. From the Reproductive Health Bill 2013, it is considered that abortion is no longer any sort of crime. According to Phadke, Agarwal and Aggarwal (2011), Section 6 of this Bill states that all the medical practitioners should have meticulous protest to TOP are not appreciative to contribute in TOP procedures apart from the emergency to keep women’s life or avoid serious physical damage. Besides, Minear et al. (2015) have commented that Counsellors and Doctors are likely to be fined if they grab conscientious protest to abortion, and does not prefer pregnant women for information about the pregnancy choices to another counsellor or doctor without reliable objection.

In the Northern territory of Australia, Kennare, Heard and Chan (2005) comments that the services defined for TOP are available legally up to around 14 weeks conception, if the doctor concurs it could be sensible, and up to around 23 weeks, if another physician approves it. However, this is where drug abortion is lawfully permitted after the new legislation, which was approved in last year i.e. March 2017.

Lastly, in Western Australia, the law states that the provisions connecting to abortion are mostly found in Health Act and Criminal Code. According to Dommergues et al. (2010), abortion is only legal if it is executed before 20 weeks conception, and with restrictions for under 16 women age. In order, the Health Act 1911 says that abortion must be executed by medical practitioner with good faith, and with practical skill and care. Jones and Jerman (2014) comments if the abortion is performed illegally by any medical practitioner, he is liable for a fine of $50000. Thus, from the above comment wherever the abortion is performed illegally by some other than the medical practitioner, then also a penalty is given with five years of imprisonment.

Conditions late pregnancy should be permitted.

According to Culwell and Hurwitz (2013), in heath ethics, the moral status defined for late pregnancy is defined with the area that influences the interests or goals while making an ethical decision. For meeting the criteria, it is imperative that the condition of being the person includes ethical and legal rights. In South Australia, as abortion is legal up to 28 weeks the doctors agree that a woman’s mental and physical health is agreed by pregnancy, or in case of a serious foetal abnormality. According to doctors, abortions are only provided to residents without any such referral and through the state health services in a prescribed hospital setting up to 23 weeks.

In Queensland, doctors believe that a women’s mental/physical state can be in danger due to decriminalisation of abortion in Queensland and for the reforms of law inhibiting such access.  In order, Sedgh et al. (2013) argue that laws that regulate practice of medicine apply to provision in termination. In order, under the Victorian law, TOP is currently defined in Crimes Act. Section 65 of Victorian Crimes Act 1958 says that an unlawful abortion carries a sentence of maximum of 10 years. In order, a judicial interpretation of legislation is provided by late justice Menhennitt in 1969.

According to doctors, their decision to counter the 20 weeks termination of pregnancy could be done if they take decision to continue or terminate an unplanned pregnancy. This is quiet difficult for women, as these decisions has to be made without pressure from others and women should not be made feel guilt. As outlined by Doran and Nancarrow (2015), the control of fertility is also crucial for women’s capability to maintain their health. Doctors should improvise methods, which could reduce the incidence of the unwanted pregnancies and should come up with solutions towards the effective support of women. Hence, the agenda of doctors will be to make improved access to provision of the termination of services including the removal of abortion from the Crimes Act in Victoria (Souka et al. 2010). They should also make an increased access to the appropriate contraceptive choices as well. On the other hand, doctors should protect access to counter emergency contraception and making it available in variety of settings.

On the other instance, late termination of pregnancy is not permitted because laws across Australia differ in their approach, and they show how to regulate abortion. While some states and territories require women to give reasons for choosing to terminate pregnancy while she is prior to a gestational phase. On following this, Keogh et al. (2016) have argued that late termination should not be permitted because of the psychological circumstances covering abortion, which is regulated in case of health legislation. This is lawful up to 24 weeks, and if this is applied, there could be certain risk involved due to this for woman. For instance, in Northern territory of Australia, as abortion is lawful up to 14 weeks, this can see doctors a risk in late termination of pregnancy. This is not appropriate even on grounds that do not seek an authority where women personally go for abortion, as it is illegal on few grounds.

Towards the later termination of pregnancy, there are invasive alignments, which a doctor finds. According to Phadke, Agarwal and Aggarwal (2011), a futile action is that one cannot achieve the goals of the action no matter how it is repeated. An effort is made serious with the desired outcome of an action or a decision. In case, determining the futility in particular leads to an intervention and the potential cause of relation. As commented by Minear et al. (2015), there has been wide instances where doctors believe abortion is harmful but patients not. While this can be agreed on, what patients go during that time, and ultimately ends with abortion. In order, on making the ethical risk benefit, the time taken to elicit all the harms and benefits may be a concern to stakeholders. For this, it is viable to make sure to avoid disagreements about the benefits and risks when people take about different things. In this case, the patient might be terrified of surgery but will not be worried about the harm as Surgeon does (Kirkman et al. 2011). Thus, on taking into consideration, there could be subjective prospects regarding the probability and the harm during late termination of pregnancy to be permitted. Thus, one has to be careful while framing a decision making and prevent such cognitive bias to women.

On other grounds as argued by Kennare, Heard and Chan (2005), the perceived moral status also determines influences towards TOP. This is where the fundamental interest for individuals has to make a decision with manipulation of preferences and beliefs. In order, doctors go for later termination of pregnancy if their consent is informed, understood and voluntary. Rather, the doctor while discharging against the medical service should confirm that the patient has capability to make autonomous decision against medical advice (Dommergues et al. 2010). The doctor should also ask the patient to understand diagnosis and describe consequences of DAMA (Discharge against medical advice). Hence, the moral balance is required where equality is judged with the treatment of women. The fairness is judged with the distribution of resources.

Informed Consent and Circumstances on TO

Under the Section 334 of the Health Act, it is intended that presentation of abortion is acceptable if the woman has specified informed approval. In order, the informed approval for any referral has to be attained by a medical practitioner who is not a doctor that is executing abortion. As argued by Costa et al. (2015), on obtaining informed consent require offering counselling about the medical risks on carrying pregnancy, or informing women that counselling is only accessible with post-delivery or post termination. This is where a medical practitioner has to provide adequately the medical risk of TOP (Kirkman et al. 2011). Moreover, the action is placed since the medical practitioner has offered opportunity for referral on counselling of matters relating to TOP.

On the other hand, Culwell and Hurwitz (2013) argue that when woman is over 16 years of age but she is not capable to give informed approval to her treatment is due to her mental illness or incapacity. For this, the medical practitioner has to consult with the woman’s legal guardian who is been appointed. In order, that person might be authorized under Administration and the Guardianship Act 1990 to consent in carrying out TOP. As commented by Phillips et al. (2012), if the medical practitioner is worried about capability of woman to give the consent, this may be suitable to pertain to a court for taking authorization for abortion in order to carry it out. However, from Section 334(3) (c) & (d) of the Health Act, it is impractical for any woman to provide informed approval unless the presentation of the abortion is justified with approval where:

  1. There is a serious threat to mental and physical wellbeing of woman that will result if the abortion is not executed well (Doran and Nancarrow, 2015).
  2. Pregnancy of woman also causes a major threat to mental/physical wellbeing.

Conclusion

The review on “Under what circumstances late termination of pregnancy should be permitted” concludes on the assessment where there has been reality of processes in TOP and often the area where child is born alive. However, the major problem evolved in relation to abortion is a major conflict between respect for child rights before birth and right of women. In case, it is prioritized that the problem of conflict has risen between rights of child before birth and rights of mother as well. In Australia, the matter of late termination of pregnancy is quite different from abortion as much more agreement could be achievable than the apparent first trimester abortion. Thus, a concern for this moment defines a positive law, which deprives the protection of civil law that should accord with the state of equality.

However, the review also concludes on the law that is surrounding late TOP in Australia in major states, which include Tasmania, Victoria, Western Australia, South Australia and Northern territory. The states of Australia has been seen a major influence in late TOP where situations have differed very much. On the other hand, informed consent and the major circumstances of TOP are also presented with ethical and the legal obligations on late termination of pregnancy. Moreover, the medical practitioners must be guided by the Australian Medical Association Code of Ethics, which says that in case of a moral judgment or some religious belief, informing patients must be there.