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Wednesday, 29 November 2000
Page: 20106


Senator McGAURAN (12:45 PM) —The Senate may be aware of a very sad but controversial incident that occurred at the Royal Women's Hospital in Melbourne and became public in July this year. The incident that occurred was a late term abortion, of some 32 weeks, on the grounds that the baby was a dwarf. It is my belief that the Royal Women's Hospital have shrouded the truth of this incident. They would say that it was an abortion of a foetus on the grounds of the mother's extreme emotional stress, but the truth is that it was dwarfism of the baby that led to its destruction.

Given this shocking operation, it is then important to know what the standing of such a procedure is in Victorian law. While late term abortions are not specifically referred to in the law, the Crimes Act creates the offence of child destruction after 28 weeks, meaning that the child is viable at 28 weeks and an abortion cannot be undertaken. Further, medical evidence accepted by the courts states that a child capable of breathing naturally or unnaturally would come within the provisions of the Crimes Act of child destruction. Medical evidence, again accepted by the courts, found that breathing—that is, viability—can commence at 20 weeks. Therefore, the Victorian law recognises that the criminal offence of child destruction can commence at 20 weeks.

The reason the law treats a late term abortion as a criminal offence is because the baby can live separate from its mother—that is, there is no contest of life between the rights of the mother and the child. In some circumstances, this view of no contest is supported by the very medical procedure for late term abortions. To begin with, the child is born, a birth certificate is required, the newborn is destroyed and a death certificate is written. However, as the Senate is aware, the issue of termination of pregnancy is a matter of conscience before the parliament. My position is that late term abortions are morally wrong and illegal under Victorian law. I believe that the majority of the general public have an ethical objection to late term abortions particularly on the grounds of a mere physical defect of the unborn.

It would then dismay the general public to know that the incident I have referred to of the late term abortion at the Royal Women's Hospital is not a one-off but, rather, one of many. The evidence comes from a freedom of information request made to the medical records department to supply statistics for late term abortions for the past 10 years, excluding miscarriages. This was so the statistics reflected the deliberate medical act of late term abortions. The statistics showed that, for the years 1990 to 1998, no records were kept to distinguish late term abortions from early terminations. There was one total for both procedures. Not until 1999 were separate records kept. The 1999 figure for late terms abortions over 20 weeks was 44. Nevertheless, to complete the picture of the last decade, I am reliably informed that, on average, there have been 32 late term abortions each year between 1990 and 1998.

I make three points in regard to these figures. Firstly, the 1999 figure of 44 is very high, almost one every week of the year, and a significant increase on other years. It is an unacceptable figure, given the general public's view. Secondly, the hospital have failed to act in an open, transparent and accountable manner, particularly given their dependence on public funding. They have attempted to hide the records of one of the most serious procedures in their hospital. Thirdly, the statistics show an appalling cultural acceptance by the hospital of late term abortions—a culture accepted from the hospital board down. This culture is running rife through the Royal Women's Hospital and was reinforced by a very public statement made by a senior and notable member of the hospital who, in the Sunday Age magazine some months ago, was quoted as accepting late term abortions for something as minor as a cleft lip. No other grounds are needed.

The culture has instilled in the doctors that they have no responsibility, but to act solely according to the patient's wishes—no responsibility to the law, to any ethics, least of all to this stand-alone human being. This culture of acceptance of the most shocking late destruction of a child is the shame of the Royal Women's Hospital. It is worthy of note that a late term abortion at the Royal Women's Hospital need not even be based on the grounds of a disability—rather, just the judgment of the doctors as to the physical and mental health of the patient. The hospital is effectively saying, `To relieve your anguish, we agree to destroy your child.' The board of the hospital is to be condemned for its weakness in allowing this culture of acceptance to flourish contrary to the law and public opinion. My claim is backed by information from more than one hospital source. The sources claim the board buckled under staff pressure and overturned the former chief executive officer's very correct decision to suspend the offending doctors involved in the 32-week abortion.

Thankfully what the board could not do was overturn the CEO's legal obligation to refer the incident to the state coroner for investigation under criminal law. This is where the matter now rests. It would seem the CEO paid a very high price for his actions. He resigned from his position very soon after the board's repudiation, no doubt under pressure to do so. The only concession given by the hospital board to the public outcry at this particular late term abortion was to belatedly establish some guidelines and a review panel, all internally managed, of course, and a poor substitute for the high price paid by the child and society's values. The panel is a token gesture to public opinion, especially if 44 late term abortions continue to occur each year. For such pitiless acts this does not seem strong enough action. It seems these procedures have now become as normal as the some 3,700 early term abortions.

Given these facts, I call for the following outcomes. Firstly, the case of the 32-week abortion now before the Victorian coroner is a test case; the coroner has the power to recommend prosecutions in this particular case. It is my view that this is what the coroner must conclude. Secondly, it is imperative that the coroner brings down a judgment as soon as possible so as to put a halt to the increasing number of late term abortions. Thirdly, regardless of the coroner's decision, the law should be clarified to put beyond doubt the illegality of late term abortions. It cannot be viewed as a moral equivalent to an early term abortion. Presently, the 1969 Victorian Supreme Court decision known as the Menhenit ruling, which allows for early term abortions, is being used to justify late term abortions, yet this ruling directly conflicts with the criminal code relating to child destruction. Therefore, a separate law for late term abortions is necessary. Fourthly, there is a prima facie case against the hospital for breaking the law consistently in regard to the 44 late term abortions as recorded in the 1999 statistics. An investigation is warranted and prosecutions deserving if the law has not been strictly adhered to. At the very least, an investigation would clear the hospital of public suspicions, because presently the circumstances of the 44 are unknown.

Questions need to be asked such as: how many of the 44 cases breach the Crimes Act? How many late term abortions should have been referred to the coroner? And, how many, if any, of the 44 have had a birth and death certificate written, as is required? I fear that without public attention being brought to the Royal Women's Hospital's actions these activities will continue unabated. Incidents like those I have mentioned will go unchecked and, worse, be allowed to become the norm of hospital behaviour, even against public opinion. It is incumbent upon the responsible parliament, the Victorian parliament, and concerned community groups to condemn and prevent this hospital culture from flourishing.