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Thursday, 10 May 1973
Page: 1992

Mr HAYDEN (Oxley) (Minister for Social Security) - I support the Bill. What I have to say will be said quickly so as to use up a minimum of the rather scarce time that is left for this debate. There are 3 main arguments which are used against abortion and which it seems are being used against this Bill. These are the arguments: First, that abortion is murder; second, that the foetus has the right to continue in existence; and third, that to allow people to be able to choose whether or not to have an abortion would lead to infanticide, euthanasia and so on. This latter argument, which has previously been referred to as the domino theory of abortion, does not argue that the foetus has a right to survive, but rather argues that to allow people to choose whether or not to have an abortion would in itself bring about a disregard for human life and hence, in a society where people had this choice, regard for life would become so debased that the weak would be destroyed at whim. This argument is as obviously spurious in the moral context as it is in the political context and just as it has proven historically to be a disastrous basis for a reasoned foreign policy, so too in this case it would be a disastrous basis from which to reject the Bill. This argument presupposes that the decision to have an abortion is a decision lightly taken by those involved. But the reality is that it is a decision made after deliberation, taking into consideration the whole situation as it affects one's life and those lives affected by one's life. The very essence of this decision is regard for the life of others. The domino argument, therefore, does not suffice as an argument against this Bill.

The second claim is that the foetus has a right to survive. However, if the foetus does have such a right as the right to survive, this right must be grounded in those characteristics which make a living tiling a person. For if it makes sense to talk about rights at all, they can only be attributed to an individual which has certain characteristics, namely, those characteristics which make a person a person. Two such characteristics which have been suggested in the propaganda from those opposed to the Bill are the existence of a heart beat and the existence of a human-like shape. But nothing as superficial as a shape or heart beat can be used in deciding the question of whether or not a foetus is a person who has rights.

What are the characteristics that make a living thing a person? The Vatican 2 Declaration on Religious Freedom dennes a person as a being endowed with reason and free will and therefore privileged to bear personal responsibility. Thus a person is a moral agent with intelligence, aims and goals; who has the capacity for reasoning, willing, desiring and loving; who has the capacity to relate to and respond to others, lt is the existence of these characteristics which gives rise to rights, that is, a person has rights just because he has his own personality, because he is a mora) agent. A foetus has none of these attributes; it has none of those characteristics which distinguishes a person from other living things.

In the current debate, the attribution of rights to a foetus has been thought to be justifiable on the grounds that a foetus is potentially a person. This can only mean that this right, namely the right to survive, is primarily a right that a person has but which flows back to something that could become that person. Thus unborn children have been recognised as acquiring rights or interests by way of inheritance or other devolution of property, but the existence of these rights is contingent upon the child being born alive; that is, these rights are retrospective rights. Thus, if the foetus dies, it can have had no rights as a person and thus no right to survive. This leaves us then with seemingly the most powerful of the moral arguments against abortion, namely, that abortion is murder. The only justification offered for this claim is that the development of a foetus from conception through birth into childhood and thence to adulthood is continuous. The foetus is continuous with the adult human and hence is itself human.

However, a proper justification of the claim that the killing of an innocent human being is wrong must be based on just those characteristics of a person that make him a person, namely, that he is a being endowed with reason and free will and therefore privileged to bear personal responsibility. But, it is not these characteristics which are being used by those people who argue that the foetus from conception is a human being. The only characteristic used to justify this claim is that the foetus is continuous with the adult human and hence, they conclude, it must itself be human. But the possibility of development along a biological continuum does not by itself guarantee that the foetus is a responsible moral agent capable of living a full human life.

One suspects that behind the claim that abortion is murder lies the theological question of when precisely the human soul is infused into the matter of the body. Neither Aristotle nor Saint Thomas Aquinas was persuaded that the life of the embryo or the foetus was a full human life. Throughout the Middle Ages and the Renaissance in Europe, the official theological line was that the soul entered the body at the moment of quickening. This was based on the belief that the soul is the first principle of life, and life is shown by 2 actions - knowledge and movement. Abortion before ensoulment was contraception and hence, for Aquinas, sinful; it was not murder.

Our society recognises that there is a difference between the foetus, the young child and the adult human being. In fact, laws differentiate between the young baby and the adult. Seldom is infanticide punished as murder. If the people opposing this Bill sincerely believe that abortion is murder, they should not be content with merely opposing the Bill, nor indeed should they be content with the existing laws, but rather they should feel themselves morally compelled to bring about laws to make abortion the serious, and seriously punished, crime that they claim it to be. But, of course, they have not and they will not. Their claim that abortion is murder is thus not something that they are morally committed to, but just an effective means of marshalling support against this Bill. Furthermore, they know that to introduce laws making an abortion such a serious crime would quickly reveal the strength of the commonsense attitude to the status of the foetus mentioned above and already incorporated in our laws.

Abortion at present in Australia is a minor crime carrying little social disapproval. The question now being debated is whether it should be a crime at all. Describing abortion as murder, that is, as a major crime, is simply playing on our emotions and fears. Hence there seems to be no possible justification for the existing legal position, no arguments which show conclusively that to let a foetus die is murder. However, many of our moral beliefs spring not from argument, but either from a deeply held but irrational conviction or from revelation. But, neither conviction nor revelation can form the basis of a law in a society where not everyone shares that conviction or belief. This truth was well enunciated in the Vatican 2 Declaration of Religious Freedom where it was stated that truth cannot impose itself except by virtue of its own truth; that is, one can seek to impose truth, not by the force of the law and the power of the state, but rather by the force of its own influence on the mind.

The problem of the limits of religious freedom, which Vatican 2 argues must exist for all - believers, non-believers and aetheists - is parallelled by the legal problem of the appropriate limits of the criminal law. Both Bentham and Mill held that the use of the criminal law is an evil which could be justified by only showing that the conduct punished was either directly harmful to individuals or their liberty, or jeopardised the collective interest which members of a society have in the maintenance of its organisation or defence. The same philosophy of law was enunciated in recent times by the Wolfenden Committee, which argued that the function of the criminal law is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation or corruption of others. They further argued that there must remain a realm of private morality which is not the law's business.

Australia is hopelessly divided on the important questions of morality and in particular on the question as to whether a person should be free to choose, in consultation with a medical practitioner, whether or not she has an abortion. Our society is morally a pluralist structure comprising a number of different and at times incompatible moralities and hence there can be no justification for the existence of a criminal code which reflects any one of these moralities. The question of abortion should notlie within the realm of the law. The moral question would not ipso facto cease to exist. What would happen within our pluralist society is that individuals and groups would differ as to what considerations should be taken as relevant to deter mining the morality of the act. This is as it should be.

I support the Bill. In order to help my colleague the honourable member for Prospect (Dr Klugman), who will be deprived of an opportunity to speak in this debate, I seek the leave of the House to incorporate in Hansard the amendments which he has had circulated in his name.

Mr SPEAKER - Is leave granted? There being no objection, leave is granted. (The document read as follows) -

Amendment proposed to motion for second reading. That all words after That' be omitted with a view to inserting the following words in place thereof:

This House is of opinion that the Government should submit, by way of referendum, the Medical Practice Clarification Bill 1973, to the electors of the Australian Capital Territory.

Amendment proposed at Committee stage.


(1) Clause 7, page 2, lines 8-20, omit the clause, substitute the following clause:

7. Subject to this Act it shall be lawful for a medical practitioner to terminate the pregnancy of a woman provided that -

(a) the person acts at the request of the woman;

(b) the person is of the opinion that the continuance of the pregnancy would Involve greater risk to the life of the woman, or injury to the physical or mental health of the woman than if the pregnancy were terminated;

(c) there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped; and

(d) the person exercises professional care in performing the termination.'


(2) Clause 8, page 2, lines 21-40, omit the clause.


(3) Clause 9, page 3, lines 1-6, omit the clause.


(4) Clause 11, page 3, at the end of the clause add the following sub-clause:

(3) However if the medical practitioner's refusal is on the basis of conscientious objection, he shall notify the woman of this at the time of his refusal.'


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