Chapter 2Key issues
2.1This chapter discusses evidence received from submitters and witnesses regarding the Human Rights (Children Born Alive Protection) Bill 2022 (the bill) and concludes with the committee's view.
2.2The committee received mixed views regarding the bill, with many submissions from individuals expressing support for the bill. In contrast, evidence from medical, healthcare and legal organisations overwhelmingly did not support the bill and raised the following concerns:
the bill’s compatibility with human rights;
the interpretation of data underpinning the changes as proposed by the bill,
legislating a medical practitioner’s duty of care; and
the practical impacts of the bill.
Legal basis of the bill
2.3The committee heard diverse views on whether the bill meets international human rights obligations and whether it is constitutional.
2.4As outlined in chapter one, the Explanatory Memorandum to the bill states that the bill engages a number of human rights instruments and that it enhances human rights by ensuring that the right to life and healthcare is protected for children born alive. Clause 7 of the bill outlines the constitutional basis for the bill, which seeks to give effect to Australia’s international obligations under articles 6 and 24 of the Convention on the Rights of the Child (CRC) and articles 24 and 26 of the International Covenant on Civil and Political Rights (ICCPR).
2.5Supporters of the bill agreed that the bill would give effect to Australia's international human rights obligations. Mrs Wendy Francis, National Director of Politics at the Australian Christian Lobby, commented on the inherent right to life outlined in theCRC when posing the rhetorical question 'is a child that is born and is separate from its mother—it's independent—is that a child or is it not?'. MrDavidd'Lima, representing FamilyVoice Australia at the committee's hearing, made similar remarks, adding that 'Australia was an original signatory to [the CRC], which provides a double moral imperative.'
2.6In contrast, several organisations questioned the legality of the bill on the basis that it seeks to override state and territory laws based on its misinterpretation of Australia’s international human rights obligations.
2.7The power of the Commonwealth Parliament to make laws is conferred by the Constitution and is limited to particular subjects. Health and medical issues are primarily the responsibility of states and territories and therefore are largely outside the powers of the Commonwealth Parliament. However, under the Commonwealth’s external affairs power under the Constitution, the Commonwealth can override state and territory laws if this is necessary to give effect to an international agreement.
2.8Australian Lawyers for Human Rights explained that the bill misunderstands both the international obligations to which it claims to give effect and its impact on Australia’s implementation of its human rights obligations:
The Bill purports to give effect to Australia’s international human rights obligations under the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). By invoking the external affairs power under Australia’s Constitution, the Bill, if enacted, would override inconsistent state laws.
However, while the Bill co-opts the language of human rights and purports to implement Australia’s human rights obligations under international law, the Bill fundamentally misunderstands the normative content of the obligations it purports to give effect to, and ignores the jurisprudence with respect to these obligations. The consequence of this misunderstanding is that if it were to be enacted, this Bill would have a deleterious effect on Australia’s performance of its human rights obligations.
2.9Dr Tania Penovic, representing Australian Lawyers for Human Rights at the committee's hearing, elaborated on this point:
The reason why I assert the constitutional basis of this bill is flawed is that it doesn't have a sufficient link to the human rights it purports to give effect to. Human rights mandates and treaty bodies have consistently called for the dismantlement of barriers to reproductive healthcare on the basis that they infringe certain human rights, including in the ICCPR, freedom from torture and cruel, inhuman and degrading treatment; and rights to privacy, equality and non‑discrimination. So this legislation that purports to be about implementing human rights would actually put us in breach of our human rights obligations.
2.10Similarly, Children by Choice noted that the bill ‘relies on a disingenuous use of the [CRC]’ and that ‘the Convention’s inclusion in this bill serves the purpose to ensure the bill’s constitutionality on a subject (reproductive healthcare and termination of pregnancy) that is at the discretion of state, not federal, legislation’.
Collection and interpretation of data
2.11The bill proposes that health practitioners be required to report on live births following pregnancy termination. Various interpretations of current data on live births following pregnancy termination were presented to the committee, as were diverse views on the bill's provisions to make collection of this data mandatory.
2.12Proponents of the bill asserted that over 700 children died ex‑utero following pregnancy termination in 2010–2020, due to lack of medical treatment. Submitters of this view raised concerns that data was publicly available only for Queensland and Victoria, and supported the bill's provisions for mandatory data collection on live births following pregnancy termination. Mrs Wendy Francis, representing the Australian Christian Lobby, argued that collection of this data would be beneficial for service delivery planning:
Better statistics would help us help the women. That's what statistics will do, because the statistics help us to understand whether there is more support that these women need, whether they are getting the support they need and whether there are medical facilities that they need. The call for statistics is across the board. This not just a pro‑life question; people from both sides of this debate are coming from a compassionate point of view in asking for statistics, because they want to help the women.
2.13The Australian Christian Lobby further called for the mandatory publication of this data as a matter of public interest.
2.14Witnesses who opposed the bill advised that data on live births following pregnancy termination should be interpreted with caution and that publication of data from each state will not elucidate any significant findings. The committee heard that some data already exists. For example, The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG) highlighted that termination of pregnancies past 20 weeks gestation compromise about one per cent of pregnancy terminations in Australia, and are typically due to:
… later diagnosed major structural issues, genetic syndromes, severe fetal growth restriction, or maternal conditions where pregnancy continuation would be significantly detrimental to the mental or physical health of the woman.
2.15Associate Professor Patricia Moore AM, practicing obstetrician and gynaecologist representing SPHERE Women's Sexual and Reproductive Health Coalition, explained the high‑level nature of publicly available data:
… the COPPM [Victorian Consultative Council on Perinatal Morbidity and Mortality] data set as presented is a summary sheet and contains none of the detail practitioners are obliged to report. Reportable data includes gestational age and, in the case of a live birth, the time of death. The descriptors in the flow chart (page 70 of the Mothers Babies and Children 2020 report) provides no information to understand the gestational age nor the viability of the fetus in each case.
2.16The committee heard that the technical term 'live birth' used in data sets should not be misinterpreted. Associate Professor Moore explained that for the purposes of this data set, 'live birth' is defined as 'when a fetus exits the mother with a sign/s of life.' A sign of life may include 'limb movement or pulsation of the umbilical cord prior to expulsion of the placenta'. She reiterated a point made by several submitters, that signs of life such as this do not indicate the capacity to survive outside the uterus.
2.17Clinicians involved in pregnancy termination further emphasised the rarity of live birth following the termination procedure by advising the committee that it is routine to euthanise the fetus in utero via an injection. This injection removes any chance of signs of life following the termination procedure.
2.18Further context behind the public data was provided, relating to compassionate and patient‑centred care. The committee heard that as part of 'rituals of bereavement and grief, some patients choose to forego this injection so that they can spend time with their newborn in its final moments.' Parents may also elect to forego the injection for cultural reasons such as the infant being born and dying on traditional lands or country. Witnesses assured the committee that palliative care is provided to infants in these very rare instances, as explained later in this report.
Duty of care
2.19The committee heard broad agreement that health practitioners have a duty to provide appropriate medical care to an infant born with signs of life following termination of pregnancy, as they do to an infant born under other circumstances. There was disagreement, however, as to whether this duty should be legislated, as proposed by the bill.
2.20Concern was expressed by some submitters that health practitioners were seemingly not duty‑bound to provide medical care to an infant showing signs of life following pregnancy termination. Particular concern was held regarding an understanding that in some guidelines, palliative care measures seemed to be limited to 'that the baby can be wrapped.' These participants held the view that federal protections may be necessary to enable health practitioners to provide palliative care. Dr Bernadette Tobin, representing the Plunkett Centre for Ethics, summarised this view:
… if palliative care is already required, this bill may be clarifying what duties of care the doctor owes to the child—obviously in collaboration with the parents. What constitutes palliative care to one doctor may be different from constitutes palliative care to another doctor.
2.21To further ameliorate any risk of conflict of interest or meeting duty of care, the Australian Christian Lobby suggested that in every instance of an infant showing signs of life following termination, an advocate be allocated. Representative Mrs Wendy Francis explained:
This advocate should be from the relevant child protection authority in each state, thus alleviating the trauma the woman may experience in this situation whilst providing an immediate authority to act in the child's best interests.
2.22Submitters who opposed the bill sought to assure the committee that in the rare circumstance that in‑utero euthanasia is not administered to the fetus, due to grief and loss rituals discussed previously, health practitioners are already duty‑bound to provide care to an infant who may show signs of life before passing away.
2.23Ms Julie Hamblin, Independent Director of RANZCOG, reminded the committee of the high level of duty of care that medical and health practitioners provide without legislation governing specific actions:
We don't have legislation that mandates palliative care for people dying of cancer. We don't have legislation that mandates pain relief after open‑heart surgery. We deal with these things very sensibly and appropriately through good clinical practice, good clinical guidelines. The notion that you would have legislation in this particular circumstance, when we don't legislate in any other area of medical practice, is quite exceptional.
2.24AssociateProfessorMoore shared an example of practising in accordance with the existing comprehensive duty of care, in a case where she provided compassionate, palliative care to an infant who did not develop a brain in utero:
In the cases where I have sat with the families, where we have held the infant while it died, it was palliated and it wasn't suffering. The newborn anencephalic [without a brain]—I will never forget—wasn't suffering, because there was palliation.
2.25The South Australian Department for Health and Wellbeing submitted a similar view:
The best practice clinical care of an infant is part of a complex clinical decision making process that takes into account all relevant factors. Clinicians are the best placed to make such decisions, in partnership with the patient, and this is supported by the existing governance arrangements…
Clinical decision‑making
2.26Provision of significant and unnecessary medical intervention was a significant concern held by some submitters, particularly that the bill could require resuscitation of infants despite palliation being more medically appropriate and compassionate. The Australian Women's Health Network warned:
If this Bill were successful, it would mean that palliative care is not provided post birth. Instead of being able to hold the fetus/baby, or undertake other grief and loss rituals, the woman, pregnant person and any other family members present would need to wait while the fetus/baby is taken away.
This Bill would mandate health workers to undertake steps to 'resuscitate' which would override any attempt at compassionate care, including palliative care plans.
2.27Witnesses reminded the committee that survival rates of infants at young gestations are very low and require advanced neonatal intensive care facilities that are 'not feasible across all Australian jurisdictions and settings.' Children by Choice explained:
Babies who are born at this age [22 weeks] have a heartbeat, but no other indicators of survivability. From 23 weeks, there is less than 10% chance of survival, and prolonging life or providing significant medical intervention is unnecessary and inhumane.
2.28National Rural Health Commissioner, AdjunctProfessorRuthStewart, elaborated on insurmountable limitations of advanced neonatal intensive care:
… long term respiratory support requires endotracheal intubation (insertion of a tube into the windpipe). Endotracheal tubes are only made to size 2 for babies close to 500 grams and even these tubes are too large and cannot be inserted… The tubes are not made in a smaller size because even at size 2 it is difficult to have adequate gas transmission through these exceptionally small tubes as the walls of the tube need to be thick enough so that they do not collapse in on themselves …
Provision of patient‑centred care
2.29Submitters expressed concern that the care provided to women, pregnant people and their families would be negatively impacted if the bill were passed. Several submitters shared concerns articulated by SPHERE Women's Sexual and Reproductive Health Coalition:
Patient‑centred care includes the provision of medical care that is compatible with patients' personal goals, wishes and preferences related to the care provided. The proposed measures … are essentially irreconcilable with patient autonomy and patient‑centred care.
2.30The committee also heard that people seeking pregnancy termination at later gestation are likely to be experiencing disadvantage or distress. Children by Choice explained:
Their circumstances are more likely to include maternal and fetal health concerns, violence and coercion, financial or other disadvantage, dramatic and unforeseen changes in life circumstances, and obstructed access to earlier termination through geographic isolation and/or unsupportive health practitioners.
2.31This sentiment was also relayed by SPHERE Women's Sexual and Reproductive Health Coalition who presented an example given by the South Australian Law Reform Institute to a 2019 inquiry:
… a minor with an intellectual disability who became pregnant as a result of sexual abuse by a family member. Given her intellectual disability, she was unable to appreciate or understand her pregnancy until she was at a late gestational stage.
Practical impacts
2.32Some submitters raised concerns that the bill would limit access to reproductive health services, including pregnancy termination, because it would 'impose additional legal duties and obligations on health care providers performing abortion, by prescribing how abortions should be managed' and 'place undue pressure on medical staff'. RANZOG Independent Director, MsJulieHamblin, termed this 'abortion exceptionalism' and further explained:
… additional regulatory requirements that apply to abortion differently to other procedures. It just adds an extra disincentive for health practitioners to be willing to come forward and perform terminations of pregnancy…
2.33Children by Choice shared this concern, telling the committee that the bill:
… seeks to threaten providers by undue legal burden without practical benefits of child safety. This could discourage health practitioners from offering termination services within judiciary boundaries, and thus, further exacerbates physical and mental distress for patients in a landscape where state and territory Health and Hospital Services are often disjointed and difficult to navigate for terminations.
2.34Particular concern was expressed for health services in regional, rural and remote Australia, and culturally appropriate care for First Nations people, as discussed below.
Regional, rural and remote communities
2.35RANZCOG summarised views put forward by several submitters, that the bill will 'hinder rural abortion services, which in turn will lead to limiting patient choice and adding an unnecessary emotional, physical, and economic stress on women and their families'. RANZCOG further explained:
Additionally, maternal health will be jeopardised, given that the rural health care providers will seek to consider potential need to resuscitate a baby, in the event that the delivery is solely to preserve a mother's life… Under such circumstances, the health care providers will face a dilemma seeking to provide best possible care for the delivery and also deciding on provision of a high standard of resuscitation, if the baby is born alive. As a result, the maternal life is at risk …
2.36Dr Jared Watts, representing RANZCOG at the committee's hearing, shared how the bill, if passed, may have interfered with the life‑saving care provided to a woman living in remote Western Australia at 22‑weeks gestation:
She was extremely unwell. She had an infection in her uterus, and the only way to manage it would be to deliver the baby, which would be a termination of pregnancy …
Should I have put that patient on an RFDS plane and sent her to Perth, where they would have been able to provide any care if this law had been invoked at this stage? I don't believe they would have, because it was 22 weeks. I would have put her life at risk, because she could have died in that six to eight hours that it took for the Royal Flying Doctors to get her to Perth. This is just intervening in good practice and care.
2.37Workforce implications for regional, rural and remote Australia were also raised. Witnesses were wary that health practitioners would be deterred from providing pregnancy termination services, due to risk of prosecution for not attempting to sustain the life of an infant, despite clinical judgement that palliation would be more suitable. The Australian College of Nursing told the committee:
Healthcare access in rural and remote areas of Australia is already precarious. In rural and remote areas of Australia, there are often cases where the expertise needed to support people in the specialised area of reproductive health is simply not available in the immediate community. Penalising both consumers and healthcare workers may have grave consequences for these communities. This is due to not only further stigmatising accessing reproductive healthcare but also impeding a healthcare professional's ability to provide that person with adequate care due to the potential liabilities introduced by the Bill.
First Nations communities
2.38Concern was raised about how the bill could particularly affect First Nations women. RANZCOG explained to the committee the cultural importance of the parent delivering on traditional lands, and the infant passing away on traditional lands. They cautioned that this culturally significant practice would be ignored by the bill. DrWatts shared an example of patient‑centred care that could have been prohibited if the bill were in effect:
An example I can give is of a family that elected to have their baby, who had a major congenital heart thing, in the remote area where they were close to their family. They did not want to go to Perth, because they'd never been on an aircraft before to come into the larger centre, where I was practising. The baby was then held by the aunties. It lived for 18 hours. It got to visit the grounds. We're providing patient‑centred care—culturally safe care—for our First Nations women, and they may not elect to have a feticide [injection to euthanise the fetus in utero] for that reason.
2.39National Rural Health Commissioner, AdjunctProfessorRuthStewart, warned the committee about the specific impacts on Aboriginal and Torres Strait Islander Health Practitioners who support culturally appropriate care:
If Aboriginal and Torres Strait Islander Health Practitioners attend a birth or termination, they would be accompanied by another health practitioner with skills relevant to the care of pregnant or birthing people and would be acting under the direction of or delegation of a midwife, doctor or nurse, and therefore would not be liable for that care …
There must be risks to the maintenance of an adequate national workforce of Aboriginal and Torres Strait Islander Health Practitioners in knowing that despite acting according to the direction of a colleague they could be liable to reporting to AHPRA for not providing medical treatment to a "child born alive".
Committee view
2.40The committee thanks all organisations and individuals for their engagement with the inquiry, particularly those individuals who shared their personal experiences with the committee.
2.41The committee acknowledges that the views of those who support the bill are strongly and sincerely held. The committee considered this alongside the legal, ethical and medical evidence presented, which did not support the bill.
2.42The committee holds concerns with the Constitutional and human rights issues posed by the bill. The bill intends to override state and territory jurisdiction on healthcare by invoking the Commonwealth’s external affairs powers, and in doing so, argues that it will give effect to Australia’s international human rights obligations. However, as outlined by several submitters, the bill misunderstands the content of these obligations and if enacted, the bill may operate contrary to the conventions which it seeks to uphold.
2.43The committee acknowledges that many submitters held strong concerns about the medical care or treatment provided to infants showing signs of life following pregnancy termination. However, the committee heard that existing regulatory frameworks, including professional registration, codes of conduct, clinical practice guidelines and mandatory reporting mechanisms already exist, which ensure the duty of care medical professionals have for all patients. The committee notes that the bill would likely place additional obligations on already highly regulated healthcare professionals, without providing any benefit to patient safety or quality of care.
2.44The committee recognises that the availability of pregnancy support and termination services could be affected by placing additional legal obligations on health practitioners. The committee heard concerns that risk of criminal liability for performing an otherwise legal and safe procedure would dissuade medical professionals from providing pregnancy care and termination services. The committee is cognisant of the effect this would have on already under‑served regional, rural and remote communities. The committee notes that this additional pressure on already stressed health services could result in poor outcomes for patient safety and quality of care.
2.45The committee is also aware of the effect of the bill on the provision of patient‑centred care, and therefore quality of care. Medical professionals alerted the committee that risk of criminal liability may divert care from compassionate, palliative measures that respect a person's spiritual and cultural needs, to life‑prolonging measures which would still end in the infant passing away, causing further distress to the infant, parents and health professionals.
2.46Noting the diverse and strongly held views, and that this is a matter of conscience, the committee makes no recommendations.
Senator Marielle Smith
Chair