Health Law

Beginning of Life Issues

Abortion

Abortion is no longer a crime in the ACT if performed by a registered medical practitioner, in a medical facility approved in writing by the Minister (ss 80-83 of the Health Act 1993 (ACT)). A doctor or nurse is under no legal duty to carry out or assist in an abortion (s 84). Pregnant women considering an abortion are no longer required by law in the ACT to view images of the foetus (Health Regulation (Maternal Health Information) Repeal Act 2002 (ACT). In ethical and legal terms, the interests of the pregnant woman are stronger prior to viability (capacity for the foetus to exist independently outside the womb) and the State's interests stronger afterwards. The right to life in the Human Rights Act 2004 (ACT) only applies from birth.

A person 16 years or older may have an abortion without the consent of a legal guardian. A referral is not required in the ACT when seeking the termination of a pregnancy. Marie Stopes International carry out termination procedures in the ACT. They can be contacted on 1800 003 707 (National 24 hour service). Sexual Health and Family Planning ACT (ph.(02) 6247 3077) can also be contacted in relation to unplanned pregnancy counselling. Capital Gynaecology, based in Queanbeyan, offers similar services (ph.(02) 6299 5559). See further Contacts and Links.

Artificial Reproductive Technology

Artificial reproductive technology (ART) centres in the ACT currently rely on ethical guidelines published by the NHMRC ( Ethical guidelines on the use of assisted reproductive technology in clinical practice and research) for their chief guidance. The Parentage Act 2004 (ACT)establishes that, where semen donation is used to produce a pregnancy, the husband of the pregnant woman is presumed to be the father (s 11). Where a pregnancy has arisen from ovum donation, the woman who underwent the ART procedure is presumed to be the mother (s 11).

Under the Parentage Act 2004, it is an offence for someone to enter into a commercial agreement for a substituted pregnancy (s 41), or to procure someone or advertise for someone to enter into a substituted pregnancy agreement (ss 42 - 43). It must also be noted that ART clinics must be accredited by the Reproductive Technology Accreditation Committee of the Fertility Society following their Code of Practice (revised in 2005), and must comply with the NHMRC Ethical Guidelines (above) which were revised in 2007.

The Canberra Fertility Centre and Sydney IVF operate in the ART area in Canberra but no longer from the John James Private Hospital. Research tends to confirm that in vitro fertilisation (IVF), that is impregnation of an ovum with sperm outside the body prior to re-implantation, drops off markedly as a successful technique for pregnancy in females over 35 years, to minimal rates in those over 40 years. IVF is expensive (though subject to a Medicare rebate) and the woman may be exposed to side effects such as ovarian hyperstimulation syndrome.

Excess ART Embryo Research and Genetic Testing, the "Right Not-To-Know"

One controversial area in ART involves pre-implantation genetic testing for sex selection. An ACT policy discussion paper has been produced in this area. Some argue that the embryo is not a legal entity or that parents should have the right to determine the gender mix in their family, especially in a situation where some selection is taking place anyway (the embryo growing most vigorously is implanted). Others believe that discarding embryos for such a reason (rather than the presence of a sex-linked genetic disease) instrumentalises them ethically (makes them valuable only for another's use, not according to their own intrinsic dignity). Another controversial area ethically concerns whether anonymous sperm donation should be used when children so conceived may subsequently have health and personal reasons for trying to locate their genetic father. Debate also arises about parents seeking to test a child for a genetic disease (for example, onset in middle-age Huntington's disease) that they do not wish to be tested for themselves. Such testing might deprive the child of their human right not to know their genetic predisposition to disease. All babies in Australia are subjected to a heel-prick test for certain inherited diseases that are easily treated. The status of the blood so taken and stored is controversial, as in the future it may provide a vast amount of information about the individual to the State.

Another topical debate involves research involving excess ART embryos. National uniform legislation has been implemented to ban human cloning and other unacceptable practices involving excess ART embryos. The NHMRC assesses applications for licenses to use human excess ART embryos for research under the Prohibition of Human Cloning Act 2002 (Cth) and the Human Embryo Research Act 2002 (Cth). Such legislation is under review as it may have the unintended effect of inhibiting the creation of patents that would establish Australia as a world leader in this area and eventually provide relief of conditions involving organ failure and spinal cord damage.