Chapter 2

Chapter 2

Evidence in support of the Bill

Introduction

2.1        This chapter covers evidence supporting the Bill and is structured to address each of the terms of reference. Submitters supported the Bill on the grounds of the lack of support for gender selective abortion, the associated discrimination by gender, the infringement of human rights of unborn children, particularly female children, and problems arising from imbalanced sex ratios caused by gender selective abortion.[1]

2.2        Submitters argued that the occurrence of gender selective abortion in other countries, and in immigrant communities in other western countries, means there is a reasonable likelihood that it also occurs in Australia. Mrs Rita Joseph submitted that the lack of data from the Medicare funding is central to the gender selective abortion debate in Australia. Mrs Joseph explained that this lack of data prevents the determination of the prevalence of gender selective abortion in Australia:

...Medicare funding is provided indiscriminately, without any legal restrictions or requirements for medical establishments to ascertain and record those terminations that are being carried out on the grounds of gender 'preference'. ('Gender preference' of course is a euphemism for lethal discrimination against an unborn child on the grounds that it has been prenatally determined that the child is of the 'wrong gender'.)[2]

The unacceptability to Australians of the use of Medicare funding for gender selection abortions

2.3        Submitters supporting the Bill argued that studies and surveys conducted in Australia had identified the unacceptability of gender selective abortion.

Surveys and studies

2.4        The results of one survey cited[3] in submissions suggested that although there was a high percentage of respondents strongly in favour of abortion generally, that  group considered that gender selective abortion was morally unacceptable (85 per cent) and should be illegal (82 per cent). The research also showed that of the group that was 'somewhat pro-abortion', the majority were opposed to sex selection abortions being legal, holding the view that the practice is morally unacceptable.[4]

2.5        A February 2013 Galaxy poll of 300 Tasmanians cited by submitters showed that 92 per cent of respondents disapproved of gender selective abortion.[5] A further study noted in evidence was the December 2010 study released as part of the Australian Survey of Social Attitudes. This showed that 80 per cent of respondents disapprove of gender selective abortion.[6] Information from other surveys and studies also showed that gender selective abortions are not considered acceptable to Australians:

2.6        Submitters concluded that the above study and survey findings indicate that gender selective abortions are unacceptable to most Australians. Submitters therefore argued that, Medicare funding of gender selective abortions would also be unacceptable to most Australians.[10]

Providing a clear signal regarding gender selective abortion

2.7        Submitters supporting the Bill considered that for as long as Medicare funding is available for gender selective abortion, it gives the practice 'legitimacy'.[11] It was argued that gender selective abortion is discriminatory in essence and hence should not be allowed:

Medicare funding of gender-selective abortion is an inappropriate way of spending the money of taxpayers. The Medicare system is set aside specially for health reasons. Funding of sex-selective abortions can reinforce a value judgement based on antiquated prejudices, which devalue the life of female babies based on inheritance and property ownership laws and the ability to work and support the family.[12]

2.8        Submitters contended that it was important for the Bill to be passed, in order to send a clear signal that gender selective abortions were not acceptable and should be discouraged.[13]

2.9        There were mixed views on whether banning Medicare funding would be effective in substantially deterring gender selective abortion.[14] It was argued however that even if the Bill did not have a direct practical effect on the number of gender selective abortions, it was important to provide a clear signal that the practice is unacceptable.[15]

2.10      Submitters argued that the Bill's symbolic importance will shape community attitudes, and serve notice on anyone who seeks to pressure a woman toward a gender selective abortion.[16] It was also noted that the ban set out in the Bill should be part of a broader package of measures to address gender selective abortion.[17]

The prevalence of gender selective abortion

2.11      This section addresses evidence from submitters supporting the Bill on the second term of reference for the inquiry–the prevalence of gender selection, with preference for a male child, amongst some ethnic groups present in Australia and the recourse to Medicare funded abortions to terminate female children.

Prevalence in other countries

2.12      Many submitters drew attention to large numbers of girls and women (up to 200 million) that are 'missing' from the world population due to gender selective abortion.[18] For example, it was noted that in China, the sex ratio is estimated to be 1.06.[19] Although this is within the 'normal' range there are still over 30 million more men than women in China. In India, the sex ratio is 112.[20] Despite being illegal in both India and China, the sex ratios at birth in these countries suggest the occurrence of gender selection.[21] Other places where gender selection appears to be affecting the sex ration at birth include Vietnam, Pakistan, Taiwan and Southeast Europe.[22]

Occurrence in western countries

2.13      Submitters also pointed to evidence for gender selective abortion in western countries.[23] Research in England and Wales shows that among India-born women, the sex ratio at birth for all third children was 114.4 boys per 100 girls for births between 2000 and 2005.[24] A 2008 US National Academy of Science report found that sons outnumbered daughters by 50 per cent for third children if there was no previous son in US-born children of Chinese, Korean and Asian Indian parents.[25] FamilyVoice Australia submitted information from studies of Canadian and United States' birth rates that indicated some evidence of gender selective abortion occurring in some communities including immigrate communities from India, China, Korea and Vietnam.[26]

2.14      The Catholic Women's League Australia Inc. provided information collated by the UK in response to the request from the Council of Europe to collect data on the sex ratios at birth:

While the overall United Kingdom birth ratio is within normal limits, analysis of birth data for the calendar years from 2007 to 2011 has found the gender ratios at birth vary by mothers’ country of birth.

For the majority of groups, this variation is the result of small numbers of births and does not persist between years. However, for a very small number of countries of birth there are indications that birth ratios may differ from the UK as a whole and potentially fall outside of the range considered possible without intervention.[27]

Prevalence in Australia

2.15      Submitters argued that the evidence that gender selective abortion is occurring in immigrant communities in western countries indicates that it is therefore likely to also be occurring in Australia.[28] Cherish Life Queensland went further and argued that the ideas about gender selective abortion may be picked up by the wider community.[29]

2.16      The Office for Justice and Peace of the Catholic Archdiocese of Melbourne commented that the number of gender selective abortions is not the key issue, rather, any occurrence of gender selective abortion is an attack on human rights:

...it is difficult to determine the extent to which any of the estimated 80,000 abortions which occur annually in Australia are carried out for the purpose of gender selection.

Notwithstanding, it is clear and undisputed that this abhorrent practice is being carried out in Australia and that under the current legislative framework, the procedure is funded by Medicare.

It must be emphasised that all current human rights instruments make no distinction between human rights abuses of the few and human rights abuses of the many. Any denial of human rights is an attack on the Common Good.

The attack on the human rights of unborn females amongst certain ethnic groups within Australia is an attack on the human rights of all Australians.[30]

2.17      Submitters also commented that there is some evidence from doctors that gender selective abortions are occurring, noting a case that has been referred by a Victorian doctor to the Medical Board of Australia. It was submitted that the same doctor had been approached twice for gender selective abortion. In both instances the preference was for a male child.[31]

2.18      It was acknowledged that as Australia does not collect data which identifies and records the reasons for Medicare funded abortions, the actual prevalence of gender selective abortions in Australia cannot be quantified. In addition, there is limited regulatory scrutiny of abortions as statistics are generally not collected or collated by states and territories, although South Australia and Western Australia maintain some data.[32]

2.19      Submitters suggested that relevant data should be collected on the reasons for abortion, so that the frequency of gender selective abortion can be determined.[33] The Catholic Archdiocese of Sydney also argued for the collection of such data and noted that past federal inquiries had recommended that this data be collected.[34]

2.20      Mrs Joseph submitted that:

Objections to this Bill that rely on the facile claim that that gender prenatal selective terminations do not occur here in Australia have no substance in fact. For many years now those in the abortion industry who are involved in gender selection have successfully stymied the introduction of even the most minimal requirements to enable the gathering of statistics on this appalling practice. Such resistance to transparency on this human rights issue should no longer be acceptable, especially in the light of the promises made by our Australian Government to introduce protective legislation against this inhumane practice.

Australian domestic law provides no human rights protection for children at risk of termination for such discriminatory reasons as the unborn child’s gender and this results in the terrible and fundamental injustice of arbitrary deprivation of human life. Such violations should no longer be permitted to remain hidden behind doctor-patient confidentiality.[35]

The use of Medicare funded gender selection abortions for the purpose of family balancing

2.21      In addressing this term of reference, submitters supporting the Bill strongly disapproved of abortions for family balancing and pointed to restrictions on the use of technology for family balancing and state and territory laws relating to abortion.

Abortions for family balancing

2.22        Submitters argued strongly against the use of Medicare funded gender selective abortions to achieve family balancing. For example, Dads 4 Kids submitted that:

Every child, whether male or female, should have the chance to live. Gender Selective Abortion or 'family balancing' is known to take place in Australia, as disclosed informally by doctors, but is a detestable practice. It should not be supported by taxpayer funding. Terminating unborn boys or girls depletes our society of potential fathers and mothers, leaders, doctors, teachers, parliamentarians, trades people and the list goes on. No child should be discriminated against because of its sex and no government should condone or support terminations on the basis of gender.[36]

2.23        The use of Medicare funding for such services was considered by submitters to be improper and abhorrent as it did not constitute a health service and violated the child's human rights.[37] FamilyVoice Australia submitted that:

Given the availability of ultrasound technology for determining the gender of an unborn child, the ready availability of abortion on demand in several Australian states and the known existence of a social phenomenon of Australian couples desperate to have children only of a certain sex either for 'family balancing' or, in some sense, to 'replace' a deceased child of that sex it would be naïve to assume that sex selection abortions for these reasons were not occurring in Australia.[38]

Evidence for family balancing by gender selective abortion in Australia

2.24      The evidence for the use of gender selective abortions for family balancing was thought to be largely anecdotal.[39] Submitters asserted that abortions undertaken for gender selection to achieve family balancing are not appropriate and should be banned.[40]

2.25      One case was cited by submitters as purporting to show that gender selective abortion for family balancing may be occurring in Australia. Submitters claimed that twin boys were aborted because the parents already had three sons and wished for a girl.[41] However, no evidence was submitted to the committee that substantiated the claim that the abortion had been undertaken on the basis of gender selection.

2.26      The Rabbinical Council of Victoria took the view that abortion as a method of family balancing is abhorrent and should not be subsidised by the government under any circumstance. The Council submitted that:

Even in such case where there is a clear medical indications for gender selection, such as X-linked recessive disorders, we would submit that offering pre-implantation genetic diagnosis (PGD) would offset the demand for so drastic a step as abortion.[42]

Restrictions on gender selection

2.27      The Australian Family Association submitted that the twins case cited above highlights the anomaly with the Assisted Reproductive Technology Guidelines of the National Health and Medical Research Council (NHMRC) of Australia. The guidelines restrict the use of gender selection through pre-implantation genetic diagnosis while there is no scrutiny of Medicare funding.[43] The NHMRC guidelines state that 'sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition'.[44]

2.28      Submitters noted that the NHMRC guidelines also state that:

Sex selection is an ethically controversial issue. The Australian Health Ethics Committee believes that admission to life should not be conditional upon a child being a particular sex.

Therefore...sex selection (by whatever means) must not be undertaken except to reduce the risk of transmission of a serious genetic condition.[45]

2.29      However, while these restrictions are in place for invitro fertisation (IVF), there is no legal scrutiny of taxpayer funding, via Medicare, of gender selective abortion of naturally conceived children.[46]

2.30      In addition, the committee heard of cases where Australians have travelled overseas to access Prenatal Gender Diagnosis (PGD) for gender selection.[47] The Coalition for the Defence of Human Life submitted that:

In order to circumvent this ban couples are travelling to places such as Thailand that provide preimplantation genetic diagnosis (PGD) of gender allowing gender selection of embryos for ART [Assisted Reproductive Technology] procedures. In 2011 some 72 couples travelled to Thailand to have PGD and ART at Thai Superior ART in Bangkok 2012. In 2012 this increased 30% to 106 couples.[48]

State and territory abortion laws

2.31      The Commonwealth has responsibility for Medicare funding. The Australian Catholic Bishops Conference noted that 'there is a variety of laws and restrictions on abortion in Australia, depending on state or territory'.[49] Knights of the Southern Cross (NSW) submitted that:

Abortion is the subject of criminal law in all Australian States and Territories, except the ACT. Abortion is legal in the ACT up to full term if it is provided by a medical doctor.

Victoria, South Australia, Western Australia, Tasmania and the Northern Territory have legislation in place that provides a statutory explanation of when an abortion is not unlawful.

In NSW and Queensland, lawful abortion is available under common law interpretations of the Crimes Act or Criminal Code. An abortion is legal when the doctor believes a woman’s physical and/or mental health is in serious danger.[50]

2.32      The Australian Catholic Bishops Conference questioned the effectiveness of the state and territory laws stating its opinion that there is 'little inclination from the states and territories to enforce what laws there are'.[51] The Catholic Archdiocese of Melbourne submitted that:

In most Australian jurisdictions, access to abortion is now available without the need for supporting medical oversight up until at least 26 weeks of gestation. The position adopted by most State legislatures is that abortion is afforded the status of most other medical procedures. Despite this position, the collection of data on this one particular medical procedure, (including the reason or reasons occasioning the termination) is almost non-existent. As such, it is difficult to determine the extent to which any of the estimated 80,000 abortions which occur annually in Australia are carried out for the purpose of gender selection.[52]

Withholding gender information

2.33        One of the suggestions put to the committee was that where gender-linked genetic disorders were not found, information on the gender of a child could be withheld until 20 or 30 weeks gestation when it was less likely that gender selective abortions would occur.[53]

2.34      The Catholic Archdiocese of Sydney noted that the Canadian Medical Association has published evidence that gender selection is taking place in Canada and called for gender information to be withheld until 30 weeks of pregnancy. However, the Catholic Archdiocese of Sydney noted that such a restriction was problematic:

Although we recognise the good intentions behind such a proposal, withholding legitimate information from parents is problematic and such a response does not address the underlying issue. The principal problem is not the sharing of the knowledge of the baby's gender, but the ready acceptability of abortion as a 'response' to that knowledge. Discouragement of abortion, community education and the changing of parents’ hearts and minds are the keys to encouraging a more welcoming attitude towards life and baby girls.[54]

2.35      While the National Association of Specialist Obstetricians and Gynaecologists did not support or oppose the Bill in their submission, they echoed suggestions that it may be worth considering withholding gender information until after 20 weeks if there are no gender linked genetic disorders.[55]

Support for United Nations Campaigns

2.36      This section addresses evidence from submitters supporting the Bill on the fourth term of reference for the inquiry: 'support for campaigns by United Nations agencies to end the discriminatory practice of gender-selection through implementing disincentives for gender selective abortions'.

2.37      The campaigns against gender selective abortion by UN agencies were supported by many submitters.[56] Gender selective abortion was seen as a very significant human rights issue and was described as abhorrent, a crime against humanity, cruel and inhumane, morally unacceptable, and evil.[57]

2.38      Several submitters indicated that by implementing the policy proposed by the Bill, Australia would be supporting the UN campaigns.[58] Introfish Inc, for example, noted that both the WHO and the UNPFA are working toward eliminating gender selective abortion and stated:

Both of these Organisations call for legislation, amongst other measures, to be enacted to eliminate the discriminatory practice. Australia must eliminate deadly discriminatory gender selection abortion by enacting legislation, including the Health Insurance Amendment (Medicare Funding for Certain Types of Abortion) Bill 2013.[59]

2.39      Similarly, The Australian Family Association stated:

The present bill if passed would certainly implement a disincentive for sex selection abortion and would protect girls from the violence of prenatal selection, thus honouring Australia's obligation to do so.[60]

2.40      The Coalition for the Defence of Human Life noted that Australia had shown some support for UN campaigns, by banning gender selection through other reproductive technologies such as prenatal genetic diagnosis and assisted reproductive technology.[61]

2.41      Real Talk Australia submitted its view on finding an appropriate balance between the rights of the child and the rights of parents, stating that:

All human beings are the 'subject' of rights not the 'object' of rights. Parents do not have the right to choose what child they get, or terminate pregnancy based on desires for a 'type' of person. If this becomes a widespread practice parents will become more like owners of children not caregivers. On the issue of gender selection, our focus can be shifted ever so slightly from the rights of a child, to upholding the wishes of a parent. In doing that the rights and the welfare of children get relegated to second place.

Society expresses respect for the dignity of each person, by recognising him or her as a person and not as an object.[62]

Concern from medical associations

2.42      The last term of reference for the inquiry sought consideration of the concern from medical associations about gender selective abortion in developed countries such as Canada, the United States and the United Kingdom. Submitters noted that the Society of Obstetricians and Gynaecologists of Canada, the American College of Obstetricians and Gynaecologists, the Chief Medical Officer of the UK, Professor Dame Sally C. Davies, and the British Medical Association generally opposed gender selective abortion except for preventing serious sex-linked genetic diseases.[63]

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