Chapter 3
Evidence not supportive of the Bill
Introduction
3.1
This chapter canvasses evidence from submitters who did not support the
Bill. The committee notes that most submitters who opposed the Bill made it
clear that they were also opposed to gender selective abortion.[1]
The ineffectiveness of the Bill
3.2
Many submitters questioned whether the Bill would be effective in
removing Medicare funding for gender selective abortion. It was also argued
that there may be undesirable consequences if the Bill were to be passed.
Issues that were identified included that:
- the arrangements to implement the Bill would be easily circumvented
as Medicare items cover more than one service;
- the approach taken by the Bill has been shown to be ineffective
in other countries;
- if heavily enforced, the Bill would risk causing discrimination; and
- the Bill does not address the root causes of gender selective
abortion.
Medicare items cover multiple
services
3.3
Submitters argued that a restriction on Medicare funding of gender
selective abortion would not be effective as the Medicare item numbers for
abortion do not distinguish between the reasons for that procedure being
undertaken.[2]
There are many reasons why these item numbers are used including fetal death,
miscarriage and unintended pregnancy endings.[3]
In addition, it was noted that the Bill does not provide for a mechanism to
separate gender selective abortion from other types of abortion. The Women's
Abortion Action Campaign commented:
[The Medicare] rebate is payable for a group of services,
including induced termination of pregnancy. There is no mechanism within the
Medicare system to determine the reasons for induced terminations of pregnancy.
Therefore, any 'estimate' of the prevalence of gender selective abortions (or
other reasons for termination of pregnancy) can only be based on anecdotal
data.
Neither the proposed Bill nor the Explanatory Memorandum make clear the mechanism by which sex
selective abortions would be separated from other types of termination of
pregnancy, or indeed other medical procedures covered by Medicare Benefits
Schedule items 16525 and 35643.[4]
3.4
Women's Health Victoria indicated that there would be substantial
practical difficulties in implementing the Bill, submitting that:
Restrictions of this nature would be untenable because of the
practical difficulties they impose on both health professionals and women. For
example:
- How would health professionals ascertain whether the abortion
being sought was based on the sex of the foetus?
- How would this be done without discriminating against and
stigmatising certain groups of women, thereby jeopardising the health services
that they receive?[5]
Ineffectiveness of similar
restrictions in other countries
3.5
The type of approach set out in the Bill to address gender selective
abortion has been tried in other countries but submitters commented that it has
not been effective.[6]
Women's Health Victoria, for example, pointed to a study of practices in China
and India and found that restrictions were not successful as:
...enforcement is extremely difficult, affordable ultrasound
services are widely available and fetal sex information can be relayed to
potential parents without even saying a word. Moreover, an ultrasound may be
performed in one location and an abortion obtained in another, where a woman
can provide alternative reasons for the procedure.[7]
3.6
The Young Women's Christian Association (YWCA) Australia also noted that
the UN agencies and WHO interagency statement indicated that such restrictions
had been ineffective:
Governments in affected countries have undertaken a number of
measures in an attempt to halt increasing sex-ratio imbalances. Some have passed
laws to restrict the use of technology for sex-selection purposes and in some
cases for sex-selective abortion. These laws have largely had little effect in
isolation from broader measures to address underlying social and gender
inequalities.[8]
3.7
Liberty Victoria stated that legislation to restrict abortions based on
sex selection had been unsuccessful in the United States and Canada. In the
United Kingdom some members of parliament had suggested that legislation was
needed to monitor abortions by gender to protect girls. Liberty Victoria went
on to note that the Health Minister, Lord Howe, in rejecting government
monitoring of abortions stated that 'introducing testing to determine the sex
of the foetus would require new laboratory tests, which would have a cost implication
and require consent' and would cause women distress 'during what is already a
difficult time'.[9]
Failure to address root causes
3.8
A further reason that restrictions on gender selective abortions were
not viewed as being effective in other countries is because they do not address
the reasons why they are being sought, such as poverty, social attitudes, entrenched
gender inequality and discrimination.[10]
Professor Diane Bell pointed to the UN interagency which states:
The rise in sex ratio imbalances and normalization of the use
of sex selection is caused by deeply embedded discrimination against women
within institutions such as marriage systems, family formation and property
inheritance laws...
Although the relatively recent availability of technologies
that can be used for sex selection has compounded the problem, it has
not caused it.[11]
Undesirable consequences of the
Bill
3.9
Submitters argued that there is potential for discrimination, stereotyping
and stigmatisation of certain groups of women if the Bill is passed.[12]
YWCA Australia suggested that the Bill may encourage discrimination against
women from some South Asian, East Asian and Central Asian communities when they
are seeking access to reproductive health services.[13]
3.10
In addition, Children by Choice submitted that the aims of the Bill:
...would contravene Australia's domestic and international
obligations to uphold women's human rights.
Such scrutiny by government and health authorities of women's
decision making as may be required by the Bill would constitute unnecessary
intrusion and surveillance into a woman's personal life and health care
decision-making. Surveys of Australian
community attitudes have shown that a large majority support legal abortion and
believe that it should be private matter between a woman and her doctor.[14]
3.11
Professor Bell argued that, if the Bill was passed, it may limit the
information sought and provided in the doctor/patient relationship and
therefore may be a restriction of women's rights. Such a restriction would not
align with the empowerment envisioned by the interagency statement and the
Convention on the Elimination of All Forms of Discrimination Against Women.[15]
Women's Legal Services NSW had similar concerns, submitting that:
The Bill purports to limit gender selective discrimination
and enhance human rights. However, the Bill fails to identify and address the
potential for erosion of human rights, for example, the risk of such
legislation obstructing access to safe, affordable, legal reproductive health
options, including abortion.[16]
3.12
Submitters also noted that restrictions on Medicare funding for gender
selective abortion would potentially compromise access to abortion more
generally, thereby limiting a vital health service for women in Australia and
an important reproductive health right.[17]
The unacceptability to Australians of the use of Medicare funding for
gender selection abortions
3.13
As noted earlier, most submitters who opposed the Bill, made it very
clear that they were also opposed to gender selective abortion.[18]
However, submitters noted that there was no comprehensive or reliable evidence
to suggest that gender selective abortion was unacceptable to Australians.
Thus, submitters stated that they were unable to accept the proposition concerning
the unacceptability to Australians of the use of Medicare funding for gender
selective abortions at face value.[19]
For example, the National Foundation for Australia Women (NFAW) stated that:
NFAW is unable to accept at face value or agree entirely with
the proposition inherent in the first Term of Reference, while deploring
terminations of pregnancies solely for cultural reasons.[20]
3.14
Several submitters provided information from the Australian Survey of
Social Attitudes which provides evidence on attitudes of Australians towards abortion
generally. Women's Health Victoria stated:
According to the Australian Survey of Social Attitudes in
2003, 81% of Australians agree that women should have the right to choose an
abortion. This was independent of their gender or religious affiliation. Only
9% of the 5000 adults questioned disagreed with a woman's right to choose, and
the remaining 10% were undecided.[21]
The prevalence of gender selection by abortion
3.15
It was acknowledged that gender selective abortion is prevalent in other
countries.[22]
The NFAW commented it 'is aware of the existence in some countries of such
practices, and finds such practices abhorrent'.[23]
3.16
However, it was argued that there is no evidence that gender selective
abortion is being undertaken in Australia or that the use of Medicare funding
for gender selection abortion was prevalent.[24]
Liberty Victoria stated:
We believe that changing access to Medicare for abortions in
Australia because of cultural biases and practices occurring in other countries
is inexcusably bad public policy.[25]
3.17
Reproductive Choice stated that evidence that gender selective abortion
'cannot be disguised' and pointed to the skewed gender ratios in China and
India.[26]
However, it was submitted that there is no such evidence of a skewed gender
ratio in Australia. Several submitters point out that Australia's sex ratio at
birth is 105.7 male births per 100 female births and therefore within the
normal range of 102 and 106.[27]
Family Planning NSW also argued that the sex ratio in Australia has remained
stable and provided data on the sex ratio for each state and territory for
children aged zero to six which showed that all states were in the range 1.04
to 1.08.[28]
3.18
The Australian Women Against Violence Alliance concluded that, in its
view, 'Australia continues to exhibit one of the healthiest sex ratios in the
world and lowest maternal mortality rates, both strong indicators of gender
health and well-being'.[29]
3.19
Submitters provided further evidence which indicated that gender
selective abortion is not occurring in Australia. Family Planning NSW, for
example, stated that:
Last financial year we had around 28,000 client visits and in
the 85 years we have been operating we have no evidence to suggest that
pregnancy terminations occur solely on the basis of gender selection.[30]
3.20
Several submitters also pointed to a 2008 Melbourne study of 578
patients having pre-natal diagnosis, which found that none of the patients had
a pregnancy termination for gender selection.[31]
3.21
In addition, submitters noted that in Australia most abortions occur
before the gender is known at around 18–19 weeks gestation.[32]
Children by Choice submitted information from the Australian Health and Welfare
Institute indicating that almost 95 per cent of pregnancy terminations
occur in early pregnancy, that is, before 14 weeks gestation, 4.7 per cent
between 13 and 20 weeks, and 0.7 per cent after 20 weeks.[33]
3.22
Submitters also commented on the argument that, because gender selective
abortion is occurring in some countries overseas, communities from those
countries are seeking gender selective abortions in Australia.[34]
Submitters argued that there are no studies or evidence-base to show that this
occurs. The Australian Women Against Violence Alliance pointed a study
undertaken in Australia in 2000 which 'provided evidence to show that
immigrants adapt to the fertility patterns and behaviours of the Australian
population'. A similar study in Canada found that the fertility of immigrant
women tended to increasingly resemble and converge with that of Canadian-born
women, the longer they resided in Canada.[35]
3.23
The NFAW stated that from its analysis of population statistics by
ancestry and religious affiliation it can be concluded that 'there is no
widespread practice of abortions leading to skewing of the sex ratio'.[36]
In addition, Liberty Victoria noted:
Even amongst migrant groups where the country of origin has a
son-preference and sex-selection problem, the same social pressures do not
exist in Australia. Indeed, all academic research as well as UN and [non-government
organisations] research indicates that it is confined to only a few regions of
the world, namely East and South Asia, Korea, China and parts of India.[37]
3.24
It was also noted that Australia has a very different society and
approach to gender equality than some other countries. Children by Choice drew
attention to existing initiatives in Australia aimed at gender discrimination
and submitted that:
...in Australia today, women and girls have more social,
cultural and economic equality with their male counterparts compared to many
other nations. While gender discrimination still exists in our society and must
be addressed, there is robust government legislation, regulations and many
other programs and education campaigns that aim to advance, monitor and promote
the status of women and girls living in our community. Some examples of these
include anti-discrimination legislation, a national Sex Discrimination
Commissioner, initiatives to promote girls' education and participation in
non-traditional areas, and campaigns to educate and discourage practices such
as Female Genital Mutilation.[38]
3.25
The Women's Legal Services NSW also argued that should the Bill be
passed, 'there could be disproportionate scrutiny of women and girls from
particular ethnic, race, cultural and religious backgrounds when they access
sexual and reproductive health services'.[39]
The use of Medicare funded gender selection abortions for the purpose of family
balancing
3.26
Submitters noted that there are legal barriers to the use of gender
selection technologies, anonymous egg donation, with or without payment, and commercial
surrogacy and that gender selection technology is only allowed for reducing the
risk of transmission of sex-linked disorders.[40]
For example, in Victoria the Assisted Reproduction Treatment Act 2008 bans
gender selection except to avoid the transmission of a genetic abnormality or a
genetic disease to the child or it is approved by the Patient Review Panel.[41]
3.27
Submitters also noted that gender selective abortion for non-medical
purposes is constrained by the National Health and Medical Research Council's
Ethical Guidelines on the use of Assisted Reproductive Technology in Clinical
Practice.[42]
The Victorian Council for Civil Liberties quoted the guidelines as follows:
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, pending further
community discussion, sex selection (by whatever means) must not be undertaken
except to reduce the risk of transmission of a serious genetic condition.[43]
3.28
The NFAW argued that 'it is unlikely that an Australian medical
practitioner (eligible to raise a charge on the Medical Benefits Schedule)
would act in breach of this prohibition'.[44]
3.29
Where abortions are undertaken, the reasons for doing so are varied and
complex but gender selection is not a reason given.[45]
Submitters cited a study by the University of Melbourne's Key Centre for
Women's Health in Society which reported that the reasons for an abortion usually
relate to the woman herself, the potential child, existing children, the woman's
partner and other significant relationships, and what it means to a woman to be
a good mother.[46]
Other issues relating to violence, completed family size, educational
aspiration, age and medical issues were also identified.[47]
Support for United Nations campaigns
3.30
Submitters opposing the Bill were critical of the term of
reference relating to UN campaigns as they did not consider that the UN agencies
and WHO supported the approach envisaged in the Bill. The Bill's statement on
human rights was also criticised as not accurately representing relevant human
rights documents.
3.31
Liberty Victoria submitted that:
The phrasing of this 'Term' misleadingly implies that UN
agencies are advocating limiting abortion as a means of solving the problem of
sex-selection. This is untrue. Indeed, although states have an obligation to
address the issue of gender biased sex selection, the UN interagency statement
makes clear, that it must be addressed:
without exposing women to the risk
of death or serious injury by denying them access to needed services such as
safe abortion ... Such an outcome would represent a further violation of their
rights to life and health as guaranteed in international human rights treaties,
and committed to in international development.[48]
3.32
Submitters supported campaigns by UN agencies to implement disincentives
for gender selection by abortion. However, they argued that the WHO was not
advocating the type of restrictions proposed in the Bill, as such measures have
not been found to be effective.[49]
The Public Health Association of Australia submitted that it:
...is strongly supportive of the
role of the United Nations and its agencies in promoting changes in social
values, and of the role of the Australian Overseas Aid Agency in promoting and
financing sexual and reproductive health programs in developing nations. Access
to safe abortion services is a necessary part of any comprehensive system of
reproductive health services. To deny these services is to breach a woman's
right to health.[50]
The Bill's statement on human
rights
3.33
Concerns were raised about the human rights statement in the Bill and
whether it adequately addressed the human rights of both mother and child. The
Women's Abortion Action Campaign stated that the reports cited in the Bill's human
rights statement:
...have been used in a way which does not acknowledge their
full context, and obscures the fact that the United Nations' World Health
Organisation recognises access to safe abortion as an important marker for
women's health and publishes a technical and policy guide for (national) health
systems to assist in this.[51]
3.34
Submitters also stated that a number of UN human rights instruments were
omitted from the Bill's statement including the Beijing Declaration, which
stemmed from the Fourth UN Conference on Women.[52]
The declaration unequivocally affirms that 'the right of all women to control
all aspects of their health, including their own fertility, is basic to their
empowerment'. In addition it was noted that the UN Factsheet on the Right to
Health asserts that:
States should enable women to have control over and decide
freely and responsibly on matters related to their sexuality, including their
sexual and reproductive health, free from coercion, lack of information,
discrimination and violence.[53]
3.35
It was also noted that Australia has an obligation to implement the
principles of the Convention on the Elimination of All Forms of Discrimination
Against Women, which includes access to health services, including those
related to family planning. In addition, sexual and reproductive health rights
and freedoms are enshrined in the International Covenant on Economic, Social
and Cultural Rights.[54]
3.36
Professor Bell concluded that the amendment contained in the Bill is a
restriction of women's rights and not the empowerment envisaged by the
interagency statement or the Convention on the Elimination of All Forms of
Discrimination Against Women.[55]
3.37
The Parliamentary Joint Committee on Human Rights (Joint Committee) has examined
the Bill. The Joint Committee noted that restrictions on Medicare benefits
proposed in the Bill potentially restrict rights to health and rights to social
security. Those rights are provided for under articles twelve and nine of the
International Covenant on Economic, Social and Cultural Rights. In its
concluding remarks, the Joint Committee indicated that:
Before forming a conclusion on the human rights compatibility
of the bill, the committee intends to write to Senator Madigan to seek further
information about the prevalence of gender selective abortions in Australia and
whether the limitations on the right to health and the right to social security
seek to address a legitimate objective (being one that addresses an area of
public or social concern that is pressing and substantial enough to warrant
limitations on these rights).[56]
3.38
At the time of tabling of this report, no response had been published by
the Joint Committee.
Alternatives to the Bill
3.39
Reproductive Choice Australia submitted that 'if Parliament is inclined
to utilise resources to better understand and positively respond to issues
surrounding pregnancy terminations to best support the rights of Australian
women', the following approaches could be considered:
-
a national curriculum for comprehensive, evidence-based sexual
and reproductive health in Australia schools;
-
the inclusion of referral obligations for conscientious objection
into the registration of health professionals and subsequent enforcement
mechanisms;
- a requirement that university undergraduate medical training
includes pregnancy termination related procedures;
- provision of the full range of reproductive health services,
including abortion and emergency contraception for assault victims, in all
federally funded hospitals regardless of faith-based affiliations; and
- lowered cost of contraception for low-income women via the
Pharmaceutical Benefits Scheme.[57]
Concern from medical associations
3.40
Submitters opposing the Bill indicated that in their view, abortion was
regarded as an important health service for women by medical associations
including The Royal Australian College of Obstetricians and Gynaecologists; The
Royal College of Obstetricians and Gynaecologists; and The American College of
Obstetrics and Gynaecologists.[58]
3.41
Several submissions supported statements by medical associations that
they support gender selective abortions for gender-linked genetic diseases, but
not for personal or cultural reasons.[59]
The Australia Medical Association (AMA) did not support the Bill, submitting
that in its view the Medicare benefits arrangements should not be used to
address social issues. The AMA went on to note that the interagency statement
offers a range of recommendations for addressing the issues and does not
recommend denying financial assistance for legal medical procedures.[60]
Senator
Helen Polley
Chair
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