Chapter 3
Effects of disallowance of item 16525: evidence in support of disallowance
of item 16525
Introduction
3.1
This chapter considers the effects of a disallowance of item 16525 in
Part 3 of the Schedule to the Health Insurance (General Medical Services Table)
Regulations 2007 (item 16525) with focus on evidence in support of disallowance
of the item and/or limiting the item to specific circumstances.
3.2
Submissions in support of a disallowance generally focused on five key
areas: termination for fetal abnormality; the use of psychosocial grounds for
termination; the methods of termination used; the 'unethical' role of Medicare
as a body responsible to preserve life and health; and the ill-effects on the physical
and mental health of women who have undergone a termination. A vast number of
such submissions argued that item 16525 was utilised to terminate fetuses that
could otherwise survive outside of the uterus and questioned both the validity
of the definitions of the services provided under the item as well as the
services actually claimed under the item number by medical practitioners.
3.3
Some submitters in favour of the disallowance of the current item 16525 held
that it was important to introduce alternative provisions for cases of lethal
fetal abnormality, serious risk to the life of the woman in question or
intrauterine death.[1]
Terms of item 16525
3.4
The committee received much evidence which raised concerns about the terms
of item 16525 both in relation to the descriptors included in the item and the
interpretation of the descriptors. Evidence indicated that there is no shared
understanding of the meaning of the phrases used to describe two indicators for
claims under item 16525, that is, 'gross fetal abnormality' and
'life-threatening maternal disease'. Dr David van Gend from the World
Federation of Doctors Who Respect Human Life, for example, commented that although
the item was 'no doubt drafted in good faith', because of loose definitions,
'it is open to subjective interpretation by doctors, and terrible abuse'.[2]
3.5
Family Voice Australia provided the following evidence which
encapsulates the concerns that are held in relation to the terms of item 16525:
At least some practitioners who provide abortions and claim
under this item number interpret gross foetal abnormality to mean any foetal
defect whatsoever however trivial, interpret life-threatening maternal disease
to mean simply that a woman does not want to be pregnant and that not wanting
to be pregnant can be understood as posing sufficient threat in itself without
any other compounding factors to her mental health and therefore, by extension,
be called a life-threatening maternal disease.[3]
Intrauterine fetal death
3.6
Many submitters supported the need for a Medicare item to cover the
management of labour where there had been an intrauterine fetal death which had
occurred spontaneously.[4]
Pregnancy Help Australia commented that it was of the opinion that 'no mother
should be expected to carry to term of 40 weeks any child with dies in utero'.
Rather, there is an expectation that 'medical practice is to intervene and
manage such a situation with dignity for all concerned'.[5]
The Lutheran Church's Commission on Social and Bioethical Questions also stated
that:
In cases of genuine stillbirth during the second trimester where
a fetus dies in utero from natural or accidental causes there is no moral
question raised by the need to induce and manage labour to achieve the delivery
of the stillborn infant. A Medicare item such as 16525 obviously remains
appropriate for genuine stillbirth where the fetal death is not the result of a
deliberate termination of pregnancy.[6]
3.7
The Australian Christian Lobby (ACL) maintained that if the 'child dies
in the womb then of course it must be delivered to protect the mother'. According
to the ACL, this is not an abortion but rather the management of a terribly sad
event.[7]
3.8
The World Federation of Doctors Who Respect Human Life noted that any
item which covered intrauterine death should specify intrauterine fetal death 'other
than where caused by procured abortion' as 'of course, when you cause
intrauterine fetal death injection of potassium chloride into the heart, or by
the partial birth abortion method, the baby is dead before delivery, so it is
intrauterine fetal death'.[8]
3.9
Catholic Health Australia commented that it would support the
disallowance of item 16525 if provision was also made to differentiate between
terminations of pregnancy and procedures relating to miscarriage or other forms
of non-pregnancy termination to ensure that women are not disadvantaged.[9]
Gross fetal abnormality
3.10
'Gross fetal abnormality' was understood in contradictory ways by
witnesses and a number of submissions pointed to the lack of a definition or any
guidance given in item 16525 for the term. Dr Brian Richards of the Department
of Health and Ageing commented:
Generally the term 'gross' in medical parlance indicates
something that is macroscopically visible—that is, it does not require the aid
of a microscope to identify. It is an abnormality that is obvious to the naked
eye. While a pregnancy that is continuing, these days it is generally something
that can be identified on ultrasound.[10]
3.11
The department went on to state:
The medical terms used in just about every item in the medical
benefits schedule is not specifically defined in the regulations. They are
understood by the medical profession and interpreted by the medical profession
in alignment with the clinical relevance. It would need to be an interpretation
that would be generally accepted in the profession.[11]
3.12
Dr Lachlan Dunjey of Medicine with Morality commented that at one time 'gross'
was considered to be 'lethal' and inconsistent with life.[12]
Professor David Ellwood stated:
My interpretation of the phrase 'gross foetal abnormality'
really means a significant or severe foetal abnormality. The idea that it is
something that is visible to the naked eye is nonsense. We use technology,
ultrasound, genetic testing and metabolic testing these days. In my experience,
it is not anything to do with whether or not this is something that you can see
with the naked eye.[13]
3.13
However, submitters commented that it is now left to the practitioner's clinical
decision as to what constitutes a gross fetal abnormality.[14]
As a consequence, gross fetal abnormality has come to mean 'any abnormality or
considered defect'.[15]
This includes defects which are correctable.[16]
3.14
Dr David Knight also commented on the term 'gross fetal abnormality':
I think it is probably a bad term and I think it is capable of
being misunderstood. My understanding of it is: it is a lethal foetal deformity
or a deformity of such magnitude that it would prevent a human being from
leading a normal life. That would be my understanding of the word 'gross'. I
can see how it could be misinterpreted or misunderstood, and I would think that
perhaps a better term should be found.[17]
3.15
The Australian Family Association pointed to the proportion of second
trimester terminations which take place in private clinics as a suggestion that
the term 'gross foetal abnormality' is often 'treated with a broad
interpretation'.[18]
The Association added that item 16525 is:
...being notoriously abused by a broad interpretation on the part
of medical practitioners, especially in private clinics who have a financial–in
some cases ideological–stake in the termination. An assertion of
professionalism, especially on the part of private abortion providers, is no
guarantee of the integrity of the process.[19]
3.16
Concern about termination for 'trival' abnormalities focused on children
with Down syndrome, dwarfism, cleft lip and cleft palate. The Australian Family
Association for example, commented that termination on the grounds of gross fetal
abnormality was 'notoriously abused in the case of Down's syndrome, dwarfism
and other conditions that could hardly be described as "gross"'.[20]
Witnesses noted that in Victoria it has been identified that 90 per cent to 95
per cent of children with disabilities such as Down syndrome are aborted.[21]
3.17
The Australian Christian Lobby also noted that in 2003-04 at least three
late term terminations were conducted in Victoria 'solely because they had
cleft lip or cleft palate and lip and no other disabilities'.[22]
Mr Christopher Meney of the Life, Marriage and Family Centre commented:
We know that in some cases people are aborted because of a cleft
lip or a cleft palate. It is a terrible thing to think that somebody's life is
not worth living because they have something which can easily be remediated
through modern surgery.[23]
3.18
The Archdiocese of Adelaide concluded:
The fact that such abortion funding has been made for such minor
disabilities as a cleft palate or missing digits makes a mockery of gross
fetal abnormality and, we believe, every disabled person by association.[24]
3.19
In order to overcome these difficulties with this descriptor, Dr Dunjey suggested
that the wording be changed to 'lethal' abnormality rather than 'gross'. [25]
Dr van Gend also supported the rewording of the descriptor:
We heard very clearly this morning from the health department
spokesman, Dr Richards, that 'gross' means anything detectable, including cleft
lip and including, no doubt, a missing finger—that is what gross means—and that
that would be covered by the current indication. That is not the spirit of this
item and it would be necessary to be quite firm in the redrafting and limit it
to lethal. If you have any word other than 'lethal' abnormality the floodgates
are open to the subjective interpretation of the doctor. Again and again we
hear it is up to the clinical decision of the doctor.[26]
3.20
It was argued that, as some conditions may be corrected by surgery, 'the
unspoken philosophy behind allowing abortion for reasons of abnormality is one
of eugenics: a less than perfect baby should not be born'.[27]
The Australian Family Association commented on eugenics:
...but where late-term abortion occurs, this raises other
questions which are at odds with society's professed commitment to the rights
of the disabled. Judgements are made about quality of life, and involve a
denial of the obligations of society to support its most vulnerable members. To
make such judgements is to approach the slippery slope of eugenics, while
endorsing ideals such as the perfect or designer baby.[28]
3.21
A further argument put to the committee was that babies with gross fetal
abnormalities should be born alive. Medicine with Morality stated:
When gross fetal abnormality is present with associated
conditions considered life-threatening to the mother, once again the baby can
be delivered–alive–and nature allowed to take its course with the baby being
nursed in conditions of nurture and comfort.[29]
3.22
A number of submitters commented that termination for minor or easily
treatable conditions could be viewed as discrimination against a person with a
disability and therefore a breach of United Nations treaties to which Australia
is a signatory. One of the conventions frequently cited was the Convention
on the Rights of Persons with Disabilities. Mrs Joseph commented that there
was a failure to adhere to Article 3 of the General Principles of the convention,
that is, 'to nurture receptiveness to the rights of children with disabilities
and to promote positive perceptions and to promote positive perceptions and
greater social awareness towards such children'.[30]
Mrs Joseph went on to state that abortion on the ground of 'gross fetal
abnormality' allowed 'extreme prejudice' against children detected before birth
to have disabilities and 'cannot be reconciled with the treaty's core
commitment: acceptance of and respect for all human beings with disabilities'.[31]
3.23
It was also argued that it is inconsistent that the Commonwealth has
become a signatory to this convention and provide disability support services
when at the same time, 'supporting and financing abortion based precisely upon
the presence of a disability'. [32]
Family Voice Australia commented:
The convention includes a right to life for the disabled.
Measures which inflict death on an unborn child solely because of disability,
or measures which fund such procedures, are clearly in conflict with the
convention.[33]
3.24
Mrs Rita Joseph provided arguments in relation to two further United
Nations treaties: the International Covenant on Civil and Political Rights
(ICCPR) and the Convention on the Rights of the Child. In relation
to the ICCPR, Mrs Joseph stated that the intentional 'deprivation of life'
of the unborn child because of disability contravened article 6 of the ICCPR
and 'fails the common law tests of absolute "necessity" and strict
"proportionality"'.[34]
In addition, the Preamble to the Convention on the Rights of the
Child provides for 'special safeguards and care' for all children 'before
as well as after birth'.[35]
To allow selective termination violates the 'fundamental human rights principle
of non-discrimination' which imposes a legal obligation to 'eliminate the
practice of treating some children with respect because they are "normal"
and other children with contempt because they have "foetal
abnormalities"'.[36]
3.25
In relation to arguments concerning the rights of women, Mrs Joseph
commented:
...there are certain principles that are just basic to human
rights law, and one of them is the principle of indivisibility. That principle
says that the abuse of one person's rights cannot be justified by upholding
another person's rights. It requires that human rights protection of both the
mother and her unborn child be observed. Both the mother and unborn child have
equal rights that stem from the inherent dignity and worth of all members of
the human family. When the indivisibility principle is applied, the individual
state's misperceived duty to provide expectant mothers with abortion services
cannot be performed at the neglect of the more fundamental duty to uphold the
rights of their children to special safeguards and care, including appropriate
legal protection before as well as after birth. The right to life is a supreme
right and basic to all human rights.[37]
3.26
Witnesses also responded to comments concerning the costs to the
community of supporting a person with a disability.[38]
Mr Christopher Meney of the Life, Marriage and Family Centre commented:
I think the whole nature of a community means that people are
given the support that is necessary for their particular circumstances. All of
us go through life at different stages requiring different levels of social
support. Some require early medical assistance and expensive support at an
early stage; others might require it later. It would be an important part of
what we are trying to do as a society in Australia to say that everyone should
have the opportunity to have the best support that can be made available for them.
I think that we can be quite clinical sometimes in looking at people and
thinking that certain sorts of attributes or abilities are of less value. I
think that it is very important for us to remember that many of the
contributions made by people in our community come from people whose parents
may very well have decided not to have them were their disabilities detected in
utero at an early stage. Some of them have led very flourishing lives, and
those contributions to the community from those people may not have been
forthcoming. We can never predict exactly what wonderful gifts people can bring
forth in terms of their capacities. I think it is very important for us to be
respectful of that. As a society, we should encourage all members of the
community to look at individuals in terms of people who have great gifts.[39]
Life threatening maternal disease
3.27
Item 16525 includes termination for 'life threatening maternal disease'.
Some submitters noted that cases of life threatening maternal illness are very
rare. The Australian Family Association, for example, commented that Victorian
records 'reveal no cases where second or third trimester terminations were
carried out to preserve the physical health of the mother'.[40]
It was also stated that where there was a case of life threatening maternal
disease, termination should be an option. The Australian Christian Lobby
indicated that it considered termination acceptable 'where there is a genuine
and unavoidable choice to be made between the life of the mother and the life
of the child'. In these cases, 'the intent here is not to terminate the life of
the fetus but to preserve the life of the mother: better one life saved than
two lives lost'.[41]
3.28
However, the Catholic Archdiocese of Adelaide noted that if there was
the presence of a life threatening maternal disease then that would mean the
women concerned would be best cared for in a hospital, rendering item 15625 redundant
and concluded 'we find it hard to imagine that a woman with a significant life
threatening maternal disease would present at a private clinic rather than a
hospital'.[42]
This was a view also supported by Dr David Knight who stated that 'it is
obviously absurd to expect that [private] clinics can handle terminations of
pregnancy in women who are so ill that they can no longer continue with the
pregnancy'.[43]
3.29
A further matter raised with the committee was that terminations may not
always be the only option in the case of life threatening maternal disease. Witnesses
argued that a different outcome to a termination could be achieved in many
cases as medical and obstetric care has advanced to a high degree and there is
great success in treating women who may have a concomitant illness.[44]
Medicine with Morality stated that in the rare instance of life threatening maternal
disease, induction and labour can be performed without termination and
'delivery of the baby would then take place and be managed appropriately as any
other baby born at that level of maturity'.[45]
Medicine with Morality provided additional comments in evidence:
It is unfortunate that termination of pregnancy has become
synonymous with abortion when in fact a pregnancy can be terminated by
induction of labour with delivery of a live baby. So pregnancy is a condition
of the mother. The baby of course is involved, but we can terminate that
pregnancy by induction of labour in instances where there is gross foetal
abnormality, in instances where there is risk to the life of the mother, and we
can have a live baby at the end of that, and maybe one which is viable. In
instances of gross foetal abnormality incompatible with life but where the baby
may be born alive, the mother then has a chance to cuddle that baby, to name
that baby, until the baby dies. I have been witness to this kind of event,
rather than killing the baby in utero and having a dead baby.[46]
3.30
The Endeavour Forum stated:
Second trimester babies have to be delivered in much the same
way as full-term babies, and if indeed the pregnancy has to be terminated
because of a serious problem with the mother’s health (this situation occurs
very rarely) then birth should be induced as late into the pregnancy as
possible and the baby given a chance of survival..."Mother's health is being
falsely used to justify abortions for psycho-social reasons. Mothers with an
unwanted pregnancy should be encouraged to give birth and make them available
for adoption. There is never a good reason to terminate a second trimester
pregnancy'.[47]
3.31
The Catholic Archdiocese of Adelaide concluded:
From the time when an unborn child can safely survive outside
the womb there are clearly other options available other than abortion. It is
worth considering...that both abortion methods used in second trimester abortions
(and later) actually 'deliver the child'.[48]
3.32
Of much greater concern to submitters was the use of maternal psychosocial
conditions under the indicator of 'life-threatening maternal disease' as a
ground for termination. It was argued that psychosocial reasons encompassed a
range of factors, including economic factors and breakdown of relationships. Dr
Christine Tippett of the Royal Australian and New Zealand College of Obstetricians
and Gynaecologists provided the committee with some indicators of psychosocial
conditions including 'women who are very deprived, socially and economically',
are often young women, drug addicts and homeless. This category also includes women
for whom 'sex outside marriage is a religious taboo'.[49]
3.33
The World Federation of Doctors Who Respect Life that psychosocial 'means
there is no medical problem with the mother or the baby, but the parents
request abortion because of economic or emotional stress'.[50]
As a result, it was argued that termination for psychosocial reasons was easily
obtained.[51]
Submitters also noted that in practice, it is a clinical decision of the
practitioner as to what falls within this indicator.[52]
3.34
It was noted in submissions that psychosocial reasons were given as the
most frequent ground for late term termination and pointed to the data
available from Victoria. In 2005 in that state, 108 late term terminations were
undertaken for psychosocial reasons and only 23 for congenital abnormality.[53]
Family Voice Australia commented on the data from Victoria for 2006 which
indicated that over 50 per cent of all post-20 week terminations (150 out
of 298) performed were for maternal psychosocial indications. Ninety eight terminations
for maternal psychosocial indications were performed at 23 weeks gestation or
later, 'that is after fetal viability'.[54]
3.35
Medicine with Morality concluded that:
From the figures in Victoria, I think it is clear that the vast
majority of abortions were for psychosocial distress and therefore, yes,
elected by the mother and agreed to by the doctor. Some were due to foetal
abnormalities of various descriptions and descriptions which, in my view,
certainly do not fit within the range of lethal abnormality. The vast majority
of these were for elective reasons and should not be given ipso facto national
approval by granting medical benefits for these procedures.[55]
3.36
Submitters also pointed to the difference in the rate of termination for
psychosocial reasons between the public and private sectors. Dr van Gend
pointed out that in Victoria for the 581 abortions over 20 weeks in the
period 2001-05 for psychosocial reasons of which 'only four were attended to in
public hospitals'.[56]
Dr van Gend concluded 'therefore, post-20 weeks for psychosocial
reasons is a commercial clinic venture. They are not dealt with at the public
hospital because they would not be considered valid grounds.'[57]
3.37
Family Voice Australia also commented that:
And in fact the women who are resorting to the private abortion
clinics and getting this Medicare payment are doing it because the terms on
which they want the abortion are not provided at the public hospital. As many
of the witnesses from public hospitals have said, they are not offering
abortions for maternal psychosocial indications in the second trimester, and
that is what the private clinics are offering that the public hospitals are
not.[58]
3.38
Witnesses commented that the public hospitals and major private
hospitals provided 'checks and balances' in the decision for a late term
termination to proceed.[59]
Requests for terminations are considered by ethics committees of 'impartial
people without vested interests'.[60]
Dr David Knight commented that it was doubtful 'that the processes of ethics
committee approval, peer review, audit and ongoing patient support are present
in those private abortion clinics where late termination of pregnancy is being
performed'.[61]
3.39
In order to ensure that the intent of this descriptor was
re-established, that is the woman's life is genuinely at risk, changes to the wording
were suggested. Dr van Gend, while noting that item 16522 of the MBS does not
fit with intrauterine death or lethal fetal abnormality, indicated that it
could be used as the basis for new wording of item 16525. Dr van Gend stated:
...to keep the integrity of the item and direct the money to where
it is intended, you would need to have something firmer. May I suggest for your
consideration that you simply move to the item above, 16522, and rephrase the
phrase they use in that item, which is 'conditions that pose a significant risk
of maternal death'. That is far harder to construe in terms of stress, however
grave the stress, but stress we all have to face. 'Significant risk of maternal
death' would, I think, give integrity back to the descriptors. Then you would
reissue the item with all its valid indications intact and that would keep
faith with the public.[62]
3.40
The notes for item 16522 discuss the term as follows:
Conditions that pose a significant risk of maternal death
referred to in Item 16522 include:
- severe pre-eclampsia as defined in the consensus Statement on the
Management of Hypotension in Pregnancy, published in the Medical Journal of Australia,
Volume 158 on 17 May 1993, and as revised;
- cardiac disease (co-managed with a consultant physician or a specialist
physician);
- severe autoimmune disease;
- previous organ transplant; or
- pre-exisiting renal or hepatic failure.[63]
3.41
Dr Dunjey also supported such a change and commented that:
The word 'significant' is not important; it is the word 'death'
versus the word 'life'. 'Life-threatening' incorporates psychosocial risk to
the life and well being...If you change that very subtly from
'life-threatening' to 'risk of maternal death', you have not changed the valid
indications at all. It still means the same diseases—pre-eclampsia, major renal
or heart disease and a few others listed in the Medicare schedule—but you have
made it very hard for abuse to occur because [of] economic stress as an
indication for late abortion.[64]
Termination methods
3.42
Many submissions in support of the disallowance of item 16525 referred
to the methods utilised to abort the fetus in the second trimester. Concerns regarding
termination methods focused on both the techniques utilised, particularly
surgical procedures, as well as the pain inflicted on the fetus.[65]
Submitters also reported that, in some instances, termination had resulted in
the birth of a living child which was then left to die.
Surgical terminations
3.43
Two surgical methods of termination – dilation and evacuation and a
breech delivery followed by cranial decompression (sometimes known as partial
birth termination) – raised much concern in relation to the methods of the
procedures, the dangers to mothers and fetal pain.
3.44
The committee was provided with details of the two surgical methods. Of
particular concern was the use of the method described by witnesses as 'partial
birth termination'. This method was described as being cruel, inhumane and an
'absolutely abhorrent assault on a viable child'.[66]
The Catholic Guild of St Luke described the procedure as:
The entire infant is delivered except the head. Scissors are
jammed into the base of the baby's skull. A tube is inserted into the skull and
the brain is sucked out.[67]
3.45
Submitters noted that this termination method is banned in the United
States. The World Federation of Doctors Who Respect Human Life stated that 'the
Senate and the Supreme Court of the United States, and the American Medical
Association, have all condemned [this method] as "gruesome, inhumane, and
never medically indicated"'.[68]
3.46
Medical practitioners appearing before the committee raised concerns
about the safety for women of these procedures for second term terminations. Dr
David Knight commented:
It is really extremely dangerous to attempt to terminate a
pregnancy after about 15 or 16 weeks by dilatation and curettage. That
certainly is and has been done, but it is extraordinarily dangerous for the woman.
There are risks of tearing the cervix, risks of perforating the uterus, risks
of haemorrhage, risks of shock—these sorts of things unquestionably occur if
you attempt this kind of procedure.
It is much safer for the woman, if you have to terminate a
pregnancy after 14 weeks, to induce a labour of a sort and have the foetus
expelled and then try to deliver the placenta afterwards. If the baby is
expelled and you have to deliver the placenta separately then curettage is a
lot safer because you are not dealing with large foetal parts.[69]
3.47
Dr Knight concluded:
I have certainly performed lots of curettages on women who have
had an intrauterine death up to about 14 weeks but I honestly would not be game
to do it after about 14 weeks because of the enormous risks involved. Such
terminations really need to be done in proper facilities, with intensive care
units and blood transfusion services freely available, because they are so
dangerous.[70]
3.48
Dr David Baartz pointed to reported comments by the then President of
the Queensland Branch of the Australian Medical Association that as late
terminations presented 'very significant dangers to women' they should only be
performed in public hospitals.[71]
Dr Baartz commented that the president had responded to revelations about the
series of major and life-threatening injuries sustained by women having late term
terminations in the private clinics.[72]
3.49
Dr Baartz went on to note that this position reflected that of the Queensland
branch of the Royal Australian and New Zealand College of Obstetricians and
Gynaecologists, which said, 'There is absolutely no justification for
termination of pregnancy after 20 weeks by anyone other than a recognised
specialist.'[73]
3.50
It was also argued that, contrary to the accepted view, there is strong
evidence that a fetus feels pain before 24-26 weeks. The Australian Christian
Lobby pointed to several lines of evidence including that premature babies of
23-26 weeks gestation show signs of pain perception and awareness; and that
there is evidence that stress hormones are released during invasive procedures
on fetuses down to 18 weeks gestation or earlier.[74]
3.51
The World Federation of Doctors who Respect Human Life stated that:
We know from expert testimony that babies in the late second
trimester are likely to feel more exquisite pain than older infants, due to the
immaturity of inhibitory pain pathways; yet we know that in the published
lecture notes of a leading Australian abortion doctor no pain relief is given
to babies over 20 weeks of age during a procedure that inflicts extreme pain.[75]
3.52
Dr Dunjey of Medicine with Morality commented that there were
conflicting views about fetal pain but:
...although there are more and more people who are recognising
that, with babies of 20 weeks or even younger, any sort of reflex withdrawal
from a needle, for instance, is not just due to reflex but is in fact due to
the perception of pain—that in fact the pathways to the brain are already there
and that those pathways will register pain. Dr Anand suggests that the pain
felt by the foetus at that kind of maturity is in fact extreme and severe pain,
and perhaps more than we can feel. So, although there is conflicting evidence,
how can we possibly say that those children do not feel pain? This is also
recognised by the fact that, okay, no anaesthetic is given to the baby at 24
weeks who is being terminated—by extreme and brutal methods which I am sure I
do not need to enlarge on—but anaesthetic is given to the 24-week baby outside
the mother’s womb when it is being operated on. Although once upon a time no
anaesthetic was given because it was considered that pain is not perceived,
that at least is now recognised and is a part of those procedures. So why are
we so inconsistent in saying that a baby that is still inside the safe-haven womb
does not feel pain? We cannot establish that, and certainly, because we cannot
establish it, it should be considered.[76]
3.53
Medicine with Morality also noted that an expert before the United
States Senate had stated that:
...the pain experienced during 'partial birth abortions' by the
human fetus would have a much greater intensity than any similar procedures
performed in older age groups.[77]
Medical terminations
3.54
Medical terminations involve the administration of prostaglandin to
induce delivery and injection of potassium chloride into the fetal heart to
ensure that a live fetus is not delivered. However, some submitters commented
that this form of late termination did not always lead to a stillbirth but could
result in the delivery of a living child.[78]
This is the case when potassium chloride is not used. The Victorian
Consultative Council on Obstetric and Paediatric Mortality and Morbidity made
this comment in its annual report for 2006:
...there are increasing registrations of neonatal deaths of
pre-viable infants (20-22 weeks gestation) who exhibit transient signs of life
after birth following terminations of pregnancy for congenital abnormalities
using vaginal misoprostol.[79]
3.55
Dr David Baartz commented on the chances of survival at 22 weeks
gestation where potassium chloride is not used:
I do not do them, but I know that potassium chloride is used on
occasions, but not always. Most of the time it is not used. Having said that, I
have not personally known of any cases where, after this process that they go
through, the baby has been alive. It is because the prostaglandin that they
give is much stronger than the prostaglandins you would induce a natural labour
with, one with someone at 39 weeks. The strength is about a hundredth of that
because the cervagem is about 100 to 200 times as strong, so the contractions
are so strong that the baby does not survive.[80]
3.56
The Australian Christian Lobby noted that in Victoria in 2005, 15 per
cent of post-20 week terminations resulted in the delivery of a live born child
'who was then tragically left to die'.[81]
While in 2006, 42 post-20 week terminations resulted in the delivery of a
live-born child who died shortly afterwards.[82]
3.57
Mr Lyle Shelton of the Australian Christian Lobby commented in evidence
that 'we do not understand how this can happen in a civil society...That
situations where babies are born alive after botched terminations could also
attract Medicare funding is unthinkable.'[83]
3.58
Family Voice Australia concluded:
It is hard to imagine the cruelty and inhumanity involved in
intentionally delivering child prematurely and then simply abandoning it to
die. Some of these babies may be able to be survive if given the kind of
neonatal care given to other prematurely delivered infants.[84]
Impact on women's health and
well-being
3.59
The committee was provided with evidence which argued that termination
of pregnancy has an adverse impact on women's health and well-being both in the
short and long-term. Dr Dianne Grocott, Consultant Psychiatrist, provided the
committee with the following:
I have mostly seen evidence of depression, drug abuse,
relationship breakdown and suicide attempts following abortion. I understand
the psychological stress of unexpected pregnancy but I am not convinced that
our society's current answer produces the best outcome.[85]
3.60
Dr Grocott went on to comment that unexpected pregnancies 'can be
managed in such a way as to have a good outcome if sufficient support and
resources are available'. Dr Grocott concluded:
The practice of using abortion as a solution to psychosocial
distress or failure of the pregnant woman's support network to support her so
she can raise her child is ethically and medically unjustified, if the
long-term and psychological costs are not ignored. This increasingly common
practice occurs in a society where this evidence is suppressed or ignored, and
by practitioners who do not see the long-term consequences of their
interventions.[86]
3.61
Dr Lachlan Dunjey of Medicine with Morality also provided similar
comments that 'the mother who, in her distress, has come to see that
terminating the life of her baby at this later stage of pregnancy is her only
option'. However:
Killing the baby should never be seen as a solution for misery,
and certainly should not have inferred national approval. In any case, we would
argue that any temporary alleviation of distress would be counteracted by a
later, greater distress when the full realisation of what has taken place hits
home. Doctors have always known this to be true because we see these women in
our practices.[87]
3.62
Witnesses cited research that indicated that lasting damage to emotional
health of women who have undergone a termination. A recent New Zealand study
found that 42 per cent of women who had terminations had experienced major
depression which was double the rate of women who had never become pregnant.
The risk of anxiety disorders also doubled. Women who had terminations were
twice as likely to drink alcohol at dangerous levels and three times as likely
to be addicted to illegal drugs compared with those who carried their pregnancies
to term.[88]
3.63
A paper published in the European Journal of Public Health
reported a 13 year study of Finnish women which found that deaths from
suicide, accidents and homicide were 248 per cent higher among women in the
year following a termination, than for women who had not been pregnant in the
prior year. The majority of deaths were due to suicide. The suicide rate among
women who had terminations was six times higher than that of women who had
given birth in the prior year and double that of women who had miscarriages.[89]
3.64
A study published in the British Medical Journal found that 77 per cent
of women aborting a disabled baby experienced an acute grief reaction and 46
per cent were still symptomatic and requiring psychiatric support six months
later.[90]
3.65
Dr Grocott provided the committee with a list of selected references
which indicated the likelihood of psychological problems is greater following
second and third trimester abortions, abortions for fetal abnormalities and in
cases of risk of life of the mother. Dr Grocott also commented that research on
pregnant rape and incest victims has shown that those women who gave birth,
even if they had considered abortion at some stage, were glad of the outcome.[91]
The number of services
3.66
Ms Rita Joseph argued that disclosure of the reasons for the use of item
16525 must be made a condition of Medicare funding as the present arrangements for
its use 'fails abysmally to set conditions for ensuring that referrals for
termination and subsequent abortions are legally valid, objectively necessary
and proportional in that the lethal harm planned for her child is balanced by
the necessity to avoid a proportionately serious harm to the mother'.[92]
In addition, there is a lack of information from state and territory
governments about the number of terminations. This is 'itself an indictment,
and a powerful piece of evidence that increased scrutiny of the abortion of
such large numbers of unborn children is both necessary, and indeed long
overdue'.[93]
Effects of disallowing item 16525
Reduction in the number of terminations
3.67
Submitters acknowledged that the disallowance of item 16525 would only impact
on terminations provided for private patients and would thus have a limited
impact on the number of terminations. However, Mr Meney of the Life, Marriage
and Family Centre stated that this 'would be a small but significant step
towards' a positive outcome for both mothers and children through the reduction
in the number of terminations.[94]
3.68
The World Federation of Doctors Who Respect Human Life stated that while
there is only small subsidy for item 16525 and that disallowance will not deter
most adults from obtaining a termination, 'the principle at sake is that
Australian taxpayers would not be compelled to subsidise the cruel and unjustifiable
"on demand" abortion of entirely health babies of entirely health
mothers, some older than the infants in our hospital nurseries'.[95]
3.69
Mrs Joseph argued that there would be an immediate improvement in human
rights protection for vulnerable children at risk of termination because of
their disabilities.[96]
3.70
It was also argued that the disallowance of item 16525 would allow the
funds to be diverted to support services and counselling for women.[97]
Increase in procedures being
undertaken in the public sector
3.71
Submitters saw as a major benefit the move of late term termination
services to be provided in the public sector. The Life, Marriage and Family
Centre commented that:
Whilst moving these cases into the public hospital system does
not guarantee these abortions will not occur, it is likely it will result in a
reduction in abortions and more parents choosing to keep their babies. Giving
parents more time and information that will help them to adjust to the news and
to discover this great gift that is their child is always a positive step. Deep
down, we know that if there is some small way we can reduce the number of
children aborted in the second trimester we are obliged to try to do so. Every
child whose life is ended by abortion represents a tragic and irreplaceable
loss not only to their mother, father, siblings and grandparents but to the
while community.[98]
3.72
It was also argued that greater scrutiny and accountability of
healthcare practitioners engaged in second trimester terminations would occur
in the public sector as there are established procedures for late term
terminations to be approved by ethics committees. In cases of fetal abnormality
beyond 20 weeks gestation, an ethics committee considers the request for
termination and makes a decision on whether or not the anomaly is lethal or
severely disabling.
3.73
Many submitters also pointed to the small number of terminations being
undertaken for psychosocial reasons in the public sector as evidence of greater
scrutiny and consideration of requests for late term terminations for this
reason. The Life, Marriage and Family Centre, Catholic Archdiocese of Sydney
commented:
Moving second-trimester abortions into public hospitals will
hopefully decrease the number of abortions performed for psychosocial reasons
or because the unborn child has a disability, due to the likelihood of greater
scrutiny and accountability of health care practitioners within the public
hospital system.[99]
3.74
Dr David Knight argued that there was no evidence that the safeguards established
in the public sector exist in the private sector.[100]
3.75
Other benefits would also arise from limiting procedures to the public
sector. These relate to the health and welfare of the mother as the public
sector could provide access to multidisciplinary teams skilled in counselling
and support. Mothers and their families would also have access to specialist
services such as genetic counselling. Medicine with Morality commented that
many women undergoing antenatal testing do not really understand the full
significance of antenatal testing. When confronted with a diagnosis of an
abnormality they need to make a decision with properly informed consent.[101]
In the public sector, mothers and their families would receive information
about positive treatment options and support available for children with
conditions such as cleft palate, spina bifida and Down syndrome.[102]
3.76
Dr Knight commented that the procedures are usually undertaken in a
tertiary referral maternity hospital in a specialised unit and the patient
receives extensive counselling prior to the procedure and support is provided
by a multidisciplinary team including an obstetrician, midwife and clinical
psychologist. However, the Life, Marriage and Family Centre commented that was
unlikely to occur in the private sector as the medical practitioner involved is
only interested in providing the service requested: that is, a termination.[103]
3.77
The committee also received evidence of the greater safety provided to
women in the public sectors as more facilities are on hand including intensive
care and the option of medical terminations is available. Medical terminations
are generally not available in the private sector as they are undertaken over a
period of time and were therefore not amenable to the practices in the private
sector. Dr Knight commented:
If anyone is doing abortions beyond 20 weeks and not inducing
labour as the method by which they are doing it then they are putting the
women's lives very seriously at risk. They are certainly putting the women's
lives at risk if they are doing them in a small clinic which does not have all
the facilities of a major hospital.[104]
Termination for fetal abnormality
3.78
A number of submissions upheld the view that life begins at conception
and that abortion at any stage of pregnancy is tantamount to deprivation of
life of the unborn child.[105]
The argument is summarised by the Australian Christian Lobby:
Removing Medicare funding of second-trimester or late-term
abortions would save the lives of many children who are capable of independent
living outside the womb, and who deserve a fighting chance of life.[106]
3.79
The World Federation of Doctors Who Respect Life commented that there
has been a process of 'desensitisation' and that process:
...leads us to consider aborting disabled babies purely because of
economic burden on society is that we have, effectively,
negated the humanity of any unborn child by approving the unlimited abortion
licence. If it is open to adults to end the life of their unborn child,
throughout pregnancy, for no reason—as is now the case in Victoria, up to 24
weeks, at least, and beyond that purely on the colluding nod of two abortion
clinic doctors—then what does that say about the status of any baby in the
womb, let alone a disabled one who is going to cost society money? That is part
of the desensitising process that has brought us to a fairly brutal state.[107]
Role of Medicare
3.80
It was widely argued that taxpayers, through reimbursement by Medicare,
should not pay for the 'deliberate destruction of human lives'.[108]
Right to Life Australia stated that:
Healthcare monies are meant to be used for just that purpose–to
provide good healthcare for the community. Killing babies in the womb is hardly
providing good healthcare and it is totally discriminatory when one considers
that healthcare monies–both State and Federal–are rightly used to provide good
healthcare for those babies in the womb considered wanted by their parents.[109]
3.81
The Australian Christian Lobby also commented that Medicare is funding terminations
using a practice that is banned in the United States while dilation and
evacuation method 'should offend the sensibilities of even the most
hard-hearted'. The Australian Christian Lobby concluded that 'as lay people, we
do not understand why these practices are allowed—let alone funded by us
through our compulsory Medicare levy'.[110]
3.82
Other submitters noted that ending of public funding of late term
terminations will not end its availability. It was argued that as the Medicare
refund is $267 for procedures that cost from well over $1,000 to $4,000, its
removal would not be a serious impediment to most women.[111]
It would still be available, were permitted under state laws, but at a personal
not public costs.
3.83
The Australian Christian Lobby concluded:
The concern is that people have a conscientious objection to
abortion being performed in the second trimester, given the brutality of that
method and the obvious pain that that causes to the [fetus]. Some members of
the community feel that for that to happen because of disability, for
psychosocial reasons or for economic reasons is wrong and yet they are forced
to pay for it—we have no choice. That really plays on the consciences of many
of us who believe that children, regardless of their able-bodiedness or
otherwise, have every right to enjoy life and the things that we all enjoy. We
know indeed in many cases they can do that, and we also know that there are
instances where abortions are performed in the second trimester not for reasons
of any abnormality at all but for cleft palates and even for economic reasons,
as you have all heard at this hearing. That goes to the heart of our
objections. If the parliament and the democratic processes say that we will
continue to make these brutal practices legal and treat unborn babies in a way
that is different to the way we treat animals, if that must be the case, please
do not force us to pay for it.[112]
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