AN AUSTRALIAN LAWYER’S RESPONSE

Dr Boyle is right in drawing attention to the apparent inconsistency between laws that allow a fetus in utero to be aborted at the mother’s will (whether because of abnormality or another reason) but give the law’s full protection to a newborn infant, perhaps of the same gestation as the aborted fetus. It makes no difference how disabled the infant is, or how poor the prognosis. The reason for the inconsistency is that the two stages of the infant’s development—before birth and after birth—are governed by different legal principles.

While a fetus is in utero, the applicable laws are the criminal law of abortion and the civil law of battery, which here focuses on the mother’s direction alone. As Dr Boyle says, the law on abortion in the UK—and also in Australia—enables an abortion to be lawfully performed if continuing the pregnancy would present a real risk to the mother’s life, or her physical and mental health; and, additionally, in some jurisdictions like the UK, for serious fetal abnormality: see Abortion Act 1967 (UK),¹ which includes risks to “existing children” as well as to the mother.² Recent changes to the criminal law in the Australian Capital Territory and Western Australia have gone further and abortion is now lawful in those jurisdictions, simply on the informed request of the mother.³

In jurisdictions that do not have a specific provision allowing abortion on the grounds of fetal abnormality, doctors have inferred that having a child with a serious abnormality would constitute a threat to the mother’s life or health, again focussing on the mother. The concept of harm to the mother’s health has been interpreted by the courts to include harm during pregnancy and delivery and also after the birth.⁴ This might take account of difficulties in raising …