The Queensland legislation regulating abortion is contained in Sections 224, 225, and 226 of the Queensland Criminal Code [1899], a statutory codification of the Common Law. The law prohibits abortion unless a mother's life is in immediate danger from the continuation of the pregnancy. Murder or manslaughter provisions would not apply as Section 292 distinguishes a person from an unborn child. In any State and Territory, the statutory provisions that prohibit 'unlawful abortion' can apply to an abortion performed at any stage of pregnancy. The legal test for when an abortion is not unlawful and is therefore permitted is different in each State and Territory of Australia. The Queensland Criminal Code [1899] also contains a defence for unlawful abortion in Section 282. This defence authorises a person to perform the surgical operation for the benefit of the patient, if the operation is reasonable due to the circumstances of that situation. The procedure must also be carried out ‘in good faith’ and with ‘reasonable care and skill’.[http://www.unistudent.com.au]. In Queensland, McGuire DCJ of the District Court in the case R v. Bayliss and Cullen [1986] 9 Qld Lawyer Reps 8 confirmed that the interpretation of the law offered in a Victorian Supreme Court Ruling, by Menhennitt J in the case of R v Davidson [1969] VR 667 also applies in Queensland. Menhennitt J explicitly raised the general legal defence of necessity and instructed the jury that acting with intent to procure a miscarriage would only be lawful if the accused held an honest belief on reasonable grounds that the abortion was both 'necessary' and 'proportionate'. Although the McGuire ruling put an end to the uncertainty in Queensland regarding the law’s interpretation of the Criminal code [QLD] on abortion, the judge was also careful to issue a reminder that his ruling did not signify that abortion was obtainable to all women on demand. The penalty that inducing an abortion carries is seven years imprisonment for the woman, fourteen years for the abortionist, and three years for supplying or procuring. Nevertheless, these decisions made by minor courts are susceptible to being authoritatively interpreted by a higher court or altered by legislation. [See Appendices 1 - 4 for Sections 224, 225, 226 and 282 of the Queensland Criminal Code]
There is a compound of reasons for women to seek an abortion. Prevalent reasons include that the mother is unable to meet the expense of keeping the infant; having a baby would impede occupation, education or other obligations; and that the pregnancy transpired in consequence of rape or incest. Upon the occurrence of these circumstances, women generally have three practicable contingencies. They can proceed with the pregnancy and keep the baby, they can proceed with the pregnancy and adopt the baby out, or they can have the pregnancy aborted. It is the last solution which generates the majority of disputation.
Abortion in Australia is presented as a great controversial issue that polarises the community. It has become one of the most divisive and contentious issues of our time, turned into a legal and political power struggle with no permanent resolution in sight. Yet it need not be. Social, and therefore media, attention has been focused almost exclusively on the differences between pro-life and pro-choice forces. Pro-Life is often synonymous with Anti-Abortion, and related partially to Anti-Choice. Pro-Choice is often assumed to be synonymous with Pro-Abortion, and by opponents, with Anti-Life.
The Queensland Right to Life Society is one of the many organisations in Queensland dedicated to the prohibition of abortion throughout the state. The Queensland Right to Life Society, along with other Pro-Life bodies, believe that a human being is alive from the second of conception and therefore terminating the pregnancy represents murder. Furthermore, they hold the belief that our society is based upon the presumption that human life is sacred, and insist that no individual, nor group of individuals, has the right to take the life of an innocent ‘child’. Even so, women should have the right to run their lives as they see fit. One person's miracle is another person's accident. If women are forced to carry unwanted pregnancies to term, the result is unwanted children, often uncared for, unloved, brutalized, and abandoned. Children need loving families who want and will care for them. Therefore, it should be a private decision made by the prospective parents with the advice of extended family and the family doctor; and once the prospective parents have made their thoughtful decision, we in the general public should give them whatever moral support we can. Subsequent, legislators
As a result, on the other side of the debate is the Pro-Choice lobby arguing a woman’s access and freedom to choose abortion is a fundamental precondition to having control over her life. Organisations such as Children by Choice insist women should be freed from biological destiny, retaining the belief that abortion is a purely personal matter and that pregnant women should have the right to decide for themselves whether or not to have an abortion. Without access to abortion women become prisoners of their reproductive systems, and prisoners to a stereotype and culture that promotes motherhood as the only appropriate role for women. If Queensland outlaws abortion completely, women who are desperate for an abortion will go to extreme lengths to terminate their pregnancy. In addition, it would be much safer if professionals in a clean environment with minimal risk perform the abortion. As it stands, Section 282 allows abortion, but the stigma attached and the need for a doctor’s approval, portrays restrictions women face in comparison with other medical procedures. Accordingly, legalisation of abortion is the only choice, if women are going to obtain the liberation that sop rightly deserve.
Modern abortion laws as we know them in Australia had their origin in English common law and really did not appear until the mid-19th century. Today, of course, things are quite different. “Over 60% of Queenslanders believe that abortion should be legal, and 85% of Queenslanders believe that abortion is a matter between a woman and her doctor.” [http://www.childrenbychoice.org.au] Therefore, in order to keep in step with our ever-changing society and the rights of the female populace, abortion laws need to be removed from the Queensland Criminal Code [1899], in addition removing the risk of prosecution against women and their doctors. Nonetheless, legislation is still needed regulating the procedures of abortion, ensuring they are being performed by qualified people. Queensland also needs comprehensive sexual education programs and easy and affordable access to contraception. After all, if pregnancy is prevented, the problematic decision of an abortion will not have to be made.
Although unwanted pregnancies remain a regrettable fact of life even in a highly contraceptive society like our own, it is time for reform. By ignoring the evidence which supports the desirability and necessity for consistent and unambiguous abortion laws, Australian lawmakers are allowing the law to develop by default. They are ‘fence-sitting’ with Section 282, so as not to offend the Pro-Life supporters and give women some ‘freedom’ towards abortion. They are ignoring their obligations to define each citizen’s rights and responsibilities according to the current needs and values of society.
Appendix
Appendices 1:
S224 Attempts to procure abortion
Any person who, with intent to procure the miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a crime, and is liable to imprisonment for 14 years.
Appendices 2:
S225 The like by women with child
Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.
Appendices 3:
S226 Supplying drugs or instruments to procure abortion
Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment for 3 years.
Appendices 4:
S282 Surgical operations
A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for the patient’s benefit, or upon an unborn child for the preservation of the mother’s life, if the performance of the operation is reasonable, having regard to the patient’s state at the time and to all circumstances of the case.
Bibliography
Queensland Right to Life (2001). Abortion: Overview of the Queensland Law on Abortion. Visited 1st of March, 2005.
O’Lincoln, Tom (January 2005). The Queensland abortion struggle, 1979-80. Visited 3rd of March, 2005.
Pratt, Angela. Biggs, Amanda. & Buckmaster, Luke (14/02/05). Research Brief no. 9 2004–05: How many abortions are there in Australia? A discussion of abortion statistics, their limitations, and options for improved statistical collection. Visited 8th of March, 2005.
Holt, Claudine (18/11/04). A Woman’s Right to Choose: The case for repeal. Visited 3rd of March, 2005.
Children by Choice (2005). Abortion law reform: repeal the law in 2005. Visited 3rd of March, 2005.
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Commonwealth of Australia (24/08/10). Abortion law in Australia. Visited 1st of March, 2005.
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Nettle, Kerry. The essential facts about abortion. Visited 1st of March, 2005.
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