Pregnant women with fetal abnormalities: the forgotten people in the abortion debate

Lachlan J de Crespigny and Julian Savulescu
Med J Aust 2008; 188 (2): 100-103. || doi: 10.5694/j.1326-5377.2008.tb01531.x
Published online: 21 January 2008
The law

Australian abortion laws vary throughout jurisdictions and are summarised elsewhere.1,2 Nearly all include a “maternal interests” criterion for abortion.1 This is the sole criterion in Victoria, New South Wales, Queensland and Tasmania, where even a “lethal” fetal abnormality is not legal grounds for abortion. The only Australian jurisdiction to have removed abortion from its criminal statutes is the Australian Capital Territory.

In Victoria, the 1969 Menhennitt ruling3 on what is considered an “unlawful” abortion under the Crimes Act 1958 (Vic) does not specify a gestation limit, and the law is liberally interpreted to apply until around 12 weeks’ gestation. Abortion can be difficult to access after 12 weeks, even though the same law still applies. The separate crime of child destruction (eg, Crimes Act, s. 10) adds to legal uncertainty — this crime applies later in pregnancy (except in NSW, where the law does not include the crime of child destruction). In Victoria, it now probably applies from 24 weeks or even earlier. The situations and gestations when the laws for both abortion and child destruction apply are variable and uncertain. Hence, two differing laws can apply in any particular case.

Prenatal tests

Routine tests are available for two kinds of fetal abnormality:

Hence, abortions after fetal abnormality is diagnosed on ultrasound typically take place around 20 weeks, or later.

Access to prenatal testing “allows” women to have children. Women at risk of passing on a genetic condition may perceive prenatal testing as providing the means to have a much wanted healthy child. Less than 2% of abortions occur after an abnormal prenatal test result;4 but without reliable testing — and the option of abortion if a fetal abnormality is found — many women might refuse to consider motherhood.5-7

Access to later abortion in Victoria

Women who request a later abortion after the shocking news of a major fetal abnormality may face a harrowing journey and feel that they have been abandoned by hospitals and doctors. The diagnosis and a woman’s reluctant request for abortion are distressing enough, but if she attends a private obstetrician, there is a high likelihood that the doctor will not run the personal risk of performing the abortion. If she attends a Catholic hospital, she must go elsewhere. Few rural hospitals offer abortion — women usually must travel to the city.

A woman can attend one of the few city public hospitals that offer later abortion, but this requires reassessment, more counselling and, typically, submitting herself for scrutiny. Only if her reasons are accepted will she be granted an abortion. She may, after weeks of delay, be refused. Such refusals may leave women embittered, not just because of the devastating outcome to their much wanted pregnancy, but because of the impersonal and arbitrary system they had to navigate. Women are reluctant to complain, as it would necessitate both reliving the anguish of the diagnosis and subsequent decision making, and being judged by others for requesting later termination on the grounds of disability in their child.

Committees, usually anonymous, that have been established in hospitals can be yet another hurdle for these women. The committee may decide whether a woman can have an abortion without meeting her — the expertise that committee members have in making such weighty decisions about a woman’s life is often unclear, as is their expertise in ethics. Abortion is one of the few medical interventions in which the doctor–patient relationship is regularly overridden by uninvolved third parties with dubious moral authority. Committee members may have clinical, nursing or other expertise; these committees are often not legally qualified to interpret the law.

It can be argued that when lawful abortion is refused, there has been a breach of duty of care. If patients were so inclined, they could sue the individuals involved.

Obstetricians’ personal fears

In late 2006, one of us (L J d C) conducted a survey of Melbourne obstetricians, to see whether it has become harder for Victorian private patients to get a lawful abortion after a diagnosis of fetal abnormality and, if so, why. The survey findings highlight the concerns of doctors who are at the cutting edge of managing difficult clinical problems.

Participants were central Melbourne obstetricians who had no religious or conscientious objection to offering abortion for serious fetal abnormality. The survey was sent to 26 obstetricians selected because they specialised in treating women with abnormal pregnancies. Responses were received from 20 (77%; nine female, 11 male). Ethics committee approval was not sought for this study, as it was judged to be an audit of practice and the anonymity of the survey enabled its completion to constitute consent.

* The late abortion case at the RWH in Melbourne in 2000 was widely publicised.1,9 A woman requesting pregnancy termination was referred at 31 weeks’ gestation; her fetus had been diagnosed with skeletal dysplasia, most likely achondroplasia. Termination was performed at 32 weeks on the grounds that the woman was acutely suicidal. L J d C was one of the treating doctors.

Only one of the 20 responding obstetricians believed that Victoria’s abortion laws are clear and appropriate. Of the other 19, unclear laws worried 15 personally, and affected patient management for 12. Seventeen of 18 respondents said that their uncertainty included unclear child destruction laws. Worryingly, all respondents who thought that the laws were unclear believed that this affected the patient management of other practitioners, thereby limiting access to lawful abortion. Fourteen obstetricians said that they had recently limited their offering of abortion for fetal abnormality; reasons for this included press coverage (nine obstetricians), the Royal Women’s Hospital (RWH) late abortion case (11),* and increased concern about legal uncertainty (12).

Comments from obstetricians about access to lawful abortion included: “Too difficult. Too restrictive. Too much at whim of abortion committee” and “Fine before 14 weeks, poor from 14 to 24 weeks, almost absent after 24 weeks”.

Although this study was limited to a small number of Melbourne obstetricians, these doctors see a disproportionate number of abnormal pregnancies, and have particular insight into the cost of restrictive abortion laws. Many such women are referred to them by doctors who are unwilling — without legal clarity — to offer the full range of prenatal care. However, since Victoria has the only free-standing clinic offering late abortion in Australia, the state acts as a de facto referral centre for late terminations: in 2005, 104 of the 180 post-20-week terminations when there was no fetal anomaly were for women from interstate or overseas.10 This is indirect evidence that fear and unclear laws also exist in other states, that effectively export these women for care.

Uncertain laws compromise good prenatal care, at least for Victorian women, because medical uncertainty about the law leads to:

Former President of the Australian Medical Association (AMA), Dr Mukesh Haikerwal, said that: “The AMA is concerned that a situation could arise where doctors could be compromising patient care for fear of legal repercussions”.11 This already happens, at least in Victoria.

As obstetricians in the survey commented:

Good clinical care often takes a back seat to risk minimisation for providers, as Mary discovered.13 At 20 weeks’ gestation, she decided that she could not continue with her high-risk pregnancy. She was told that abortion was refused by the hospital, not because it was illegal but because the hospital was concerned about the current “political climate”; the emotive debate over later abortions was behind a decision to deny her the lawful procedure.

She had the abortion done privately, costing her hundreds of dollars. “I’m concerned this could happen to other women and that some wouldn’t have the financial means, support or resourcefulness to go elsewhere”, she said.

There is a looming manpower crisis in the provision of obstetric services.12 Potential trainees could be further discouraged from entering obstetrics if they were aware that to provide ethical, lawful treatment to their patients, they must risk their own careers and wellbeing. The staff who managed the 32-week late abortion case at the RWH, including L J d C, were subjected to multiple investigations over 6 years, with no fault found. However, this caused them intense personal and family disruption; all resigned from the hospital, some to change career paths and reduce clinical practice. This is not a happy career trajectory for young doctors.

Perinatal care at the borderlines of viability

There is an unreasonable contrast between obstetric and neonatal management after 20 weeks’ gestation. Paediatricians recommend that the parents of a normal infant born at 24–26 weeks should decide whether or not their baby is treated,15,16 even if there is some chance of survival. Yet at the same gestation, with the same prognosis, late abortion is likely to be refused. Paediatricians will also discuss with the family the option of withdrawing intensive care in some cases where an older baby is severely affected with abnormalities but is still capable of surviving. It seems the fetus inside a woman’s body has a higher moral status than a newborn infant of the same gestation outside the woman’s body.

The uterus is indeed the best intensive care unit; fetuses with the most terrible abnormalities usually do not die before birth. Denying abortion may only delay the inevitable and extend the suffering of the family.

Many people see the borderline of potential fetal viability — the time from when the baby could survive if born alive — as a critical moment in the abortion debate. However, women who request abortion “late” in pregnancy commonly have a fetus with an abnormality that makes it less likely to survive preterm birth (eg, with a hypoplastic left heart, there may be little chance of survival until as late as 36 weeks).

Politicians’ perspectives

Unfortunately, some, including many politicians, redefine “late abortion” to apply from 20 weeks’ gestation, although no significant event occurs at 20 weeks. Ironically, a baby born at 20 weeks would not be treated; but termination may be denied.

Women confronting these difficult decisions face both obstacles and public condemnation. Former Health Minister Tony Abbott has attributed Australia’s high abortion rate to women whose lives are under control but who view childbirth as a “terrible inconvenience”.17 Liberal moderate Christopher Pyne argued that terminations beyond 12 weeks were dubious, while they should not be performed at all after 21 weeks.18 Pyne supported federal prohibitions on second trimester abortions in the territories.19

In 2004, the then Deputy Prime Minister, John Anderson, lamented that there were too many abortions of “potential fellow Australians” each year.8 However, it is important to remember that women plan a family with a limited number of children. Abortion in the circumstance of fetal abnormality does not deny the country any “potential fellow Australians”, as these women typically go on to have healthy children. Indeed, some women who have a disabled child choose to stop having children or have fewer children than they would otherwise have had. So, paradoxically, limiting late abortion may be reducing the number of new fellow Australians.

Many politicians claim that abortion laws are working well, including both Victorian ex-Premier Steve Bracks20 and opposition leader Ted Baillieu.21 This is clearly wrong.


Current abortion laws have serious adverse consequences. Women are being denied both timely prenatal testing and abortion for fetal abnormality. Women are less likely to choose to have a child, or more children, if they are not confident that access is available to both appropriate prenatal testing and abortion if a major abnormality is found. Governments wishing to encourage women to have children must take away barriers; they must clarify uncertain abortion laws. The best solution is the ACT model — to have no abortion laws within the Crimes Act.

Current practice is unfair and discriminatory. Access to prenatal testing and termination of pregnancy depends not on maternal or fetal considerations, but on where a woman happens to receive care, her personal resources, and the values and attitudes of the doctor, institution or ethics committee into whose hands she happens to fall. Women may be denied care to which they are legally entitled. There are inconsistent approaches to fetal moral status in obstetrics and paediatrics, with preterm infants being allowed to die but abortions being forbidden at the same gestation. This is indefensible.

Women wanting to have a baby deserve better. We need a more consistent approach to early human life, and we should move on from the current fear and uncertainty. We have the means to give many couples planning a family the opportunity to have healthy children, and less chance of children living short lives filled with suffering.

We have not attempted here to settle the ethics of abortion or late abortion. We have argued elsewhere that late abortion should be permitted.1,23 Doctors and ethics committees should explicitly present their values and moral arguments to their patients.24,25 Here, we have been concerned with the need to clarify what pregnant women are lawfully entitled to. At the end of ethical dialogue, if a woman requests an abortion, and she is legally entitled to it, she should receive it. If it is unlawful, it should not be offered. Current legal uncertainty results in care that compromises women and their families, and is discriminatory and inconsistent.

Some express the fear that clarification of the law may result in more restrictive laws. When 80% of Australians agree with a woman’s right to choose an abortion,26 and this proportion is likely to be even higher when there is a major fetal abnormality, this seems unlikely.

  • Lachlan J de Crespigny1,2
  • Julian Savulescu3

  • 1 Department of Obstetrics and Gynaecology, University of Melbourne, Melbourne, VIC.
  • 2 Murdoch Childrens Research Institute, Melbourne, VIC.
  • 3 Oxford Uehiro Centre for Practical Ethics, University of Oxford, Oxford, UK.



We wish to acknowledge the obstetricians who kindly took the time to complete the survey.

Competing interests:

None identified.

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