2014 Castan Human Rights Report: Reproductive rights still under threat

By Ronli Sifris

Decades after the fight for reproductive rights began in Australia, the issue is in the spotlight again because of three significant developments.

Report on Involuntary Sterilisation of People with Disabilities

Photo: Progress Ohio
Photo: Progress Ohio

Australia, together with many other countries, has a history of sterilising people with disabilities and intersex people. During 2012-13, the Senate Community Affairs Legislative Committee investigated the issue during two separate inquiries.

In a unique development for Australia, the Committee’s 2013 report on the sterilisation of people with a disability took the view that the traditionally accepted test, which considers whether sterilisation is in the “best interests” of the person concerned, is not the preferred approach. The Committee recommended that the test should be replaced with a “best protection of rights test” which requires a decision maker to take the course of action which best protects the individual rights of the person with the disability. According to Disability Discrimination Commissioner Graeme Innes, the Committee’s recommendations clearly ‘recognise the importance of using a human rights based framework when considering sterilisation’. However, whether the report in fact adequately protects the rights of persons with disability is contentious. For example, in its submission to the inquiry Women With Disabilities Australia recommended that Australia prohibit any sterilisation procedure performed without full free and informed consent except whether there is a threat to life.

As part of this same reference, in October 2013 the Committee released a second report relating to the involuntary or coerced sterilisation of intersex people in which it recognised the human rights issues inherent in ‘normalising’ surgery which is frequently performed on intersex infants and children.

Although the reports into sterilisation clearly represent a step forward, many stakeholders remain critical and it is unclear whether anything will actually be done to implement the recommendations.

Tasmania Decriminalises Abortion

Last year, Tasmania became the third Australian jurisdiction to decriminalise abortion, after the ACT in 2002 and Victoria in 2008. The new Tasmanian law (which commenced on 12 February 2014) removes the crime of abortion from the Criminal Code Act and introduces a new legal framework, regulating abortion as a health issue rather than a criminal law issue. The Tasmanian legislation allows ‘abortion on request’ up to 16 weeks’ gestation following which a pregnancy may be terminated if two medical practitioners agree ‘that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated’. In addition, the law imposes a duty to terminate a pregnancy where necessary to save the life of a pregnant woman. Like the Victorian legislation, the law also imposes a version of the ‘obligation to refer’ on doctors with a conscientious objection.

A particularly noteworthy component of the Tasmanian legislation concerns the introduction of ‘access zones’. This section prevents anti-choice protesters from harassing women within 150 metres of a clinic that provides abortion services. Though concerns have been expressed regarding the potential for conflict with the right to free speech, in light of the humiliation and distress frequently endured by women whose dignity and privacy is undermined when protestors endeavour to infringe on their reproductive autonomy, the introduction of such access zones is significant.

As I have noted elsewhere, ‘[t]he Tasmanian legislation represents a negotiated solution. Is it a flawless piece of legislation from a women’s rights perspective? No. Is it a giant leap forward and the continuation of a critical dialogue in the Australian community? Absolutely’. And while there may be some cause for concern regarding the 16 week gestation threshold for abortion on request and the requirement for the authorisation of two medical practitioners for abortion after 16 weeks gestation, other aspects of the legislation (particularly the introduction of “access zones”) represent a unique and positive step forward in the Australian context .

Zoe’s Law

On the same day as the Tasmanian Parliament passed its abortion law, the NSW Legislative Assembly voted in favour of Zoe’s law, a Bill that explicitly recognises the foetus as a person in certain circumstances. This Bill was introduced into parliament following a tragic situation in which a woman who was 32 weeks pregnant was hit by a motor vehicle while crossing the road; her foetus was destroyed as a result. NSW law currently conceptualises such harm as harm to the woman, not the foetus.

The object of Zoe’s law is to ‘amend the Crimes Act to recognise the separate existence of the foetus of a pregnant women that is of at least 20 weeks’ gestation (as a living person)’ for the purposes of certain offenses relating to ‘grievous bodily harm’. If Zoe’s law passes the Legislative Council and becomes law, it could potentially undermine access to abortion in that State as it raises the question of whether an entity can be a ‘person’ for one legal purpose but not another. It is interesting to note that a similar Bill was introduced into the South Australian Parliament in 2013 but failed to pass.

Conclusion

Issues relating to reproductive rights in Australia continue to grab the spotlight, creating a situation where progress on one front is frequently accompanied by regression on a different front, as was the case when Tasmania decriminalised abortion as Zoe’s Law was being introduced into the NSW Parliament.

This piece is featured in the 2014 Castan Human Rights Report. You can read the full report and download a pdf here

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Further reading

Senate Community Affairs Legislative Committee, Involuntary or coerced sterilisation of people with disabilities in Australia (July 2013)

Senate Community Affairs Legislative Committee, Involuntary or coerced sterilisation of intersex people in Australia (October 2013)

Graeme Innes, Sterilisation: ‘best interests’ test is inappropriate (18 July 2013)

Tania Penovic and Ronli Sifris, Submission to the Tasmanian Legislative Council, Committee Government Administration A,  Reproductive Health (Access to Terminations) Bill 2013

Parliament of Tasmania, Legislative Council Government Administration Committee “A”, Report on Reproductive Health (Access to Terminations) Bill 2013 (November 2013)

Reproductive Health (Access to Terminations) Act 2013 (Tas)

Ronli Sifris, ‘Tasmania Decriminalises Abortion’ New Matilda, 25 November 2013https://newmatilda.com/2013/11/25/tasmania-decriminalises-abortion

Crimes Amendment (Zoe’s Law) Bill 2013 (NSW)

Hannah Robert, ‘Why losing my daughter means I don’t support Zoe’s Law’ The Conversation (21 November 2013)

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