The Offence of Termination of Pregnancy by an Unqualified Person

Until late 2019, it was a crime in New South Wales for a woman to have an abortion, or for another to perform an abortion or supply a drug for use in an abortion.

These abortion offences were contained in sections 82 to 84 of the Crimes Act 1900 (NSW).

Section 82 of that Act made it an offence for a pregnant woman to unlawfully administer a drug or poison, or unlawfully use an instrument to procure a miscarriage.

Section 83 made it a crime for another person to intentionally cause a woman to suffer a miscarriage using unlawfully administered drugs, poison or instruments.

The maximum penalty for each of the offences was 10 years imprisonment.

And section 84 prescribed a maximum penalty of 5 years imprisonment for anyone to supply or procure a drug, poison or instrument with the knowledge that they may be used unlawfully to cause a miscarriage.

These offences were rarely prosecuted by police, as the 1971 case of R v Wald found that an abortion was permissible if there was an “economic, social or medical ground or reason” upon which a doctor could honestly and reasonably believe the procedure could avoid “serious danger to the pregnant woman’s life or her physical or mental health.”

That said, there have been a number of notable cases whereby women have faced court and been convicted of attempting to have an abortion in our state.

Abortion is no longer a crime

However on 26 September 2019, the Reproductive Health Care Reform Bill was passed by both houses of the New South Wales Parliament and became law on 2 October 2019.

The new law makes clear that terminating a pregnancy is no longer a crime in certain circumstances.

It makes a distinction between terminations before and after 22 weeks of pregnancy, providing that:

1. In the case of terminations before 22 weeks:

(1) A person who is a medical practitioner may perform a termination.

(2) The practitioner may perform the termination on the person only if the medical practitioner has obtained informed consent to the termination from:

(a) the person, or

(b) if the person lacks the capacity to give informed consent to the termination, a person lawfully authorised to give consent on the person’s behalf.

(3) However, subsection (2) does not apply if, in an emergency, it is not practicable to obtain the person’s informed consent.

2. In the case of terminations after 22 weeks:

A specialist medical practitioner may perform a termination if:

(1)(a) after considering the matters mentioned in subsection (3) and any advice received under subsection (4), considers that, in all the circumstances, there are sufficient grounds for the termination to be performed, and

(b) the specialist medical practitioner has consulted with another specialist medical practitioner who, after considering the matters mentioned in subsection (3), also considers that, in all the circumstances, there are sufficient grounds for the termination to be performed, and

(c) the specialist medical practitioner has obtained informed consent to the termination from: (i) the person, or

(ii) if the person lacks the capacity to give informed consent to the termination, a person lawfully authorised to give consent on the person’s behalf, and

(d) the termination is performed at:

(i) a hospital controlled by a statutory health organisation, or

(ii) an approved health facility.

(2) To remove any doubt, subsection (1)(d) does not require that any ancillary services necessary to support the performance of a termination be carried out only at the hospital or approved health facility at which the termination is, or is to be, performed.

(3) In considering whether a termination should be performed on a person under this section, a specialist medical practitioner must consider:

(a) all relevant medical circumstances, and

(b) the person’s current and future physical, psychological and social circumstances, and

(c) the professional standards and guidelines that apply to the specialist medical practitioner in relation to the performance of the termination.

(4) Without limiting subsection (3), the specialist medical practitioner may ask for advice about the proposed termination from a multi-disciplinary team or hospital advisory committee.

(5) In an emergency, a medical practitioner, whether or not a specialist medical practitioner, may perform a termination on a person who is more than 22 weeks pregnant, without acting under subsections (1) and (3), if the medical practitioner considers it necessary to perform the termination to:

(a) save the person’s life, or

(b) save another foetus.

New offence

While sections 83 and 84 of the Crimes Act have been repealed in their entirety, section 82 has been replaced by a new offence of ‘termination of pregnancy performed by an unqualified person’.

The new section 82 prescribes a maximum penalty of 7 years’ imprisonment for an ‘unqualified person’ to perform, or assist in the performance of, a termination of pregnancy.

Under section, an unqualified person is defines as follows:

• in relation to performing a termination, a person who is not a medical practitioner, or
• in relation to assisting in the performance of a termination, a person who is not authorised under section 8 of the Abortion Law Reform Act to so assist.

Section 8 allows nurses, midwives, pharmacists, Aboriginal and Torres Strait Islander health practitioners and other registered health practitioners prescribed by the regulations to assist in the performance of terminations.

‘Termination’ means an intentional termination of a pregnancy in any way, including by administering a drug or using an instrument or other thing.