In Abortion

The following is an extract of a speech given by the Hon Nick Goiran (Liberal MLC for South Metropolitan Region) on Wednesday 23 May 2012.

In the research I have undertaken in preparation for this evening, I have noted that Western Australia has, thanks to the support of successive governments for the good work done at KingEdwardMemorialHospital for Women, the best survival rates for prematurely born babies in Australia. Unlike some hospitals, King Edward is willing to provide full support for the resuscitation and treatment of premature babies born as early as 23 weeks gestation. …

However, there is a sad contrast at KingEdwardMemorialHospital between the excellent efforts made in relation to most premature babies and the response in relation to babies born alive following an abortion procedure. On 24 May last year, this house was informed that out of 14 babies born alive after an abortion procedure carried out between July 1999 and June 2010, not a single one was reported to have been given any treatment, and not a single one was resuscitated. As I commenced my remarks this evening, I implored members to consider a bipartisan approach to this issue, so in the spirit of that I want to commend Hon Ed Dermer for his persistence in asking a series of questions that have resulted in bringing this information to light. Of course the honourable member was present in this house in 1998 during the debate on the Acts Amendment (Abortion) Bill 1998, which legalised abortion in this state, including, subject to certain conditions and procedures, abortions performed at 20 weeks gestation or later. I am sure the honourable member will recall that during the 1998 debate, assurances were given to him and to the house by the then Attorney General, Hon Peter Foss, MLC, that in the event that a child was born alive following an attempted abortion, the full criminal law on homicide would apply, and it would apply from the point at which the child was delivered alive. The then Attorney General made reference, as I understand it, to the provisions of the Criminal Code dealing with homicide by those with the duty of providing the necessities of life, and whether they were failing to do so. I will quote from an extract of that particular debate, which is Hansard of 1 April 1998 at page 1205. Hon Ed Dermer asked the following question —

I would be grateful for the advice of the Attorney General. What is the legal status of a child who is delivered alive from an abortion procedure? We know that children born prematurely after 21 weeks can survive. That period of viability for a prematurely born child will get less and less as time goes on and technology advances. If the abortion procedure is not sufficiently violent there is every prospect of the child being delivered alive. I would like the Attorney General’s advice as to the status of that child. Is it a child because it is delivered alive in an insufficiently violent abortion procedure or is it because it was meant to be aborted by the abortionist that the child has no status even though it is delivered alive?

I did not have the privilege of being in the house in 1998, but what a most outstanding and excellent question to ask. The response by Hon Peter Foss was as follows —

… section 269 of the Criminal Code, … reads —

A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.

If as part of a process of termination of pregnancy the child is born, so that under section 269 it becomes a person, then it has all the consequences of being alive. If the member looks through the Act he will find that there are already provisions in it relating to how people can be held culpable for homicide where there is an omission. Not everyone is culpable, but some sections provide that some people are liable for not taking positive measures to prevent death, as opposed to being liable for negative measures taken to cause death.

Once the process of termination actually leads to birth, it does not matter when it occurs—it is a live person, and is treated as such by the law.

I would really ask for people to bear in mind the question asked by Hon Ed Dermer in 1998 and the answer provided at that time. I have to say that when I read the response in Hansard last year that these 14* babies had been born alive post an abortion procedure, that no medical treatment had been provided to them and that no attempt had been made to resuscitate them, I will be honest, I was horrified. My initial thought went back to the days of the Roman Empire when people who were dissatisfied with the so-called quality of their child or for whatever reason really did not want their child to be there, there was a wall, and people could leave the child there to be dealt with by the elements. It just struck me that surely to goodness it cannot be the case that in the twenty-first century in Perth, Western Australia, we could have the equivalent of that happening in our state; surely that could not be the case. …

I would like to commend Dwight Randall, President of the Coalition for the Defence of Human Life, Dr Lachlan Dunjey, a doctor with qualifications in obstetrics, and Dr Ted Watt, an academic with an interest in human rights, for their efforts to get the Ombudsman to investigate the deaths of the eight* children confirmed as having been born alive following an abortion procedure, which was carried out at greater than 20 weeks’ gestation, between 1999 and June 2010. These complainants asked the Ombudsman to investigate the following matters in relation to these eight deaths —

(a) Were any of these abortions approved for reasons other than a severe medical condition in the unborn child that was incompatible with life (for example were any of the abortions performed for trisomy 21, spina bifida, cleft palate and/or lip, dwarfism or similar non-lethal conditions)?

(b) Were any of the abortions performed at 23 weeks or later, that is at a stage in pregnancy when some premature babies survive if given appropriate treatment?

(c) How long after delivery did each of these children survive?

(d) Were post-mortem examinations conducted to determine whether the diagnosis of a severe medical condition which was determined by the ministerial panel to justify the abortion was in fact a correct diagnosis?

(e) If so, were there any cases where this diagnosis was found to be incorrect?

(f) In each case was the child after live birth given the same treatment and care that would have been given to a child born in the same condition and at the same gestational age other than as a result of an abortion authorised by the ministerial panel?

Notwithstanding that section 17(2) of the act under which the Ombudsman operates empowers the Ombudsman to investigate a complaint when the person has died if the complaint is made by an “individual suitable to represent him”, and that these complainants appear to be very suitable persons to represent the eight babies whose deaths are in question, the Ombudsman has declined to investigate this complaint.

A lot of avenues have been explored. My question is: who is going to speak for those who were never able to speak for themselves? It is a serious concern that babies who possibly could survive if given help are being denied that help because they have been born alive following an abortion at 20 weeks gestation, or later, approved by the secret panel.

In his letter to the standing committee, to which I have referred several times, the Minister for Health notes that, “where termination of pregnancy has been undertaken because the infant will die in any event, active resuscitation would be distressing to the parents and inappropriate for the infant”. My difficulty, and that of thousands of concerned members of the public, is that we do not know that each of the eight children confirmed by the minister to have been born alive after an abortion at greater than 20 weeks gestation, or later, had a lethal congenital abnormality. We do not know. Some of them may have been aborted because they were diagnosed as having a disability quite compatible with life, such as Down syndrome or spina bifida. With respect, it is simply intolerable that these deaths of live-born babies—Western Australians—are occurring and no-one is investigating and reporting on the circum-stances in which they occur, and on whether the deaths were preventable. In my view, we owe it to these little Western Australians, and to others who may face the same fate, to thoroughly investigate their deaths. …

I note that in an article by Anthony DeCeglie published in The Sunday Times of 1 April this year and headed “Could 14 babies be alive today?”, Hon Ed Dermer and Hon Kate Doust are reported as calling for an inquiry into the deaths of these babies born alive after abortion procedures, and into the hospital guidelines, which appear to have resulted in them dying following a failure to provide resuscitation or any other treatment. I support this call. …

*Of the 14 aborted babies born alive, only eight were older than 20 weeks and therefore capable of independent life. These eight became the focus of ongoing complaint and enquiry.

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