This chapter focuses on the legal aspects of termination of pregnancy (abortion) in Australia and the issues of child destruction, concealment of birth and infanticide. Abortion may raise serious ethical questions for the doctor, consideration of which may be influenced by personal and religious beliefs. This chapter does not attempt to address the complex ethical, social and community considerations surrounding abortion but an extensive bibliography is provided.

ABORTION – HISTORICAL BACKGROUND

The criminal law relating to abortion in Australia varies from state to state. With the exception of the Australian Capital Territory, and more recently Victoria, procuring a miscarriage is a criminal offence to which there is a defence if certain criteria (see below) set by law are met. The law in the Australian states and the territories had its origin in British law where the Miscarriage of Women Act 1803 made it a capital offence for any person ‘unlawfully to administer any noxious and destructive substance or thing with intent to procure, the miscarriage of a woman “quick” with child’. Later the offence was extended to include the period prior to quickening.

The law of abortion protected the fetus in utero and the law of homicide protected the infant after birth, but during the process of birth itself, the fetus did not have the protection of the criminal law. To fill this gap the Infant Life (Preservation) Act 1929 (UK) was passed to create the offence of ‘child destruction’.