CHAPTER 15 Reproductive health

15.1 Legal status of reproductive materials and embryos

[15.1.1] What is the legal status of gametic material, such as sperm, ova and frozen embryos?

Gametic material, like other forms of human tissue, is a res nullius, a ‘thing belonging to no-one’: see [12.1.2]. The question of whether sperm and ova are property has not been directly addressed in Australia, but following from general principles it is reasonable to presume that a person does not own their gametic material because it cannot be considered as property. The only exception to this is where such material has been changed by some process of labour.

However, most jurisdictions recognise that reproductive material can only be collected, stored and used with consent. While this does not recognise a property right, it does serve to give some form of control over such material.

[15.1.2] What is the legal status of embryos in the womb?

Embryos in the womb, while being recognised as human and alive, are not recognised as legal persons. Legal personality is only bestowed on children who are born alive. This is known as the born alive rule. The rule is satisfied by any indicia of life, such as breathing, coughing or sneezing, a pulse in the umbilical cord, or movement of the body or lips. The child can be considered alive and still be attached to the mother by the umbilical cord.

Before being born alive a fetus has no legal rights, and for the most part is treated as being part of the mother’s body. If an embryo is injured and dies in utero, the injury is deemed an injury to the mother. However, if the embryo is born alive but later suffers from the injury, the child can sue the person responsible for the prenatal injury in tort: see [15.5.1]. If the child is born alive but later dies from the prenatal injury, the Crown may bring a prosecution of homicide against the responsible person.

Case examples

In X and Y v Pal (1991) 23 NSWLR 26, a specialist obstetrician and gynaecologist was found to be negligent for not testing his pregnant patient for syphilis. The duty of care was extended to the unborn child, and the doctor was also liable for the child’s congenital syphilis. Mahoney JA said (at 30):

In my opinion there is no difficulty in this regard from the fact merely that the act or default occurred before the plaintiff was born. If A is negligent in building a building and five years later it falls down, A is liable not only to those who were born when the building was built but also to those who have been born since the building was built. … Liability in negligence does not depend upon the defendant being able, when the act or default occurred, to identify the person ultimately injured. It is sufficient, at the least, that he can identify a class of persons apt to be injured and that the plaintiff is, in the event, of that class.

A further claim by the child for her mental and physical disabilities failed because there was not sufficient proof that those disabilities had been caused by the congenital syphilis.

R v King (2003) 59 NSWLR 472 concerned the father of an unborn child who attacked the mother after she refused to have an abortion. The father’s intention was to cause a miscarriage. The child was not born alive. The court accepted that the fetus was part of the mother’s body for the purpose of the law of assault occasioning grievous bodily harm, so that its death was an assault on the mother.

R v F (1993) 40 NSWLR 245 concerned a child who was born prematurely and died after its mother was involved in a car accident caused by the defendant. The issue for the court was whether the child was a ‘person’ within the meaning of s 52A of the Crimes Act 1900 (NSW), which deals with death caused by impact with a motor vehicle. Grove J stated (at 247):

As observed by the learned trial judge the common law has long recognised that where an unborn child receives injuries, is born alive but dies of those antenatal injuries, the perpetrator may suffer criminal liability for homicide: R v Senior (1832) 1 Mood CC 346; 168 ER 1798; R v West (1848) 2 Cox CC 500. In New South Wales the definition of murder in s 18 of the Crimes Act refers to ‘intent to kill or inflict grievous bodily harm on some person’, and there is no reason to hold that the common law principle as to liability would not continue to apply. Legislation of provisions such as those penalizing procuration of miscarriage (Crimes Act, s 83) do not purport to nor operate so as to abrogate it. An offender may be convicted of the murder or manslaughter of a ‘person’ being an unborn infant at the time of the felonious act causing death and it can be noted that one arraigned for those crimes may by express provision (s 52A(5)) be convicted of an offence under s 52A.

15.2 Abortion

[15.2.1] What is the legal definition of abortion at common law?

Legally, abortion is the act of procuring a miscarriage, either with an instrument or with a drug. While there is controversy over its legal history, abortion has long been regarded as a crime at common law, particularly after ‘quickening’, when the movement of the fetus becomes perceptible to the pregnant woman. It is also an offence in most jurisdictions for a woman to perform an abortion on herself, or for a person to supply the means for procuring miscarriages.

The defence of necessity (see [6.4.1]) applies to abortion, so that an abortion can be provided at common law if it is necessary to prevent harm to the woman’s physical or mental health. Such abortions are referred to as lawful abortions, in contrast with unlawful abortions.

Case examples

In R v Davidson [1969] VR 667, an abortion was said to be unlawful if either:

the accused [the doctor] did not honestly believe on reasonable grounds that the act done by him was necessary to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail; or… the accused did not honestly believe on reasonable grounds that the act done by him was in the circumstances proportionate to the need to preserve the woman from a serious danger to her life or her physical or mental health (not being merely the normal dangers of pregnancy and childbirth) which the continuance of the pregnancy would entail.

In R v Wald (1971) 3 DCR (NSW) 25, Levine DCJ accepted the test set out in Davidson and stated further that:

it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health [29].

In R v Sood [2006] NSWSC 1141, the accused was a doctor who was asked to perform an abortion on a woman who was pregnant with a child of between 22 and 24 weeks’ gestation. Dr Sood quoted a fee of $1800 for the procedure, and told the patient that longer and heavier bleeding were the only likely complications. She did not carry out a physical examination, or discuss alternatives to termination, or inquire about the patient’s reasons for wanting an abortion.

At a later appointment Dr Sood inserted a prostaglandin tablet into the patient’s vagina, gave her two more tablets, charged her $500 (she could only pay $400 at the time), and instructed her to take the tablets orally and return the next day for the procedure with the balance of the money. That evening the patient went into labour, and gave birth to the child in the toilet the following morning. There was conflicting evidence as to whether the child was born alive.

Dr Sood was convicted of using a drug to unlawfully procure a miscarriage. She was also charged with the manslaughter of the child, but was acquitted, presumably because of the difficulty of establishing whether the child was born alive. Simpson J stated:

Unlawfulness is thus established if the Crown proves, beyond reasonable doubt, one or more of the following: (i) that the accused person did not honestly and genuinely hold the requisite belief (ie that termination of pregnancy was necessary in order to protect the mother from serious danger to her life or health, whether physical or mental); or (ii) that, if and to the extent that, such a belief were held, it was not based upon reasonable grounds; or (iii) that a reasonable person in the position of the accused would have considered that the risk of termination was out of proportion to the risk to the mother of the continuation of the pregnancy [17].

This formulation is at odds with the formulation in Davidson and Wald, as it makes the test of proportionality objective rather than subjective by considering what a reasonable person would have considered regarding the balance of risks.

Dr Sood’s conviction arose primarily because she failed to make the proper inquiries that could have satisfied her about the need for the abortion. The judge stated that, had she made those inquiries, she may well have formed a reasonable belief about risk and proceeded to lawfully terminate the pregnancy.