
Professor Katina D'Onise AM, 27 September 2024
The Bill, introduced to parliament this week, calls for a ban on abortion after 27 weeks and 6 days by requiring that the pregnancy is induced and not terminated; rather it is a forced birth at gestations as early as 28 weeks.
There are a number of references made in the media and in the second reading speech that warrant factual, scientific clarification. I have outlined these below.
What are the health consequences of a premature delivery at 28 weeks?
A large study published in a scientific research journal presented findings for a range of health sequalae of premature delivery. It specifically reported on outcomes for births at 28 weeks gestation, referred to as “very preterm”, and found (1):
· 2% died
· 22% had a major health concern (for example, significant brain bleed, seizures, lung disease)
· 74% had a minor health concern (for example, less significant brain bleed, less significant bowel damage from necrotising enterocolitis)
· 2.6% of the cohort survived without any of the examined health problems
· More than 50% required caesarean delivery
· Length of hospital stay was 58 days on average.
Babies born at 28 weeks will generally require admission to a neonatal intensive care unit (NICU) for varying lengths of time. There are a fixed number of NICU beds which can frequently be at capacity. Admission of an infant to NICU due to enforced prematurity would increase the workload of NICU unnecessarily.
A substantial proportion of preterm infants with both major and minor health concerns will require ongoing health services in their childhood (including frequent hospitalisation), and for some this extra need persists into adulthood.
For the pregnant person, there can be complications relating to the birth at 28 weeks. Caesarean delivery at 28 weeks can often be more complex and carry significant risks for the mother for that delivery, but also for any future pregnancy.
Long term, adult sequelae of very preterm birth are (2):
· On average reduced IQ of over 10 points, along with reduced academic achievement, which does not appear to “catch up” over time
· Increased risk of ADHD, Autism Spectrum Disorder and Cerebral Palsy
· Lower educational qualifications, lower employment rates, greater receipt of social benefits than adults who were born at term.
(1) Manuck TA, Rice MM, Bailit JL, et al. Preterm neonatal morbidity and mortality by gestational age: a contemporary cohort. Am J Obstet Gynecol. 2016 Jul;215(1):103.e1-103.e14.
(2) Wolke D, Johnson S, Mendonça M. The Life Course Consequences of Very Preterm Birth. Annu Rev Dev Psych, 2019:1;69-92.
Further note about prematurity
There is clear evidence that the health issues of prematurity improve sequentially as the pregnancy is closer to full term. This has led to a program of work across Australia called “Every week counts” which works to inform pregnant people and health care professionals about the need to not intervene to deliver prior to 39 weeks if it is not medically necessary. A research study found planned birth at less than 39 weeks was associated with elevated risk of poor child development at school age. This risk increased with increasing prematurity.
Bentley JP, Roberts CL, Bowen JR, et al. Planned Birth Before 39 Weeks and Child Development: A Population-Based Study. Pediatrics, 2016;138(6):e20162002.
How many pregnancies were terminated after 22 weeks plus 6 days?
*Sourced from the public Abortion Reports on the Preventive Health SA website.
Since the new legislation there have been 57 terminations of pregnancy over the gestational age of 22 weeks plus 6 days. These are broken down into 45 for the physical or mental health of pregnant person and 12 for fetal anomaly. Media reports from SA Health indicate that less than 5 terminations of pregnancy occurred in the 28th week of gestation, and none from 29 weeks onwards (not verified).
There are no publicly available data to directly compare these cases with previous cases under the Criminal Law Consolidation Act.
Consent and medical care
There are a range of state and national laws and policies that proscribe acceptable conduct from health care professionals. A key component of these is the need for health care providers to seek informed consent for any health care intervention. This is clear in the Code of Conduct under section 39 of the Health Practitioner Regulation National Law.
The relevant provider in the context of later term abortion are medical doctors, who can only maintain accreditation if they comply with the code of conduct, among other regulatory requirements. It would be anathema to accepted medical practice to force an intervention on any person in the manner described by the proposed Bill.
Process to reform the Criminal Law Consolidation Act
In February 2019 the South Australian Law Reform Institute (SALRI) was asked by the then Attorney General Hon Vickie Chapman MP to “inquire into and report in relation to the topic of abortion, with the aim of modernising the law in South Australia and adopting best practice reforms. SALRI was requested to undertake proper investigation and provide recommendations for reform based on best clinical practice in this area and taking guidance from other jurisdictions in considering the most suitable way to achieve proper reform of abortion laws in South Australia”. (3)
The review included review of over 3000 online submissions to the review, and extensive, multi-disciplinary research. Expert and community views were gathered using different methods as below:
· Expert forums including legal, health care, faith groups, disability sector, NGOs, in Adelaide and some regional locations
· YourSAy to seek community views, including 2885 online responses
· Submissions from 340 individuals, agencies or interested parties.
There were 66 recommendations, with the majority accepted. The Bill was debated, with some amendments in 2021, passing with 29 votes to 15. The Termination of Pregnancy Act 2021 was assented to by Parliament on 11 March 2021 and was commenced on 7 July 2022. The associated Termination of Pregnancy Regulations 2022 also commenced on 7 July 2022.
(3) Williams J, Plater D, Brunacci A, et al. Abortion: A Review of South Australian Law and Practice. South Australian Law Reform Institute, Adelaide, 2019.
Meaning of “Termination of pregnancy”
While there is discussion by the proponents of the Bill about use of the term “termination of pregnancy” to refer to ending a pregnancy but not with fetal demise is incorrect and in contrary to the usual meaning. Termination of pregnancy is a medical, technical term which is used interchangeably with the term (induced) abortion.
What circumstances lead to a later term termination of pregnancy?
Later presentation for consideration of a termination is rare in South Australia. The circumstances that lead to this are difficult and often complex.
In the process of the 2021 reform there was substantial discussion about the delay in fetal anomaly diagnoses that can occur, with diagnoses made after 23 weeks. Prior to the law reform these cases rushed to make a decision prior to 23 weeks, often times without all of the necessary information to make that very serious and traumatic decision.
A range of scenarios can lead to later presentation. These can include the pregnant person being a child and unaware of the pregnancy until it becomes physically apparent to others. Intellectual disability or severe, untreated mental illness such as psychosis can also lead to being unaware of the pregnancy. Significant drug or alcohol addiction and misuse can also lead to an inability to present early with an unwanted pregnancy. Other contributing factors such as domestic violence with reproductive coercion, homelessness, significant poverty can contribute to later presentation. Some serious health problems in the fetus only occur or can only be recognised after 23 weeks gestation, for example a fetal brain haemorrhage.
These scenarios were debated at length in parliament, with particular focus on why a pregnant person or child might need to access later abortion care for complex reasons relating to their physical or mental health. For example, taken from Hansard 17 February (p4396-7), House of Assembly in relation to a 13-year-old girl, and spoken by the Hon. Vickie Chapman:
“One of the scenarios was introduced by the Hon. Connie Bonaros in the debates in the other place, but it is a very telling one. It is a very real example of what happens in the real world, which most of us are completely protected from. She described a young girl with an intellectual disability who had been sexually abused by a family member and fell pregnant. As a result of her intellectual disability, she was unable to appreciate or understand her pregnancy until she was in a late gestational stage. When the situation became known, the girl was clear that she did not wish to proceed with her pregnancy and a late-term abortion was ultimately carried out. The severe and adverse effects on her, had she continued with the pregnancy, were noted as the reasons for this.”
Other examples, taken from Hansard 17 February (p4440), House of Assembly, provided by Dr Judith Dwyer, previous chief executive of Flinders Medical Centre, and spoken by Hon. Paula Luethen: “A mother of several children whose husband shot her non-fatally in the head. By the time she was physically and mentally well enough, and able to consent to non-emergency treatment, her pregnancy was in the second trimester.
A woman subjected to family violence against her and her young child, who was prevented from using contraception when her husband raped her. She managed to escape the situation with her child, but not before she was over the legal gestational limit in South Australia…”
Throughout the parliamentary debate, the Australian Medical Association and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists were consulted and provided advice and feedback on the legislation and proposed amendments. Their guidance was regularly referred to during the debate over the specific requirements for a termination of pregnancy after 22 weeks and 6 days.
For these reasons parliament did not legislate an upper gestational limit for termination of pregnancy, accepting that a range of circumstances which cannot be managed in advance or predicted will occur (albeit rarely) and that these cases may be medically appropriate for a termination of pregnancy.
Usual obstetric practice and induction
There are a multitude of reasons for an obstetrician to decide, along with the pregnant person, to induce an early delivery. This practice is part of a complex system which ensures high quality and ethical medical practice in Australia. For example, in addition to legislation which proscribes codes of conduct for doctors, there is also a formal system of training from medical school through to postgraduate specialist education, and ongoing professional development requirements. Doctors contribute to research which continues to grow the evidence for best practice, which in time is incorporated into usual care. Colleges produce guidance documents for areas of practice, as do other bodies such as the NHMRC. Doctors can currently make decisions about induction of labour (or not) based on their substantial expertise and ethical conduct, within a system that supports best practice.
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