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Babies born alive after abortion in Australia: What is to be done?

Abortion law in Australia is largely a matter for the states and territories, all of which permit abortion without any conditions up to a specified gestational limit (16 weeks in Tasmania; 20 weeks in WA; 22 weeks in NSW and Queensland; 23 weeks in South Australia; 24 weeks in Victoria and the Northern Territory) and after that up to full term subject to specified reasons and additional procedural requirements. There is no gestational limit on unconditional abortion in the ACT.

Regardless of the gestational limit on abortion, all states and territories require the registration of the birth – including the stillbirth – of any child delivered at 20 weeks gestation or later, or if gestation is unknown weighing 400 grams or more. As a still-born child is defined to mean a child who “exhibits no sign of respiration or heartbeat, or other sign of life, after birth” any child which shows any sign of respiration or heartbeat or other of sign of life is legally a live born child.

If a baby is born alive at any gestational age – even before 20 weeks gestation - then the birth must be registered as well as the subsequent death if the baby dies.

Abortions performed in the second trimester or later by inducing premature delivery of the unborn child may result in a live birth. Of course, this is unlikely to happen in the case of feticide, where potassium chloride, or some similar poison, is injected directly into the baby’s heart to kill it prior to inducing delivery.

Practice in late term abortion methods varies between facilities around Australia. Where feticide is not routine there will inevitably be a significant number of live births from induced delivery abortions. In Victoria between 2009 and 2020, about one in five (437) of the 2294 abortions performed at 20 weeks for suspected or confirmed disability resulted in a live birth rather than a still birth.

Where a child is born alive following an abortion it could, depending on its gestational age, survive and flourish if given appropriate life-sustaining treatment.

The Lozier Institute has published a useful Fact Sheet on abortion survivors. AbortionSurvivors.org has connected with 643 abortion survivors internationally.

Decreasing age of viability

In November 2017 a case report was published in the journal, Pediatrics, on “a female infant resuscitated after delivery at 21 weeks’ 4 days’ gestation and 410 g birth weight” possibly the most premature known survivor to date.1

As of November 2018, Lyla Stensrud was 4 years old and happily attending preschool. She had a slight delay in speech, but no other known medical issues or disabilities.2

The authors of the article in Pediatrics, conclude “It is known that active intervention policies at 22 weeks’ gestation improves the outcome for those infants and it may be reasonable to infer that these benefits would extend, if to a lesser degree, into the 21st week. Ultimately, such limited data exist at this gestational age that the time may have arrived for obstetrical centers to begin systematically reporting fetal outcomes in the 21st week.

In 2019 the UK changed its guidelines on life-sustaining treatment for premature and now recommends that “Active Treatment may be considered from 22+0 weeks following risk assessment and parental discussions”. Subsequent to this change, and reflecting the international evidence on best practice, a shift in the reported lower threshold for resuscitation in the UK, with greater acceptance of active treatment for infants born at less than 23 weeks gestation by medical professionals in the UK has been reported.3

In Queensland guidelines currently state “Life sustaining interventions are not generally recommended” for babies born before 23 weeks gestation.

In Victoria, guidelines currently suggest that babies born before 22 weeks should not be given life-sustaining treatment; those born at 22 weeks given life-sustaining treatment only if the parents insist on it; those born at 23 weeks given life-sustaining treatment unless the parents refuse it; and those born at 24 weeks be given life-sustaining treatment in all cases except for particular adverse risks.4

Babies born alive after abortion in Australia

In Western Australia there have been 25 babies born alive after an abortion at 20 weeks gestation or later between 1998 and 2021, with at least six of these born at 26 weeks gestation or later, and at least one at 34 weeks gestation or later. There is no record of medical intervention or resuscitation in any of these cases.

In Queensland, between 2005 and 2020, 388 babies were born alive after abortions at 20 weeks gestation or later. The numbers each year increased after legalisation of abortion jumping from 29 in 2018 to 48 in 2019 and 41 in 2020. The official policy of Queensland Health is that “in such cases, life-saving care is not rendered to the baby after a decision to terminate is made and it is left to perish in the clinic.”

In Victoria there have been 438 babies born alive and left to die after abortions at 20 weeks gestation  or later between 2009 and 2020. Of the 342 abortions performed in Victoria in 2020 at 20 weeks gestation or later, 129 were for “maternal psychosocial indicators”, and 213 for “suspected or confirmed congenital abnormalities”, that is eugenic abortions of babies with a (possible) disability. Notably there is no reporting of any abortions at 20 weeks or later for maternal physical health. In 2020, 33 abortions were performed at 28 weeks or later, including 5 performed for “maternal psychosocial indicators”. 

In South Australia there is no published information on babies born alive after abortion. There were 97 abortions performed in 2021 There were 97 abortions performed at 20 weeks gestation or later, including 52 for suspected or confirmed disability. Disabilities for which an abortion was performed in 2020 included 3 for cleft lip/palate; 2 for spina bifida; 2 for Downs Syndrome; 1 for an intersex condition (Turner syndrome); and 1 for “forearm and hand abnormalities”.

In New South Wales, in the first year of legalised abortion between 1 October 2019 and 30 September 2020, there were 27 abortions performed between 20 and 22 weeks gestation and 38 performed after 22 weeks gestation. In 2020, there were 3 stillbirths following abortion for “maternal psychosocial indications” performed at 29 weeks gestation or later. There is no published information about babies born alive after an abortion.

What does the law require?

Under the law of each State and Territory, either the common law or statute law provides that once a child is born alive it becomes a legal person regardless of its gestational age. Any direct act performed after birth causing the death of the child is homicide.

Where someone owes a duty of care to another person the law makes it a homicide if the person dies because that care (such as nourishment or medical treatment was not provided by the person owing the duty.

Any registered health care provider present when a baby is born alive after abortion, and most likely also any medical practitioner responsible for performing the abortion whether present or not when the baby is born alive, owes the same duty of care to such a baby as to any other baby of the same gestational age and general condition born alive other than following an abortion.

Queensland Health’s approach of denying all life-sustaining treatment in such cases is probably unlawful.

In New South Wales, section 11 (3) of the Abortion Law Reform Act 2019 explicitly affirms that, “the duty owed by a registered health practitioner to provide medical care and treatment to a person born as a result of a termination is no different than the duty owed to provide medical care and treatment to a person born other than as a result of a termination”.

There is an identical provision in section 7 (3) of South Australia’s Termination of Pregnancy Act 2021.
The evidence suggests that in those States where we have any data there is a likelihood that babies born alive after abortion, who could have survived if given life-sustaining treatment, have been unlawfully denied that treatment. In these case the failed abortion has been completed, as it were, by homicide by neglect.

In these circumstances, the Commonwealth, as the signatory to the Convention on the Rights if the Child and to the International Covenant on Civil and Political Rights has not just the power but, indeed, the obligation to use that power, to ensure that all children born alive and able to benefit for  life-sustaining treatment are given that treatment, even if the death of the child before birth by abortion was intended but failed.

Human Rights (Children Born Alive Protection) Bill 2022

The Human Rights (Children Born Alive Protection) Bill 2022, currently before the Senate, was introduced by Queensland LNP Senator Matt Canavan who delivered the second reading speech on 30 November 2022.
The Bill is co-sponsored Senator Alex Antic (Liberal SA) and Senator Ralph Babet (UAP Victoria).

The Bill would reinforce the duty if care owed to a child born alive after an abortion by imposing a penalty of $550,000 on a heath practitioner who commits the offence of contravening a duty to provide medical care or treatment to children born alive, regardless of whether the child was born alive subsequent to an attempted abortion or otherwise.

Additionally the Bill would require reporting of all cases of babies born alive after an abortion; the gestational age of the child; “details of the medical care and treatment provided to the child after birth; and whether the child survived”.
These Senators are to be highly commended for their action on this matter of national shame.

On 9 February 2023 the Senate referred the Human Rights (Children Born Alive Protection) Bill 2022 to the Community Affairs Legislation Committee for inquiry and report by 1 July 2023.

Submissions closed on 10 March 2023. The submission from Right to Life Australia Inc can be read here.

1 KA Ahmad, “Two-Year Neurodevelopmental Outcome of an Infant Born at 21 Weeks’ 4 Days’ Gestation’, Pediatrics,  Nov 2017, read more.

2Daily Mail Australia - The most premature baby to EVER survive read more

3 Di Steffano, LM et al. “Viability and thresholds for treatment of extremely preterm infants: survey of UK neonatal professionals”, Archives of Disease in Childhood - Fetal and Neonatal Edition 2021;106:596-602, read more

4Safer Care Victoria -Extreme prematurity guideline read more