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April 12, 2004
This story is of ethical interest.
A pregnant woman walked into the emergency department of Melbourne's Royal Women's Hospital one day in late January, 2000. Leaning heavily on her husband, the 40-year-old was hysterical after learning that her unborn child suffered from the non-fatal abnormality, dwarfism. She begged staff on the ward to help her. She wanted her 32-week-old foetus aborted. She was adamant. If the hospital refused to help, she said she would kill herself. Or travel to Asia, where she believed she would find someone willing to perform the operation.
After the woman was examined and counselled over the next few days, staff, including a psychiatrist, a geneticist and an obstetrician, were convinced that if the pregnancy was not terminated, even at this late stage, the woman would commit suicide. A "foetal reduction" was carried out and the baby, a girl, was stillborn. Although the woman did not see the child, she named her Jessica.
Later-term abortion is performed in major obstetrics hospitals around the country in cases where serious foetal abnormality is present. In Jessica's case, the abnormality was not fatal; instead, the doctors' reasons for terminating were based on their overriding concern that the woman's life was at risk. The doctors raised the option of the woman continuing with the pregnancy and giving the child up for adoption. The couple rejected this. The woman had a history of mental illness and had attempted suicide several times in the past.
Though abortion is illegal in Victoria, 1969 Victorian Supreme Court ruling that permits abortion when there is a serious danger to the pregnant woman's physical and mental health. Yet the law is grey. The Victorian Crimes Act prevents a woman who is over 28 weeks pregnant – the point in gestation where the foetus is deemed "viable" – of "unlawfully" destroying a child that is capable of being born alive. It carries a maximum penalty of 15 years in prison.
There was an internal hospital inquiry into the case. It found there was some uncertainty in the diagnosis and that the woman's case notes were incomplete. The inquiry noted there was less clinical support for late termination of pregnancy, where there is some doubt about the diagnosis or where the foetal abnormality is less severe. The inquiry concluded the doctors acted in good faith, given the circumstances, and cleared them of any wrongdoing.
A a staff member referred the case to the hospital's adverse events committee. There were deep ethical concerns among some staff at the hospital and hospital management took the unusual step of going public. It suspended the three doctors involved and referred the case to the state coroner. The hospital said at the time it was unclear from the medical records whether a lethal injection had been administered to the baby before the birth was induced.
Two years ago, the state coroner's office ruled it did not have the jurisdiction to investigate the termination because the baby had been born dead, though the acting Victorian government solicitor provided advice to the coroner that his office did have jurisdiction over the case. However, the state coroner, Graeme Johnstone, agreed to release the woman's private medical records to Victorian National Party senator Julian McGauran, an anti-abortion politician, then sealed the file prohibiting anyone else from access.
Using information in the records, McGauran lodged a complaint with the Medical Practitioners Board of Victoria, accusing the doctors involved of malpractice. McGauran says the doctors broke the law by agreeing to terminate such an advanced pregnancy.
Victoria's Health Services Commissioner Beth Wilson is appalled by the coroner's actions, saying the files should never have been released. The Medical Practitioners Board of Victoria was deeply divided over whether to launch an inquiry. It determined it didn't have a legal basis to refuse. The board was forced to seek a search warrant after the Royal Women's Hospital refused to hand over the files, citing patient confidentiality. The hospital opposed the order and it is on that issue that the court will rule at the end of April.
In response to claims that his complaint Medical Practitioners Board of Victoria was politically motivated McGauran says that:
"I am trying to draw a legal distinction between early- and late-term abortion. I know I don't have the public's support on early termination but I don't believe the community wants abortions at 32 weeks and no institution should allow distressed patients on the edge of suicide to dictate medical practice or ethics."
According to University of Melbourne medical law specialist Professor Leone Skene, it is clear that it is sometimes lawful to terminate a pregnancy even when it is also clear the baby could have been born alive. She adds that the law has never been tested. We do need clarification on when late-term abortion can be performed. We don't know what circumstances constitute 'unlawful'.
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