The Abortion Law Reform Act 2019 (Act) commenced on 2 October 2019. The Act amends the Crimes Act 1900 to repeal the provisions of that Act relating to termination of pregnancy and to abolish the common law offences relating to termination of pregnancy.
The Act:
A summary of the Abortion Law Reform Act 2019 (Act) is set out below.
The Act removes the offences relating to termination, being sections 82, 83 and 84, from the Crimes Act 1900. There is a new offence relating to an unqualified person performing a termination.
Under the Act, a medical practitioner may perform a termination on a woman who is not more than 22 weeks pregnant provided that informed consent has been given (unless, in an emergency, it is not practicable to obtain the patient’s informed consent).
Before performing a termination, a medical practitioner must assess whether it would be beneficial to discuss accessing counselling with the patient and if the practitioner assesses that it would be beneficial and the patient is interested in accessing counselling, provide all necessary information to the patient about access to counselling, including publicly-funded counselling.
Other medical practitioners, nurses, midwives, pharmacists or Aboriginal and Torres Strait Islander health practitioners can assist in the performance of the termination.
Practitioner must comply with any guidelines issued by the Health Secretary in relation to terminations.
Different provisions apply in relation to terminations at more than 22 weeks. Except in emergencies (being to save the patient’s life or the life of another foetus), such terminations can only be performed:
The specialist medical practitioner may request that the hospital or approved facility make available a hospital advisory committee or multi-disciplinary team to provide advice about the proposed termination.
Practitioners must comply with any guidelines issued by the Health Secretary in relation to terminations.
In addition, under the Act, except in emergencies, a specialist medical practitioner may perform a termination on a woman who is more than 22 weeks pregnant if:
A specialist medical practitioner under the Act is:
In an emergency, any medical practitioner can perform a termination on a woman without complying with the above requirements.
The NSW Parliament has opposed the performance of termination of pregnancy for the sole purpose of sex selection.
Under the Act, informed consent means consent that is given freely and voluntarily and in accordance with any guidelines applicable to the medical practitioner in relation to the performance of termination.
Under the Act, informed consent must be given by the woman or, if the woman lacks capacity, a person lawfully authorised to give consent on the woman’s behalf. It is noted that, unless it is an emergency, if a woman over 16 lacks capacity consent must be obtained from the Civil and Administrative Tribunal under the Guardianship Act for the performance of a termination.
The Act has specific provisions relating to practitioners who have a conscientious objection to termination. Under the Act, if a registered health practitioner has a conscientious objection to termination and is asked to perform, or assist in performing, a termination, the practitioner with a conscientious objection must advise the person who made the request of the practitioner’s conscientious objection to termination and, if requested to perform or provide advice about the performance of termination:
The Act codifies existing law in relation to a child born alive following a termination. The Act makes clear that there is a duty on a registered practitioners to provide any child born alive with medical care and treatment that is clinically safe and appropriate to the child’s medical condition.
The Act requires a medical practitioner who performs a termination to provide the Secretary with approved information about the termination. The information approved cannot include identifying information. The information will need to be provided to the Secretary within 28 days of the termination.
To comply with the Abortion Law Reform Act 2019, details of each termination of pregnancy must be submitted to the NSW Ministry of Health within 28 days via the secure online notification system
In rare circumstances where internet access is unavailable, a PDF notification form is permitted. To ensure the accuracy of the data, all fields must be completed. The form must be emailed or faxed to the NSW Ministry of Health at MOH-TOP-notifications@health.nsw.gov.au. Any enquiries can also be directed to this address.
The Secretary will be able to issue guidelines about the performance of terminations which practitioners performing terminations must have regard to. The current guidelines are contained in the NSW Framework for Termination of Pregnancy in NSW.