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Termination of pregnancy in the Northern Territory Rosalie Schultz
Royal Darwin Hospital, 1998
This is a review of the epidemiology and legal status of termination of pregnancy in the NT, prompted by the furore about this procedure in WA in early 1998. It also considers studies of community attitudes, strategies for prevention, and goals of law reform.
Local information is from documents from the NT Department of Health, Midwives Collection, parliamentary debates and legislation. Other information is from NHMRC and United Nations documents, and journals.
NT women of all ethnic groups undergo termination of pregnancy throughout their reproductive years. The largest age group of women undergoing termination of pregnancy is 20-24 years. The incidence of termination of pregnancy has been increasing since data collection commenced in 197 4. The current rate is 19.4 terminations per 100 pregnancies.
Termination of pregnancy was legalised in NT under certain conditions in 1974. The legislation is in the criminal law, and was not significantly altered when this law was revised in 1983.
Australians have a range of attitudes to termination of pregnancy. Different fo~ms of moral reasoning support different attitudes.
The goal of reducing the number of terminations of pregnancy reflects women's
preferences and convenience, as well as risks and costs. Strategies to reduce the number of terminations of pregnancy can aim to prevent unintended pregnancy and to support women to continue with unintended pregnancies.
The need for safe termination of pregnancy will persist for a number of reasons. Law reform should aim to reduce complications by ensuring that services are safe and
accessible, and delays minimised.
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would be of value to other THS staff and should be generally available in the the THS library and entered on to the THS library catalogue
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Introduction
Termination of pregnancy (TOP) was a topic of national public discussion in early 1998 following the arrest of two doctors in Western Australia for performing this procedure.
Eventually the Western Australian legislation governing TOP was revised and the charges against the doctors were dropped.
This affair stimulated me to review aspects of TOP in the Northern Territory (NT).
Terms of reference
1. Review the epidemiology of TOP in the NT.
2. Review the development of NT legislation regarding TOP, including both medical and surgical terminations.
3. Review the arguments about TOP and the legislation expressed by women, health-care providers and other community members.
4. Recommend amendments to the legislation, and strategies to reduce the incidence of TOP in the NT.
Procedure
My documentary sources of information were:
• Northern Territory Midwives' Collection publications
• Northern Territory Department of Health Annual Reports
• Australian Bureau of Statistics data
• Hansard parliamentary debates from the Northern Territory
• Northern Territory Criminal Law Consolidation Ordinance, 1974 and Northern Territory Criminal Code, 1983
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• National Health and Medical Research Council documents on services for the termination of pregnancy (Draft Review, NHMRC 1995 and Information Paper, NHMRC 1996)
• Department of Health and Family Services' Medical Rebates Schedule
• Public Health Association Policy on Abortion (Public Health Association 1997)
• United Nations Department of Economic and Social Development 1992 report, Abortions:
a global review.
Other sources were:
• Texts on public health law, obstetrics and ethics
• Journal, newspaper and magazine articles.
In the first two sections of the report, which describe the epidemiology and legislation of TOP, I have examined and presented documentary information.
The following two sections concern arguments about TOP and amendments to the legislation. They seek to integrate statistics, parliamentary debate, obstetric texts and literature on moral issues.
I have explored the aim of preventing TOP. Preventing TOP promotes the public health goal of "reducing the amount of disease, premature death, and disease-produced discomfort and disability in the population" (Last, 1988). My exploration considers reasons for opposition to TOP and its legislation, incidence rates of TOP in different countries, and strategies for preventing TOP. This leads to suggestions for law reform, and ways to prevent TOP under existing legislative arrangements.
Findings
1. Epidemiology of terminations of pregnancy in the Northern Territory 1.1 Recent data
Figure 1 shows the number of TOP's reported in the NT in 1995 by age group and
Aboriginality. Separate data for Aboriginal and non-Aboriginal women are available, but no other ethnic distinctions. A total of 876 TOP's were reported in 1995.
300
250
200
Nu~be~ of 150 termmat1ons
100
50
Figure 1. Terminations of pregnancy, NT, 1995
•Aboriginal women
llil Non-Aboriginal women
0 -
under 15-19 20-24 25-29 30-34 35-39 40 and not
15 o-.er known
Age group of women
Data: d'Espaignet, Woods and Measey, 1997.
Psychological reasons were given for 83% of these TOP's. Maternal medical reasons accounted for 17%, and less than 1 % of TO P's were for reasons related to the foetus
( d'Espaignet, Woods and Measey, 1997). 92% of TO P's were reported to have been
performed before twelve weeks of gestation (d'Espaignet, Woods and Measey, 1997).
There are few reports of complications of TOP. Three complications in 852 terminations were reported to have occurred in 1994 (Markey, McComb and Woods, 1996). The report of 1995 data by d'Espaignet, Woods and Measey (1997) did not mention complications. No deaths have resulted from TOP in the NT since the procedure was legalised in 1973 (Northern Territory Department of Health, 1975 to 1979; NHMRC, 1996).
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The incidence of TOP can be measured as the number of TOP's per 1000 women per year.
In 1995, the data showed an incidence of 20.2 TOP's per 1000 non-Aboriginal women, and 7.8 TOP's per 1000 Aboriginal women. The age-specific incidence rates of TOP are shown in Table 1.
Table 1. Northern Territory age specific incidence rates of termination of pregnancy, per 1000 women, 1995.
Age group Non-Aboriginal women Aboriginal women
under15 0.2 0.7
15-19 34.9 11.2
20-24 47.8 19.9
25-29 31.0 9.7
30-34 16.1 4.6
35-39 10.3 3.3
40 and over 3.0 0.8
Data: d'Espaignet, Woods and Measey, 1997.
The incidence of TOP can also be expressed as the termination ratio. This is the number of TOP's as a percentage of births plus TOP's. The denominator of the termination ratio does not include spontaneous miscarriages, so the value is greater than the actual proportion of pregnancies which end in TOP.
The termination ratio for non-Aboriginal women in the NT is highest at the beginning and end of their reproductive years, when all pregnancies may be terminated (d'Espaignet, Woods and Measey, 1997). The data from 1995 showed that the ratio was at its lowest of 14.0 per 100 pregnancies for non-Aboriginal women in the 30-34 year age group. The termination ratio for Aboriginal women was more constant throughout the reproductive years, ranging from 5.0 to 11.9 terminations per 100 pregnancies. In every age group the termination ratio was lower for Aboriginal than non-Aboriginal women (d'Espaignet, Woods and Measey, 1997).
The cumulative lifetime incidence of TOP is the number of TOP's experienced by women during their reproductive lifetimes. The 1995 NT data show a lifetime incidence of 735 TOP's per 1000 non-Aboriginal women, and 252 per 1000 Aboriginal women.
Some women travel to undergo TOP. They may seek to go where they will not be recognised, or to a different state where there are the different legislative arrangements.
There are no published estimates of the number of women who undergo TOP away from their home state. Women travel out of the NT to other states to undergo TOP (NHMRC, 1996).
1.2 Changes since legalisation
Since the procedure was legalised in 1973 there has been an increase in the reported termination ratios for both Aboriginal and non-Aboriginal women as shown in Figure 2.
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20
15
5
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Figure 2. Terminations of pregnancy per 100 pregnancies, NT, 1974-1995
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-+--Non-Aboriginal women -11-All women
--.fr-Aboriginal women
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Year
Data: Northern Territory Department of Health, 1975 to 1986;
Markey, McComb and Woods, 1996;
d'Espaignet, Woods and Measey, 1997.
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There is no evidence that illegal TOP's still occur in Australia (NHMRC, 1996). However in the NT there is no requirement for reporting of TOP's so reports may be incomplete.
2. Development of legislation concerning termination of pregnancy in the Northern Territory
2.1 Development of legislative arrangements for surgical termination of pregnancy 2.1.1 Background
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Australian legislation regarding TOP ("abortion") was derived from English law. The 1861 English Offences Against the Person Act established the offence of unlawful procurement of abortion. Previous English law had also prohibited "unlawful" abortion. As only unlawful abortion was prohibited, it may be that some abortion has always been regarded as acceptable (NHMRC, 1996).
In 1970 the World Medical Association adopted a declaration that approved the termination of pregnancy when the procedure was endorsed by two doctors and performed on medical premises (Northern Territory Legislative Council, 1973, p 439). Termination of pregnancy was legalised in England in 1967 and in South Australia in 1970 (NHMRC, 1996).
2.1.2 Northern Territory Legislative Council debate
The Bill for legalisation of TOP in the NT was proposed in April 1973 by the only woman in the NT parliament at the time, Lawrie, the Member for Nightcliff. In introducing the Bill she emphasised that the legislation would make little difference to the practice of termination of pregnancy. However it would protect doctors who carried out the procedure in order to protect the life of a woman. Lawrie insisted that the legislation did not allow for abortion on demand, since the procedure was at the discretion of the "medical and ethical opinions of two doctors" (Northern Territory Legislative Council, 1973, p 440).
A major concern of opponents of the Bill was the large numbers of women who would make use of it. One of Lawrie's opponents stated that doctors in England and South Australia had been "swamped with abortions" (p 678). Lawrie replied that the purpose of the Bill was to make illegal abortions currently being performed legal and that there should be no increase in number. "Legislation does not cause abortion" (Northern Territory Legislative Council, 1973, p 696).
The gestation periods at which TOP was to be legal were discussed. Withnall, Member for Port Darwin, stated that most foetal abnormalities could be detected at 14 weeks, but the foetus was definitely not viable. For prevention of grave injury to the woman the parliament determined that TOP should be permitted at up to 23 weeks of gestation. This was
considered to be the gestation at which the foetus may be viable (Northern Territory Legislative Council, 1973, p 689).
The parliament discussed the need for a statutory requirement for collection of data on the numbers and complications of TOP's. There was concern that the data on TOP's would be treated with other data related to criminal legislation. However the Minister for Health assured his parliamentary colleagues that data on TOP would be collected and managed appropriately without a legislative requirement for data collection (Northern Territory Legislative Council, 1973, p 740).
Following consideration and debate on the Bill lasting four months, the parliament assented to the legislation on 3rct April 197 4.
2.1.3 Northern Territory legislation
The legislation established that medical treatment with the intent to procure miscarriage was not unlawful in three conditions. These were where:
• two medical practitioners, one of whom was an obstetrician or gynaecologist, believed either that pregnancy would involve greater risk of injury to a woman's physical or mental health than termination of the pregnancy or that there was a substantial risk that the child would be seriously handicapped and;
• the pregnancy was believed to be not more than 14 weeks gestation.
Alternatively, TOP was not unlawful where:
• one medical practitioner believed that termination of pregnancy was immediately necessary to prevent grave injury to the physical or mental health of the woman and;
• the pregnancy was believed to be not more than 23 weeks gestation.
Further, TOP was not unlawful where:
• one medical practitioner believed that the treatment was necessary for the purpose of saving the life of the woman.
In all cases it was necessary for the procedure to be performed by an obstetrician or gynaecologist, and in a hospital.
"Consent" (but not specifically "informed consent") was required from all women except those "under the age of 16 years or otherwise incapable." For these women consent of those
"having authority in law" was required. The age of 16 was considered to be the age of
"economic viability and maturity, at which a girl has a better chance of knowing her mind definitely for the future" (Northern Territory Legislative Council, 1973, p 708).
The legislation stated that "no person was under a duty to participate [in any aspect of the procedure] to which he [sic] had a conscientious objection ... except where necessary to save life or prevent grave injury to a pregnant woman."
This legislation was not substantially adjusted for its establishment in the Northern Territory Criminal Code. The drafting style was altered, and the procedure was changed from being
"not unlawful" to being "lawful" in the situations described (Northern Territory Legislative Assembly, 1983, p 269). The Legislative Assembly assented to the Criminal Code on 4th October 1983.
2.2 Funding arrangements
Termination of pregnancy is performed under both public and private funding arrangements.
Northern Territory data showed that about 40% of TOP's were privately funded in 1990 (NHMRC, 1996).
The federal government subsidises private TOP's through Medicare, and has done so since 1973 (Petersen, 1997). The scheduled fee for the procedure is $162.80, and the 85%
Medicare rebate $138.40. Medicare does not cover theatre and hospital costs (Department of Health and Family Services, 1998). Private health insurance can cover some of these costs. A study in New South Wales showed that 15% of women who underwent TOP did not claim entitlements from Medicare (Adelson, Frommer and Weisberg, 1995).
Territory Health Services funds TOP's provided to public patients (NHMRC, 1996).
2.3 Medical termination of pregnancy
Mifepristone (RU486) is a progestogen antagonist that is used overseas for emergency contraception, as well as for termination of pregnancy up to nine weeks gestation. When administered with a prostaglandin it causes complete abortion in about 95% of cases, with a complication rate similar to other methods of TOP (Henshaw and Templeton, 1992).
Fifty Australian women participated in a multi-centre international trial of mifepristone in 1995. They were generally satisfied with the outcome (Mamers, Lavelle, Evans et al, 1997).
Since then the federal parliament has ruled in the Therapeutic Goods Act that mifepristone cannot be made available in Australia without ministerial approval, even for research purposes (McGregor, 1997).
3. Discussion of Northern Territory legislation for termination of pregnancy 3.1 Community attitudes to termination of pregnancy
A minority of Australians object to TOP and to legislation permitting TOP (Richters, 1996). A 1993 Morgan poll of 1410 Australians over 14 years of age found that 11 % disapproved of TOP when the procedure was performed for the mother's health, and 24% disapproved when the procedure was performed because the foetus was likely to be handicapped (Time,
18 Oct 1993, p 10).
Sociologists have examined the reasons for opposition to TOP. A study in the mid-1980's of 4500 Australians concluded that religion was the major source of opposition to TOP, in spite of the generally secular nature of Australian society. Religion promotes opposition to TOP through deductive, authoritative and consequentialist moral reasoning. Deductive moral reasoning leads to the argument that TOP is wrong because it violates the sanctity of life.
This was the strongest source of opposition to TOP in the study. Authoritative moral reasoning appeals directly to religious dogma. Adherence to traditional morality, whether associated with religious beliefs or not, promotes opposition to TOP through consequentialist moral reasoning. The consequentialist reasoning is that the prohibition of TOP will control sexuality or confine women to the home (Kelley, Evans and Headey, 1993).
Some opposition to TOP is on the basis of fears of complications or adverse effects on future fertility (Fisher and Buckingham, 1985).
Proponents of legislation permitting TOP emphasise the significant maternal morbidity and mortality that occur wherever TOP is illegal (NHMRC, 1996). Prior to the liberalisation of TOP legislation, illegal TOP was responsible for about one-quarter of maternal deaths in Australia (NHMRC, 1996). However, legal TOP has a low incidence of immediate or long-term
complications including adverse emotional or psychological reactions (NHMRC, 1996).
Extensive reviews in England have shown that no adverse effects on future child-bearing can be attributed to TOP (Frank, McNamee, Hannaford et al, 1991 ).
Opponents counter that legalisation of TOP encourages "hedonistic sexuality in which abortion replaces contraception" (Paintin, 1992).
Most people agree to the goal of preventing TOP.
3.2 International comparison
International comparison shows that the lowest incidence of TOP is reported in countries with the most liberal legislation. For example, abortion on request is available in the
Netherlands and Scotland. The cumulative lifetime incidences are respectively 155 and 255 TOP's per 1000 women in these countries, compared with 735 per 1000 non-Aboriginal women in the NT (NHMRC, 1996).
High incidences of TOP are documented where TOP is used as a means of contraception, irrespective of its legal status (United Nations Department of Economic and Social
Development, 1992).
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3.3 The goal of prevention of termination of pregnancy
I feel that avoiding the need for TOP is overwhelmingly preferable to undergoing TOP, in any circumstances, and no justification is required. Specifically, the goal of prevention of TOP reflects concerns for women's preferences and convenience, and the minimisation of risks and costs (NHMRC, 1996). Prevention of TOP is consistent with the goals of public health to the extent that TOP is a cause of disease, discomfort and disability, both physical and psychological.
Termination of pregnancy can be prevented in two distinct ways. Prevention of unintended pregnancy will clearly prevent the need for TOP. Also, support for women with unintended pregnancy to continue the pregnancy can reduce the incidence of TOP. Unintended pregnancy is not necessarily unwanted pregnancy (Paintin, 1992).
However, the need for TOP will continue because of:
• contraceptive failure
• pregnancy resulting from assault or coercion
• desire for TOP after diagnosis of foetal abnormalities
• maternal medical reasons
• personal or cultural acceptance of TOP as a means of contraception (Ryan and Ripper, 1993; NHMRC, 1996).
For evaluation of prevention programs as well as review of complications, accurate data are essential. A statutory requirement for the collection of such data in the NT would better ensure its completeness (NHMRC, 1996).
3.3.1 Prevention of unintended pregnancy
Unintended pregnancy probably accounts for about half of all pregnancies in Australia. This was the finding of Leeton in 1975, and Forrest in USA in 1994. I could find no recent
Australian studies.
Some of these unintended pregnancies may be preventable through education, and the provision of affordable and accessible contraception. Also, emergency or post-coital contraception is safe and can reduce the incidence of unintended pregnancy and TOP (Cayley, 1995).
3.3.2 Prevention of unwanted pregnancy
Unintended pregnancy need not be unwanted pregnancy. However, economic
circumstances favour the decision of some women to undergo TOP. Inadequate financial support and tax relief for child-rearing, loss of educational or employment opportunities because of pregnancy and child-rearing, and uncertainty about the availability of child- minding may all contribute to a decision to undergo TOP (Paintin, 1992).
3.4 Decision-making
Decision-making about TOP can be difficult and complicated. Issues that women may consider include readiness for parenting or further parenting responsibilities, the needs of existing children, the nature of the relationship with the sexual partner, economic and career implications, their physical health and moral concerns. Decisions about TOP are made by women, and not by doctors as the legislation suggests (Cannold, 1998; NHMRC, 1996).
The practice of TOP is guided by clinical concern of risks and benefits more than by the legal status of the procedure (Powell, 1996). Many providers of TOP in Australia do not terminate pregnancies over 12 weeks gestation and few will terminate pregnancies over 20 weeks.
The reasons for this are related to the increased risks of later TOP, and respect for community concern (Powell, 1996).
3.5 Criminal framework
Termination of pregnancy is the only medical procedure to be governed by a criminal code in Australia (NHMRC, 1996). Despite this, in the NT the procedure is regulated by medical authorities, and data are collected with other data on pregnancy and childbirth.
In Australia, TOP is carried out under different legal frameworks in different states and territories. The NT, South Australia and Western Australia have legalised the procedure under strictly defined conditions. These laws give doctors the final responsibility to decide whether the procedure is necessary. Women have argued that it is their role to decide whether child-bearing is appropriate for them at a particular time (Cannold, 1998). The need for medical approval of the decision to undergo TOP may be the reason that women from NT travel interstate to undergo TOP. This may entail delays and increased risks of complications (NHMRC, 1996). Not only some women, but also some doctors resent the gate-keeping role imposed on the medical profession by this legislation (NHMRC, 1996).
In New South Wales, Queensland, Victoria, Tasmania and the Australian Capital Territory the legality of TOP relies on judicial precedents (Petersen, 1997). Test cases have
established circumstances in which the procedure is not illegal. These include circumstances where the court considers TOP to be preferable for the physical and mental well-being of the woman, and where continuing pregnancy is undesirable in her social and economic
circumstances (NHMRC, 1996).
3.5.1 Restrictions on termination of pregnancy in the Northern Territory legislation Gestation: Many foetal anomalies are not diagnosed before 14 weeks gestation. However the diagnosis of foetal abnormalities was the reason for nominating 14 weeks as the maximal gestation period at which TOP was legal (Northern Territory Legislative Council, 1973, p 689). Routine screening ultrasound and amniocentesis for the detection of
abnormalities are performed at 16 to 20 weeks gestation (Cunningham, MacDonald, Gant et al, 1997). Thus the legal restriction of TOP to 14 weeks is paradoxical.
Foetal abnormality accounts for less than 1 % of TO P's in the NT ( d'Espaignet, Woods and Measey, 1997).
Specialists and hospitals: The procedure of TOP appeared to carry some risk in the early 1970's when TOP was legalised (Connon, 1971). The risk arose partly from the illegality of TOP (Ryan and Ripper, 1993). At the time, the perception of risk may have justified the requirement that TOP's be performed only by specialists in hospitals. However such
restrictions are no longer necessary. In other states of Australia, TOP's are performed safely and effectively by general practitioners in free-standing clinics. These clinics have dedicated staff and provide a safe and thorough service. They can offer a number of techniques as well as support services. Dedicated clinics also avoid contact between women undergoing TOP and staff who object to TOP (NHMRC, 1996).
Age of consent: The use of the age of sixteen as a determinant of whether a woman can consent to TOP is arbitrary. When the legislation was written in 1973 the age of sixteen years was considered to be the age at which women were economically independent and self-determining. Since then women may have been reaching sexual maturity earlier and economic independence later. Thus a uniform age of consent for TOP may be increasingly difficult to justify. No other Australian state has this requirement in its legislation regarding TOP. NSW requires guardian consent for women under 14 years of age (United Nations Department of Economic and Social Development, 1992).
4.1 Conclusion
Termination of pregnancy is a common procedure, which women choose to undergo for medical, social and economic reasons. It is safe when performed under appropriate conditions.
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The criminal legislation dealing with TOP reflects the history of the law, not inherent dangers of the procedure.
There is general community acceptance of TOP. Many resent the current legal requirement for medical approval for TOP. This leads some women to go elsewhere to undergo the procedure. Clinical concerns and community sentiment guide the practice of TOP, rather than the legislative framework.
Some data on TOP are collected in the NT. However there is no legal requirement for the collection of these data, as there is for the collection of data on other pregnancy outcomes.
The incidence of TOP in the NT is increasing. One important factor that influences the incidence of TOP is the incidence of unwanted pregnancy.
Programs to decrease the incidence of TOP should aim to prevent unintended pregnancy, and to support women with such pregnancy whose decision to undergo TOP would reflect lack of support.
4.2 Recommendations
4.2.1 Legislative reform of termination of pregnancy
Criminal legislation: Procedures for the termination of pregnancy should be regulated in the Health Act not the Criminal Code.
Restrictions: Restrictions on TOP should be minimised to reflect clinical practice and community sentiment. Alternative methods of TOP should be further evaluated.
Data collection: There should be a statutory requirement for collection of data on TOP as there is for other data on maternal and child health.
4.2.2 Prevention of termination of pregnancy
Unintended pregnancy: Research and development of strategies to reduce the incidence of unintended preg~ancy should be implemented.
Unwanted pregnancy: There should be an evaluation of policies and strategies to increase the level of support for pregnant women and child-rearing.
Acknowledgments
Thanks to Dr Ross Bailie who encouraged me with this proposal, and to Dr Rowena Ivers who acted as mentor. Special thanks to my mother for her unceasing inspiration and support.
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DD CYM
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