Protect babies born alive - Dr Joanna Howe

Protect babies born alive

In Australia there is no national law protecting babies born alive after a failed abortion. This means these babies have no legal rights and in some cases are left to die without any medical care.

Although the intention of an abortion is to end the life of an in-utero baby, there are occasions when a baby is born alive. Signs of life in a baby which may be present following a failed abortion include the presence of a heartbeat, breathing and crying. 

How many babies are born alive following an abortion in Australia?

As data reporting requirements on abortion varies between states and territories, there is only limited publicly released information about when babies are born alive following an abortion. From this information and from media reports we know of the following babies born alive and left to die:

  • 31 in Western Australia
  • 328 in Queensland
  • 396 in Victoria
  • 54 in South Australia
  • 1 in NSW
  • 1 in the Northern Territory

These numbers are significantly less the overall number of babies born alive following a failed abortion, given that only Queensland and Victoria publicly release fulsome data on babies born alive following a failed abortion. In the other jurisdictions, we only have an incomplete and anecdotal picture of the extent of babies born alive and left to die following an abortion. 

How are babies born alive following an abortion?

There is some uncertainty about how babies are born alive following a medical intervention which is intended to kill them. One known example of how this occurs is when a baby is born alive following the induction of labour without feticide. Feticide is where specific interventions occur to ensure the death of a child in-utero prior to being delivered vaginally through labour.

How long do babies survive for after a failed abortion?

In 2018, a study reported in the Journal of Obstetrics and Gynecology reviewed 241 late-term abortions without feticide on babies between 20-24 weeks gestation and found that more than half the babies were born alive, with a median time of survival of 32 minutes and one baby surviving for over four hours (267 minutes).

What happens to babies who are born alive after a failed abortion?

Although there is very little information about what happens to babies who are born alive following an abortion, a Northern Territory Coroner’s report into the death of baby Jessica Jane provides insight into what occurs. 

In this case, Jessica Jane was born alive and placed on a metal kidney dish in an empty room for approximately 80 minutes until she died. According to Nurse Williams who delivered her, Jessica Jane, although premature, was apparently healthy, had no apparent abnormalities and her vital signs were relatively good. Nurse Williams weighed the baby and she was 515 grams. She called the doctor who had authorised the abortion to inform him of the live birth and that the baby’s Agpar scores were strong. According to the Coroner, the doctor’s only response was to say ‘so?’ and then he abruptly hung up the phone on her. He gave no instructions to give the baby medical care, and the baby was left to die where she lay. She checked on Jessica Jane every 10-15 minutes and observed crying and movement. According to the Coroner’s report ‘after about an hour her heartbeat and breathing slowed until death at 0405 hours’. Nurse Williams informed the Coroner, ‘I desperately wanted to do more, but felt my hands were tied’.

In the Coroner’s judgment, reference is made to another case of a baby born alive following an abortion and left to die in in Sydney. Given the similarity between this case and media reports during the same time period of a baby born alive and left to die in Westmead Hospital, it seems likely that this reference is in relation an unnamed baby who was aborted and zipped into a medical bag whilst still breathing at Westmead Hospital following an abortion. The NSW Deputy State Coroner Janet Stevenson in that case criticised Westmead hospital staff for failing to care for the baby, stating:

There is a serious issue which arose as to the way in which the deceased was treated after signs of life were detected. Not the least of these being the non-acceptance by medical staff that they had a duty to treat the situation in a manner different than they did…There appears to have been a total abrogation of responsibility, let alone common humanity, on the part of those who should have born the burden of dealing with the child.

What role will a federal law have in protecting babies born alive following a failed abortion when abortion law is governed by the states and territories?

There is a pressing need for a federal law to give equal protection to babies born alive following an abortion given that there is no consistent regulatory approach across states and territories in Australia.

[1] Stephanie Springer et al, ‘Fetal Survival in Second-Trimester Termination of Pregnancy without Feticide’ (2018) 131(3) Obstetrics & Gynecology 575.
 [2]  ‘Apgar scores are clinical indictors of a baby’s condition shortly after birth. The score is based on 5 characteristics of the baby: skin colour, pulse, breathing, muscle tone and reflex irritability’, see Australian Institute of Health and Welfare, ‘Australia’s Mothers and Babies’ (Web page,14 December 2022) <https://www.aihw.gov.au/reports/mothers-babies/australias-mothers-babies/contents/baby-outcomes/apgar-score-at-5-minutes>. 
[3] Inquest into the death of Jessica Jane [2000] NTMC 37, [12] (10 April 2000).
[4] Andrew Bolt, ‘Ethicists Argue Case for Post-Birth Abortion, Too’, Perth Now (online, 5 March 2012) <https://www.perthnow.com.au/opinion/ethicists-argue-case-for-post-birth-abortion-too-ng-d30c192faf006f73dcdbfd9f85ec404e>.
[5] Inquest into the death of Jessica Jane [2000] NTMC 37, [29] (10 April 2000).
[6] Queensland Government, Queensland Clinical Guidelines: Termination of Pregnancy (2019) 24.

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We ask the federal parliament to pass the Human Rights (Children Born Alive Protection) Bill 2023 and to give a right to medical care to all babies born alive in Australia irrespective of the circumstances of their birth.

There should be national medical protocols put in place (by statute, regulation or otherwise) to govern the provision of medical care to newborn babies following an abortion. These should include, but not be limited to:

  • Ensuring that newborn babies are immediately assessed for gestational age and viability by a medical practitioner.
  • The provision of medical care should be based on a formal-equality principle. All newborn babies are entitled to equal treatment under the law. The basis for this equality principle is that a newborn baby possesses independent human rights upon its separation from its mother. 

If the death is unavoidable, the baby must always be given palliative care, with proper attention given to pain relief and the emotional needs of the dying baby.

All babies born alive following an abortion who die in hospital after their birth are entitled to a birth certificate, death certificate and proper burial or cremation.