Justice for the 45

The reason recorded for these 45 stillborn deaths is “the physical or mental health of the pregnant person”.[1]

In other words, the reason these 45 babies were killed does not pertain to health reasons that are life-threatening to the mother or fetal anomaly as these categories are recorded separately in the data.

In fact, close to 80% of late-term abortions after fetal viability are for a non-life-threatening physical or mental health reason. 

Below in Tables 6a and 6 from the annual SA Abortion Reporting Committee reports, the data on reasons for late-term abortion in South Australia between July 2022 and December 2023 are extracted.[2]

[1]   SA Abortion Reporting Committee Annual Report (2024) Table 6.

[2]   Government of South Australia, SA Abortion Reporting Committee Annual Report for the Year 2022 (2023) Table 6A; Government of South Australia, SA Abortion Reporting Committee Annual Report for the Year 2023 (2024) Table 6.

The abortion method used to kill babies who are viable is known as “feticide”. This is an intercardiac injection which causes the baby’s heart to stop beating. The mother is then given labour-inducing drugs and her baby is delivered stillborn through the induction of early labour.

Feticide is unnecessary to save a mother’s life or to resolve a physical health problem faced by a pregnant woman. For example, early delivery without feticide is normal obstetric practice for emergency health conditions late in pregnancy such as high blood pressure, liver or kidney disease or cancer which requires chemotherapy.

In fact, there is some evidence to suggest that feticide is associated with risks for the mother’s physical health. For example, “there are four reported cases of maternal infection, including one case of sepsis”, and “one case of inadvertent maternal intravascular injection of KCL necessitating successful resuscitation of the mother”.[3]

[3]   The Royal Hospital for Women, Local Operating Procedure-Clinical: Feticide and Multi-Fetal Reduction, Approved Quality and Patient Safety Committee, 18 June 2020; See also: J Diedrich, E Drey, Planning SoF: “Induction of fetal demise before abortion” (2010) 81(6) Contraception 462-473; Tesfaye Tufa et al, “Drugs used to induce fetal demise prior to abortion: a systematic review” (2020) Contraception 100046.

The Termination of Pregnancy and Live Births Amendment Bill will ban the killing of babies in the third trimester. This is from 28 weeks and until birth.

However, as the chance of survival is so promising for babies older than 28 weeks is so promising, the Bill enables a pregnant mother to terminate her pregnancy through delivering her baby alive rather than stillborn. This means the mother can still choose to end her pregnancy. She is not forced to carry her baby to term. After the birth, the baby and the mother will receive the medical care they need. If the mother elects not to raise the baby, the baby can be placed for adoption.

This Bill balances the interests of the mother and the baby by recognising that by 28 weeks a baby is fully developed and is able to survive outside of the uterus.

The Australian and New Zealand Neonatal Network Annual Report 2022 notes that overall survival at 28 weeks is 96%, with a 76% chance of normal motor development and an 89% chance that survival is free of moderate or severe disability.[4] Table 29 below from this report provides infant outcomes after 24 weeks.

Although it is optimal to deliver babies at full-term, the Bill achieves a compromise between the rights of the child to live and that of the mother to end her pregnancy.

[4]   Australian and New Zealand Neonatal Network Annual Report 2022, Table 29.

The prochoice position is based on “my body, my choice”. This Bill does not take away a woman’s choice to end her pregnancy. The Bill allows a pregnant mother to remove the child from her body after 28 weeks through premature delivery. This ensures that the pregnant mother does have a choice over her body but does not have a choice over whether her baby is born dead or alive as the baby’s right to live is protected by the Bill.

The child will not enter the foster care system for the long-term, as the goal of the foster care system is family reunion, so this system is inappropriate for a child born alive in the scenario envisaged by the Bill. However, if the mother changes her mind after delivery and wishes to raise the child, there is nothing in the Bill that precludes her from doing so prior to the child being placed for adoption.

The adoption process in South Australia is governed by the Adoption Act 1988. The birth mother cannot legally give consent for adoption until five days after the birth, with special provisions if the consent is given before 14 days. This delay is meant to give the mother time to reflect on her decision. The consent must be in writing and witnessed, and the mother should have received counselling beforehand. Consent can be withdrawn within 25 days of being given. After this period, the decision becomes irrevocable unless there are extraordinary circumstances. The Department for Child Protection (DCP) is responsible for managing adoptions in South Australia. The department will arrange for the child’s placement with prospective adoptive parents. The adoptive parents are selected from the Prospective Adoptive Parents Register, which the DCP maintains​.

The Bill bans feticide after 28 weeks but enables termination of pregnancy after this point through an early delivery. The method for a late term abortion is feticide followed by the delivery of a stillborn baby. Feticide is unnecessary for the health of the mother. It is solely intended to end the life of the baby.

The report by the South Australian Law Reform Institute, which preceded the introduction of the Termination of Pregnancy Act 2021, provided several reasons for feticide.^[6] The mental health reasons hinged upon late diagnosis or realisation of pregnancy, intellectual disability, domestic violence, trauma and suicide risk. The physical health reasons hinged upon a condition besetting the pregnant woman that arose late in pregnancy for example, pre-eclampsia or cytomegalovirus. In each of these circumstances, the Bill’s requirement for early delivery would not require a pregnant woman in a vulnerable situation to continue with her pregnancy. It would merely require that feticide would not be available prior to delivery so that the intention is for the mother to deliver her baby alive rather than stillborn.

The SALRI report provided an example of a minor with an intellectual disability who was a victim of sexual abuse and had not appreciated she was pregnant until late in her pregnancy. The minor wanted a late-term abortion because “the girl was clear that she did not wish to proceed with her pregnancy”.^[7] The report noted that there would have been a “severe and adverse effect on her, had she continued the pregnancy”.^[8] However, the Bill does not require her to continue the pregnancy or to raise the child, but merely to allow the child the opportunity to live by being birthed alive. This accommodates her desire to “not proceed with the pregnancy” but does ensure that the child is not unnecessarily killed in-utero via feticide and delivered stillborn.

In short, there is no risk to the mother’s health or life from this Bill as it allows termination of pregnancy throughout all nine months of pregnancy. In other words, intrauterine feticide is unnecessary for maternal well-being.

[6]   John Williams, David Plater, Anita Brunacci, Sarah Kapadia and Melissa Oxlad, Abortion: A Review of South Australian Law and Practice (South Australian Law Reform Institute, Adelaide, 2019). Hereafter referred to as “SALRI report”.

[7]   SALRI report, p 125-126.

[8]   Ibid.

After premature delivery, it is likely the child will be admitted to the Neonatal Intensive Care Unit to receive standard care for their gestation. The child will become eligible for adoption and can then be placed in a permanent family relationship. However, if the mother does wish to raise the child, she will have that option after birth under SA law.

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