Bills

Termination of Pregnancy Bill

Committee Stage

In committee.

(Continued from 17 February 2021.)

New clause 6A.

The Hon. A. KOUTSANTONIS: I will speak to my amendment while the minister is finding her notes to assist her. As I was saying last night, the Attorney-General quite kindly sent out some frequently asked questions about this measure. Again, I am not attempting to be difficult here, or, as some groups online are claiming, to use some sort of pro-life tactic. The truth is, I do not think I have ever been part of a pro-life or pro-choice movement. The only organisations I have ever joined are my trade union, the Australian Labor Party, Port Adelaide Football Club, West Adelaide Hellas Soccer Club and local associations.

In point 5 of the frequently asked questions—what happens with late-term abortions—the Attorney-General raised the way some inductions of labour occur. There are very rare occasions, and I accept that they are very rare, when babies are born alive, and I assume that a percentage of those babies who are born alive have no anomalies or difficulty in surviving on their own but are the product of a termination due to a mental health reason or a psychosocial reason.

My amendment does not attempt in any way to add any pain or suffering to someone who has chosen to have an abortion. What it is attempting to do is to say that if one does occur and a baby is born who has a reasonable prospect of living without experiencing serious anomalies that are incompatible with survival after birth or does not have serious, incurable health issues that will cause significant pain and suffering or other substantial hardship—that is quite a broad definition, and I have attempted to be broad because I do not want to be too prescriptive. I am trying to be as broad as possible, but what I am saying here is, again, if it is a health baby, a viable baby who has survived an abortion, we should intervene to help it.

I assume the Attorney-General has now found her place and is ready to go. I conclude my remarks and am happy to answer any questions.

The Hon. V.A. CHAPMAN: In the absence of any other person seeking to ask the mover of the amendment any questions, I thank you for your indulgence in allowing our advisers to be assembled and available to the committee. In respect of amendment No. 1 standing in the member for West Torrens' name, I indicate that the proposed amendment requiring clinicians performing late-gestation terminations of pregnancy to resuscitate a baby based on a baby being born alive is, I suggest, foundationally against the very intent of the parent or parents undertaking a termination of pregnancy.

In addition, the resuscitation of a baby born close to the threshold of viability is a complex process that requires planning and preparation to maximise the chance of survival. Members would have listened carefully yesterday to our professional advice in respect of the complexity of these procedures. It is possible, I am advised, for any gestation beyond six weeks that a foetus could be born with a momentary sign of life, such as a heartbeat or pulsatile cord, but very quickly the foetus dies.

Resuscitation in general pregnancy care, which again was canvassed in some detail yesterday, is only offered to babies born from 22 weeks onwards. A decision including the parents is made between 22 and 24 weeks, when the baby may or may not be resuscitated. For the very premature baby, there is a high chance of death despite resuscitation and, if the baby survives, a substantial risk of lifelong disability due to the prematurity.

It is not possible to definitively determine prior to the resuscitation effort the chances of disability—mild, moderate or severe—nor of survivability in a foetus that does not have a pre-existing condition. It is, as such, an unworkable provision to require that doctors make an assessment of the need for resuscitation on the basis of risk of serious incurable health issues, as the general chance of this occurring is very high at the early gestational ages.

It should be noted that in the most common scenario of a second-trimester termination, around 23 to 25 weeks, the termination is undertaken due to a congenital anomaly. Again, this is on the advice I have received. These babies, if resuscitated from 23 weeks, would potentially have more severe ongoing disability than originally was the case, noting that, for many, disability is not in itself life limiting and so these babies may in fact be born with signs of life.

Given the above, it is therefore clinically unacceptable to resuscitate an aborted foetus if there are signs of life. Resuscitation, as with all medical practice, should be undertaken with the consent of the parents and in partnership with the parents. Undertaking the significant act of resuscitation expressly against the parental wishes is anathema to the practice of modern medicine. As such, in all the circumstances of the advice I have received, the amendment is not supported. I do not want to reflect in any way adversely on the member for Torrens'—

The Hon. A. Koutsantonis: West Torrens.

The Hon. V.A. CHAPMAN: —sorry, member for West Torrens' concerns to try to do what he sees is the right thing in the right circumstance. It is not supported by the professional advice. There are dangers with it, and in those circumstances I simply cannot support it.

The Hon. A. KOUTSANTONIS: I have to say that in the scenarios the Attorney-General has related, I agree with her, but that is not what my amendment does. My amendment does not call for the resuscitation of babies who have congenital deformities or who are born not alive and need resuscitation. My amendment very clearly states:

6A—Requirement to preserve the life of a baby in certain circumstances

If a termination is performed—

(a) on a person who is more than 22 weeks and 6 days pregnant;

So the six-week scenario that the Attorney-General was talking about is irrelevant in this debate. I am not talking about babies born before 22 weeks and six days. The amendment continues:

(b) a baby is born as a result of the termination; and

(c) the baby has a reasonable prospect of living without experiencing—

(i) serious anomalies that are incompatible with survival after birth; or

(ii) serious, incurable health issues that will cause significant pain and suffering or other substantial hardship,

reasonable endeavors must be used in an attempt to preserve the life of the baby.

I am not talking about resuscitation of babies that have been administered a lethal dose. I am talking about babies that survive an abortion and an induction and are born alive, as is detailed by SA Health in their frequently asked questions.

In regard to the scenarios the Attorney-General raised, I do not think there is anyone here who says that after termination has occurred we should be attempting life-saving endeavours. I am talking about healthy babies that are aborted for reasons other than congenital defects or anomalies or incurable serious health issues. I think the Attorney and I are at odds here, but I accept what she is saying, that the profession do not want to involve themselves in this.

I still want this amendment to proceed because I think it is a perfectly reasonable one. I accept the advice of SA Health that this happens rarely—very rarely. When it does happen rarely, what we do not have is any statistics about the cases the Attorney is raising—babies that are born with signs of life that have serious congenital defects versus ones that are born with signs of life that have no defects. We do not know. We do not keep those records. We cannot tell.

What I am saying is that I will leave that to the medical experts, the practitioners. We will let them decide, rather than be prescriptive, which I thought was the mood du jour of this bill. I am not trying to be prescriptive, that you must attempt to save every single baby's life. I have taken account of what the Attorney-General has asked and I am saying that, if, as we see in the statistics in Victoria, there is going to be a dramatic increase in abortions when you liberalise especially late-term abortions and you liberalise this regime, there will be an increase in this occurring.

It is not intended; it is an unintended consequence of it. No-one wants this to happen, but it happens. What I am saying is I am putting in a safety net when it does happen, if a baby is born and it does not meet the thresholds of having 'serious anomalies that are incompatible with survival after birth' or 'serious, incurable health issues that will cause significant pain and suffering or other substantial hardship'. I am not setting a high test here. I am setting a relatively low test for the very reason that I understand what the Attorney-General is saying.

I am trusting the medical profession to make a decision here because the parliament, I think, should have a say about this. I reject what the Attorney said. I think she is talking about a different amendment. I would ask her to consider the amendment that I have actually moved, rather than a sweeping statement saying that all babies that are aborted should have attempted on them dramatic, life-saving attempts. That is not what I am saying. That is not what I am saying at all. The amendment does not say that.

To be clear, 22 weeks and six days, which is what the Attorney-General says is viability based on medical advice: test 1, it has to be up to that date; test 2, the baby is born as a result of a termination; test 3, the baby has a reasonable prospect of living without experiencing serious anomalies that are incompatible with survival after birth and serious incurable health issues that will cause significant pain; and the test, the final burden of proof this baby has to overcome, is suffering other substantial hardship. I will leave it to the medical professionals to decide that.

I understand that forms of this legislation have passed in other jurisdictions around the world. I do not think it is unique or radical. All it is simply saying is that, if there is this scenario, there is an anomaly in the law and perhaps we should fix that. I would ask the Attorney-General to reconsider her position on these and to perhaps answer the questions that are actually dealt with within the amendment.

The Hon. V.A. CHAPMAN: I am happy to briefly address that invitation to scrutinise the actual clause, and I note the indication by the member that he is suggesting this would only relate to the narrow application of those in the categories he has identified. Unfortunately, as with a lot of these things, it is not as simple as that. To simply look at age of viability, that is the 22 weeks six-day threshold, and look at saying this does not relate to babies that have some severe abnormality—these are healthy babies born—the problem is, just to give you an example on the professional advice I have, that the survival of these babies, even if ostensibly healthy at this age, is problematic for the families that have to make the decisions.

The capacity or the survival rate of babies born after 23 weeks is 45 per cent, even if they are resuscitated. At 24 weeks, it is 32 per cent; at 25 weeks, 17 per cent—and we have heard of the other late terms we discussed yesterday. Another issue, which I think is probably the most significant here, is that as usual these things do not come in a simple package. The other factors that are relevant to consideration, apart from the matters I have just outlined to the parliament, are gestational age, birth weight, gender, single versus multiple births, infection and major congenital syndromes.

These are the sorts of things where it is important we understand that at this stage, for those who are going through terminations around this time—relatively few as they might be—that frequently parents are involved in the preparatory work of what is to be done in these circumstances and how they are going to work through it. That is a matter for a decision of the parents and obviously within the envelope of the advice they receive.

I would ask the member to respect that relationship in light of the fact that, unfortunately, it is not as simple as saying, 'If it's over this period, and it's an otherwise healthy baby, this is what must happen.' I think that would be an unrealistic expectation on the profession. The profession is very worried for the reasons I have outlined already in relation to it. Again, I am reminded that resuscitation for very preterm must be planned, including medication prior to increase the survivability, and the resuscitation team on hand who have to work with that—and there are consent issues, and that is what we are also dealing with here.

We are going to be imposing a circumstance on a narrow group that the mover thinks is in an isolated environment of an imposition over and above that and could, I suggest, inappropriately frustrate the consent issues and the guardianship issues. Again, I have sympathy for the member's position. I would also state for the record there is no application of such a provision under Australian law. Certainly, it has been applied in some states in the United States, but again I cannot endorse this for the reasons outlined.

The Hon. A. KOUTSANTONIS: I do have a great deal of sympathy for what the Attorney-General is saying. This is very, very difficult, but I do point out to the committee that the Attorney-General is saying it places a very unfair burden on medical professionals to be able to make an assessment, once the baby is born, about whether or not it meets the criteria I have set out, but has no such constraints about medical professionals making a decision that there should be a termination of the pregnancy. So, for one set of decision-making, no problem—the profession can do that, and I agree.

I would have liked to see a much narrower scope about what medical professionals could approve an abortion, but I understand. I have read the room. We are not going to win that. GPs and nurses can now prescribe medical abortions, and doctors can prescribe surgical abortions, even if they are not specialists in that field. I do not think that will happen in South Australia, I am hoping, but technically that is now possible. My point is that I agree with the Attorney-General. I only chose 22 weeks and six days because the Attorney told us that was viability.

Again, there are not the statistics. I cannot inform the house of the statistics of babies that are aborted through non-congenital issues, non-health issues, but through a mental health issue and what the state of that baby is, whether it has any congenital issues or whether it does have viability. I would say to the Attorney-General that is exactly why, in drafting this amendment with parliamentary counsel, parliamentary counsel went to great lengths to raise the same issues and concerns that the Attorney raised. My point is that that is why we give the broadest possible definitions to the medical profession to make these choices. That is why at the very end is the broadest possible definition of 'other substantial hardship.' Not a high bar.

I am not saying if there is a heartbeat. I have added to that 'serious, incurable heath issues that will cause significant pain and suffering or other substantial hardship' and 'serious anomalies that are incompatible with survival after birth'. There are a lot of outs for the medical profession. Given that you can approve an abortion, if this unintended consequence occurs, surely we have a responsibility not to just sit back.

I received a message, and I point out to the house that I cannot verify the accuracy of this. I think people in the pro-life movement know who I am and they know many of my views. Many of them have been flooding me with emails of stories, which are very hard for me to be able to prove are true or accurate. I am not trying to debase what they are saying to me. There is a lot of emotion in this debate and people forward a lot of information, which is very hard to verify. It is the same with the pro-choice movement. It is very hard to be able to verify the information.

Yesterday, I received this message from someone who was in the gallery. I am not going to mention her name. She said:

…in my final year of midwifery…it breaks my heart that whilst our profession should be to bring life into the world, that as a midwife they would be wanting me to end this life instead. I have already held aborted babies and it was traumatising.

I feel very sorry for the staff who have to go through this. I know it is not easy. Even the people who work at abortion clinics and support women through this, I can only imagine what they go through and I am in awe of the way that they must have to conduct themselves. It must be very difficult. She goes on to say:

I have also supported women who had miscarriages from 14 weeks through to 39 weeks.

To be honest, when I received this information I just did not believe this happened. The more you dive deeper and deeper into this, go through official government reports, whether it is in Victoria—I am not sure about the veracity of the US reports because it is so hyperpartisan there now—or even in some Canadian reports, you do see this occasionally happening. This is not a consequence that the medical profession intends to occur, but sometimes it does. Being confronted with the fact that it does occur, as a legislator, what do I do?

My initial reaction is: it is a healthy baby, it is born, it is alive. It is not born dead and then resuscitated; it is born alive. It does not have serious anomalies that are incompatible with survival after birth. There are no serious or incurable health issues that will cause significant pain and suffering and no other substantial hardship. If that occurs, let's say at 30 weeks, 33 weeks, 34 weeks—because at 35 weeks we are told we are guaranteed no viable babies will be aborted—perhaps we do offer the medical assistance.

Again, I have read the room and this amendment probably will not pass, but I think it is important at least that some members of the House of Assembly speak out and voice our views, and do so without malice. This is not passing judgement on those families or the medical profession. We are just trying to set a very low bar for the very small case where, by accident, this occurs.

Ms COOK: We hear a lot of stories being spoken about in here, and the member for West Torrens just mentioned a couple of personal stories that have been relayed to him. I have avoided relaying personal stories and I will not relay one about myself; however, what I will talk about is looking after women who have been through termination later in their pregnancy for various reasons, and I will come to that in a minute.

There are very good reasons to pre-empt that. When members are receiving correspondence, they are often highly emotive. We are receiving much correspondence from medical practitioners as well, as I pointed out last night, often by practitioners who would represent their opinions as an expert. They may well be an expert in some area, but often they do not have recent or current practice within the obstetric or neonatology sphere. I pointed that out last night—Dr Roy Watson is not a current practising obstetrician.

Obstetrician-gynaecologists might train as obstetrician-gynaecologists, but they then choose a pathway into practice. Some go for both and some go one way or the other. I do not really want to single people out by name, but I remember one of the members with an opposite opinion to my own was talking about information from a doctor—and it may well have been Dr Elvis Seman; I cannot quite recall whether it was or not—who pointed out that it is actually safer to deliver these later-term babies by caesarean section than to have the woman deliver them by natural birth.

Recent research, more contemporary research—, n relation to this says that that is nonsense, that is absolutely not true, and members are being swayed into certain opinions because of very convincing arguments from very good people like Elvis Seman. He delivered my first son. Three decades ago, he was my obstetrician and saved the life of my son. My son had foetal distress and was about to fall off the perch and Dr Seman performed an emergency caesarean section. That is when the best way to deliver a baby is by caesarean section, or in the case of other pregnancy anomalies. I will get to where I am going; this is about evidence.

To say that these babies should be delivered by caesarean section is rubbish; currently, that is not the best method at all. People are being convinced by this research and information, by either laypeople or people with emotion around the subject. We all have emotion around the subject. No side is holding the banner in terms of first place for emotion here. We are all affected by it. It destroys me to think that people have to terminate a pregnancy.

Because I was prepared to look after my son no matter what, I did not have an amniocentesis when I was 42 years old. But I have looked after a woman who had an amniocentesis at 16 weeks and it ruptured her membranes. Most of her waters, if you want to call it that, were gone. The woman then lay in hospital for five weeks trying to get this baby to a point where it could be delivered. All the medications were given to her—the steroids, all the medications—to try to get those tiny little lungs to a point where the baby could be delivered and then ventilated and looked after.

The scans and the investigations showed that the baby would not survive a life of any form. Decisions were made, and the parents went through absolute heartbreak on this. There was nothing wrong with that baby, except the judgement of the clinicians, whom we trust, said that that baby would have ongoing surgeries, have to have treatment, undue hardship—all those things.

The delivery was brought on, basically an induction, a very premature induction. I was there, there was a pulsatile cord, there was gasping: this tiny little soul, who had lived there for five weeks with no waters. Under this rule, would it be, member for West Torrens, that we would need to look at preserving the life of this baby because essentially at 23 weeks there were signs of life and it looked absolutely normal, but we know that, because of the circumstances of what had been happening intrauterine to that baby, it would not live a fulsome life?

That was a baby that had had the preparatory medication, the medications we trust the doctors to give. Abortion services would not be giving those drugs, they would not be preparing those little lungs, but some of the foetuses, the babies that are born after this awful decision has been gone through by a person and their family in absolute crisis, would then have to face this resuscitation.

I will add to that and then I will not say any more for ages, I promise, but resuscitation is not just, 'Here, have some oxygen, little baby.' We are talking about needles, needles and more needles, we are talking about chest drains, we are probably talking about tubes into their brain because of swelling that will happen, we are talking about maybe cardiac compressions that will break their ribs and put ribs through their lungs so they are coughing up blood and we are talking about pulmonary oedema, where the babies get to a point where they froth and cannot breathe.

We are talking about horrific things that happen. Resuscitation is not this nice thing with the angels and harps playing: it is a brutal series of events that, for premature babies, goes on for months, if not years, over and over again. The other part of this question is: to prepare somebody for the potential that this tiny little life has minimal chance of outcome, but is deemed because of your amendment to have a chance of survival, do we have to put the 13-year-old pregnant children through this discussion to prepare them for the fact of the brutalities that will happen after the baby is delivered?

Do we have to put the women and the men with mental illness and intellectual disability through the counselling and preparation for a situation where, if this baby is delivered with signs of life, these are the potential outcomes? Do we have to further traumatise the already traumatised and vulnerable with counselling and preparation before this happens to prepare them for the fact that they have to give permission for their baby, that they may well want to love but cannot, through resuscitation? What is your will for people with all those issues? What is your vision around how the clinicians will actually deal with this?

The Hon. A. KOUTSANTONIS: Can I just say, that is a heartbreaking story. I can say to the member for Hurtle Vale that I have been through it firsthand with my son, so I understand exactly what you are talking about. No, I would not wish it on anyone, and that is why my amendment to the act deals with that.

I am not talking about a baby that has a reasonable prospect of living without experiencing serious anomalies that are incompatible with survival after birth. Your scenario—no. Resuscitation is not offered because the baby is not born alive. If there were signs of life, the doctor would make an assessment on the basis of my amendment, which I would like you to read, which states:

(b) a baby is born as a result of the termination; and

(c) the baby has a reasonable prospect of living without experiencing—

without experiencing—

(i) serious anomalies that are incompatible with survival after birth; or

(ii) serious, incurable health issues that will cause significant pain and suffering or other substantial hardship,

In that scenario, no. But I am not a medical professional. I imagine in that scenario the medical advice would not be offered that I am seeking. I want to go back and ask the Attorney-General one more time, so the house is clear: the Attorney said that no other jurisdiction in Australia has such a clause. Do you stand by those statements? No? Okay. This is the New South Wales Abortion Law Reform Act 2019, which I will table. Section 11 provides:

11 Care of person born after termination

(1) This section applies if a termination results in a person being born.

(2) Nothing in this Act prevents the medical practitioner who performed the termination, or any other registered health practitioner present at the time the person is born, from exercising any duty to provide the person with medical care and treatment that is—

(a) clinically safe, and

(b) appropriate to the person's medical condition…

(3) To avoid doubt, the duty owed by a registered health practitioner to provide medical care and treatment to a person born as a result of a termination is no different than the duty owed to provide medical care and treatment to a person born other than as a result of a termination.

The Attorney-General told this house that no such clause exists in any Australian jurisdiction. That is not true.

The CHAIR: Member for West Torrens, you have read that in rather than tabled it.

The Hon. A. KOUTSANTONIS: Yes. Can I table it?

The CHAIR: No, you can circulate it to the committee or read it in, but what you have done is enough.

The Hon. A. KOUTSANTONIS: Thank you very much. Maybe it is an error. That is why I asked again. Perhaps it was just an oversight by the Attorney because I have to say that she has handled herself exceptionally well during this debate—she has. She has done very well, but it is little things like that: this is such a radical departure from the norm that no other Australian jurisdiction has done it. Yes, they have, in New South Wales, the Berejiklian government.

An honourable member interjecting:

The Hon. A. KOUTSANTONIS: Sorry? What was the interjection? I could not hear you.

The CHAIR: No, member for West Torrens, you do not need to respond to interjections.

The Hon. A. KOUTSANTONIS: No. Again, this is not radical reform. This has been contemplated by other parliaments and inserted in Australian and in other jurisdictions around the world. My test, I have to say, I think suits the proponents who are seeking reform because my test is not as broad as the New South Wales test. My test says that a baby born as a result of the termination has a reasonable prospect of living without experiencing a serious of conditions or substantial hardship. The New South Wales test is a lot more definitive about intervening. I think this makes the right mix.

To go back to the member for Hurtle Vale, that was a tragic scenario, and I feel very sorry for that family and everything you said because I have experienced it firsthand. I have seen all of it done. It is horrific and I do not want anyone to experience it. I want everyone to have a healthy baby, but that is not the real world. And I want everyone to want to have their babies at full term, but that is not the real world either. I understand that there need to be safe, legal and rare abortions available in Australia. No-one in this room, I think, objects to that.

The house at the second reading has made that determination. That is how the parliament works. We have the principal position of the bill, the second reading is passed and it is done. In fact, this parliament in 1970 before I was born, made the threshold decision about abortion, so now we are talking about progression.

I am not the one who came to this house with a bill that said viability is now 22 weeks and six days. The current legislation is at 28 weeks, I think, so I am not changing that: the Attorney-General and Minister Lensink are changing that. I am saying that another jurisdiction has done it despite us being told they have not. I think my test is better for the proponents and something that I think those of us who are worried about this bill can live with. I think it is a reasonable half-measure to have as a safeguard in the legislation.

Ms COOK: I do not question your motives in respect of this. I know you want to preserve the life of as many viable babies as you can. Whose expert advice have you based your assessment on to construct this amendment regarding a baby born at this level without significant preparatory intervention—I am talking weeks of steroids, weeks of other medication to help mature organs—in order to make a baby ready to survive outside of the womb?

Whose expert testimony, expert advice, have you based that assumption on that would make this workable at any level, given that it is virtually impossible? In fact, I have not seen a baby born at that level that has been able to sustain life without medical intervention and without spending months in the neonatal intensive care unit. Whose expert testimony have you based this on to bring together this amendment?

The Hon. A. KOUTSANTONIS: The people I have consulted are, firstly, parliamentary counsel. Parliamentary counsel received instructions from me that I did not want this to be about offering life-saving medical treatments to all aborted babies in an attempt to resuscitate every baby that is aborted. That is not what I did. The advice that I received from SA Health is that this occurs. Again, as I said in my opening remarks, I did not believe that this occurred. SA Health brought this to my attention. Yes it does occur. It is rare, but it occurs.

What we do not have is detailed record keeping by SA Health about the condition of aborted babies. We have a breakdown in Victoria, I understand, of babies who are delivered through terminations who are stillborn, and babies who are aborted for mental health reasons. We do not know within that cohort of mental health reasons if there are congenital defects or anomalies but we do have another cohort who do fit into that, so there is a whole cohort of babies who are born, where we do not know what their medical condition is. We know the gestational period but we do not know whether they are healthy or not, and I do not try to prescribe that.

I do exactly what the member has done in the approving of an abortion and I have left it to the medical experts because I am not a doctor. I am trusting the same expertise the Attorney-General is trusting to authorise an abortion. I am trusting the same college of surgeons, obstetricians and gynaecologists who write the guidelines that the Attorney-General wants doctors to follow on the basis of whether and how late-term abortions are performed to make an assessment about whether they can provide this.

I have asked parliamentary counsel to set the highest possible test because in the scenario that the member for Hurtle Vale talked about, obviously from my 25 years as a justice of the peace, my legal interpretation of what she has said is that that baby would not meet these thresholds. That baby would not meet the threshold, at the very least, of other substantial hardship.

It certainly is serious. There could be incurable health issues, but I will leave that to the medical professional at the termination to determine because I am not qualified to. It has to cause significant pain and suffering. There are plenty of safeguards here; a lot more than there are in the New South Wales legislation, which is the law of the land in the most populous state in the country, despite the Attorney telling us it did not exist.

The Hon. V.A. CHAPMAN: For the record, can I confirm that I do not agree that there is any provision like this in any jurisdiction in Australia. The New South Wales reference really exposes the member's misunderstanding, if I can put it as high as that, of the interpretation of what the New South Wales law does.

In New South Wales, like all around Australia, there are certain duties and obligations of the medical profession. Included in that is the right and obligation to deal with how they manage resuscitations. That is a circumstance where it is allowed within the envelope of their obligations to do it in any circumstance. What the New South Wales act does is confirm that duty and the opportunity for them to resuscitate.

The amendment before us today is actually quite the reverse. It is not to leave it as an option to the profession within the umbrella of their duties: it is to mandate it in the specified circumstances that the mover says. It is totally inconsistent with the provision in New South Wales. So, yes, I note the New South Wales matter, but it is not pertinent to the matter that is actually before us.

The Hon. A. KOUTSANTONIS: Could I ask the Attorney-General, then, given the New South Wales legislation is based, as the Attorney has said numerous times, on these reforms that are almost universal across the country, why is there no such provision in our act?

The Hon. V.A. CHAPMAN: It had not been recommended at the time of the 66 recommendations of the SALRI report. That is a matter for members to raise. It has not been presented by anyone to me. The first I have had anything that has even covered this subject was the amendment moved by the member.

The CHAIR: Member for West Torrens, you have the call, but I know there are a couple of other questions to you relating to your amendment.

The Hon. A. KOUTSANTONIS: Can I ask the Attorney-General if she will accept an exact copy of this amendment to be inserted into this bill?

The Hon. V.A. CHAPMAN: No.

Ms COOK: In respect of how New South Wales have framed their legislation, the wording in the New South Wales legislation is framed in the negative. The way it is framed is nothing prevents the doctor from undertaking resuscitation, but there is nowhere in here where it says you must undertake resuscitation. There is nothing in here that requires resuscitation to occur. I will not repeat the brutalities of what resuscitation means and how long that could take. That is one point in regard to that.

Again, I just think the member for West Torrens has not given me a fulsome response in relation to the question of how in clinical practice it would be that a person undergoing abortion care would be prepared physically and emotionally for the termination of pregnancy that might result in a viable, healthy baby with signs of life that meet your criteria. They need weeks and weeks of pre-birth therapy and intervention and medication to prepare those little lungs to be able to breathe.

The Hon. A. Koutsantonis: Yes, I understand.

Ms COOK: But you have not answered the question for me: how would this actually work? If somebody seeks a termination at 19 weeks or whatever because of issues that meet all the criteria, how do you prepare that baby for life? What do you do then? Do you have to make them incubate the baby for another three or four weeks so you can then terminate it to then make it available for resuscitation? It is just not workable, Tom. It is not workable, my friend, at all.

It is cruel, it is heartless, and it is not something that we need as part of our health care. How many times have people said, over and over again, 'Trust the medical expertise'? You have said it yourself. You are not trusting them here. You are putting parameters in place that actually are unworkable and are cruel. How do you see this working going forward with children who are pregnant, with people with significant psychosis and mental health problems who are pregnant, with people with intellectual disability who are pregnant, and with their partners?

These people do not just turn up by themselves, either. This is a family thing. This is a partnership thing. It is a thing that friends support friends over. How do you see that working? They cannot be simply induced, terminated, delivered and then suddenly expect everything to be sunshine and lollipops when they have not had the preparation, and that preparation will be cruel and heartless.

The Hon. A. KOUTSANTONIS: First of all, I think the last example the member gave was 19 weeks. That would be ineligible for medical attention under my clause.

Ms Cook: No, she was 23 weeks when she delivered.

The Hon. A. KOUTSANTONIS: You said in your remarks 19 weeks.

Members interjecting:

The CHAIR: Members for West Torrens and Hurtle Vale, this is not about chatter. Member for West Torrens, you will address the committee.

The Hon. A. KOUTSANTONIS: I do not think my amendment is designed to circumvent someone having a termination. If a termination is being prepared for, it is being prepared for. I am not saying that if a baby is born at 22 weeks and seven days, which puts it into the threshold here, and it is born with signs of life that it automatically means that life-saving endeavours must be applied—I am not. I am leaving that to the medical experts—they decide. Scoff if you like. I am not attempting to be cruel. I am not attempting to be heartless.

Ms Cook: It will be.

The Hon. A. KOUTSANTONIS: Thank you very much for the accusations, member for Hurtle Vale. I have made no such accusations to any of the proponents in this room about what I think is horrific and we are being forced to confront. I think this level of absolutism has to stop, and we have to have a collegial view about how we try to fix this. If we lose, we lose.

That is why I have put so many criteria in my amendment about serious anomalies that are incompatible with survival after birth, like you described, and serious incurable health issues, like you described, because I agree with proponents. People are not considering abortions lightly, excluding mental health issues, if there are congenital defects with their baby. That generally means it is incompatible with life. I understand that; of course I do.

I am talking about perfectly healthy babies that survive an abortion. The member is trying to come up with an example of a hypothetical pregnancy and termination that I am not medically qualified to give advice on, which is why I have asked parliamentary counsel to set these broad thresholds and leave it to the medical experts to decide whether they intervene or not.

No doctor will be prosecuted under this act at all anyway. The Attorney has removed all penalties. You cannot even get fined. You can approve an abortion that is unnecessary and face no penalty from the state. So, if a doctor under the legislation before us does intervene inappropriately, there is no penalty, but, more importantly, it is so broad here as to give all the discretion to the doctors. Again, I do not want to repeat myself. The amendment states:

(i) serious anomalies that are incompatible with the survival after birth; or

(ii) serious, incurable health issues that will cause significant pain and suffering or other substantial hardship.

Everything you have said is covered by that broadly, which is my point. I am not attempting to keep those babies alive, as much as I would like them to live. I am not. I understand what you are saying about the pain people would go through. I have set a very different test—a moral test that I think is something for doctors to decide. I am not attempting to say that all doctors who perform the termination then must offer life-saving medical treatment. That is not what I have said at all. That would be cruel. That would be unfair. I agree with you. That is why, if you read the amendment, you will see that it does not do any of that. I am leaving it to the discretion of doctors. I am leaving it up to them. Let them decide.

We cannot have it both ways in this debate, where we are being told, 'Leave it all up to the doctors and the patient.' When we say that, we are told, 'No, you are being cruel.' I am sorry. Despite all of the personal interaction between the member for Hurtle Vale and me, I care for her deeply and I think she is a wonderful person. I think she has been through more than most of us and done more for our community than most of us and I hold her in high regard—very, very high regard—but I do not appreciate her saying that I am trying to be cruel to people. I am not. I am trying to show compassion. I am trying to show empathy and, yes, I am trying to save a life.