The Termination of Pregnancy Act 2021 (The Act) was assented to by Parliament on 11 March 2021 and was commenced on 7 July 2022. The associated Termination of Pregnancy Regulations 2022 also commenced on 7 July 2022.
The reform of abortion law in South Australia commenced with an examination of the law by the South Australian Law Reform Institute (SALRI) at the University of Adelaide Law School. SALRI released an independent report (PDF 10MB), examining South Australian Laws relating to abortion in 2019.
The report proposed 66 recommendations and these were individually considered by the Department for Health and Wellbeing. Overall, the vast majority of recommendations were accepted, with 15 recommendations requiring deference to the Crown for specific legal advice to ensure the intended outcome was achieved in the new legislation. This process led to the development of the Termination of Pregnancy Bill which was considered by Parliament in 2021, leading to the current Termination of Pregnancy Act 2021.
View the Department’s response (PDF 341KB).
In 1969, South Australia became the first Australian jurisdiction to legislate for the lawful medical termination of pregnancy. Over 50 years have passed since those laws were first enacted. In that time there have been significant changes to clinical practice, including improvements in medical termination methods and the modernisation of health service provision.
As a result of these developments, South Australia’s laws had failed to keep pace with changes in clinical practice and had become in many cases a barrier to safe and available health care access for women and their families. The Act addresses these concerns by establishing a modern legislative framework for the lawful termination of pregnancy which reflects best clinical practice and contemporary community attitudes.
On 2 February 2019, the Attorney-General commissioned the SALRI to inquire into and report in relation to the topic of abortion law reform, with the aim of modernising the law in South Australia and adopting best practice reforms in relation to the lawful regulation of termination of pregnancy.
Referral of abortion law reform to SALRI for proper investigation and recommendations for reform based on best practice in this area with the guidance of other jurisdictions was considered the most suitable way to achieve modern, effective and appropriate reform of South Australia’s abortion laws.
SALRI presented the Attorney General with its report on 31 October 2019. The SALRI report made 66 recommendations, including that abortion should be removed from the criminal law and treated as a public health issue.
The Act was a culmination of the work of SALRI, the government of South Australia and the Parliament of South Australia.
Consistent with SALRI’s recommendations, the Act repeals abortion from the Criminal Law Consolidation Act 1935 and creates a new standalone Act (‘the Termination of Pregnancy Act 2021’) to regulate the termination of pregnancy as a lawful medical procedure. In doing so, the Act reflects current best practice, promotes patient decision-making and respects the individual autonomy of the patient while ensuring that there are appropriate safeguarding measures in place where necessary.
The reform was the subject of extensive consultation, both by the SALRI, the Attorney General and the Minister for Health and Wellbeing.
As part of its referral, SALRI undertook extensive research and consultation with interested parties and the community. SALRI received 2885 submissions from members of the public using the YourSAy platform as well as a further 340 written submissions. In addition, SALRI held a range of targeted expert forums with representatives across the spectrum, including faith-based and civil society groups, the disability sector and the medical and legal professions. A series of expert forums were also conducted across a number of regional centres including Whyalla, Port Augusta, Ceduna, Port Lincoln and Murray Bridge with various health care providers.
The Act allows for a medical practitioner who is acting in the ordinary course of their profession to perform a termination (whether medical or surgical) on a person who is not more than 22 weeks and 6 days pregnant.
The Act sets out specific requirements for a termination of pregnancy after 22 weeks and 6 days. These are a medical practitioner acting in the ordinary course of the practitioner’s profession decides:
A second medical practitioner agrees with the first medical practitioner.
There must also be regard to Part 2 section 9 of the Act.
The Act allows for other registered practitioners (i.e. not medical practitioners) to perform early medical terminations in certain limited circumstances.
A registered health practitioner may perform a termination by administering a prescription drug or by prescribing a drug provided that:
It is considered that this could include nurses, nurse practitioners and midwives in the first instance. There are currently other legislative and policy barriers to this part of the Act, and so this part of the Act has not yet commenced.
In its report, the SALRI made alternative recommendations concerning gestational limits for lawful terminations of pregnancies.
SALRI’s preferred recommendation was that there should be no specified criteria or set gestational limits for when a termination of pregnancy may be lawfully performed. Under this model, it was recommended that terminations of pregnancy should be available at any gestational stage with the involvement of one health practitioner.
In the alternative, SALRI recommended that termination of pregnancy should be lawfully available on request up to 24 weeks gestation with the involvement of one health practitioner and thereafter only with the approval of two medical practitioners who consider that the termination is medically appropriate.
As evidenced by the SALRI report, the issue of gestational limits is a sensitive matter and it is recognised that there are divergent views on the appropriate approach.
Parliament agreed in the Act on a gestational limit of 22 weeks and 6 days. This limit most closely reflects current clinical practice and is broadly consistent with the position in other jurisdictions (e.g. NSW and QLD both impose an upper gestational limit of 22 weeks, while Victoria imposes an upper limit of 24 weeks).
The additional presence and approval of two medical practitioners after 22 weeks and 6 days gestation also recognises that terminations at a later stage of pregnancy often involve disadvantage, distress and complexities which merit the involvement of a second practitioner.
The decision to impose a gestational limit of 22 weeks and 6 days was supported and considered appropriate by the Australian Medical Association and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG).
Only medical practitioners and certain registered health practitioners who are acting in the ordinary course of their profession are authorised to assist in the performance of a termination.
For example, the Act does not permit a dentist or a psychologist to assist in a termination of pregnancy.
The Act does not prescribe any additional requirements in respect of informed consent in the context of terminations of pregnancy. The SALRI recommended that there should not be any further requirements beyond those in existing general health law and practice.
In particular, there are already requirements under the Consent to Medical Treatment and Palliative Care Act 1995 to obtain a patient’s free and informed consent and to provide information that a patient would consider reasonably relevant before deciding whether to undergo medical treatment (including a termination of pregnancy). This includes explaining the nature, risks and benefits of any medical treatment and the availability of any alternatives.
Part 1 section 4 of the Act makes it clear that the legislation is intended to operate in conjunction with the requirements set out in the Consent to Medical Treatment and Palliative Care Act 1995.
Current professional standards and clinical guidelines in South Australia also set out specific requirements for obtaining the informed consent of a woman in the case of termination of pregnancy. This includes advising patients of their choice and ensuring informed consent is obtained and that the decision is not being made under coercion. It is standard practice to also screen for domestic violence and to make an appropriate referral to support services if there is evidence that the patient is making the decision under coercion or that the patient is at risk.
The Act requires that all people seeking a termination of pregnancy are offered counselling, including publicly funded counselling. It is considered best practice for people to be offered counselling (but not required to attend) prior to a termination of pregnancy, as has routinely occurred in SA for many years. This is consistent with SALRI’s recommendation that high-quality, impartial and non-directive counselling should be available to any woman who chooses to access it and that any such counselling should be provided within appropriate professional health settings.
It has been stated that the Act will allow for terminations to be performed up to birth on demand, including in situations where the fetus is viable with no indication of congenital abnormalities and the mother has “simply changed her mind” at 37 weeks.
To be clear, under the Act, a termination of pregnancy may only be performed after 22 weeks and 6 days where two medical practitioners consider that, in all the circumstances, the termination is medically appropriate.
In considering whether a termination is medically appropriate, a medical practitioner must consider:
The Act sets out specific requirements for a termination of pregnancy after 22 weeks and 6 days. These are a medical practitioner decides:
There must also be regard to Part 2 section 9 of the Act. The SALRI expressly recommended against including an upper gestational limit for terminations of pregnancy. It considered that there is no merit in imposing an upper gestational limit for late-term abortions, noting that, in the absence of such a limit, access would still be subject to health law and professional practice and protocol. It also found that such procedures are rare and are usually performed only where a major fetal abnormality is identified late in gestation and only after careful consideration by all parties.
The recent practice of termination of pregnancy is that 0.1% of terminations have occurred over 22 weeks and 6 days gestation. In South Australia, there has not been a recorded termination over 27 weeks. In the last three years of data collection, there have been 5 terminations of pregnancy between 24 weeks to 26 weeks gestation. This demonstrated that later gestation termination of pregnancy is exceedingly rare, and it is not expected to change under the Act.
There is no evidence to suggest that the Act will increase the number of terminations of pregnancy in South Australia, on the basis of the experience in other Australian states. State-wide data are not available for all states and territories, however the data available show changes in termination of pregnancy method from surgical to early medical termination. This shift provides a less invasive procedure at an earlier gestation for women, decreasing the need for surgical intervention.
Following legislative reform in Queensland in 2018 Children by Choice reported a 61% drop in applications for financial assistance for termination of pregnancy and an 18% drop in termination counselling telephone requests.
In the Northern Territory following legislative reform in 2017, there were substantial changes in relation to the method of termination, with an increase in the proportion of early medical terminations and a decrease in the proportion of surgical terminations. The rate of termination of pregnancy in the Northern Territory has remained unchanged since the reform.
Victoria underwent legislative reform in 2008 and while no state-wide data are available, Marie Stopes reported that overall there was a slight decline in termination of pregnancy numbers, but a change in termination type with early medical and tele abortion demand increasing, and surgical terminations decreasing.
There are no estimates of rates of termination of pregnancy in Western Australia from the years immediately before the abortion legislative reform in 1998, but an earlier WA Health Department report estimated rates of abortion which are comparable with those in Western Australia following the legislation.
The termination of pregnancy rate in South Australia has been consistently decreasing since 1999.
The Act allows for telehealth services to be used in relation to terminations of pregnancy, in line with modern health care practice.
In addition to the telehealth consult, the pregnant person is required to have a face to face ultra sound and also to collect the medication from a pharmacy. Surgery or induction of labour would always require face to face consultation.
Recent studies comparing adverse events for all early medical abortions performed by telemedicine or an in-person visit have shown that telemedicine is not inferior to in-person provision for non-surgical terminations of pregnancy. There is strong evidence to support the use of telemedicine as a reasonable alternative for those who may not otherwise have access to safe, high quality and effective abortion care.
Consistent with the recommendations made by SALRI, the Act preserves the right of a registered health practitioner to conscientiously object to provide or assist in the termination of a pregnancy, or to provide advice in relation to the termination of a pregnancy.
Where a medical practitioner or registered health practitioner conscientiously objects to provide or assist in the termination of a pregnancy, the practitioner must immediately disclose their objection to the person.
In the case of an objection to performing a termination or providing advice about the performance of a termination, the practitioner must also either:
A registered health practitioner who provides information to the person in the prescribed form will be taken to have met their obligations under section 11 (3) of the Act.
As recommended by SALRI, the Act creates a new major indictable offence for unqualified persons who perform or assist in the performance of a termination of pregnancy.
The offence recognises the clear public interest in protecting the public from dangerous and unsafe medical practices carried out by persons who are not authorised or qualified to perform or assist in the performance of a termination of pregnancy.
The offence imposes a maximum penalty of 7 years imprisonment for an unqualified person who performs a termination of pregnancy and a maximum penalty of 5 years imprisonment for an unqualified person who assists in a termination of pregnancy.
As recommended by SALRI, proceedings for the offence will not be able to be initiated without the written consent of the Director of Public Prosecutions. This is to ensure that proceedings for the offence will only be initiated in circumstances where it is in the public interest for the offence to be prosecuted.
While SALRI did not recommend creating a specific anti-coercion offence, it was acknowledged that reproductive coercion is a form of domestic violence and, as such, should be recognised as such within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009.
Part 3 of the Termination of Pregnancy Act 2021 amends section 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to specifically include “coercing a person to terminate a pregnancy” and “coercing a person to not terminate a pregnancy” as acts of abuse within the meaning of the Act.
Where the act of abuse is committed by a defendant against a person with whom the defendant is or was formerly in a relationship, the abuse is expressly recognised as a form of domestic abuse (section 8(8)) and the court may endorse the intervention order to reflect the fact that the order intended to address a domestic violence concern.
It is noted that a person who contravenes a term of an intervention order is already subject to significant penalties under the Act. This is especially so in circumstances where the contravention constitutes a second or subsequent offence or where the contravention involved physical violence or a threat of physical violence (maximum penalty of $ 20,000 or imprisonment for four years).
The Act also contains an offence for the unlawful publication of information or data by a person engaged in connection with the cooperation of the Act (Part 3 Section 18) as well as offences for unlawfully disclosing personal information of a person in the context of terminations of pregnancy (Part 3 Section 19).
The issue of reproductive coercion was a topic which was considered at length by the SALRI.
While the term “reproductive coercion” is an emerging concept, the term is generally accepted to mean, “a behaviour which interferes with the autonomous decision-making of a woman with regard to reproductive health.” Relevantly, this includes conduct where a person is forced or coerced to either terminate or continue their pregnancy against their will.
There was universal agreement in the SALRI consultation of the fundamental importance of reproductive autonomy for women, including women with disabilities, and the need for women to make any decision relating to abortion voluntarily and without coercion. However, it was SALRI’s recommendation that any new law in South Australia relating to abortion should not include a specific anti-coercion offence (Recommendation 57).
While there was general support for the view that safeguards should be established to deter reproductive coercion, there was disagreement about whether a specific anti-coercion offence was necessary. Although there was general support for the view that safeguards should be established to deter reproductive coercion, parties considered that the preferred approach is to provide adequate domestic violence training to medical and health practitioners and for all abortion service providers to carry out domestic violence screening and counselling.
The creation of a specific anti-coercion offence was not supported by either the Victorian Law Reform Commission (VLRC) or the Queensland Law Reform Commission (QLRC) in the context of their abortion law reform referrals.
It was the VLRC’s view that the issue of reproductive coercion is best left to clinical practice as medical and health practitioners are already mindful of the risk of coercion in the context of abortion and this approach is consistent with the existing legal duty of a practitioner to obtain the patient’s informed consent. This view was shared by the QLRC which observed that there are already a range of various civil and criminal state and commonwealth laws and remedies in place which would capture instances of women being harassed or assaulted with the intention of compelling a termination or the continuance of a pregnancy.
In South Australia, there are a range of existing criminal offences which may capture instances of persons being forced or coerced to terminate or continue a pregnancy.
For example, it is an offence for a person to intentionally or recklessly threaten to cause harm to another person (section 19(2) Criminal Law Consolidation Act 1935). This offence would arguably extend to situations in which a person threatens another with physical force if they do not terminate their pregnancy or, alternatively, if the person does not cease taking steps towards accessing a termination. Similarly, depending on the factual circumstances of the matter, it is also possible that the offences of assault, causing harm and causing serious harm could apply in the context of reproductive coercion.
A number of recommendations contained in the SALRI report have not been implemented in this Act as they relate to matters which are either non-legislative in nature or which are/were being considered separately from the present Act.
Recommendations 49-56 of the SALRI Report relate to the creation of safe access zones. The issue of safe access zones was considered separately in the context of the Health Care (Safe Access) Amendment Act 2020, which was passed by Parliament in November 2020.
Recommendation 31 of the SALRI Report relates to truth in advertising for counselling services. It is SALRI’s recommendation that counselling services should be required to be transparent about their underlying values when advertising and offering their services in relation to abortion. While the notion of greater transparency in counselling services is supported, it is acknowledged that there is currently no formal regulatory system in place to deal with such entities. Given the complexity of this issue, it is recommended that this issue be considered separately from the present reforms.
Recommendations 17 and 18 of the SALRI report concern Commonwealth administrative arrangements for the provision of the termination drugs, Mifepristone and Misoprostol (collectively known as “MS-2 Step”) and the use of specific Medicare identification numbers for appointments related to abortion consultations and procedures. It is noted that these recommendations fall outside the scope of South Australia’s jurisdiction and are therefore matters for the Commonwealth to consider.
Recommendation 63 of the SALRI Report relates to the offence of child concealment in s 83 of the CLCA. Section 83 makes it an offence for a person to dispose of the dead body of a child in an effort to conceal the birth of the child. SALRI noted that the offence fell outside its terms of reference but recommended that the offence be considered separately by the Attorney-General’s Department in consultation with interested parties.
It was noted that the offence has significance independent of its relevancy to abortion, i.e. the offence operates as an alternative verdict in situations where the murder or manslaughter of a child recently born has not been established beyond reasonable doubt. It is therefore not considered appropriate to deal with the offence in the context of the Act, noting that it has broader implications for the criminal law beyond terminations of pregnancy.
The Act will not lead to poorer health outcomes for women. The Act represents a significant step forward in removing barriers to access for women and improving the availability of abortion health services across South Australia, particularly in rural and regional areas of the State. The Act reflects current clinical practice, promotes patient decision-making and respects the individual choice and autonomy of the patient, while ensuring that there are appropriate safeguarding measures in place where necessary.
