NSW abortion debate: Labor Senator Kristina Keneally warns of ‘ethically confusing’ loophole

Kristina Keneally has previously opened up about her daughter's stillbirth in 1999.

Kristina Keneally has previously opened up about her daughter's stillbirth in 1999. Photo: AFP/Getty

Former NSW Premier Kristina Keneally has raised concerns about a loophole that requires the state to issue birth and death certificates for late-term abortions as “medically and ethically confusing”.

New South Wales is debating decriminalising the state’s abortion laws and removing the terminations from the criminal code, sparking fierce debate from opponents.

Senator Keneally, who supports the decriminalisation of abortion in NSW, has also campaigned for years to raise awareness about stillbirth after her baby daughter Caroline died before she was born in 1999.

Any stillbirth or late-term abortion in NSW after 20 weeks needs to be registered as a birth and a death certificate.

“Let me be clear: I support the decriminalisation of abortion in NSW,” Senator Keneally told The New Daily.

“It has always been my view that abortion should be safe, legal and rare – that is, we should do what we can as a community to ensure women have access to reliable, inexpensive and effective birth control.

“However, I have been long concerned about the disconnect in law between the requirement to provide a birth certificate for a baby from 20 weeks gestation onwards, and the ability to access abortion after 20 weeks, which in some cases will be necessary for quite specific reasons.

“This disconnect largely occurs because NSW and other states, except Victoria, collect data in such a way that abortion after 20 weeks, stillbirth and miscarriage are not able to be distinguished. 

“This is just medically and ethically confusing, and from a public policy perspective, does not help us understand how to best respond to issues like the public provision of contraception, or preventing stillbirth.

“I strongly encourage legislators and NSW Health to take the opportunity of this decriminalisation debate to be clear about when a birth certificate is granted and when it isn’t, and to change how the state of NSW records data about pregnancy termination, miscarriage and stillbirth.”

While in theory NSW does not offer time limits on how late an abortion can be provided, no service in the state provides abortions after 20 weeks and women need to travel in Victoria to access services.

Under proposed laws to decriminalise abortion and remove it from the criminal code, the state will allow for terminations after 22 weeks with the consent of two doctors.

That raises the prospect that women undergoing late-term abortions will need to have a birth and death certificate issued with the cause of death.

This might involve, for example, a woman undergoing a late-term abortion for a much-wanted child that has catastrophic abnormalities.

The NSW Health Department said there were no plans to change the arrangements as a result of the proposed abortion reforms.

“The reform Bill is confined to removing terminations from the NSW Crimes Act 1900 and ensuring they are regulated as a health service,” a NSW Health spokesman said.

“The Bill does not therefore change any other relevant regulatory  scheme, such as those under the Births Deaths and Marriages Act.

“Presently, a stillbirth is required to be registered as a birth, with a doctor’s certificate certifying the cause of fetal death.

“These same requirements currently apply to late-term terminations and will continue if the Bill passes.”

Nationals MP Barnaby Joyce has also re-entered the debate, declaring he is uncomfortable with women having late-term abortions on the grounds of domestic violence.

He confirmed that restricting it purely to medical grounds would be preferable.

“There are some instances, for example, catastrophic abnormalities which would be a different argument, where people say this child is not going to survive,” the former deputy prime minister said.

“But I have not yet met one person who says that a healthy child at a viable stage should be terminated.

“If a man beats a woman up and she’s pregnant, who is the criminal? The man, the woman or the baby?”

Mr Joyce said his views were not about religion, but he did believe the reasons for late-term abortions needed to be clear in the legislation if they did not involve medical reasons.

“I’ve never quoted the Bible, on any of my beliefs,” he told The New Daily.

“My position, I honestly believe I could hold as a committed atheist.”

Mr Joyce declined to say if his partner Vikki Campion agreed with his position on abortion, whether he had spoken about it with the women in his family or women who had late-term abortions.

“That’s irrelevant. Next question,” he said.

“If you want to write an article about Barnaby’s view, go work for New Idea. You would be well suited there.”

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