The Queensland Law Reform Commission will give its recommendations to the government this weekend about changes to state laws surrounding abortion. Premier Annastacia Palaszczuk has said that reforming abortion laws is a priority for her government. I agree that law reform is needed, but not the kind I fear the QLRC will recommend to the government. Below is my submission to the Commission’s review from earlier this year.
Please pray for the protection of unborn lives in Queensland and consider contacting your State MP next week to communicate your concerns!
Submission to the Queensland Law Reform Commission: Review of termination of pregnancy laws.
Dear Mrs. Manthey (and Commission members),
The following submission addresses a number of issues pertinent to the consultation questions outlined by the Commission in your review of the State’s laws regarding the termination of pregnancies in Queensland.
I write as a concerned citizen who has long opposed our State’s drift towards the kind of culture of “abortion on demand” so forcefully condemned by McGuire DCJ in R v Bayliss & Cullen (1986). I will outline my concerns about reform to abortion-related laws below and have included an appendix with my concise responses to the Commission’s consultation questionnaire.
The substance of this submission is that:
a) The Queensland Law Reform Commission and the Queensland Parliament have a responsibility to ensure that the laws of Queensland protect the fundamental right to life of all Queenslanders, including the unborn.
b) procuring an abortion and/or acting in such a manner that intentionally causes an unnatural miscarriage should remain unlawful in Queensland (i.e. Sections 224-226 of the Criminal Code should not be abolished).
c) Section 292 of the Criminal Code is the section in urgent need of reform – as there is currently a severe inconsistency between the legal principles of this section and those enshrined in Section 313.
d) the person or persons who carry out an abortion (whether a licensed medial professional or another individual) should be held criminally responsible for this action (rather than a woman seeking an abortion).
e) in the event that the Commission or Parliament rejects the points in this submission, the adverse effects of liberalised abortion laws in Queensland ought to be mitigated by the Commission recommending:
i. the highest levels of accountability within the medical and health system in this State.
ii. mandatory referrals for counselling in the event of a termination being sought.
iii. no requirement of medical professionals to violate their consciences through participation in an abortion.
iv. no restrictions to free speech in Queensland regarding the right to protest against abortion and peacefully dissuade women from seeking a termination.
Addressing the fundamental principles underlying the Attorney-General’s ordering of this review
I am concerned that, despite Parliament’s recent refusal to decriminalise abortion in accordance with the coarse proposals of the Abortion Law Reform (Woman’s Right to Choose) Amendment Bill 2016, the Hon. Attorney General Ms. D’Ath appears to have referred this matter to the Commission (on behalf of the government) with the assumption that abortion should be decriminalised in Queensland.
I strongly agree with McGuire DCJ’s view in his ruling on R v Bayliss and Cullen (1988) that:
The law in this State has not abdicated its responsibility as guardian of the silent innocence of the unborn. It should rightly use its authority to see that abortion on whim or caprice does not insidiously filter into our society. There is no legal justification for abortion on demand.
Commission members would likely be aware that McGuire DCJ cited – as a precedent underlying these remarks – the opinion of Macnaghten J in the case of Rex v Bourne (1938, UK) that:
The law of this land has always held human life to be sacred, and the protection that the law gives to human life it extends also to the unborn child in the womb.
These are sound legal principles that should govern any legislation or legal rulings related to the termination of unborn human life. I am deeply concerned that subsequent interpretations and applications of Queensland law have weakened our State’s commitment to the fundamental principle of justice that demands full protection for all human life within our borders. Should the Commission or Parliament err in how reform is approached, there is a risk that “abortion on demand” might become a reality in Queensland.
Humanity, personhood and the right to life
Medically speaking, human life begins at conception. When an ovum is fertilised by a sperm cell, a new human being has been formed and the processes of human growth and development have begun. It is disingenuous and medically unfounded to speak of an “embryo” or a “foetus” in a manner that implies that the entity in question is not a human being. The embryo or foetus is a “human embryo” or “human foetus” (rather than an unspecified entity, or a potential member of another species).
As genuine human beings, unborn children should be afforded full protection of their lives under Queensland law, just as all citizens and other residents are.
Many arguments against human rights and legal protections for the unborn are incredibly problematic. For instance, the suggestion that unborn children should not be afforded full legal rights and protections because they are dependent on their mother for survival is dubious. Newborn children are also completely dependent upon adults for survival and yet their lives are fully protected under Queensland law – in recognition of their personhood. Heavy criminal penalties are rightly imposed whenever someone is found guilty of killing a newborn child or causing their death through abandonment or similar negligence. For the law to be consistent, dependency cannot be used as grounds to exclude unborn children from legal protections. Either unborn children ought to have the same rights and protections as any infant, or – as certain, extremist ethicists have recently suggested – parents and medical professionals should have the option to legally end the lives of infants.
The same principle covers any suggestions that a foetus is not sufficiently developed to be recognised as a human being with the legal right to life. Irrespective of whether the development in question is physical or psychological, this premise is flawed and dangerous. A six month old infant is manifestly less physically and psychologically developed than a 30 year old man or woman. Yet the infant is afforded the exact same protection of their life under Queensland law that every adult enjoys.
The assertion that the unborn (and perhaps even the newly born) do not possess sufficient self-awareness and fully developed consciousness to be considered a true “person” is a disturbing philosophical argument that has potentially horrific ramifications if applied consistently across the community. Philosophical arguments that classify unborn children and infants as “potential persons” – without an intrinsic right to life as a human being – could equally be used to classify elderly dementia patients as “former persons” without legal protections. Such a principle could exclude people with mental disabilities from legal personhood. Reclassification of some members of the community as “non-persons” is dangerous and should be rejected.
Philosopher Peter Kreeft (Boston University) provides a helpful illustration of the ethical and legal implications which apply if a foetus cannot be definitively determined to not be a ‘human’ or a ‘person.’
[We] know by formal logic alone…that either we do or do not know what a fetus is. Either there is “out there,” in objective fact, independent of our minds, a human life, or there is not; and either there is knowledge in our minds of this objective fact, or there is not.
So, there are four possibilities:
- The fetus is a person, and we know that;
- The fetus is a person, but we don’t know that;
- The fetus isn’t a person, but we don’t know that;
- The fetus isn’t a person, and we know that.
What is abortion in each of these four cases?
In Case 1, where the fetus is a person and you know that, abortion is murder… You deliberately kill an innocent human being. In Case 2, where the fetus is a person and you don’t know that, abortion is manslaughter. It’s like driving over a man-shaped overcoat in the street at night or shooting toxic chemicals into a building that you’re
not sure is fully evacuated. You’re not sure there is a person there, but you’re not sure there isn’t either, and it just so happens that there is a person there, and you kill him. You cannot plead ignorance. True, you didn’t know there was a person there, but you didn’t know there wasn’t either, so your act was literally the height of irresponsibility. . .
In Case 3, the fetus isn’t a person, but you don’t know that. So abortion is just as irresponsible as it is in the previous case. You ran over the overcoat or fumigated the building without knowing that there were no persons there. You were lucky; there weren’t. But you didn’t care; you didn’t take care; you were just as irresponsible. You cannot legally be charged with manslaughter, since no man was slaughtered, but you can and should be charged with criminal negligence.
Only in Case 4 is abortion a reasonable, permissible, and responsible choice. But note: What makes Case 4 permissible is not merely the fact that the fetus is not a person but also your knowledge that it is not, your overcoming of skepticism. So skepticism counts not for abortion but against it. Only if you are not a skeptic, only if you are a dogmatist, only if you are certain that there is no person in the fetus, no man in the coat, or no person in the building, may you abort, drive, or fumigate.
The full weight of Kreeft’s argument must be felt when considering how abortion should be treated by the laws of Queensland. Members of this Commission and members of State Parliament must ensure the protection of the lives of those who are indisputably members of the human race. This responsibility is only negated if it can be definitively established that an unborn child is less a “person” than an adult citizen or even a premature baby delivered at 23 weeks – both of whom enjoy full protection under the law.
Decriminalising abortion in Queensland is the wrong kind of reform
Because philosophical or ideological arguments against the personhood of unborn children cannot be established beyond doubt as evidence-based, factual knowledge – they lack sufficient weight to support the decriminalisation of abortion. To decriminalise abortion would be to adopt the unfounded premise that children who are conceived in Queensland are unworthy of legal protection under the law of the State. This amounts to an arbitrary exclusion of an entire section of our State’s population from their basic human rights. Furthermore it renders the Criminal Code inconsistent with respect to the value of unborn children.
Section 292 of the Criminal Code should be reformed in line with Section 313
There is a clear disparity between the legal principle expressed in Section 313 of the Criminal Code and the potential removal of abortion and the procurement of miscarriages from the Criminal Code. Section 313 rightly views the destruction of the life of an unborn child by a third party as a serious criminal offence – which makes the offender liable to a sentence of life imprisonment.
313 Killing unborn child
(1) Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.
(2) Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime.
Maximum penalty—imprisonment for life.
This article of the Criminal Code recognises the unborn human as a “child” and makes the destruction of the child’s life legally punishable by life imprisonment. The serious penalty for this crime is equal to that which would be imposed upon the murderer of an adult citizen. This would suggest that the Criminal Code is here recognising the equal value of postnatal and prenatal human life under the law of Queensland. As stated above, to remove abortion from the Criminal Code is to suggest that the life of an unborn child is not equal in value to that of other people living in Queensland. Thus, reform of Sections 224-226 risks creating a contradiction with Section 313, which would result in a serious inconsistency under the law.
If the Commission is to recommend positive reform to the laws pertaining to abortion in Queensland, this submission proposes that the appropriate place to start is Section 292.
As Commission members will be well aware, the section currently reads:
292 When a child becomes a human being
A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not.
As contended above, an arbitrary recognition of the child’s humanity or personhood occurring only after their birth is severely deficient. I propose that Section 292 would better reflect the vital legal commitment to the dignity of human life enshrined in Section 313 if it were altered along the lines of:
292 The beginning of a human life
A child is a person capable of being killed from the time of conception, and he or she shall be regarded as a human being throughout the embryonic and foetal stages of their development.
Because Section 313 is the best expression of the unborn child’s rights and dignity within the Criminal Code, it follows that the deficiencies present in Section 292 should be rectified by conforming them to the principles expressed in the superior section.
The party responsible for carrying out an abortion – rather than the child’s mother – should be liable to suffer penal consequences for the killing of a child.
This submission argues that abortion should continue to be treated as a serious crime under the Queensland Criminal Code, but if there were to be any clarifications made in relation to Sections 224-226 they should pertain for who is criminally responsible for an abortion.
Along with many other opponents of liberalised abortion, I do not wish to see vulnerable women fined or imprisoned for seeking an abortion out of fear or desperation. However, as an act tantamount to murder is being committed it is necessary for Queensland’s Criminal Code and legal system to bring to account those who are chiefly responsible for the death of an innocent child.
In line with the superior legal principles reflected in Section 313, this submission recommends that the Commission consider advising the Government to reform the Criminal Code to make it clear that medical professionals, or other, unlicensed individuals who perform an abortion (or supply drugs with the intention of causing the unnatural miscarriage of a living child) are guilty of an offence and liable to imprisonment.
This is the most effective means of protecting the lives of unborn children in Queensland, as any given woman is only likely to seek 1-3 abortions during their lifetime, whereas a medical professional could potentially destroy the lives of scores of children throughout their career. Most doctors would not willingly choose to face criminal penalties and the permanent loss of their medical license to perform an illegal termination and thus many lives will be saved by such a reform.
Naturally, an objection to the above proposal will be made due to the apparent risk of increased “backyard abortions” by unqualified persons who would put the mother’s life at risk as well as that of the unborn child. This should not be used as grounds for condoning the medical termination of a child’s life in a sterile environment by a trained professional. Instead, a greater penalty could be implemented as a deterrent to such operators (e.g. a longer prison sentence than that administered to guilty medical professionals or a double charge if the woman is harmed or dies as a result of the procedure).
Should the Commission elect to recommend reform contrary to that suggested above, the following considerations should be made to mitigate what will already constitute an adverse change of our laws.
i. If abortions were to be decriminalised, the Parliament should at the very least make it difficult to obtain one outside a limited scope of circumstances (i.e. practically maintaining something similar to the status quo) and hold doctors conducting abortions to the highest standards of professional accountability.
ii. The Parliament should draft legislation that includes mandatory referrals for professional counselling by doctors who are consulted by a patient about the possibility of terminating their pregnancy before proceeding with any medical procedures that will end the life of their unborn child.
iii. No doctor or other medical professional should be required by their employer to carry out an abortion if participation in such a procedure violates their conscience or sincerely held religious beliefs. It is preferable that they also be excused from any requirement to refer the patient to another doctor if this also violates their conscience and constitutes, in their mind, participation in an unethical procedure.
iv. There should be no undue restrictions placed upon the freedom of speech, expression, political communication and the manifestation of religion of Queenslanders who sincerely oppose abortion and seek to peacefully protest against it or dissuade women from terminating their pregnancies.
Abortion must remain prohibited by the Criminal Code if the genuine human life and value of unborn children is to be recognised and protected. If the law relating to abortion in Queensland is to be changed by Parliament, it should be altered to better reflect the basic right to life of all children within Queensland jurisdiction. One way of achieving this would be to reform Section 292 of the Criminal Code in line with the principles of Section 313. Rather than decriminalising abortion, the Commission should recommend that the Parliament act to remove ambiguity surrounding Sections 224-226 of the Code by making the general illegality of abortion more explicit. Heavy penalties should be applied to medical professionals who knowingly violate the rights of children in Queensland and treat them as though they are not human beings (e.g. permanent deregistration and criminal liability for those found guilty of the unwarranted destruction of a child’s life).
There are no solid ethical, philosophical or legal grounds for liberalising abortive practices in Queensland. It would be more fitting for Parliament to consider how the Criminal Code or other statutes might be amended to lower the number of abortions in Queensland every year and restrict the power of individuals to harm innocent unborn lives.
I thank Commission for taking time to consider this submission .
 R v Bayliss & Cullen  QDC 011 ; (1986) 9 Qld Lawyer Reps 8 McGuire DCJ. 22 January 1986.
 I have prepared this submission to address the Commission’s specific terms of reference, while drawing upon my previous submission to the Parliamentary Committee considering the 2016 Abortion Law Reform bill. I recognise my status as a legal layperson and therefore request the Commission’s patience with any lack of finesse in jurisprudence as I outline my concerns about the matters at hand.
 “Fertilization is the process by which male and female haploid gametes (sperm and egg) unite to produce a genetically distinct individual.” Signorelli et al., “Kinases, phosphatases and proteases during sperm capacitation” CELL TISSUE RES. 349(3):765 (Mar. 20, 2012). “[The zygote], formed by the union of an oocyte and a sperm, is the beginning of a new human being.” Keith L. Moore, Before We Are Born: Essentials of Embryology, 7th edition. Philadelphia, PA: Saunders, 2008. p. 2. “Although life is a continuous process, fertilization… is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is formed when the chromosomes of the male and female pronuclei blend in the oocyte.” Ronan O’Rahilly and Fabiola Miller, Human Embryology and Teratology, 3rd edition. New York: Wiley-Liss, 2001. p. 8. Quoted in http://www.lifenews.com/2015/01/08/41-quotes-from-medical-textbooks-prove-human-life-begins-at-conception/
 See Alberto Giubilini & Francesca Minerva “After-birth abortion: why should the baby live?” Journal of Medical Ethics (2011) http://jme.bmj.com/content/early/2012/03/01/medethics-2011-100411.full
 Peter Kreeft, “The Apple Argument against Abortion” http://www.peterkreeft.com/topics-more/personhood_apple.htm