Reproductive Rights: Information Page
1) Reproductive Rights Defined
In 1994, 179 countries, including Australia, attended the International Conference on Population and Development (ICPD) in Cairo, which was sponsored by the United Nations Population Fund (UNFPA). During this gathering a Programme of Action strategy was adopted with the aim of empowering couples/individuals to have the freedom to make reproductive choices without coercion. In short, the ICPD Programme of Action determined that “the right to reproductive health is a crucial element to recognising human reproductive rights” and duly defined it as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes.” [1, pg 1] During the meeting it was also recognised that human rights are women’s rights and that in order for them to achieve gender equality in relation to economic and social aspirations, they must be able to control their bodies and fertility. 
The above position was further endorsed in 1995, at the United Nations Fourth World Conference on Women, with the Beijing Declaration and Platform for Action reaffirming that, “the human rights of women include their right to have control over and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Equal relationships between women and men in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and it’s consequences.” [2, paragraph 96, pg 36]
2) United Nations Endorsed Reproductive Rights
Individual to have control over their sexual reproductive choices
Individual to be free from coercion or violence
Individual autonomy and decision-making to be respected
Individual to have a safe and satisfying sex life
Individual to choose sexual partners freely
Individual to choose who they will marry
Individual to choose the number of children to have (family size)
Individual to choose when to have children
Individuals to have access to safe and legal abortions
Individual to have access to humane and affordable, quality post-abortion care
Individual to access clinics offering women's sexual health services
Individual to access education on contraception/birth control and sexually transmitted infections (STIs)
Individual to have access to culturally appropriate health services
Coercive laws, policies and practices that are discriminatory to be eliminated
Domestic laws to recognise this position through relevant legislation
3) Current Reproductive Rights in New South Wales (NSW)
Australia, as a signatory to numerous human rights charters as well as the Convention on the Elimination of all Forms of Discrimination Against Women, has in place the following reproductive rights in NSW: , , 
Right to self-determination and autonomy
Right to privacy
Right to consensual sex
Right to choose sexual partners freely
Right to choose who to marry, or if they will marry
Right to choose when to have children/IVF/surrogacy
Right to choose not to have children
Right to choose where to have their babies born (birthing rights)
Right to access clinics offering women's sexual health services
Right to access sex/contraceptive/STI information and resources to make informed decisions
Right to access culturally appropriate health services
Discriminatory practices such as forced marriages, child brides and Female Genital Mutilations are illegal and enacted in relevant legislation
4) Brief History of Sexual and Reproductive Health in Australia/NSW
Declining birth rates at the end of the 19th century forces the Australian Government to develop sexual and reproductive health policies. 
At the turn of the 20th century there is increased “political interest in abortion, infanticide, contraception and STIs in order to control sexual behaviour” for the purpose of “protecting marriage and the family unit, as the basis of a healthy society.” [4, pg 12]
New laws dealing with age of consent for “sexual intercourse, marriage, divorce, obscenity, pornography, homosexuality, prostitution and venereal diseases” follow. [4, pg 12]
The issue of abortion falls under the jurisdiction of the various Australian states and territories. This situation continues today as a result of the Federal Government having no national sexual health and reproductive strategy. , 
In the 1960s the contraceptive pill is readily available to women in Europe, but Australian women do not have access until the 1970s. 
In 1969 Justice Menhennit (Vic), makes the first ever ruling in R v Davidson on the lawfulness of abortion in Australia, finding that it may be legal if a mother’s life is at risk. 
In 1971, Justice Levine (NSW) in the case of R v Ward, follows the Menhennit precedent, determining that a surgical abortion is not illegal if a doctor believes on “reasonable grounds that the operation is necessary to preserve the woman involved from serious danger to her life or physical or mental health (ie: economic and social stress/pressure), which the continuance of pregnancy would entail.” [7, pg 20]
In 1994, Justice Kirby (NSW) in CES v Superclinics Australia Pty Ltd, expands on the Levine ruling by not only making abortion lawful at any time if the doctor believes that the women’s life is at stake, but also took into account the possible negative affects to her well-being after the child’s birth. 
The Kirby judgement on the ‘lawfulness’ of abortion remains the current NSW legal position. 
In 2002, the Emergency Contraceptive Pill (ECP) often referred to, as the ‘morning after pill’, is made available to Australian women. 
The abortion pill Mifepristone, commonly known as RU486, is developed in France in the 1980s, but is not made available to Australian women until 2006. 
Australia becomes the 51st country to register RU486 so it can be imported and made available for doctors to prescribe. This development is 10 years behind Western Europe. 
While federal law allows doctors to prescribe RU486, NSW criminal abortion laws hamper a doctor’s ability to subscribe it freely, thereby “limiting women’s access to abortion care.” [5 pg 12]
Also in 2006, the first doctor in 25 years is convicted of performing an unlawful abortion in NSW. Dr Suman Sood is found guilty of illegally giving a pregnant woman a drug to procure an abortion. She is sentenced to a two-year good behaviour bond. 
In 2013, RU486 is listed on the pharmaceutical benefits scheme (PBS) making it affordable to Australian women. 
5) Brief History on the Development of Abortion Laws in Australia
Australia’s legal system derives from British Common Law. One of the main features of the system is that judge’s pending decisions are guided by the decisions of previously settled cases, often referred to as judicial precedent.  The following is a brief summary of the development of abortion laws by the UK Parliament: 
The Miscarriage of Women Act 1803 is the first developed legislation prohibiting abortion in the United Kingdom (UK). It made it illegal for anyone to perform or cause an abortion. Punishment was death.
The Lord Lansdowne Act of 1828 extended the prohibition of abortion from unlawfully administering a destructive/toxic substance to procure a miscarriage to a prohibition on the unlawful use of any instrument to procure an abortion. However, the law did not clarify whether a woman could procure her own abortion.
The Offences Against the Person Act in 1837 saw the end of the death penalty in relation to abortions.
This law was revised with the Offences Against the Person Act 1861, which reaffirmed that an unlawful abortion was a crime and clarified that it was an offence for a woman to procure her own abortion.
The Infant Life (Preservation) Act 1929 permitted the termination of a foetus if it was found necessary to save the mother’s life.
The Abortion Act 1967 enacted that an abortion is not illegal if the medical profession is involved in the decision making and that doctors would be responsible for carrying out the procedure ie: “a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner….” 
However, current abortion laws in New South Wales continue to be modelled/based on the legislative provisions of the Offences Against the Person Act of 1861.
6) Current Legal Status of Abortion and Personhood in NSW
In 2010, the Medical Journal of Australia published findings from an online survey, which investigated the attitudes of Australian adults towards abortion. In short, the study found that the majority of Australians (87%) supported women’s right to a legal abortion for early term pregnancy, and that doctors should not be punished for performing late abortions. 
However, unlike Victoria and the ACT, surgical abortion remains ILLEGAL to women and doctors in New South Wales if it is procured UNLAWFULLY.  Sections 82, 83 and 84 of the NSW Crimes Act 1900, clearly states that “a pregnant woman who unlawfully administers an abortion through an unlawful drug or instrument” faces a maximum penalty of 10 years imprisonment, and that “anyone who unlawfully supplies the pregnant woman with such drugs or instruments to help procure an abortion” faces a maximum penalty of 5 years imprisonment.” [6, pg 71] Yet, as highlighted by the Kirby ruling, doctors can legally perform terminations if they believe it is necessary to preserve a woman’s life and/or well-being. 
Overall the survey results show that abortion laws in Australia, and especially in NSW, are out of touch with public opinion and inconsistent with international laws on ‘women’s right to sexual and reproductive health.’
Under current NSW legislation a mother has legal personhood status while her foetus does not. The mother takes precedence over a foetus because technically, it is not yet born and therefore not a ‘person’. As a result, legal personhood status can only be claimed when a baby is born and has taken a physical breath. , ,  However, this legal personhood status is now being challenged.
PART 2 – Information on Zoe’s Law, NSW
7) Zoe’s Law Bill – Challenge to Current NSW Laws relating to Personhood Status
The Crimes Amendment (Zoe’s Law) Bill 2013 (No. 2) is currently before NSW Parliament, and aims to change the current ‘legal personhood’ status. In short, this bill proposes to recognise the foetus as a separate entity to the mother and to give it the title of ‘foetus personhood’ by changing the current definition of ‘grievous bodily harm’. The following is a brief outline of the events leading to the development of this proposal:  , , 
On 25 December 2009, Ms Brodie Donegan, while walking, is hit by a driver under the influence of drugs. She was 32 weeks pregnant.
Ms Donegan loses her stillborn baby girl who, she names ‘Zoe’
The driver, Ms Justine Hampson, is found guilty, but due to current NSW legislation on ‘personhood’ status, is charged with dangerous driving causing grievous bodily harm to Ms Donegan. She could not be charged with the death of the foetus.
Ms Hampson serves a 9 month non parole prison sentence.
Ms Donegan is distraught by the following:
1) the lenient sentencing,
2) that it was not legally possible for charges to be brought against the driver,
3) the lack of recognition for her child on legal documents, and
4) that her daughter was medically listed as an injury to her rather than being recognised as a separate person.
She begins lobbying publicly to challenge these laws.
In 2010, the Hon. Michael Campbell, QC is asked by the NSW government to review the Crimes Act 1900 in order to determine if current penalties against those who cause the death of an unborn child are adequate.
The ‘Campbell Review’ finds that the present maximum penalty of 25 years imprisonment is appropriate and recommends no changes, noting that in 2005 ‘the destruction of foetus’ was added to the current definition of ‘grievous bodily harm’.
In 2013, Reverend Fred Nile, leader of the Family First Party, without consulting Ms Donegan, introduces Zoe’s Bill (No.1), into Parliament asking that the law recognise that life begins immediately at conception.
Ms Donegan rejects this proposal claiming she is pro-choice and will not support any proposal, which would make it illegal for a woman to have an abortion.
Zoe’s Bill (No.1) is defeated in Parliament.
Ms Donegan and her partner consult with their local Liberal MP, Chris Spence, and they draft Zoe’s Law (No.2), which seeks to give personhood status to a foetus at 20 weeks or 400 grams, and which would require the Crimes Act to recognise the foetus as a ‘living person’.
The Births Deaths and Marriages Act, contains the same definition of personhood.
The draft also includes a clause protecting the rights of women and the medical profession, exempting them from criminal liability if a foetus death occurs.
In short, under this proposal any person who causes any harm/destruction to fetuses at 20 weeks, is to be charged with ‘grievous bodily harm’ against the foetus and not the mother. Murder and manslaughter offences would not apply.
29 August 2013, Zoe’s Bill (No.2), is introduced to the NSW Lower House.
21 November 2013, after a conscious vote, the Bill is overwhelming passed by a margin of 63-26, by the male dominated parliament.
The Bill is currently before the NSW Upper House.
8) Current Law relating to ‘Grievous Bodily Harm’ under the Crimes Act 1900
Current penalties for offences against a pregnant woman, as highlighted by the ‘Campbell Review’, and which was amended in 2005 to acknowledge and protect the foetus, are located in Sections 33, 35(1) and 35(2) of the NSW Crimes Act 1900.  In brief summary, ‘grievous bodily harm’ is defined as “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm”, with recommended maximum prison penalties ranging from between 25 to 10 years. [6, pg 20] Therefore, as the Bar Association correctly points out “the existing law provides protection for the foetus, irrespective of its length of gestation or size, while it is in utero.”(President, Phillip Boulten, SC) [25, pg 4]
9) Opponents of ‘Zoe’s Law’
Family Planning NSW have mobilised with various women’s groups, to form the “Our Bodies, Our Choices” coalition, to fight Zoe’s Law, as well as the lack of public consultation by proponents of the Bill. The campaign has also received extensive support from other organisations, most notably from Australia’s leading medical and legal professionals. The following are the concerns of the women’s coalition:
“In other jurisdictions, recognising the foetus as an independent ‘person’ has been the first step towards the prosecution of women where they are deemed to have acted contrary to the interests of the foetus they are carrying.” (Family Planning NSW) 
“This bill establishes personhood for a foetus and this is a concerning precedent to be setting. That kind of precedent has been used as a first starting point to roll back abortion right in other places such as states in America.” (Melanie Fernandez, Chair of the Women’s Electoral Lobby Australia (WELA) 
“WLS is concerned that giving personhood status to a foetus may affect the lawfulness and accessibility of abortion in NSW, particularly for procedures carried out later in pregnancy.” (Women’s Legal Services) 
“The proposed bill does not add anything to the protection of pregnant women and the foetus they are carrying, but it does have the capacity to infringe on the reproductive rights and well being of women.” (Karen Willis, Chief Executive of Rape and Domestic Violence Services, Australia). 
Others promoting/supporting this campaign include: Women’s Health NSW, Domestic Violence NSW, National Foundation of Australian Women, Abortion Law Reform Association NSW, Abortion Law Repeal Association NSW, Abortion providers Federation of Australia, Children by Choice Association, Abortion Rights Coalition NSW, Abortion Rights Network Australia, Women’s Liberation NSW, National Foundation for Australian Women, Reproductive Choice Australia, Preterm Foundation, Children By Choice, Fcollective, and The Sydney Feminists.
The Director of Public Prosecution (DPP), The Law Society, Community Legal Centres NSW and Women Lawyers NSW, also do not support the proposed legislation with the Bar Association writing directly to MP Chris Spence, arguing that:
“The legislative acceptance that a foetus which satisfies the definition of an ‘unborn child’ is to be treated as a ‘person’ under New South Wales Criminal law – is very likely to lead to further changes to that law” and that “once legislation is enacted which provides that an ‘unborn child’ as defined in the Bill, ‘is to be taken to be a living person’ it will be very difficult to resist comparable changes to other offences, including murder and manslaughter.” (President, Phillip Boulten SC) [25 pg 3]
Leading medical organisations such as the Australian Medical Association (AMA) NSW, the Royal Australian and New Zealand College of Obstetricians and Gynaecologist (RANZCOG), Australian Nursing and Midwifery Association have further united in opposition, with the AMA’s president warning of the perhaps unintended, but very real consequence if this law was to pass, and that is:
“Once you actually recognise the foetus as being a person with rights, it’s actually not possible for the mother, for instance, to give consent for someone to actually perform the abortion”. (Associate Professor, Brian Owler) 
The Government minister currently spearheading the campaign against ‘Zoe’s Law’, and whose Party will vote against it in the Upper House, is the Greens MP Mehreen Faruqi. She has concerns that the proposed law is a Trojan horse manoeuver by anti-choice campaigners, such as Reverend Fred Nile, to further restrict women’s access to abortion, as has happened in other parts of the world, namely:
“In the United States, where legislative battles over personhood, instigated by the ‘pro-life’ movement have ended up delivering serious consequences for late term abortions and have led to the creation of new offences against pregnant women and the medical profession.” 
In addition to opposing ‘Zoe’s Law’, Dr Mehreen Faruqi is also leading the campaign to decriminalize abortion by having it completely removed from the NSW Crimes Act 1900.
10) Repercussions - lack of access to abortions and sexual and reproductive health services
The Guttmacher Institute reports that, “unsafe abortions are easily the most preventable causes of maternal mortality” [28 pg 1]. They following are the listed repercussions when women are denied safe abortions: 
Restrictive abortion laws do not stop abortions, they only cause an increase in unsafe abortion
Women will either commit abortions themselves or will look for untrained people to help them
Fear of breaking the law will force women to do it in secret regardless of the physical danger to them
They will use whatever methods are available, especially if from low socio-economic backgrounds
Unsafe and unhygienic abortions are a leading cause of pregnancy related deaths
There are complications from unsafe abortion ie: immediate danger such as severe haemorrhaging, and long term consequences such as internal damage to the woman’s reproductive organs
Women may be ‘at risk’ of repeated/unintended pregnancies weeks later, due to lack of access to contraception and reproductive education
There is a significant burden on the hospitals/health departments, and
There are also recognised social consequences that affect the woman and families
11) Current Campaigns and Chief Activists
“Our Bodies, Our Choices”
Coalition of women’s groups against Zoe’s Bill
Reproductive Rights – Rally calls on Lower House to reject NSW Foetal Personhood Law
Dr Mehreen Faruqi, Greens Member of the NSW Legislative Council
Email MPs against Zoe’s Law
Community Legal Centres NSW
Take Action: Email Upper House Members of Parliament and ask them to OPPOSE this bill
Women’s Legal Services NSW
Write a letter to your MLC
Email MPs: Zoe’s Law Threatens Women’s Rights
Community Legal Centres NSW
Vote Against Zoe’s Law
Community Run Association
Petition: Vote ‘NO’ to Zoe’s Law
Catherine Henry Partners
Personhood of the Foetus Legislation in NSW, Community Conversations 2014
Australian Services Union (ASU)
The Implications of Zoe’s Law for Women’s Reproductive Rights
Emily Rayers, Students’ Representative Council, Sydney University
Zoe’s Law: A Woman’s Choice
Honi Soit, University of Sydney
Women’s Abortion Action Campaign (WAAC) NSW (1972-)
National Library of Australia
Abortion Decriminalisation Bill
Dr Mehreen Faruqi, Greens Member of the NSW Legislative Council
 UNFPA Centre for Reproductive Rights (2013) International Conference on Population and Development (ICPD) Fact Sheets, ICPD and Human Rights: 20 years of advancing reproductive rights through UN treaty bodies and legal reform. United Nations Population Fund (UNFPA). Accessed 24 July.
 United Nations Fourth World Conference on Women (2013) Resolution1, Beijing Declaration and Platform for Action. Accessed 24 July 2014.
 United Nations Population Fund (UNPA) (2010) Briefing Paper: The Right to Contraceptive Information and Services for Women and Adolescents. Accessed on 24 July 2014.
 Public Health Association of Australia (PHAA) (2008) Time for a National Sexual and Reproductive Health Strategy for Australia, Background Paper 2008, The History of Sexual and Reproductive Health Policy. Accessed on 24 July 2014.
Available from: http://222.phaa.net.au/documents/SRH_background_paper.pdf
 Australian Women’s Health Network (2012) Women and Sexual and Reproductive Health.
Accessed 24 July 2014.
Available from: http://www.awhn.org.au/display.php?file=94
 New South Wales Government (2012) Crimes Act 1900 No.40, Division 3 Abortion, Division 8, Assault Occasioning Bodily Harm, Section 45 Prohibition of Female Genital Mutilation. Accessed 24 July 2014.
 Drabsch, T (2005) Abortion and the Law in New South Wales, Briefing Paper No. 9/05. New South Wales Parliamentary Library Research Service. Accessed 24 July 2014.
Available from: http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf
 Family Planning NSW (2013) Fact Sheet: Emergency Contraceptive Pill (ECP). Accessed 24 July 2014.
Available from: http://www.fpnsw.org.au/EMERGENCY%20CONTRACEPTION.pdf
 Children By Choice (2012) RU486. Accessed 24 July 2014.
Available from: http://www.childrenbychoice.org.au
 Cannold, L (2012) RU486 ‘A win for women and choice’. The Drum, ABC. Accessed 24 July 2014.
Available from: http://www.abc.net.au/news/2012-08-31/cannold-ru486/4236460
 NSW Parliament (2006) Dr Suman Sood Illegal Abortion Conviction. Accessed 1 August, 2014.
 Australian Government Department of Health (2014) Pharmaceutical Benefits Scheme (PBS): A-Z Medicine Listing. Accessed 24 July 2014.
Available from: http://www.pbs.gov.au/browse/medicine-listing
 Australian Government Department of Foreign Affairs and Trade (2012) About Australia: Legal System. Accessed 1 August 2014. Available from: http://www.dfat.gov.au/facts/legal_system.html
 Drabsch, T (2005) Abortion and the Law in New South Wales, Briefing Paper 9/05. NSW Parliamentary Library Research Service. Accessed 1 August 2014.
 UK Government (2014) Abortion Act 1967. The National Archives. Accessed 1 August 2014.
Available from: http://www.legislation.gov.au/ukpga/1967/87/contents/enacted
 de Crespigny, LJ, Wilkinson, DJ, Douglas, T, Texroe, M, Savulescu (2010) ‘Australian attitudes to early and late abortion.’ Medical Journal of Australia. 193 (1) 9-12. Accessed 24 July 2014.
 Parliament of New South Wales (2013) Crimes Amendment (Zoe’s Law) Bill 2013 (No.2). Accessed 24 July 2013.
 Donegan, B (2013) ‘Zoe’s Law: I am pro-choice, but my daughter deserved to be recognised.’ The Guardian, 13 September 2013. Accessed 24 July 2014.
Available from: http://www.theguardian.cpm/commentisfree/2013/sep/13
 Noyes, J (2013) On Zoe’s Law, And the Accidental /On Purpose Erosion of your Reproductive Rights. Accessed 24 July 2014. Available from: http://junkee.com/on-zoes-law-and-the-accidentalon-purpose-erosipn-of-your-reproductive-rights
 Campbell, M (2010) Review of Laws Surrounding Criminal Incidents Involving the Death of an Unborn Child. Accessed 24 July 2014. Available from: http://www.1pc1rd.lawlink.nsw.gov.au/agdbasev7wr/1pc1rd/documents/pdf/final_campbell
 Family Planning NSW (2014) ‘Our Bodies Our Choices’ Factsheet 3. Accessed 24 July 2014.
Available from: http://ourbodiesourchoices.weebly.com
 Jabour, B (2013) Abortion rights under threat from ‘Zoe’s Law, say Australian women’s groups, The Guardian, 21 November 2013. Accessed 24 July 2014.
Available from: http://www.theguardian.com/world/2013/nov/21
 Women’s Legal Services NSW (2013) Foetal Personhood Bill (Zoe’s Law). Accessed 24 July 2014.
Available from: http://www.women’slegalnsw.asn.au/wlsnsw/law-reform/zoes-law
 Hinman, P (2013) ‘Foetal personhood bill still not passed in NSW’. Green Left Weekly. Accessed 24 July 2014.
Available from: https://www.greenleft.org.au/node/55385
 Boulten, P (2013) NSW Bar Association Letter to Chris Spence, Member for The Entrance. Accessed 24 July 2014.
 Australian Broadcasting Corporation (2013) ‘Abortion fears raised over proposed NSW foetus law.’ ABC News. Accessed 24 July 2014.
Available from: http://www.abc.net.au/news/2013-09-12
 Faruqi, M (2013) ‘Legislating foetal personhood is misguided public policy.’ SBS News. Accessed 24 July 2014.
Available from: http://www.sbs.com.au/news/article/2013/09/27
 Barot, S (2011) Unsafe Abortion: The Missing Link in Global Efforts to Improve Maternal Health, Guttmacher Policy Review, Spring 2011, Vol. 14:2, Guttmacher Institute, Advancing sexual and reproductive health worldwide through research, policy analysis and public education. Accessed 24 July 2014.
Available from: http://www.guttmacher.org/pubs/gpr/14/2gpr140224.htm