Family law and reproductive rights: Can a woman be prevented from accessing a termination of pregnancy in Australia?

Many Australians are aware of last year’s US Supreme Court decision to overturn the landmark 1973 abortion case Roe v Wade and the affirming case of Casey v Planned Parenthood decided in 1992.

When Roe v Wade was decided, it sent ripples across the globe and widely influenced changes to reproductive freedoms. Naturally, as a result, people are turning their attention to what impact the overturning of Roe v Wade might have on abortion rights locally.

What is the current abortion law in Australia?

Like the USA, abortion legislation is governed by the states and differs from one region to another. Abortion is legal in all states in Australia, but it may surprise you to know that this is only the case since 2019 when NSW decriminalised abortion. However, significant differences exist from state to state as to the time limit to access an abortion (how many weeks pregnant), who can provide abortions, what steps a woman must take before obtaining an abortion and whether counselling referrals are required.

The recent US decision has shed light on the difficulties that some women still face to obtain access to abortion services. Abortion stigma still exists and many women face practical roadblocks to reproductive freedoms, particularly in marginalised communities.

Changes to South Australian laws came into effect on 7 July 2022 with the implementation of the Termination of Pregnancy Bill which, for the first time in an Australian jurisdiction, moves abortion from criminal legislation into healthcare legislation.

Can women be forced to carry a pregnancy to term?

State legislation in most states requires the approval of two doctors for a termination outside of the legislated time limits, other than in Western Australia where a panel of six doctors is required. However, there is no blanket restriction on termination – late term abortion – under appropriate conditions.

What rights does the father have to prevent – or enforce – the termination of a pregnancy?

This is where the involvement of the family law courts have previously been called upon to intervene in a woman’s pregnancy in relation to abortion.

It may be surprising to know that the Australian family law cases relating to application for injunctions restraining a woman from terminating a pregnancy are actually many years old. In both of the following cases, the husband/would-be-father sought to injunct the mother from terminating a pregnancy (although in the second case there was no evidence that the mother intended to do so).

In the case of In the Marriage of F, a 1989 Family Court of Australia decision, the applicant husband argued that the word “child” wherever it appeared in the Family Law Act includes an unborn child and therefore the provisions in the Family Law Act providing for the court to make an order or injunction that it considers appropriate for the welfare of the child should include to protect the unborn child from a possible termination. This argument was rejected by Justice Lindenmayer who held that the word child means a child once born, and that “an unborn child has no legal right to be born which this court can protect”.

The husband also made arguments pursuant to common law, and the jurisdiction of the Family Court to make an order for an injunction arising out of a matrimonial cause. These submissions were also rejected by the court. His Honour stated that the court could not overlook that the foetus must grow inside the wife’s – not the husband’s body and “to grant the injunction would be to compel the wife to do something in relation to her own body which she does not wish to do. That would be an interference with her freedom to decide her own destiny.” He went on to say, “I have concluded, on balance, that the legitimate interest of the husband is, in the circumstances of the case, subordinate to the legitimate interest of the wife in being left free to decide a matter which affects her far more directly than it does the husband.”

His Honour also commented that that “to grant an injunction would force the wife, under threat of proceedings for contempt of court, to carry to the end a foetus which she clearly does not want and, barring unforeseen events, to give birth to a child which she clearly does not want and which she may very resent in those circumstances. One can only speculate as to how well, in those circumstances, she would perform her important functions as a mother of a newly born child…”

This case confirmed the principle in the 1979 UK case of Paton v The British Pregnancy Advisory Service that there was no common law right of a husband which would enable him to force his wife to carry a child to term; and referred to a 1983 Supreme Court of Queensland case, K v T, which confirmed Paton in finding that “a foetus has no legal personality and cannot have a right of its own until it is born and has a separate existence from its mother”.

Some years later in Talbot v Norman, a 2012 Family Court of Australia case, Justice Murphy confirmed the earlier decision of Justice Lindenmayer, stating that there must be a child in respect of who an injunction can be made and that “In this case, the injunction is directed towards the mother, but in respect of a foetus, that is a child not yet born”. His Honour affirmed the principle that the meaning of “child” did not include “a child not yet born and where the Act does not otherwise define child to include an unborn child.” The court determined that they therefore did not have any jurisdiction to make the orders sought by the father.

Whilst we are not aware of any Australian cases attempting to force a woman to terminate a pregnancy through the court system, the same principles – that is, lack of jurisdiction with respect to an unborn child – would presumably also apply to prevent the family law courts from making any determination requiring the termination of a pregnancy.

Does the Family Court have any jurisdiction currently with respect to pregnancy?

Whilst there is no jurisdiction for the court to determine whether or not a woman should continue with or terminate a pregnancy, there is a little known provision in the Family Law Act for a woman to claim Childbirth Maintenance if she and the child’s father are not living together in the period prior to the birth of the child.

These expenses include maintenance of the mother for the childbirth maintenance period (usually two months prior to and three months following the birth but it can be longer in the event that the mother is medically required to stop work whilst pregnant) as well as costs relating to pregnancy and birth of the child.

A number of matters are taken into account when determining whether childbirth maintenance is payable, such as the income and financial resources of each party.

Whereas most proceedings relating to children are unable to be issued until after the birth of the child for want of jurisdiction of the court, the mother is able to institute proceedings for childbirth maintenance at any time during pregnancy. She may also issue proceedings after the birth of the child, however a 12 month time limit applies with few exceptions.

At this time, this is the only jurisdiction the Family Court has in relation to an unborn child.

Our family law team can help

The above cases are good examples of instances where it is inevitable that a matter requires determination by the court. It is rare that we would recommend clients issue court proceedings in the first instance and we are able to offer a host of other processes to resolve family law matters without the need for litigation. However, should it be necessary to do so, our family law team are skilled litigators and can help you to navigate the court system in the most efficient and cost effective way.

Our experienced family law team can also advise you as to your rights with respect to applying for childbirth maintenance, as well as family law and family violence matters more generally.

Our family law team can be contacted on 03 9629 7411 or via our website at https://www.hocw.com.au/legal-services/family-law/. We also encourage you to read our upcoming article entitled Family Violence and Pregnancy – Recognising Reproductive Coercion.