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HEALTH (MISCELLANEOUS PROVISIONS) ACT 1911 - SECT 334

334 .         Performance of abortions

        (1)         A reference in this section to performing an abortion includes a reference to —

            (a)         attempting to perform an abortion; and

            (b)         doing any act with intent to procure an abortion,

                whether or not the woman concerned is pregnant.

        (2)         No person, hospital, health institution, other institution or service is under a duty, whether by contract or by statutory or other legal requirement, to participate in the performance of any abortion.

        (3)         Subject to subsections (4) and (7), the performance of an abortion is justified for the purposes of section 199(1) of The Criminal Code if, and only if —

            (a)         the woman concerned has given informed consent; or

            (b)         the woman concerned will suffer serious personal, family or social consequences if the abortion is not performed; or

            (c)         serious danger to the physical or mental health of the woman concerned will result if the abortion is not performed; or

            (d)         the pregnancy of the woman concerned is causing serious danger to her physical or mental health.

        (4)         Subsection (3)(b), (c) or (d) do not apply unless the woman has given informed consent or in the case of paragraphs (c) or (d) it is impracticable for her to do so.

        (5)         In thissection —

        informed consent means consent freely given by the woman where —

            (a)         a medical practitioner has properly, appropriately and adequately provided her with counselling about the medical risk of termination of pregnancy and of carrying a pregnancy to term; and

            (b)         a medical practitioner has offered her the opportunity of referral to appropriate and adequate counselling about matters relating to termination of pregnancy and carrying a pregnancy to term; and

            (c)         a medical practitioner has informed her that appropriate and adequate counselling will be available to her should she wish it upon termination of pregnancy or after carrying the pregnancy to term.

        (6)         A reference in subsection (5) to a medical practitioner does not include a reference to —

            (a)         the medical practitioner who performs the abortion; nor

            (b)         any medical practitioner who assists in the performance of the abortion.

        (7)         If at least 20 weeks of the woman’s pregnancy have been completed when the abortion is performed, the performance of the abortion is not justified unless —

            (a)         2 medical practitioners who are members of a panel of at least 6 medical practitioners appointed by the Minister for the purposes of this section have agreed that the mother, or the unborn child, has a severe medical condition that, in the clinical judgment of those 2 medical practitioners, justifies the procedure; and

            (b)         the abortion is performed in a facility approved by the Minister for the purposes of this section.

        (8)         For the purposes of this section —

            (a)         subject to subsection (11), a woman who is a dependant minor shall not be regarded as having given informed consent unless a custodial parent of the woman has been informed that the performance of an abortion is being considered and has been given the opportunity to participate in a counselling process and in consultations between the woman and her medical practitioner as to whether the abortion is to be performed; and

            (b)         a woman is a dependant minor if she has not reached the age of 16 years and is being supported by a custodial parent or parents; and

            (c)         a reference to a parent includes a reference to a legal guardian.

        (9)         A woman who is a dependant minor may apply to the Children’s Court for an order that a person specified in the application, being a custodial parent of the woman, should not be given the information and opportunity referred to in subsection (8)(a) and the court may, on being satisfied that the application should be granted, make an order in those terms.

        (10)         An order made under subsection (9) has effect according to its terms and is not liable to be challenged, appealed against, reviewed, quashed or called in question in or by any court.

        (11)         If the effect of an order under subsection (9) is that no custodial parent of the woman can be given the information and opportunity referred to in subsection (8)(a), subsection (8) does not apply in relation to the woman.

        [Section 334 inserted: No. 15 of 1998 s. 7(1).]



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