WESTERN AUSTRALIA.  Criminal Code, as amended through 2003.

 

199. Abortion

 

(1) It is unlawful to perform an abortion unless—

 

(a) the abortion is performed by a medical practitioner in good faith and with reasonable care and skill; and

 

(b) the performance of the abortion is justified under section 334 of the Health Act 1911.

 

(2) A person who unlawfully performs an abortion is guilty of an offence.

Penalty: $50 000.

 

(3) Subject to section 259, if a person who is not a medical practitioner performs an abortion that person is guilty of a crime and is liable to imprisonment for 5 years.

 

(4) In this section—

 

medical practitioner” has the same meaning as it has in the Health Act 1911.

 

(5) 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.

 

* * *

 

259. Surgical and medical treatment

 

A person is not criminally responsible for administering, in good faith and with reasonable care and skill, surgical or medical treatment--

 

(a) to another person for that other person's benefit; or

 

(b) to an unborn child for the preservation of the mother's life,

 

if the administration of the treatment is reasonable, having regard to the patient's state at the time and to all the circumstances of the case.

 

 

Health Act, 1911, as amended through 2003.

 

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 this section—

 

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;

 

(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;

 

(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.

 

335. Reports to be furnished

 

(1) It shall be the duty of every midwife to furnish to the Executive Director, Public Health and to the medical officer of health of the district in which she practises a report in writing in the manner and at the time and in the form prescribed of every case attended by her, whether of living, premature or full-time birth, or stillbirth, or abortion.

 

(2) A report furnished under subsection (1) shall state the name and address of the mother, and shall be furnished to the Executive Director, Public Health and to the medical officer of health within 48 hours of the event.

 

(3) A midwife who contravenes subsection (1) as read with subsection (2) commits an offence.

 

(4) The occupier of any house at which a female not usually resident in any such house, is attended, whether for gain or not, during childbirth or abortion or miscarriage, shall forthwith notify to the medical officer of health that such female is being so attended.

 

(5) (a) When a medical practitioner attends on the happening of any premature birth, stillbirth or abortion (other than an abortion to which paragraph (d), he shall send to the Executive Director, Public Health within 48 hours of the happening a report in the prescribed form.

 

(b) A medical practitioner, or where a medical practitioner is not in attendance, a midwife, who attends a woman at the delivery of a foetus at any time after the 20th week of pregnancy shall notify the Executive Director, Public Health of the attendance in the prescribed form.

 

(c) A medical practitioner who, for the purposes of section 44 of the Births, Deaths and Marriages Registration Act 1998, certifies the cause of a neonatal death shall notify the Executive Director, Public Health of the fact in the prescribed form within 48 hours of the certification.

 

(d) When a medical practitioner performs an abortion, the medical practitioner shall notify the Executive Director, Public Health of the fact in the prescribed form within 14 days of the abortion being performed.

 

(e) A notification under paragraph (d) must not contain any particulars from which it may be possible to ascertain the identity of the patient.

 

(6) (a) The Governor may from time to time proclaim that the provisions of this subsection shall apply in respect of any district or part of a district and may from time to time proclaim that those provisions shall cease to apply in respect of, or having ceased to apply shall again apply in respect of any district or part of a district.

 

(b) The provisions of this subsection shall apply in respect of a district and part of a district so long as those provisions remain the subject of a proclamation to that effect under the provisions of the last preceding paragraph.

 

(c) The Executive Director, Public Health shall appoint medical practitioners upon such terms and conditions as he considers fit to conduct a post mortem examination upon the body of every stillborn child where the still birth happens in any district or part of a district to which the provisions of this subsection apply.

 

(d) The Executive Director, Public Health shall notify in the prescribed manner all medical practitioners and midwives of the name and address of every medical practitioner appointed under the provisions of the last preceding paragraph and acting under the appointment.

 

(e) When a stillbirth happens in any district or part of a district to which the provisions of this subsection apply, the medical practitioner attending or, if there is no medical practitioner attending, the midwife attending, shall, so soon as reasonably possible after the happening, report it in the manner and form prescribed, to a medical practitioner appointed under paragraph (c) and acting under the appointment, who shall, unless otherwise authorized or directed by the Executive Director, Public Health, thereupon conduct a post mortem examination on the body of the stillborn child.