ALRANZ DISCUSSION ON WHY 24 WEEKS?
In Steve Chadwick’s NZ draft Bill (not yet formally proposed) what is special about 24 weeks?
What does the NZ draft Bill say?
Termination of pregnancy after 24 weeks
(1) A medical practitioner may carry out an abortion on a woman who is more than 24 weeks pregnant only if the medical practitioner-
(a) reasonably believes that the abortion is appropriate in all the circumstances; and
(b) adheres to the relevant Ministry of Health guidelines when carrying out the abortion
(2) In considering whether the abortion is appropriate in all the circumstances, a medical practitioner must have regards to-
(a) all relevant medical circumstances; and
(b) the woman’s current and future physical, psychological and social circumstances.
What does the Victorian legislation (Abortion Law Reform Act 2008) on which the NZ draft Bill is based, say? The slight differences are underlined
Termination of pregnancy by registered medical practitioner after 24 weeks
(1) A registered medical practitioner may perform an abortion on a woman who is more than 24 weeks pregnant only if the medical practitioner-
(a) reasonably believes that the abortion is appropriate in all the circumstances; and
(b) has consulted at least one other registered medical practitioner who also reasonably believes that the abortion is appropriate in all circumstances.
(2) In considering whether the abortion is appropriate in all the circumstances, a registered medical practitioner must have regard to-
(a) all relevant medical circumstances; and
(b) the woman’s current and future physical, psychological and social circumstances.
[There is also a section in the Victorian legislation on supply or administration of drugs by registered pharmacist or registered nurse – at not more than 24 weeks and – more than 24 weeks. This has not been transferred to the NZ draft Bill as the term “health practitioner” covers nurses and pharmacists acting within their scope of practice.]
Note that in the NZ draft Bill only a registered medical practitioner can carry out a termination of pregnancy after 24 weeks gestation. Prior to this a trained health practitioner working within their scope of practice can carry out an abortion. This includes nurses.
A major difference is that in Victoria a second registered medical practitioner must be consulted after 24 weeks. The NZ draft Bill refers to guidelines of the Ministry of Health but as yet there are no guidelines. These would have to be produced. (This is a bit scary!) It is debatable whether the drafters should have opted for the two practitioners as required in the Victorian legislation.
Terms and terminology
Before going any further we need to consider the use of terms and terminology. The only NZ document resembling guidelines is the document from the Standards Committee of the Abortion Supervisory Committee (Ministry of Justice) Standards of Care for Women Requesting Induced Abortion in New Zealand October 2009.
What does this document say? It uses the rather unscientific term ‘Second Trimester’ Terminations when there is no agreement on the stage of first second and third trimesters (roughly dividing the pregnancy into thirds). The modern approach is not to be lazy and use the term ‘trimester’ but to define the stage of pregnancy by the weeks gestation and here there is also some confusion because sometimes gestational age is calculated from the time of last menstruation which is about two weeks before conception usually occurs! When reading anything you need to know which convention is being used. Most commonly it is LMP (last menstrual period) as this is a recognised event.
First trimester can mean anything up to 12-14 weeks gestation. Second trimester can mean anything from 12-24 weeks gestation. In the third trimester which is generally and unscientifically what we are talking about after 24 weeks some medical experts say that the procedure should not be referred to as an abortion because the definition of abortion is an interruption of a pregnancy before viability. And then there is debate about the point of viability although most deliveries under 23-24 weeks will not survive without advanced medical care.
If abortion after 24 weeks is an oxymoron what term should be used? There are several. Some in current use are feticide, labour induction, or dilation and evacuation (D&E), hysterotomy (if that is the technique that is used) or just termination of pregnancy, although that term is used for any stage of pregnancy. One term that should not be used is “partial-birth abortion”.
[Reference: Grimes D, Stuart G. Abortion jabberwocky: the need for better terminology. Contraception 2009.]
In the Victorian Law Commission report late abortion was the term used to refer to termination of pregnancy which takes place after about 24 weeks gestation. Perhaps we could get into the habit of using the term ‘termination of pregnancy after 24 weeks’ and suggest that this be the term used in the NZ draft Bill.
Standards of care
But getting back to the Standards of Care document, and ignoring the fact that ‘second trimester’ is not an accurate term, it has defined three standards:
Standard 49 Specific training in the medical management of second trimester abortion must include labour and birth processes, as well as aftercare and breast care.
Standard 50 Training for second trimester abortions must address the reasons why women seek late abortions (late recognition of pregnancy, fetal abnormality, poor access, slow services, ambivalence, denial) and how to support women through the process.
Standard 51 Where the gestation exceeds 22 weeks part of the counselling and abortion process must include a consideration of fetocide (also spelt feticide of foeticide).
This is all that the document says about terminations after 22 weeks.
What did the Victorian Law Commission report say?
In its comprehensive 2008 report, The Victorian Law Commission presented the government with three options to decriminalise abortion (the report is recommended reading and can be downloaded here):
A. When a woman consents and a doctor considers there is a risk of harm to the woman.
B. On request up to 24 weeks, after that approval by one or two doctors.
C. On request at any stage, service availability the responsibility of the medical profession.
Abortion by an unqualified person was to remain an offence. The woman should not be charged in any situation, for an abortion either self-induced or illegally induced by another.
Why did the Victorian government choose option B?
It was a compromise and reflected to some extent what was happening in clinical practice at that time. It was clinical practice at the two main hospitals to have a review panel at 23 weeks (Royal Women’s) and 24 weeks (Monash) for cases of fetal abnormality. Both hospitals had dedicated Fetal Management Units and the views of the nursing and medical staff were taken into consideration when making a decision. The review panels comprised a varying number of health professionals with expertise to determine each case. The cut-off points marked fetal viability and the panel system was to support the doctor making the decision. This was regarded as useful and helpful for the doctors who found the process ethically difficult and controversial.
However, the commission heard many criticisms of the hospital panels which were prone to inconsistent membership and inconsistent decisions reflecting the bias of panel members. The panel system also resulted in a loss of autonomy for the woman who has to bear the long-term responsibility for any decision made. The commission heard that sometimes there was an undue focus on the level of fetal abnormality and less consideration for the effect on the woman and her family. Having a cut-off point also caused problems due to rushed decisions being made to avoid the case going for panel review. The commission also noted a lack of transparency with panel members usually anonymous and the basis of their judgment not disclosed. The woman did not appear before the panel and was not represented on the panel. The hospitals did not consider cases of termination after 23-24 weeks for psychosocial reasons. The only alternative for these cases was to go privately to the one clinic offering termination of pregnancy after 23 weeks where a two doctor process applied.
The commission heard many arguments on the topic of viability, both for and against using this as a reason for restricting or banning terminations around 20-24 weeks gestation. Paediatric and physicians groups considered fetal viability an invalid basis for policy making. The commission referred to a grey zone between 22-26 weeks gestation.
The commission studied the UK parliamentary inquiry considering whether the 24-week limit in the UK abortion legislation should be altered. Abortion can still be obtained in the UK post 24 weeks, though the tests to be satisfied are more stringent. The UK approach is based on viability. The House of Commons Science and Technology Committee looked at evidence on scientific and medical developments since the law was last amended in 1990, and concluded in its 2007 report that there was no justification for lowering the limit. It found no evidence that survival rates before 24 weeks gestation had significantly improved since the last amendment. It also found no evidence to indicate that fetuses are sentient, or consciously feel pain, especially before 24 weeks. This leaves the UK open to further debate when medical technology improves the chances of survival at an earlier stage of gestation.
The commission also noted that routine testing often occurs around 20 weeks and in Western Australia where the limit is set at 20 weeks, the commission was told that women were making rushed decisions to stay within the gestational limit imposed by law.
The commission also noted that legislation that specifically allows abortion for fetal abnormality is open to criticism for devaluing the existence of people who live with disabilities. The commission was strongly opposed to legislation providing fetal abnormality as a specific ground for abortion. The commission concluded that the most appropriate way to deal with fetal abnormality is to regard it as one of the many matters that may influence a woman’s private decision to terminate her pregnancy.
So in summary what were the main reasons for the government choosing Option B?
The parliamentary and public debates suggest the following:
• A staged approach affirms the belief that there is significant difference between early and late termination of pregnancy. This is true for women, for health professionals and for the general public.
• A staged approach recognises that viability and experience of pain are factors which are important to some people.
• A staged approach reinforces the benefit of carrying out terminations as early as possible. For safety reasons the earlier a termination is carried out the safer it is for the woman.
Stating that there should be stricter procedures after 24 weeks is a compromise and will have no effect on the numbers being performed at this late stage. Women will not request them without good reason and doctors will not be prepared to do them.
Why not choose Option C?
A good case can be made for adopting Option C with no change in procedures due to gestational age. Reasons for opposing any gestational limits:
• The stage of pregnancy is a factor which the woman always considers in her autonomous decision making.
• Very few abortions are carried out after 20 weeks and even fewer after 24 weeks. They are usually due to extreme circumstances such as fetal abnormality or serious medical conditions or late diagnosis of pregnancy for a variety of reasons. Women under these circumstances do not need the extra concern of legality.
• Decision making may be compromised if there is pressure to make a decision before a set gestational age.
• There may be delays and difficulties accessing services which provide terminations after 20-24 weeks. These require highly specialised staff and facilities. This in effect provides an institutional barrier to late terminations without the need for superimposed legal restrictions.
• Viability should not be a determining factor if there are other significant reasons e.g. to save the life of the mother or prevent serious harm to her health.
In the UK although the limit is set at 24 weeks, exceptional cases can still be done after this stage. There is no outright ban.
In NZ although the law changes at 20 weeks, exceptional cases can still be done after this stage. There is no outright ban at any limit.
So what are the statistics for late abortions?
These figures were obtained from the ASC under the Official Information Act as published figures are in categories 17-20 weeks and over 20 weeks. The greatest number of terminations over 20 weeks are to women in the 25-29 age group.
[Reference: Abortion Supervisory Committee Annual Report 2009.]
|
Induced abortions by Duration of Pregnancy (20 weeks and over) 2005-2009 |
||||||
|
Year |
Duration of Pregnancy in weeks |
|||||
|
|
20 |
21 |
22 |
23 |
24 |
25 and over |
|
2005 |
21 |
30 |
14 |
10 |
2 |
9 |
|
2006 |
29 |
24 |
19 |
10 |
5 |
10 |
|
2007 |
22 |
36 |
21 |
8 |
6 |
12 |
|
2008 |
23 |
19 |
23 |
11 |
7 |
15 |
|
2009 |
20 |
29 |
16 |
14 |
8 |
6 |
In 2009 there were 17,550 abortions and the number at 24 weeks and over was 14 = 0.08%
In 2008 there were 17,940 abortions and the number at 24 weeks and over was 22 = 0.12%
In 2007 there were 18,382 abortions and the number at 24 weeks and over was 18 = 0.10%
In 2006 there were 17,934 abortions and the number at 24 weeks and over was 15 = 0.08%
In 2005 there were 17,531 abortions and the number at 24 weeks and over was 11 = 0.06%
In other words for most years the number is less than 1 per thousand abortions.
So what would ALRANZ support?
Either Option B or Option C
• Option B recognises that there is a difference between early and late terminations and allays concerns about viability and perception of pain but allows a pathway for those one in a thousand cases beyond 24 weeks. Having two doctors involved in the decision making is more a benefit for the doctors dealing with these exceptional cases.
• Option C relies on the fact that women will not normally request termination beyond 24 weeks without good reason and there is a limitation due to the fact that there are few specialists willing and able to provide this highly specialised service. In these exceptional circumstances issues of viability and pain perception should not be paramount to other considerations. Although this is the more honest option it may be more difficult to gain public acceptance. Women and doctors are not trusted to make these decisions.
END
Also, see our Why 24 Weeks? Fact Sheet under “Research and Articles” at www.issues.co.nz/abortion