Abortion and the defence of necessity
The legislation
The Crimes Act 1900 (NSW) sections 82-84 covers attempts to procure an abortion.
The defence of necessity
The following court decisions have used the defence of necessity successfully:
- R v Wald [1971] 3 DCR (NSW) 25. This District Court decision is not available online. The District Court Reports are available in the State Library - you can get a copy of this case by visiting the Library or ordering it from the Library's Document Supply Service.
Background information about abortion
- Abortion and the law in New South Wales by Talina Drabsch, Briefing paper No 9/2005, NSW Parliamentary Library, provides:
- definitions of the key terms used in the context of abortion and a statistical overview of the number of abortions performed in Australia;
- a history of the development of the law on abortion
- an overview of the law in New South Wales and
- a comparison of the regulation of abortion in the various Australian jurisdictions
- "Decriminalise abortion: pro-choice in practice is not the same as legal protection" by George Williams, SMH, 3 December 2013
- "Law on foetal rights 'will put many children at risk'" by Kirsty Needham, SMH, 27 October 2013 - stats on number of medical procedures done on women over 20 weeks pregnant
- "The regulation of abortion" in Criminal laws: materials and commentary by Brown & Farrier et al, Federation Press, 2011 (Available at the State Library and selected public libraries) see paragraph 6.9.8
- Health Law in Australia, Chapter 10: Abortion by Belinda Bennett, Lawbook Co, 2010, edited by Ben White, Fiona McDonald and Lindy Willmott. Available at the State Library of NSW;
- Abortion issues edited by Justin Healey, Spinney Press, 2010. Available at the State Library and some public libraries in NSW.
- Women and the Law in Australia by Patricia Easteal, LexisNexis, 2010. Available at the State Library of NSW;
- 'Abortion Reform: A State crime or a woman’s right to choose?' (2009) 33 (2) Criminal Law Journal 74. Available at the State Library of NSW;
- articles are available on Informit Online - Law, available remotely to registered clients of the State Library of NSW. Type in abortion
Recent case study
In 2010, a young Queensland couple were charged for terminating an unwanted pregnancy. The provisions in the Crimes Act 1900 (NSW) sections 82-84 are similar to those of the Queensland Criminal Code. Tegan Leach, aged 20, and her partner Sergie Brennan, aged 22, imported an abortion drug, Misoprostol, from the Ukraine and used it to terminate Leach’s eight-week pregnancy. They faced the possibility of jail terms of seven and three years respectively. The jury acquitted them of each charge and there were calls for the law to be changed.
The following media reports provide an overview of this particular incident:
