There are few subjects in Australian public life more polarising than abortion.
When Llew O’Brien, Federal Member for Wide Bay, is anticipated to introduce the Human Rights (Children Born Alive Protection) Bill to Federal Parliament this week, MPs will be asked to confront a question that should transcend the usual divisions over abortion:
Once a child is born alive, should the circumstances of that birth determine the standard of healthcare he or she receives?
The question before Parliament is not whether Australians agree about abortion. It is whether the circumstances preceding a live birth can justify a different standard of healthcare after it.
When, following an attempted termination, a child is born alive, the abortion debate has reached a biological and ethical boundary.
There is now a living child before us.
There is now a patient.
For healthcare professionals, the child does not suddenly become a patient by passing through the birth canal. Throughout pregnancy we routinely assess, monitor, diagnose, and treat the unborn child as a patient. Whatever arguments are made before birth about balancing the interests and rights of mother and child, once that child is born alive there is no longer even that claimed conflict: the child is physically separate, undeniably alive, and entitled to the same duty of care as any other newborn.
The foreshadowed Human Rights (Children Born Alive Protection) Bill is anticipated to establish a straightforward principle: the duty owed by a health practitioner to a child born alive following a termination should be no different from the duty owed to a child born alive in any other circumstances.
It is difficult to understand how a healthcare system founded upon dignity, non-discrimination, and care for the vulnerable could defend any other position.
Australia ratified the United Nations Convention on the Rights of the Child on 17 December 1990, accepting international obligations concerning the rights and welfare of children.
Article 6 recognises that ‘every child has the inherent right to life’ and requires states to ensure, to the maximum extent possible, the survival and development of the child. Article 24 recognises the child’s right to the highest attainable standard of health. Article 2 requires the rights in the Convention to be respected without discrimination.
The Convention’s preamble also recalls that children, because of their physical and mental immaturity, require special safeguards, care, and appropriate legal protection ‘before as well as after birth’.
There are longstanding disagreements about how international human-rights instruments apply to children before birth. We do not need to settle that argument here.
The subject of this legislation has already been born.
Once a child is alive and physically before a doctor, nurse or midwife, surely the application of the principles of life, healthcare and non-discrimination is at its least ambiguous.
The anticipated legislation is expected to reflect precisely that proposition: for the purposes of Commonwealth law, a child born alive is a person, and the fact that the child’s birth resulted from a termination should not diminish the duty of care owed to that child.
Human rights cannot depend upon whether someone’s birth was intended.
One objection can already be anticipated: that legislation of this kind will force doctors to undertake aggressive or futile treatment of extremely premature babies or children with conditions incompatible with prolonged life.
That criticism misunderstands the principle.
The proposed legislation is anticipated to recognise that medical care must be appropriate to the individual circumstances. Depending upon the child’s condition, that could mean life-saving emergency treatment. It could also mean compassionate palliative care.
That distinction matters.
Healthcare professionals make extraordinarily difficult decisions concerning critically ill and extremely premature newborns. Sometimes intensive treatment offers a reasonable prospect of benefit. Sometimes treatment would be futile or excessively burdensome and palliation is the medically and ethically appropriate course.
Nothing about equal treatment requires clinicians to pretend those realities do not exist.
This is not a ‘resuscitate at all costs’ principle.
It is an equal clinical judgement principle.
Consider two newborn children of the same gestational age, with the same medical condition and the same prognosis.
One was born following spontaneous premature labour. The other was born alive following an attempted termination.
If palliative care is clinically appropriate for the first, it may be appropriate for the second.
But if life-saving treatment would ordinarily be appropriate for the first, why should the second receive anything less?
The question clinicians should be able to ask is simply: What treatment is appropriate for the patient before me?
Not: Was this child supposed to survive?
There is another response we are likely to hear: some of these children are born so prematurely that they cannot survive, because the termination deliberately brought the pregnancy to an end before the child had reached a stage where survival outside the womb was possible.
That may explain why resuscitation is sometimes futile. It does not make the ethical question disappear.
The child is unable to survive because, at that stage of development, life still depends upon remaining in the womb.
There is an important difference between saying, ‘This child has been born too early and medicine cannot save them,’ and saying, ‘This child was deliberately delivered at a stage when survival was not possible, therefore there is no further ethical question to answer.’
The first recognises the limits of medicine. The second risks using the consequences of the intervention to justify the outcome of the intervention.
None of this means doctors should perform futile resuscitation. If a child is born at a gestation where survival is impossible, then warmth, comfort, relief of suffering, and compassionate human care may be all that medicine can offer. That is still healthcare. That child should still be treated as a patient.
But we should not confuse being unable to save a child with there being no child worth saving.
For a very premature baby, the ability to go on living may depend upon something extraordinarily simple: being allowed the time to remain in the womb and continue developing. Deliberately ending that opportunity before the child can survive independently does not diminish the humanity of the child who is subsequently born alive.
And if that child is born alive, however briefly, our obligation as healthcare professionals is to respond to the child before us with the same clinical judgement, compassion and human dignity we would offer any other newborn.
What if the numbers are disputed?
Another objection will focus upon statistics.
There has been considerable disagreement about Australian data concerning children born alive following terminations. Critics dispute how some figures should be interpreted. Questions are raised about gestational age, congenital abnormalities, viability, definitions of live birth, and whether children recorded as live-born received appropriate palliative care rather than being denied beneficial treatment.
Those are legitimate questions.
Statistics used to make public policy deserve scrutiny. Claims should not be exaggerated merely because they support one side of a contentious debate.
But there is a point at which arguing over the denominator distracts from the principle.
What is the acceptable number of children born alive following abortion who are denied medically appropriate care?
Ten?
Five?
One?
If it happened to one child in one Australian hospital in one year, would that child’s human rights matter less because the sample size was small?
Medicine does not allocate human dignity according to statistical significance.
We do not decide that a rare disease is unworthy of treatment because only a handful of Australians have it. We do not conclude that an uncommon form of abuse requires no legal protection because it occurs infrequently.
Human rights matter precisely because the individual matters.
And curiously, uncertainty about the numbers is not an argument against this legislation. It is an argument for its anticipated reporting provisions.
The bill is expected to require reporting when a child is born alive following a termination, including information such as gestational age, treatment provided and whether the child survived, while protecting the identities of both mother and child.
If existing data are inadequate, inconsistent or routinely misinterpreted, better data should be welcomed by everyone.
There is another group whose experience receives remarkably little attention in this debate: the healthcare professionals expected to participate in these events.
Nurses, midwives and doctors are not machines.
We know what it is to carry a patient home in our thoughts. We remember the resuscitation that failed, the patient whose hand we held and the family to whom we delivered devastating news. Clinical professionalism does not make us immune to the human experiences occurring around us.
Healthcare literature increasingly recognises the phenomenon of moral distress. It is the distress that can arise when clinicians believe they know the ethically appropriate action but feel unable to pursue it because of institutional, professional or other constraints.
Moral distress has been associated with emotional exhaustion, burnout, and clinicians considering leaving their positions or profession.
Now consider the nurse, midwife or doctor confronted with a living child following an attempted abortion, particularly where that clinician believes medically appropriate treatment could or should be provided but feels constrained from providing it because the child’s birth followed a termination.
What does such an experience do to that healthcare professional?
We should be careful about causation. It would be wrong to claim that these cases explain Australia’s healthcare workforce shortages.
But at a time when our hospitals struggle to recruit and retain experienced healthcare professionals, it would be equally foolish to dismiss workplace conditions capable of producing profound moral distress in the very clinicians we desperately need to retain.
Clear and consistent duties of care protect patients. They can also protect clinicians from being placed in morally untenable positions.
If abortion is healthcare, what happens after a live birth?
There is also an uncomfortable contradiction that supporters of abortion rights should be willing to confront.
We are repeatedly told that ‘abortion is healthcare’.
Whatever one’s view of that proposition, if the language of healthcare is to mean anything, the commitment to healthcare cannot disappear at birth. The child who was alive moments earlier in the womb is the same child now lying before the clinician. Birth does not create that child’s humanity or value; it simply removes any remaining argument that the child’s care can be weighed against the bodily autonomy of the mother.
Whatever one believes about the healthcare provided to the woman before birth, after a live birth there are now two patients.
The newborn is breathing. The child’s heart is beating. The child is physically separate from his or her mother. The clinician standing nearby is no longer dealing only with a pregnancy.
There is a newborn patient requiring a clinical assessment.
It would be a strange conception of healthcare indeed if the intention to end a pregnancy could follow a child through birth and determine the healthcare available to that child afterwards.
The circumstances preceding birth may explain how the child came to be lying before us.
They should not determine the value of the life lying there.
We should also expect to hear that legislation is unnecessary because healthcare professionals already owe duties to children born alive.
If that is correct, it raises an obvious question: Why object to legislation affirming the same principle?
There can, of course, be legitimate debate about legislative drafting, constitutional power, penalties, and the interaction between Commonwealth and state law. Those are proper matters for parliamentary scrutiny.
But they are not arguments against the underlying principle.
The anticipated legislation is not asking professional regulators to invent a special standard for children who survive abortions. It is expected to require the opposite: equivalent conduct towards equivalent patients should be treated equivalently.
Nor is the proposed legislation anticipated to criminalise the mother. The framework is expected expressly to exempt her from prosecution under its care and reporting provisions.
The focus is upon the professional duty that exists once a child has been born alive.
If existing Australian medical ethics already require equal care, Parliament would not be inventing a radical new ethical principle.
It would be affirming one.
Parliament need not settle Australia’s abortion debate to pass this test.
It need not declare that every extremely premature child must be resuscitated.
It need not prevent doctors from providing compassionate palliative care when that is clinically appropriate.
It need not prosecute mothers.
And it need not pretend that difficult clinical cases are simple.
It needs to affirm something much more modest and much more fundamental.
Birth must be the end of any distinction in our duty of care based upon whether a child’s life was wanted.
Once that child is born, healthcare professionals should assess the patient we have before us.
Same clinical circumstances.
Same professional duty.
Same human rights.
Same healthcare.
A newborn cannot demand a second opinion. A child born unexpectedly alive following an abortion cannot complain to a regulator, ask Parliament for protection or insist that Australia’s commitment to children’s human rights be honoured.
That responsibility falls to us.
When this legislation comes before Parliament, MPs and senators will hear arguments about abortion, statistics, ideology, jurisdiction, and politics.
Underneath them all is a much simpler question.
A child has been born alive. Is that child now entitled to the same standard of medically appropriate care as any other Australian child?
For a nation committed to universal human rights and for a healthcare profession committed to caring for the patient before us there should only be one answer.
By Naomi Bunker (RN, BN, MPhil, GCHELT, FHEA), Dr Priyanka Pinto (MD, BSci, BMus), Louise Adsett (RM) & Dr Melissa Lai (BPharm MBBS FRACP PhD)
The post Born alive means a patient deserving equal care appeared first on The Spectator Australia.
