Termination of Pregnancy Act 2021

This Act may be cited as the Termination of Pregnancy

Act 2021.

In this Act, unless the contrary intention appears—

assist in a termination includes—

obtaining on behalf of, or supplying to, another person a drug or other substance for use in a termination; and

any other act that directly and materially aids in the performance of a termination, but does not include acts of a kind prescribed by the regulations;

Department means the administrative unit of the

Public Service that is responsible for assisting a Minister in the administration of the Health Care

Act 2008;

hospital has the same meaning as in the

Health Care

Act 2008;

incorporated health service has the same meaning as in the Health Care

Act 2008;

medical practitioner means a person registered under the Health Practitioner Regulation

National Law to practise in the medical profession, other than as a student;

prescribed hospital means a hospital, or hospital of a class, prescribed by the regulations;

private day procedure centre has the same meaning as in the Health Care

Act 2008;

private hospital has the same meaning as in the

Health Care

Act 2008;

registered health practitioner means—

a medical practitioner; or

any other person registered under the

Health Practitioner Regulation National

Law to practise in a health profession, other than as a student;

termination means an intentional termination of a pregnancy in any way, including, for example, by—

administering or prescribing a drug or other substance;

or

using a medical instrument or other thing, and perform a termination and to

terminate have corresponding meanings.

This Act is in addition to and does not limit or derogate from the provisions of the Consent to Medical

Treatment and Palliative Care Act 1995, the

Controlled Substances

Act 1984 or any other Act.

A termination may be performed on a person if—

in the case of a termination performed by a medical practitioner acting in the ordinary course of the practitioner's profession—the termination is performed on a person who is not more than 22 weeks and

6 days pregnant; or

in the case of a termination performed by any other registered health practitioner acting in the ordinary course of the practitioner's profession—

the termination is performed by administering a prescription drug or by prescribing a drug; and

the registered health practitioner is authorised to prescribe the drug under section 18 of the Controlled Substances Act 1984.

A medical practitioner may perform a termination on a person who is more than 22 weeks and 6 days pregnant if—

the medical practitioner is acting in the ordinary course of the practitioner's profession; and

the termination is performed in accordance with section 6.

A medical practitioner may perform a termination on a person who is more than 22 weeks and 6 days pregnant if—

the medical practitioner considers that, in all the circumstances—

the termination is necessary to save the life of the pregnant person or save another foetus; or

the continuance of the pregnancy would involve significant risk of injury to the physical or mental health of the pregnant person; or

there is a case, or significant risk, of serious foetal anomalies associated with the pregnancy; and

a second medical practitioner is consulted and that practitioner considers that, in all the circumstances—

the termination is necessary to save the life of the pregnant person or save another foetus; or

the continuance of the pregnancy would involve significant risk of injury to the physical or mental health of the pregnant person; or

there is a case, or significant risk, of serious foetal anomalies associated with the pregnancy; and

the termination is performed at a prescribed hospital.

In considering whether a termination is medically appropriate, a medical practitioner must consider—

all relevant medical circumstances; and

the professional standards and guidelines that apply to the medical practitioner in relation to the performance of the termination.

Without limiting section 13 of the Consent to Medical Treatment and Palliative Care Act 1995, a medical practitioner may, in an emergency, perform a termination on a person who is more than 22 weeks and 6 days pregnant, without complying with paragraphs (b) and (c) of subsection (1).

This section applies if a termination results in a person being born.

Nothing in this Act prevents the medical practitioner who performed the termination, or any other registered health practitioner present at the time the person is born, from exercising any duty to provide the person with medical care and treatment that is—

clinically safe, and

appropriate to the person's medical condition.

To avoid doubt, the duty owed by a registered health practitioner to provide medical care and treatment to a person born as a result of a termination is no different than the duty owed to provide medical care and treatment to a person born other than as a result of a termination.

Before performing a termination on a person, a registered health practitioner must provide all necessary information to the person about access to counselling, including publicly-funded counselling.

A registered health practitioner may, in an emergency, perform a termination on a person without complying with subsection (1).

In assessing matters for the purposes of section 6(1), a medical practitioner must, when determining whether to perform a termination, have regard to the following:

whether it is essential to perform a termination of an affected foetus in a multiple pregnancy at a gestation that does not risk severe prematurity and its attendant consequences for the surviving foetus;

whether there are serious foetal abnormalities that were not identifiable, diagnosed or fully evaluated before the pregnancy reached

22 weeks and 6 days, including but not limited to abnormalities involving the brain, heart, renal and skeletal systems, or whether the foetus has been exposed to infective agents which may damage or limit the gestation and development of the foetus;

whether the patient has had difficulty accessing timely and necessary specialist services before the pregnancy reached 22 weeks and

6 days, including but not limited to patients experiencing significant socio‑economic disadvantage, cultural or language barriers and those who reside in remote locations;

whether a patient has been denied agency over the decision to continue a pregnancy or not, including (but not limited to) the abuse of minors and vulnerable adults to sexual and physical violence including rape, incest and sexual slavery;

whether the abuse outlined in paragraph (d) includes circumstances in which such abuse is not apparent, or the pregnancy is not diagnosed until an advanced gestational age;

whether medical or psychiatric conditions may become apparent or deteriorate during the pregnancy to the point where they are a threat to the patient's life;

whether the patient has a deteriorating maternal medical condition, or late diagnosis of a disease requiring treatment incompatible with an ongoing pregnancy (such as malignancies).

A registered health practitioner who performs a termination that is authorised by this Act may be assisted by a registered health practitioner acting in the ordinary course of the practitioner's profession.

This section applies if—

a person (the first person) asks a registered health practitioner to—

perform a termination on another person; or

assist in the performance of a termination on another person;

or

make a decision under this Act whether a termination on another person should be performed; or

advise the first person about the performance of a termination on another person; and

the practitioner has a conscientious objection to the performance of the termination.

The registered health practitioner must, as soon as practicable after the first person makes the request, disclose the practitioner's conscientious objection to the first person.

If the request by a person is for the registered health practitioner (the first practitioner) to perform a termination on the person, or to advise the person about the performance of a termination on the person, the practitioner must, without delay—

give information to the person on how to locate or contact a medical practitioner who, in the first practitioner's reasonable belief, does not have a conscientious objection to the performance of the termination;

or

transfer the person's care to—

another registered health practitioner who, in the first practitioner's reasonable belief, can provide the requested service and does not have a conscientious objection to the performance of the termination;

or

a health service provider at which, in the first practitioner's reasonable belief, the requested service can be provided by another registered health practitioner who does not have a conscientious objection to the performance of the termination.

For the purposes of subsection (3)(a), the first practitioner is taken to have complied with the practitioner's obligations under that paragraph if the practitioner gives the person information approved by the Minister for the purposes of that paragraph.

[Note: NoteThe information to be approved by the Minister is to consist of contact details for a SA Government service that provides information about a range of health services and resources, including information about medical practitioners who do not have a conscientious objection to the performance of terminations.]

This section does not limit any duty owed by a registered health practitioner to provide a service in an emergency.

Subject to subsection (2), a registered health practitioner must not perform a termination of a pregnancy for the purposes of sex‑selection.

Subsection (1) does not apply to the performance of a termination if the registered health practitioner is satisfied that there is a substantial risk that the person born after the pregnancy (but for the termination) would suffer a sex‑linked medical condition that would result in serious disability to that person.

A registered health practitioner who performs a termination in accordance with this Act, or a registered health practitioner who assists or is otherwise involved in such a termination—

incurs no criminal liability for an act or omission in so doing;

and

incurs no civil liability for an act or omission in so doing, provided that the act or omission was done or made in good faith and without negligence.

A registered health practitioner who, in accordance with section 11, refuses to—

perform a termination on a person; or

assist in the performance of a termination on a person;

or

provide advice to a person about the performance of a termination, incurs no civil liability for an act or omission in so doing.

For the purposes of this section, a reference to the civil liability of a person includes a reference to liability arising under disciplinary proceedings or similar proceedings.