Facilitating Safe Access to Health Care through Legislative Reform - The Australian Experience.

The realisation of the right to health is vulnerable to the interventions of strangers, acting on the belief that certain health care should not be permissible under the law or accessible in practice. In Australia, the key arena for such interventions has been abortion services. Drawing on empirical research undertaken by the authors, this article examines the impact of these interventions and the effectiveness of "safe access zone" laws that now operate nationwide to constrain them. After examining the unsuccessful constitutional challenge to these laws in the High Court of Australia, it considers whether safe access zones may have utility in other health care contexts.

Conscientious Objection in Australia: A Comparison between Abortion and Voluntary Assisted Dying.

Abortion and voluntary assisted dying (VAD) are areas of health care that elicit passionate and emotional responses. As a result of the diverse perspectives relating to these forms of medical care, Australian law allows for conscientious objection in both contexts. This article considers the role of conscientious objection in health care in Australia, with a particular focus on abortion and VAD. In begins by considering the legal position, highlighting some of the key differences in the way that conscientious objection is regulated in these two contexts and between Australian jurisdictions. It observes that jurisdictions which have legalised both abortion and VAD have not necessarily adopted the same approach to the question of conscientious objection as it pertains to abortion versus VAD. The article then turns to consider the reality of conscientious objection "on the ground" across these two domains in an effort to understand this distinction.

The Impact of COVID-19 on Fertility Treatment in Australia.

On 25 March 2020, as part of the Australian response to the coronavirus pandemic, all non-essential elective surgery was indefinitely suspended. This had an immediate impact on the provision of fertility treatment because the vast majority of fertility treatments were classified as non-essential. The suspension ended on 27 April 2020, although other restrictions continued. Between June and August 2020, we conducted semi-structured interviews to determine the impact of these initial regulatory responses to the pandemic on the provision of fertility treatment in Australia during two key periods: the suspension of non-essential surgery and the re-opening. Changes to the practice of fertility treatment demonstrate the importance of planning for prioritisation and other matters to be addressed in preparation for possible future pandemics.

Barriers to abortion access in Australia before and during the COVID-19 pandemic.

Access to abortion in Australian has been the subject of significant legal reforms to the point that in some jurisdictions, most legal barriers to access have been dismantled. Nevertheless, research reveals that many Australian women will not be in a position to fully realise their reproductive rights until the non-legal barriers to access are adequately addressed. Between March 2017 and November 2020, the authors conducted qualitative research into the barriers faced by Australian women when accessing, or attempting to access, abortion services. Three of the primary non-legal barriers to access raised repeatedly in our research are financial barriers to access, geographic barriers to access; and deficiencies in practitioner attitudes, education and training. Part I of this article focuses on these barriers to abortion access while Part II considers the significant new challenges created by the COVID-19 pandemic for women's access to reproductive health services. The paper concludes that the pandemic and the measures introduced in response have amplified pre-existing barriers and generated a disproportionate and intersectional impact on the most marginalised and disempowered women in society.

Parentage, Surrogacy and the Perplexing State of Australian Law: A Missed Opportunity.

Following the decision of Bernieres v Dhopal (2017) 324 FLR 21; [2017] FamCAFC 180 it seems that intended parents of children born via overseas compensated surrogacy arrangements will not be recognised as legal parents in Australia. This decision results in harmful outcomes for children and represents a missed opportunity for the Full Court of the Australian Family Court to resolve this issue. Therefore, this article is intended to act as a plea for a review of the approach. Acknowledging the difficulties faced by the Family Court in attempting to resolve issues of parentage in compensated surrogacy cases within the parameters of the Family Law Act 1975 (Cth), the authors suggest two possible alternative approaches. These approaches would enable the Court to stay true to the existing legislative framework while at the same time achieving what is clearly the desirable outcome for the children; that is: having their intended and functional parents recognised as their legal parents.

Australia: Abortion and Human Rights.

This article adopts a human rights lens to consider Australian law and practice regarding elective abortion. As such, it considers Australian laws within the context of the right to equality, right to privacy, right to health, and right to life. After setting out the human rights framework and noting the connected nature of many of the rights (and their corresponding violations), the article shifts its focus to analyzing Australian law and practice within the framework of these rights. It considers the importance of decriminalizing abortion and regulating it as a standard medical procedure. It discusses the need to remove legal and practical restrictions on access to abortion, including financial obstacles and anti-abortion protestors. Further, it comments on the importance of facilitating access; for example, by keeping accurate health data, securing continuity of health care, increasing the availability of medical abortion, and ensuring appropriate care is provided to the most marginalized and vulnerable women.

Tasmania's Reproductive Health (Access to Terminations) Act 2013: An analysis of conscientious objection to abortion and the "obligation to refer".

This article focuses on Tasmania's Reproductive Health (Access to Terminations) Act 2013, which decriminalises abortion in that State. The article first provides an overview of the Tasmanian legislation, comparing it with Victoria's Abortion Law Reform Act 2008. It then provides a more in-depth analysis of a doctor's right to "conscientious objection" and the requirement in both Acts of an "obligation to refer". The article concludes that ultimately, as a democratic society, it is important that both a woman's right to terminate a pregnancy and a doctor's right to freedom of conscience is respected. Where these rights conflict, as is the case when a doctor with a conscientious objection to abortion is confronted with a patient who seeks information about abortion, they must be balanced. The Victorian and Tasmanian Acts represent a considered and reasonable approach to balancing the rights at issue.

COMMERCIAL SURROGACY: WHAT ROLE FOR LAW IN AUSTRALIA?

This editorial begins by illuminating current conversations regarding the regulation of commercial surrogacy in Australia. It defines "commercial surrogacy" and explains the interaction between changes in social attitudes and changes to the law before setting out the current Australian law and practice in this area. An examination of current domestic law and practice reveals that surrogacy legislation in Australia is mired in inconsistencies and a lack of uniformity but that the one key common element is the prohibition of commercial surrogacy. The inability of couples to access commercial surrogacy within Australia has led to offshore reproductive tourism and unpredictable, contradictory decision-making as the Family Court attempts to apply legislation which was never intended to apply in this context. The editorial then turns to consider the international arena, discussing the approach of the Hague Conference on Private International Law before delving into a human rights analysis of commercial surrogacy arrangements. The adoption of a rights-based approach requires an analysis of this vexed issue from the perspective of the child, surrogate and intending parents. While questions surrounding the human rights implications of legalising commercial surrogacy continue to be the subject of passionate debate, the authors believe that the human rights of all parties are best protected through appropriate regulation rather than absolute prohibition.

Commercial surrogacy and the human right to autonomy.

Arguments against commercial surrogacy frequently focus on the rights of the surrogate. For-example, those opposed to commercial surrogacy often argue that surrogacy arrangements amount to the exploitation of women and the commodification of their wombs. Phrased in the language of rights, such arguments draw on the right to be free from degrading treatment and the right to be free from discrimination. In contrast, those who support commercial surrogacy refute the arguments relating to exploitation and commodification and cite the right to work and more commonly the right to privacy/autonomy as the key rights in question. This article focuses on the human right to autonomy and interrogates whether prohibitions on commercial surrogacy violate the right of a woman to choose to be a surrogate.