The Bill codifies the duty and conduct of medical professionals to a child born alive as no different to the professional duty owed to any other child had the live birth not been as the result of a termination.Key provisions include Clause 8, which defines a child born alive as a "person" for the purposes of Commonwealth law. Clause 9 establishes the duty of health practitioners to provide medical care, which is defined to include "life-saving emergency treatment or palliative care." Crucially, the bill specifies that no consideration should be given to the fact that the birth resulted from a termination when determining the standard of care. The bill creates a new offence under Clause 10 for health practitioners who contravene this duty. However, Clause 12 explicitly provides that the mother of the child is not liable to prosecution, acknowledging that
any decision to terminate a pregnancy may be difficult and highly traumatic for the mother.Additionally, the bill mandates that practitioners report such births to facilitate the production of accurate statistics, addressing current discrepancies in state-based recording practices. The constitutional validity of the bill is grounded in Australia's international obligations under the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
The fundamental premise of this bill is that human rights should be applied universally and without discrimination based on the circumstances of a person's birth. Once a child is "born alive," they attain the status of a legal person, and as such, they should be entitled to the same protections and medical standards as any other citizen [Judgment].
The bill addresses a perceived gap in the current protection of infants born during late-term terminations. As the explanatory memorandum notes, in some jurisdictions, these infants may be "ultimately left to die" after receiving only palliative care, even where life-saving intervention might be possible. By codifying a uniform duty of care, the bill ensures that Australia meets its international obligations under the Convention on the Rights of the Child (CRC) and the International Covenant on Civil and Political Rights (ICCPR). Specifically, Article 6 of the CRC affirms that every child has the inherent right to life. To deny medical treatment based solely on the intent of the preceding medical procedure is a violation of the principle of equality before the law.
Critics of this bill may argue that it represents an unnecessary federal intrusion into clinical practice and state-regulated healthcare systems. Medical professionals already operate under strict ethical guidelines and state-based health practitioner regulations. By imposing a specific Commonwealth offence, the bill may create a "chilling effect," where doctors feel legally coerced into performing invasive procedures on non-viable infants against their best clinical judgment or the wishes of the family in highly distressed circumstances [Judgment].
Furthermore, there is an epistemic concern regarding the necessity of the legislation. The explanatory memorandum admits that
obtaining accurate figures in relation to babies born alive as a result of termination of pregnancy remains problematic.Without robust data indicating a systemic failure of existing state laws or medical ethics, the creation of a new federal criminal offence may be premature. There is also the risk that the bill complicates the delivery of reproductive healthcare by introducing legal uncertainty into what are often complex, tragic, and time-sensitive medical decisions involving maternal health and fetal abnormalities.
2026-08-17
House of Representatives
Before House of Representatives
O'BRIEN, Llew, MP
Unspecified
Healthcare, Discrimination / Human Rights, Criminal Law Reform