By Will Murray, ABC
In rare cases, the courts must become involved in deciding whether a child can have an abortion. (ABC News: Pete Mullins) Photo: ABC News: Pete Mullins
Earlier this year, the Queensland Supreme Court gave permission for a hospital to perform a surgical abortion on a 12-year-old girl who was nine weeks pregnant.
The girl, known as "E", wanted an abortion, and her mother consented. However, the court was still required to assess whether a termination was in the child's best interests.
According to Australian law, children are empowered to make their own decisions about the healthcare they receive - regardless of parental consent - so long as they fully understand what is being done.
This is known as being "Gillick competent".
In the case of E, medical professionals were concerned about her understanding, so the decision was referred to the courts.
What is the Gillick component?
This term comes from a legal precedent set in 1985 by the UK's House of Lords, which found against Victoria Gillick.
Ms Gillick wanted assurances from doctors that her children under 16 would not be given contraceptives or abortion advice without her consent.
The House of Lords found that a child's rights supersede those of their parents, as long as they have "sufficient understanding and intelligence".
It's been the standard in Australia ever since. When a pregnant child approaches a GP or abortion provider, their comprehension must first be established.
MSI Australia estimates around 2 per cent of abortions they provide are for people younger than 18. (ABC News: Pete Mullins) Photo: ABC News: Pete Mullins
A child's right to decide
Not all states keep information about teenage terminations, but in Queensland, just over 800 were performed in hospitals in 2023.
Around 160 of those were on children aged between 12 and 16.
MSI Australia is a private not-for-profit provider of both medical and surgical terminations whose services are available to anyone over the age of 14.
They estimate around 2 per cent of their clients are under 18, and a tiny fraction under 16.
Alison Fonseca, MSI's Head of Psychosocial Health, is a qualified psychologist who works alongside medical practitioners to help young people through the process.
Ms Fonseca said it is a "a really big step" for young people to make the choice to seek expert care, and in most cases, they will bring a parent or trusted friend for support.
It is part of her job to make young people feel safe and assess how "they weigh up the risks and benefits of receiving" the treatment or not.
"Young people aren't always able to consider future consequences as they have a still developing brain," she said.
The initial assessment includes understanding the young person's ability to process and retain information; understand the responsibilities of pregnancy care and parenthood; and asks about their social context including housing, education, family, safety, and any alcohol and drug use.
In complex situations, testing must be done to establish whether a child seeking an abortion understands the procedure. (ABC News: Pete Mullins) Photo: ABC News: Pete Mullins
Based on that information, a doctor will then have a medical consultation with the young person to ask further questions to determine their competency.
Other times, complexities in a young person's life may necessitate a formal and comprehensive assessment with input sought from social workers, counsellors, educators or other trusted adults.
The young person is aware and contributes to this type of assessment.
However, a young person who is a "mature minor" has the right to both decide the healthcare they receive, and if they wish, to keep these decisions confidential.
"It's about bodily autonomy, and respecting that children and young people have rights," Ms Fonseca said.
"However, we must be satisfied their best interests are being met, and that they are safe and supported. Sometimes this means negotiating what information can be shared with a legal guardian."
What if they don't understand?
If it is determined a child is not Gillick competent, the law states that it is possible for a parent or guardian to make decisions about their medical treatment.
When it comes to medical treatment for a minor, it must be ascertained whether the young person's parent or guardian is acting in their best interest.
When it comes to abortion care, the circumstances around the pregnancy must also be determined.
"There could be a whole set of other circumstances for that young person that are not immediately apparent, so we would be taking into account as many opinions as possible," Ms Fonseca said.
If there is no appropriate guardian who can make that decision on the young person's behalf, or parents don't agree on the best way forward, a court may decide on what's best for the young person.
Legal but not easy
In Australia, a surgical abortion is available up to between 22 and 24 weeks gestation, depending on the jurisdiction.
Medical abortions, which involves taking a combination of drugs known as MS-2 Step to induce a miscarriage, is only available up to nine weeks.
The medication MS-2 Step is used for abortions in the first nine weeks of a pregnancy. (ABC News: Lani Oataway) Photo: ABC News: Lani Oataway
MS-2 Step can be prescribed by a GP, and accounts for an increasing proportion of terminations.
However, Dr Danielle Mazza - a professor at Monash Health and chair of the Royal Australian College of GPs preventative medicine guidelines - said there's no legal requirement for clinics to prescribe it.
"If you've got hypertension, you can be pretty certain that most GPs are going to manage your hypertension, but if you need an abortion … you can't be certain that every GP is going to be able to provide that."
Dr Mazza said there's still a stigma around abortion, and while improving, prescribing MS-2 Step is not "part of the culture of general practice".
Under time pressure, a young person is required to not only find a willing provider but also spend hundreds of dollars on treatment.
"Teenagers lack agency, they don't have their own credit card," Dr Mazza said.
"So, access to abortion for teenagers … is limited by system issues, cost, transparency and stigma."
- ABC
