Pregnancy can raise complex questions at any age. When the person who is pregnant is under 18, the situation also raises a legal question: who actually gets to decide what happens next? Is it the pregnant person? Their parents? A doctor? Or, in some situations, a court?

In Western Australia, the answer is not as simple as ‘you must be 18.’ The law does not set a minimum age for consenting to an abortion. Instead, it largely focuses on whether the young person understands the decision they are making.

Age matters less than understanding

The law in WA does allow people under 18 to make their own decisions about medical treatment – including abortion – but only if they are considered a ‘mature minor’. A minor becomes a mature minor when they have enough emotional maturity and intelligence to fully understand the proposed decision, including its nature and consequences.

If a doctor forms the view that the pregnant young person is a mature minor in relation to the proposed treatment, they can make their own decision, including in relation to abortion. The ordinary rules relating to the availability of abortion in the Public Health Act 2016 (WA) apply, because their consent generally carries the same weight as an adult’s.

There is no fixed age at which a person becomes a mature minor – it will always depend on the individual young person, their maturity and understanding, and the nature of the medical decision. All young people develop differently, but there are cases where relatively young adolescents have been regarded as mature minors able to make their own decisions about abortion. For example, just last year the Queensland Supreme Court found that a 12-year-old child was mature enough to consent to an abortion, but that does not mean every 12-year-old would be.

A parent cannot prevent a mature minor from accessing an abortion. And similarly, a parent cannot force a mature minor to have an abortion if the pregnant young person has refused to have an abortion.

What if the pregnant young person is not a ‘mature minor’?

Not every young person will be assessed as having the capacity to make this decision on their own. If a doctor believes the pregnant person is not a mature minor, section 202MM of the Public Health Act 2016 (WA) allows the doctor to involve a parent or guardian in the decision-making process, but only if the young person agrees to them participating in the decision. If the young person agrees to that involvement, the parent or guardian can then consent to – or refuse – the abortion.

But what about where the young person does not want to involve a parent or guardian? If the young person is not considered a mature minor but does not want their parents involved, the doctor must apply to either the Supreme Court or the Family Court of Western Australia to determine whether the abortion should occur. At that point, the decision effectively shifts to the court, which will determine what is in the young person’s best interests.

Do parents need to be informed?

People commonly assume that parents must be informed if a minor seeks an abortion. In WA, that is not the case. There is no law requiring a minor or their doctor to notify parents or obtain parental consent before accessing an abortion.

Doctors might encourage young patients to involve a parent or a trusted adult, but this is not a legal requirement.

Conclusion

Despite how complicated these rules sound, the basic structure is fairly simple. If a pregnant minor understands the decision they are making, they can usually make it themselves, even where that decision relates to abortion. If they do not yet have that level of understanding, parents may become involved and can consent or refuse on behalf of the pregnant young person. And if the pregnant young person refuses to allow their parents to participate in the decision, a court can ultimately resolve the issue in their best interests.

Courts can also become involved when there is a dispute between those involved in the decision (the pregnant young person, their parents, and the medical team), but these situations are uncommon. In these situations the court will also make its decision based on the best interests of the young person.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.