It is easy to feel sympathy for Netball Australia. The organisation feels it that it is under legal siege. It feels that it is a damned if it does and damned if it does not. If it does nothing to prevent pregnant women from playing netball in matches that it organises, and as a result a fetus is born with injuries, Netball Australia could be held liable for damages. On the other hand, if it bans pregnant women from playing, it will be found to be in breach of the Sex Discrimination Act.
This week, Netball Australia decided that it would be less costly to be in breach of the Sex Discrimination Act than to be liable for injuries to a fetus. It therefore decided to ban pregnant women from playing in games that it organised. Netball Australia argued that it was not possible for a woman to indemnify Netball Australia against injury to a fetus because, once born, the fetus is a separate legal entity which can sue in its own right. Netball Australia and also argued that immediate action was needed.
The decision has caused outrage among the players, the medical profession and it human rights groups.
The decision could have ramifications for other sports and possibly for the participation of pregnant women in parts of the workforce. That being the case the decision should be subjected to a high level of scrutiny.
It seems that Netball Australia has made its decision out of the blue. It did not point to any cases of fetal damage or even a miscarriage to support its stand. It did not point to any cases where courts had found a sporting organisations liable for fetal damage.
The decision has a major logical weakness. It admits that its ban will be impossible to police. It can hardly demand weekly pregnancy tests on all of its players. So it must rely on women voluntarily admitting their pregnancy and voluntarily refraining from play. Many pregnant women could easily play for a week or more without knowing they are pregnant and others may defy the ban and play while knowing that they are pregnant. In these circumstances, Netball Australia would still be liable for damages in the case of a damaged fetus. This is because, under Netball Australia’s own interpretation of legal liability, the actions of the woman will not bind the child born from the damage fetus, even if there is a ban in place.
Given the impossibility of enforcing the ban and given that liability would remain even with the ban, it seems that Netball Australia has achieved nothing. It is apparent that it has not thought it through.
Moreover, Netball Australia has admitted that its ban will be the trigger for a forum on the legal position of pregnant women playing sport. It should have had the forum first and then decided whether to impose a ban.
Medical opinion is fairly clear that there is no problem with pregnant women playing sports like netball in the early part of a pregnancy. AMA federal vice-president Trevor Mudge, a senior obstetrician, confirmed this opinion.
In light of all this, Netball Australia should postpone its ban — which has the potential to affect 1.4 million registered netballers — at least until the medical-legal-sporting forum has had a chance to bring down some findings. When the forum brings down its findings, it is likely that ban will be seen as an over-reaction. Individual women, on the advice of their doctors, are plainly in the best position to determine at what stage of their pregnancy they should stop playing.