Women and sport: should pregnant netballers be banned from playing?

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The issue
In June, 2001, Netball Australia announced its decision to ban pregnant woman from competition. The decision appeared to be motivated by a variety of factors ranging from concern that the Association could be sued if there were an injury through to concern that pregnant players and their unborn children could suffer harm.
The Association's action created an immediate furore. The Australian Medical Association and a range of other groups opposed it. A number of female sporting competitors indicated that they would ignore any such ban and play without declaring their pregnancy.
Netball Australia asked the Australian Sports Commission to conduct a forum on the issue. This was held in August, 2001.

What they said ...
'If we're not careful we'll let the legalities run wild and the rights of women and plain common sense will lose out'
Ms Brown, coach of Melbourne Phoenix

'I discovered there was a lack of medical evidence to support the anecdotal precedents that imply that pregnant women are safe to play certain sports'
Sue Taylor, Netball Australia president

'The sententious bleating about a small man with a microphone is laughable, when families sit down at news time and see a barrage of evil, from unending global war to local violence'
Mr Michael Witheford, a Melbourne writer, questioning critics of Mathers' lyrics

Echo Issue Outline 2001 / 18
Copyright © Echo Education Services
First published in The Echo on-line newspaper information site.

Issue outline by J M McInerney

Background
The issue remains unresolved. One key competitor has lodged a complaint with the Federal Human Rights and Equal Opportunity Commission arguing that her being banned from Netball competition is in violation of federal anti-discrimination legislation.
There is currently an uneasy stand-off between some sporting bodies, apprehensions about being sued and they and their members' concern that women's rights not be violated.

Internet links

There are a large number of Internet sites relevant to this issue. However, many of the pages devoted to this topic are on sites that change frequently. Some of the sources referred to here are likely to be short-lived. It is therefore recommended that readers print out these materials. We apologise for any inconvenience caused by references that have been removed from sites after the publication of this issue outline.

On August 13, 2001, Netball Australia issued a media release on its position on its previously announced ban on pregnant players. The release can be found at http://www.netball.asn.au/press_releases/13_august_b.htm

Womensports and Recreation NSW Inc is a lobby group that aims to improve the status of women and girls in sport, recreation and physical activity and to encourage increased participation by women and girls in sport, recreation and physical activity.
On the group's Internet site is an interesting overview of the recent controversy surrounding Netball Australia and the question of whether pregnant women should be able to participate in sport. The overview can be found at http://www.womensportnsw.com.au/news.htm

Sportsnet is an Australian information service for Australian sporting bodies and participants. It has produced an overview of the current situation re pregnant women and sport. This can be found at http://www.sportnet.com.au/activeaustralia/national/targeted/women/topic_pregnancy_sport_law.htm

This issue has affected numerous sports other than Netball. One of these is triathlon.
Triathlon Australia is the governing body for the sport of triathlon within Australia. The policy of this body re pregnant participants can be found at http://www.ausport.gov.au/triaust/athlete/pregnancy.html

On June 21, 2001, the Australian Sports Commission announced its intention to conduct a forum of the question of pregnant women's participation in sport. This announcement and an overview of the issue can be found at
http://www.ausport.gov.au/asc/media/news9.htm
This site also includes a number of useful Internet links, include a link to a transcript of an ABC interview with Mark Peters, Chief Executive Officer of the Sports Commission

Sports Medicine Australia has a range of documents on its site relevant to this issue. All are in pdf format and require Adobe Acrobat Reader to be read or downloaded.
One information source is a paper produced by Professor Wendy Brown of Queensland University titled 'The benefits of sport for pregnant women'. It can be found at
http://www.sma.org.au/images/brownWIS.pdf
Another useful source is an article by Associate Professor Caroline Finch of Deakin University. The article is titled 'The risk of abdominal injury to women during sport'. It argues that this risk is very small. The article can be found at http://www.sma.org.au/images/finchWIS.pdf
Sports Medicine Australia's guidelines on the participation of pregnant women in contact and collision sports can be found at http://www.sma.org.au/images/torode.pdf
Sports Medicine Australia has also produced a fact sheet titled 'Exercise in Pregnancy". This can be found at http://www.sma.org.au/images/Fact_Sheet_2.pdf

The Australian Medical Association (AMA) has opposed Netball Australia's ban on pregnant players. A media release outlining this position can be found at HERE
A further AMA media release on the same topic can be found at HERE

Arguments in favour of women playing sport, including netball while pregnant
1. Exercise can help promote a healthy pregnancy and birth
Nathan Pinskier, a spokesperson for the Royal Australian College of General Practitioners, has claimed that it is important for women to maintain fitness during pregnancy.
Pregnancy and childbirth place significant demands on a woman's body and many health experts argue that it is important that women maintain a good level of physical fitness to help them meet these demands. A sensible exercise regime is normally recommended as one important means of maintaining this physical fitness.
Trevor Mudge, vice-president of the Australian Medical Association, has stated, 'Keeping these women out of the sport is very damaging. Firstly, they need to keep up their exercise when they are pregnant; and, secondly, they may want to maintain their contact with their friends and sporting network.'

2. Exercise helps women prevent excessive weight gain during and after pregnancy
Professor Wendy Brown, of Sports Medicine Australia, has claimed that pregnancy and looking after young children are the periods in a woman's life when she is most likely to gain weight and not lose it.
As carrying excess weight is associated with a range of health conditions including hypertension, diabetes and some cancers, it has been claimed that it is extremely important that when be encouraged to remain physically active during pregnancy and after as one important means of regulating their weight.

3. There is no significant evidence to suggest that moderate exercise places either the mother or the unborn child at risk
Dr Brookner, associate professor of sports medicine at the University of Melbourne, has claimed, 'There is very little evidence that playing a limited contact sport like netball in the first trimester has any increased risk for mother or baby.'
Dr Brookner argues that it is only in the second trimester when a woman's uterus starts to emerge from her pelvis that there is any significant danger of injury during contact sport. At this stage of pregnancy early labour or placental separation could occur.
Even during second trimester, however, many medical authorities argue that the decision is best left to the individual woman in consultation with her medical adviser as much depends on the woman's state of physical fitness and the exact nature of the sport she is playing.
Dr Brookner has noted, 'A lot of elite runners continue to run right up to the birth.'

4. Such a ban in one sport will encourage similar bans in other sports
Many critics of the Netball Australia ban argue that it is likely to lead to similar bans in other sports. Claudia Fatone, an administrator for Victorian women's cricket has noted, 'We have requested copies of the netball decision and we will be watching what happens and reviewing our position.'
Other sports, even those with no apparent contact, such as triathlon, have also indicated that they will be reviewing their position.
There are those who fear that the result of the netball ban will be bans in many or all other sports typically played by women.

5. Such a ban could lead to wider discrimination against pregnant women in the workplace and elsewhere
Critics of the ban have further argued that if it is accepted it may well lead to discrimination against pregnant women in areas other than sport.
Herald Sun commentator Robyn Riley has argued, '... if the sporting body is allowed to set such a dangerous precedent, women might as well hibernate for 40 weeks because this will not end on the court, field or track- or even the pool ... What next? Pregnant women banned from shopping centres in case they fall over, or prevented from walking down the street or not allowed to walk up stairs or travel or continue in their careers?'
A similar point has been made by Dr Trevor Mudge, vice-president of the Australian Medical Association, who has claimed that the ban sets an alarming precedent for how women are regarded in society.

6. Such a ban on pregnant women playing sport violates anti-discrimination legislation
At least one prominent netballer, Trudy Gardner, has lodged a complaint with the Human Rights and Equal Opportunities Commission. There are those who claim that a ban on pregnant netballers participating in their sport is in breach of anti-discrimination legislation that prohibits special treatment based on sex or gender.
Trudy Gardner has already successfully gained an interim injunction from the federal magistrates court allowing her to play through to the end of the 2001 season. Ms Gardner was some fourteen weeks pregnant when she gained the injunction and had previously been banned from competing as a result of Netball Australia's ruling.

7. A ban is unenforceable and could increase the risk to pregnant players
It has been argued that such a ban would be virtually unenforceable. A number of prominent sportswomen have already indicated that they would conceal their pregnancies rather than risk being prevented from playing.
It has been suggested that if enforcement is based on voluntary disclosure and many women hide their pregnancies, this could result in women failing to receive proper medical treatment or to warn their coaches, team mates and others of their condition. The result of this could be that playing sport while pregnant becomes more hazardous for both women and their unborn children.
Alternatives other than voluntary disclosure by the women concerned are said to be cumbersome and expensive. Would players be required to supply doctor's certificates? Sign statutory declarations? Undergo pre-game tests organised by their sporting association? As all women playing would presumably have to meet such requirements, perhaps before every game in which they played, this could become administratively very difficult.

Arguments against women playing sport, including netball, while pregnant
1. There is no evidence to support anecdotal claims that it is safe for women to play sports such as netball through first trimester
Sue Taylor, president of Netball Australia, has put this position. In the course of studying for a masters degree in international sports law, Sue Taylor discovered, 'There is no medical research in the area of pregnancy and contact and collision sports'.
Netball Australia acknowledges that participating in sport is general held to benefit pregnant women, specially during the first trimester of their pregnancies, however, the Association is concerned that there appear to be no significant studies that have investigated the risks involved.

2. Insurance cover is not available for pregnancy-related sports injuries
Netball Australia is also concerned that neither sporting women nor the sporting bodies with which they play are able to insure against pregnancy related injuries in sport.
Sue Taylor has made this point. She has noted, '... the insurance policies available for sporting injury specifically exclude cover for pregnancy-related injuries.'
From this point of view Netball Australia seem to believe it is too great a risk to allow pregnant women to compete as it is currently not possible to indemnify either the players or the Association for pregnancy-related injuries incurred while playing sport.

3. Sporting associations risk being sued if an unborn child is injured while its mother is playing sport
It is not possible for a pregnant woman to waive all right to sue if her unborn child is injured during a sporting competition. She may take such an action on her own behalf but not on behalf of her child who is seen as a separate legal entity with regard to the right to sue for damages.
Since the case of Lynch vs Lynch is 1991, Australian law has recognised that a foetus injured due to its mother's negligence can sue. While the mother may sign away her own right to sue she cannot sign away those of her baby.
The Australian editorial of June 20, 2001, stated, 'The fear is that the child, once born, would sue not just mum but also a team mate or opponent for shoving her, the netball club for letting her play, the coach for failing to monitor her temperature, the national association for having poor health guidelines, the ambulance officers for not realising she was pregnant, and so on.'

4. The Netball Australia ruling does not remove control from the mother
It has also been argued that the current ruling of Netball Australia does not remove control from a pregnant player. According to this line of argument, any pregnant woman who wishes to continue her sport for at least part of her pregnancy can continue to do so. All that is necessary is that she keep her condition secret from her coach and sporting association.
What appears to be implicit in this suggestion is that the woman assumes full responsibility for her decision to play by not involving any sports administrator in her choice. Such independent action would presumably have the effect of limiting legal liability for any harm suffered by the unborn child to its mother.
Pam Smith, Netball Australia's executive director, has said, 'If players choose not to declare their pregnancy that is their decision. If something happens to them or their unborn baby, they will have to live with it.'

5. Allowing pregnant women to play sports such as netball could disadvantage other players
Concern has also been expressed that allowing pregnant players to take part in sporting competitions could disadvantage those against who they play. According to this line of argument, those playing against women who are known to be pregnant are unlikely to play their usual game and may well be more restrained than they otherwise would be. This is because they would be anxious not to cause harm to the mother or her unborn child.
According to some commentators it is unjust to expect non-pregnant women to play against pregnant women, as it is likely to impede their game.
Sue Taylor has said, speaking of pregnant women, 'I don't like playing against them.'
Belinda Foot, a Victorian amateur tennis player at state level has made a similar point.
Mrs Foot has claimed, ''I've played against women who were quite heavily pregnant and I just didn't feel entirely comfortable. You feel like you can't quite play your natural game.'

6. Numerous sports already ban pregnant women from competing
Softball Australia's regulations state pregnant women are banned from competition. Neil Dalrymple, Australian Softball executive director, has stated, 'The rule has been in place for seven years and has never been challenged. Mr Dalrymple has stated, 'The potential danger is quite evident.'
Softball Australia is so concerned about the risk that the ban extends to coaches and umpires.
Contact sports such as judo and taekwondo have long had rules that ban pregnant women - even those in the earliest stages of pregnancy - from competition.

7. The ban is enforceable, at least from the perspective of legal liability
The simplest expedient from a legal perspective appears to be to make individual women responsible for declaring their non-pregnant status before each game of competition.
This is what applies within taekwondo where women must certify before each state or national match that they are not pregnant.

Further implications
There appears to be a genuine conflict here between women's rights as guaranteed by state and federal anti-discrimination legislation and sporting associations' potential liability for any injury suffered by unborn children. Central to this conflict is the fact that in this context mother and unborn child are two separate legal entities and the mother's wish to continue her sports involvement during the early stages of her pregnancy does not automatically absolve sporting associations from legal responsibility should any harm be inflicted on the foetus.
The Australian Sports Commission held a forum on pregnancy and sport starting on August 1, 2001. The issue, however, remains unresolved. It seems likely that most sporting associations will allow pregnant women to continue to participate, at least in the early stages of pregnancy. The situation will change, however, should a child who suffered injury as a result of his/ her mother's sporting activities sue any association for negligence.

Newspaper items used in the preparation of this outline
Available as a press cuttings package (with an issue outline reprint): price: $27.00 (NO LONGER AVAILABLE)

Sources
The Age
19/6/01 page 1 news item by Stephen Cauchi, 'Netball body orders pregnant pause over risks and legalities'
20/6/01 page 3 news item by Julie Szego and Chloe Saltau, 'Sport and pregnancy ban may be illegal'
20/6/01 page 16 editorial, 'Good sense slips through the net'
21/6/01 page 4 news item by Sophie Douez, 'A game argument for sport in pregnancy'
23/6/01 page 12 analysis by Jacquelin Magnay, 'It's not just netballers on the sidelines for pregnancy'
2/7/01 page 3 news item by Kellee Nolan, 'Netballer barred for being pregnant'
3/7/01 page 1 news item by Penelope Debelle, 'Netballer seeks human rights ruling on ban'
18/7/01 page 2 news item, 'Netball ban lands in another court'
19/7/01 page 3 news item by Penelope Debelle, 'Netballer wins right to play'

The Australian
19/6/01 page 1 news item by Vanessa Walker and Margot Denney, 'We'll lie to play, say pregnant netballers'
20/6/01 page 5 news item by Louise Milligan, 'Netball "no risk" in first trimester'
20/6/01 page 5 news item by Richard Yallop and Barclay Crawford, 'Pregnant pause in Court's career' 20/6/01 page 12 editorial, 'Pregnancy ban defies common sense'
20/6/01 page 13 comment by Susan Halliday, 'Netballer's blanket ban is premature'
20/6/01 page 13 comment by Susan Taylor, 'It's unsporting to expect no restrictions'
18/7/01 page 3 news item by Rebecca DiGirolamo, 'Netballer challenges pregnancy ban'
19/7/01 page 1 news item by Rebecca DiGirolamo, 'Pregnant netballer beats ban in court'

The Herald Sun
19/6/01 page 7 news item by Shaun Phillips, 'Pregnancy ban to sweep all sports'
20/6/01 page 3 news item by Shaun Phillips, 'Rebel mothers vow to play on'
21/6/01 page 15 news item by Shaun Phillips, 'Netball ban "appalling"'
21/6/01 page 18 comment by Robyn Riley, 'Such a timid ban'
2/7/01 page 9 news item by Katie Peart and Shaun Phillips, 'Pregnant player may fight ban'
4/7/01 page 7 news item by Kate Uren, 'Netball chief quits'
4/7/01 page 17 cartoon by Michael Atchison
9/7/01 page 18 comment by Jackie Solakovski, 'Courting mayhem'
19/7/01 page 3 news item by Michael Warner and Shaun Phillips, 'Pregnant player gets go-ahead'