Although New Zealand law only allows abortion when it meets certain criteria, abortions are performed virtually on demand under the mental health grounds.
Many pro-abortion activists make the false claim that “abortion is illegal in New Zealand’ – abortion is NOT illegal in New Zealand. Instead, abortion is legally permissible in New Zealand via both the Crimes Act and the Contraception, Sterilisation and Abortion Act.
These inaccurate claims appear be intended to deceive New Zealand into supporting the introduction of some new extreme abortion law under the false guise of ‘legalising’ abortion in this country.
These claims are clearly intended to imply that abortion is currently illegal in NZ, but this is little more than inaccurate abortion activist spin intended to deceive New Zealanders into supporting the introduction of an extreme abortion law.
This is kind of like saying ‘driving is only legal in New Zealand if you are over 16, you hold a valid drivers license and you obey the road rules’ – yes, this is totally true, but that doesn’t mean that people don’t have easy access to driving in this country as a result of such restrictions.
The same is true when it comes to abortion in New Zealand.
- The unborn child has no legal statutory rights.
- Nobody can claim to represent the interests of the unborn child.
- Certifying consultants routinely ignore Parliament’s intention to restrict abortion.
- Certifying consultants are immune from criminal prosecution.
The New Zealand law on abortion is contained in two acts of Parliament, the Crimes Act and the Contraception, Sterilisation and Abortion Act (CS&A).
Both acts define abortion (miscarriage) as the destruction or death of an embryo or foetus after implantation or the premature expulsion orremoval of an embryo or foetus after implantation (otherwise than for the purpose of inducing birth of a foetus believed to be viable or removing a foetus that has died).
The Crimes Act provisions are contained in the part of the Act headed “Crimes against the person.” This provides a maximum penalty of 14 years in prison for the crime of unlawfully using any instrument, drug or thing with intent to procure miscarriage of any woman or girl whether she is pregnant or not.
The CS&A Act provides for the circumstances and procedures under which abortions may be authorised “after having full regard to the rights of the unborn child,” but nothing in this Act limits the provisions of the Crimes Act.
These are the main provisions:
In the first 20 weeks of pregnancy, abortion is unlawful unless the person doing the act “believes” that:
- Continuance of the pregnancy would result in “serious danger” (not being the normal danger of childbirth) to the woman’s life or to her physical or mental health.
- There is substantial risk that the child, if born, would be “so physically or mentally abnormal as to be seriously handicapped.”
- The pregnancy results from incest or an incest-like act (eg, sexual intercourse between a man and his step-daughter, or someone living with his family and under his care and protection).
- The woman is severely “subnormal.”
In addition, two other matters may be taken into account in determining whether continuance of the pregnancy would result in serious danger to the woman’s life or to her physical or mental health. These factors (which are not in themselves grounds for abortion) are:
- The age of the woman or girl is near the beginning or the end of the usual child-bearing years.
- The fact (where such is the case) that there are reasonable grounds for believing the pregnancy results from rape.
After the first 20 weeks of pregnancy, abortion is unlawful unless the person doing the act believes it is necessary to save the woman’s life or to prevent “serious permanent injury” to her physical or mental health.
When a woman requests an abortion and a doctor considers her case may be one to which the Crimes Act provisions apply, he/she refers the case to an operating surgeon who may be willing to perform an abortion and to two of the certifying consultants appointed by the Abortion Supervisory Committee.
Where the woman’s own doctor is a certifying consultant and intends to operate him/herself, or where the operating surgeon is also a certifying consultant, only one other certifying consultant is required (but in the latter case it may not be the woman’s own doctor. At least one of the two certifying consultants must be a practising obstetrician gynaecologist.
The certifying consultants must interview the woman if she requests an interview, and at any interview she is entitled to be accompanied by her own doctor (if he/she agrees).
If the consultants have not reached a decision within 14 days, the Supervisory Committee is to be notified of the reason for the delay.
If the consultants are satisfied that the woman’s case comes within the provisions of the Crimes Act, they issue a certificate authorising an abortion. Otherwise they shall refuse to authorise an abortion.
Where the two consultants disagree, there is provision for another consultant to be called in.
Whatever decision is made, the consultants must advise the woman of her right to seek counselling.
The CS&A Act says every counsellor should be thoroughly familiar with all relevant social service agencies and able to advise patients or refer them for advice on alternatives to abortion such as adoption and solo parenthood.
The CS&A Act also makes it an offence, except in extreme emergencies, to perform an abortion other than in an institution licensed by the Supervisory Committee, or without a certificate from two certifying consultants.
The penalty is up to six months imprisionment or a fine of up to $1000.
Every doctor who performs an abortion must report it to the Supervisory Committee.
The Guardianship Act also contains a provision on abortion. It provides that a girl of any age may consent to an abortion performed by a professionally qualified person, or may refuse to consent.
The above provisions relate to “abortion” as defined and where enacted in 1977 and 1978. There is also section 182 of the Crimes Act (first enacted in 1893) which makes it an offence punishable by up to 14 years imprisonment to cause the death of an unborn child in a manner that would have been murder had the child been born.
There is a proviso that no crime is committed if the child’s death is caused before or during birth by means employed in good faith to preserve the mother’s life.
In the 1976 Woolnough case the Court of Appeal held that this section does not apply to the first three months of pregnancy.
The 1977 and 1978 enactments (which apply from implantation) do not affect the continued application of section 182, although its application in conjunction with the new provisions remains to be clarified.
The risk of liability
A New Zealand barrister wrote an article which was published in (2001) 9 Journal of Law & Medicine 115. It was written with the intention of alerting health professionals of the risk of criminal and civil liability as a result of performing abortions in breach of the current New Zealand Law:
“The abortion law of New Zealand appears to have been interpreted very liberally over recent years by sectors of the medical profession. Indeed the interpretation of the law appears to have been so liberal that it raises questions as to the lawfulness of many of the abortions carried out in New Zealand.
“The current practice and application of the abortion law is such that it may expose some medical consultants certifying and performing abortions to criminal proceedings and civil claims.”
It can be read in full at www.abortionlaw.co.nz