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Abortion Legislation Bill - Submission of the Equal Employment Opportunities Commissioner to the Abortion Legislation Committee [2019] NZHRCSub 7 (19 September 2019)
Last Updated: 14 June 2020
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Submission of the Equal
Employment Opportunities Commissioner on the Abortion Legislation Bill
19 September 2019
Contact Person:
Saunoamaali’i Karanina Sumeo
Equal Opportunities Commissioner
1
New Zealand Human Rights Commission karaninas@hrc.co.nz
Submission of the Equal Employment Opportunities Commissioner on the
Abortion Legislation Bill
Contents
Introduction
- The
Human Rights Commission is New Zealand’s National Human Rights Institution
(NHRI). NHRIs form part of the United Nation’s
human rights system by
promoting and monitoring the domestic implementation of international human
rights standards. The Commission
is accredited as an A Status NHRI, meaning that
it meets the highest standard of practice and independence set by the Global
Alliance
of NHRIs and the United Nations (UN) High Commissioner for Human
Rights.
- As
the Equal Employment Opportunities (EEO) Commissioner, I have specific
responsibilities in relation to human rights issues relevant
to women and to
sexual orientation, gender identity, and sex characteristics (SOGISC). I welcome
the opportunity to make this submission
to the Abortion Legislation Committee on
the Abortion Legislation Bill.
- The
Commission strongly supports the intention of the Bill, that being to
decriminalise abortion in order to treat it as a health
issue. Further, it
better aligns the regulation of abortion services with other services and
modernises the legal framework for abortion
currently set out in the Crimes Act
1961 and the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act). This
approach is
significantly more consistent with international human rights
obligations and recommendations made to New Zealand by UN Treaty Bodies.
There
are some areas of the Bill where it could be further aligned with international
human rights obligations and the Commission
invites the Abortion Legislation
Committee to consider these.
- The
aim of this submission is to provide the Abortion Legislation Committee
with:
- information
on the international human rights laws, principles and standards that apply to
abortion;
- application
of international human rights laws, principles and standards to the proposed
Abortion Legislation Bill;
- recommendations
for the Abortion Legislation Committee to consider.
- The
first section of the submission sets out the background to the Abortion
Legislation Bill including current laws and regulations
that apply to abortion
in New Zealand, the Law Commission report and a summary of the Bill. Section two
outlines the domestic and
international human rights that are relevant to
abortion, including the right to life, right to equality and non-
discrimination,
right to health, right to privacy and the right to freedom from
cruel treatment. The third section addresses international human
rights law in
the context of the Bill, including abortion as a health issue,
decriminalisation, access, consent, antenatal testing,
conscientious objection,
and the definition of woman.
- Based
on New Zealand’s international and domestic human rights obligations, the
Commission:
- supports
changes which treat abortion as a health issue in line with the right to
health;
- supports
the decriminalisation of abortion;
- supports
the changes which will allow greater access to women and pregnant persons
seeking abortion;
- supports
the Bill’s approach to consent, particularly the omission of a
mandatory
requirement for parental involvement in a child’s
consent;
- supports
the removal of the reference to disability as a ground for an abortion and
suggests the Abortion Legislation Committee recommend
balanced information is
provided to parents upon antenatal screening indicating a disability;
- supports
the proposed amendments to conscientious objection;
and
vii. suggests changes to the definition of a woman and reference
to woman throughout the Bill to instead be “woman or pregnant
person” in order to be inclusive of trans men, takatāpui, other
gender diverse people, and intersex people.
- The
Commission notes the inclusive definition in the Law Commission Report of
persons capable of becoming pregnant and who may seek
an abortion. This includes
trans men, takatāpui (a term encompassing diverse Māori gender and
sexual identities) and other
gender diverse people. The Commission supports this
inclusive definition, and extends it to include intersex people, using this
approach
in this submission when referring to pregnant persons. It is noted that
some treaties and reports refer to “women” and
therefore this
submission also refers to “women” where appropriate in the
context.
- Should
the Abortion Legislation Committee wish to discuss the issues raised in this
submission in more depth, or any other aspects
of international human rights law
that would support its review, the Commission is available to
assist.
I. Background
- Current
abortion law in New Zealand
- Abortion
is currently treated as a criminal issue, not primarily as a health issue. Women
and pregnant persons in New Zealand do not
have the right to an abortion on
request. The ultimate decision as to whether women and pregnant persons can
access abortion services
lies with medical consultants. Abortion is only lawful
if it is carried out in accordance with the Crimes Act 1961.
- Under
the current abortion law, an abortion is only lawful before 20 weeks into the
pregnancy if it is believed that:
- the continuance
of the pregnancy would result in serious danger to the life, physical or mental
health of the woman;
- there is a
substantial risk that the child would be so physically or mentally abnormal as
to be seriously handicapped;
- the pregnancy is
the result of incestuous sexual intercourse; or
- the woman or
girl is severely subnormal within the meaning of section 138(2) of the
Act.
- An
abortion is only lawful after 20 weeks’ gestation if the person performing
it believes that it is necessary to save the life
of the pregnant person or to
prevent serious permanent injury to their physical or mental health.
- The
CSA Act sets out the procedural elements of obtaining and performing an
abortion. A medical practitioner can carry out an abortion
lawfully if they act
under a certificate issued by two consultants, and one of the certifying
consultants must be an obstetrician
or gynaecologist. The certifying consultants
may issue a certificate in the prescribed form if they decide in the particular
case
that one of the grounds in Section 187A of the Crimes Act applies. Once the
certifying consultants have decided, they must advise
the pregnant person on
their right to seek counselling.
-
Law Commission’s briefing paper: “Alternative approaches to abortion
law”
- The
Minister of Justice requested advice from the Law Commission in February 2018
about alternative legal models to legalise abortion.
The Law Commission in its
October 2018 report suggested three alternative models for legalising abortion,
on the basis that the grounds
for abortion in the Crimes Act would be repealed,
and the requirement for abortions to be authorised by two certifying consultants
would be repealed.1
- Under
the proposed Model A, there would be no statutory test that must be satisfied
before an abortion could be performed. The decision
whether to have an abortion
would be made by the woman or pregnant person in consultation with their health
practitioner.2
- Under
proposed Model B, a statutory test would need to be satisfied before an abortion
could be performed, namely “the health
practitioner who intends to perform
the abortion would need to reasonably believe the abortion is appropriate in the
circumstances,
having regard to the woman’s physical and mental health and
wellbeing”. This test would be in health
legislation.3
- Model
C proposed that pregnancies up to 22 weeks duration would be the same as Model
A, and for pregnancies of more than 22 weeks
duration, the statutory test
outlined in Model B would have to be satisfied.4
- The
Law Commission report also considered changes to other aspects of the legal
framework to align it with a health approach. The
Law Commission proposed:
- Repealing the
criminal offences for abortion so they only apply to unqualified people who
perform abortions. It was suggested that
if Model B or C was adopted, a
regulatory offence
1 New Zealand Law Commission “Alternative
approaches to abortion law: Ministerial briefing paper” (October 2018)
pgs. 12
& 76.
2 Ibid.
3 Ibid.
4 Ibid.
under health legislation could be considered to ensure that people who perform
abortions comply with the law;
- Reforms to
improve access to women and pregnant persons seeking abortion services. Women
and pregnant persons could be permitted to
self-refer to abortion services and
the current legal restrictions on where and by whom abortions can be performed
could be repealed;
- The abolition of
the Abortion Supervisory Committee under the Ministry of Justice and oversight
functions shifted to the Ministry
of Health, including issuing best practice
guidance for health practitioners involved in abortion care. The Law Commission
recommended
input from appropriate experts including from Māori in
consistency with the principle of partnership under te Tiriti;
- The law and
guidance surrounding informed consent and counselling should remain;
- Health
practitioners who conscientiously object must refer to someone who can provide
the services as soon as reasonably practicable;
- The Crimes Act
be amended to be consistent with the model adopted so that the wording does not
cover abortions performed at later
gestations;
- The
consideration of the introduction of “safe access zones” around
abortion clinics to protect
women and pregnant persons accessing abortion services; and
- Consideration of
abortion being used inappropriately based on sex or impairment including
consideration of laws and policies around
prenatal screening, fertility
treatment and questions of broader societal concern.
- Abortion
Legislation Bill
- The
Abortion Legislation Bill decriminalises abortion and repeals the current
grounds for authorising an abortion. It also repeals
the role of, and
requirement for, certifying consultants. The effect of the changes is that
—
- for a woman who
is not more than 20 weeks’ pregnant, there would be no statutory test that
the health practitioner needs to
apply. The health practitioner would continue
to be required to ensure that the woman makes an informed choice and gives
informed
consent; and
- for a woman who
is more than 20 weeks pregnant, the statutory test would require the health
practitioner to reasonably believe that
abortion is appropriate with regard to
the pregnant woman’s physical and mental health, and well-being. In
addition, the practitioner
would continue to be required to ensure that the
woman makes an informed choice and gives informed consent.
- The
Bill largely reflects Model C of the Law Commission report, though there are
some differences, for example the gestational period
of 20 weeks rather than 22
weeks.
- There
are several additional changes as part of the Bill including self-referral,
counselling, conscientious objection, the disestablishment
of the Abortion
Supervisory Committee, establishment of safe access zones, and other changes to
align regulation of abortion services
with other health
services.
II. Human Rights Law and Abortion
- Any
reform of legislation or policy should be consistent with New Zealand’s
human rights obligations, both domestically and
internationally. The Law
Commission Report emphasises the importance of ensuring any reform of abortion
law is considered in the
context of human rights law, including the New Zealand
Bill of Rights Act 1990 and New Zealand’s international obligations
and
the Treaty of Waitangi.5 This section outlines the relevant human
rights obligations and includes additional international guidance published
since the Law
Commission report was released.
- New
Zealand Bill of Rights Act 1990
- The
New Zealand Bill of Rights Act 1990 (BORA) affirms New Zealand’s
commitment to the International Covenant on Civil and Political
Rights 1966
(ICCPR).6 Abortion engages several rights under the BORA, including
the right not to be deprived of life,7 the right not to be subjected
to cruel treatment,8 and the right to refuse to undergo medical
treatment.9
- The
BORA would have a direct effect on any new abortion law in New Zealand. Under
Section 7 of the BORA, the Attorney-General must
report to Parliament on any
provision of a Bill introduced to Parliament that appears to be inconsistent
with the BORA. Furthermore,
the current Government has indicated that the BORA
will be amended to give the Courts the power to issue a declaration of
inconsistency
if legislation is inconsistent with rights affirmed in the
BORA.
- International
human rights framework
- As
a matter of international law, New Zealand is required to bring its law into
line with the international human rights treaties
that it has signed and
ratified.10 Accordingly, the Cabinet Office Manual and ancillary
Legislation Design and Advisory Committee Guidelines direct the Government and
public servants to ensure that proposed legislation and policy confirms
with
5 Para. 3.1.
6 Preamble.
7 Section 8.
8 Section 9.
9 Section 11.
10 The Vienna Convention on the Law of Treaties, Articles 26, 27
& 29, ratified by New Zealand in 1971, provides that treaty obligations
are
binding on a State and domestic law may not be used as a justification for its
failure to perform a treaty obligation.
international obligations.11 The current Government has also accepted
a recommendation from the 2019 Universal Periodic Review to adopt a procedure so
any legislative
reform is subject to a prior analysis of its impact on human
rights.12
- These
international obligations include a number of human rights treaties that are
relevant to abortion, including the ICCPR, the
International Covenant on
Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of
the Child (CRC), the Convention
on the Rights of Persons with Disabilities
(CRPD) and the Convention on the Elimination of all Forms of Discrimination
Against Women
(CEDAW).
- Over
the past decade, the UN human rights mechanisms, including treaty monitoring
bodies and Special Rapporteurs, have given increasing
attention to the issue of
abortion. They have called on States to decriminalise abortion; to remove
regulatory and administrative
barriers that impede women’s access to safe
abortion services; and to provide comprehensive sexual and reproductive health
information and services to women.
- The
Rule of Law, Equality and Non-Discrimination Branch of the UN Office of the High
Commissioner for Human Rights (OHCHR) recently
made the following comment
regarding the impact abortion law has on human rights:
Human
rights mechanisms, including this Committee, have consistently raised concerns
about the impact of restrictive abortion laws,
including criminal laws, on
women’s enjoyment of their human rights, including their rights to life,
health, freedom from gender-based
violence, freedom from torture and other forms
of cruel, inhuman and degrading treatment, and freedom from discrimination based
on
sex. They have regularly called on States to amend restrictive laws, and
urged States to remove barriers to accessing safe abortion
services. They have
also insisted that post-abortion care should always be available, regardless of
whether abortion is legal or
not.13
- The
UN Human Rights Committee, which monitors the implementation of the ICCPR, has
also highlighted that regulation of abortion impacts
pregnant women’s
right to life, the right to privacy, and freedom from cruel, inhuman and
degrading treatment.14 In terms of social rights, access to abortion
services stem directly from the right to health, 15 including sexual
and reproductive health.23 Moreover, the human rights principles of
autonomy, dignity and bodily
11 Cabinet Office, Cabinet
Manual 2017, (2017, Wellington, Department of Prime Minister and Cabinet)
paras. 7.65 (d)-7.66. 12 Human Rights Council, “Report of the
Working Group on the Universal Periodic Review: New Zealand” UN Doc.
A/HRC/41/4 (1
April 2019) at para. 122.35; Human Rights Council, “Report
of the Working Group on the Universal Periodic Review: New Zealand
- Addendum -
Views on conclusions and/or recommendations, voluntary commitments and replies
presented by the State under review”
UN Doc, A/HRC/41/4/Add (17 June
2019), para. 12.
13 Rule of Law, Equality and Non-Discrimination Branch, OHCHR,
Comments
to draft General Comment on Article 6 of the ICCPR
pg.3.
14 UN Human Rights Committee, General
Comment no. 28 on the Equality of Rights Between Men and Women,
UN Doc. CCPR/C/21/Rev. 1/Add. 10, para. 20.
15 ICESCR, Article 12. See also CEDAW, Article 12; CRC, Articles.
17, 23-25 and 27; and CRPD, Articles 23 and 25; UN Committee on Economic,
Social
and Cultural Rights,
General
comment No. 22 (2016) on the right to sexual and reproductive
health (article 12 of the International Covenant on Economic, Social and
Cultural Rights UN
Doc.
E/C.12/GC/22 (2 May 2016).
integrity are also central to abortion law. The Commission sets out in more
detail below the substance of some of the rights that
are relevant to abortion
law and policy.
Right to life
- The
right to life is protected by Article 6(1) of the ICCPR: “Every human
being has the inherent right to life. This right shall
be protected by law. No
one shall be arbitrarily deprived of his life.” This right has generally
been seen to apply from birth.
The UN Human Rights Committee General Comment 36
on Article 6 – Right to Life does not affirm the right to life of the
unborn.16 Rather it expressly supports the right to life of women and
access to abortion services. As will be set out below, treaty monitoring
bodies,
through general comments, concluding observations, and decisions in individual
cases, consistently emphasise the importance
of protecting women’s and
pregnant persons’ rights.
- This
is consistent with the approach New Zealand law takes on whether a fetus can
exercise the right to life under Section 8 of the
BORA. In Right to Life New
Zealand v Abortion Supervisory Committee, Miller J noted that very few of
the rights in the BORA could be exercised by or on behalf of an unborn
child.17 Miller J also noted that, based on the White Paper to the
BORA, if it was intended that the BORA extend the right to life to the
fetus
then it would have,18 concluding that the BORA does not extend to the
unborn child.19 On appeal, the Court of Appeal did not see any need
to conclusively decide the question of whether an unborn child could exercise
the right not to be deprived of life under Section 8 of the BORA. However, it
noted with approval the comments of Miller J in the
High Court.20 The
Supreme Court declined leave to appeal in relation to Section 8 of the NZBORA,
stating that it was plain that the legislation
was based on the premise of the
“born alive” rule and therefore the arguments were
untenable.21
- This
is also in line with the position in the United Kingdom, Canada, South Africa
and Australia where fetuses are not protected by
the right to
life.
16 UN Human Rights Committee, General
Comment no. 36 on article 6 of the International Covenant on Civil and
Political Rights,
on the Right to Life,
UN Doc. CCPR/C/GC/36 (30 October 2018) para. 8.
17 Right to Life New Zealand v Abortion Supervisory Committee
[2008] NZHC 865; [2008] 2 NZLR 825 (HC) para. 99.
18 Ibid. paras. 100-101.
19 Ibid. para. 101.
20 Right to Life New Zealand Inc v Abortion Supervisory
Committee [2011] NZCA 246 para. 64.
21 Right to Life New Zealand Inc v Abortion Supervisory
Committee [2011] NZSC 97.
Freedom from discrimination and right to equality
before the law
- The
rights to equality and non-discrimination are a central tenet of
international22 and domestic23 human rights law and
require that any action or omission by the State must not discriminate, either
directly or indirectly, against
any individual or group, including on the
grounds of sex.
- Article
1 of CEDAW defines sex discrimination as “any distinction, exclusion or
restriction made on the basis of sex which has
the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women ... of
human rights and fundamental
freedoms.”
- The
jurisprudence of the Committee on the Elimination of Discrimination Against
Women (CEDAW Committee) makes clear that the fundamental
principles of
non-discrimination and equality require that the rights of a pregnant woman be
given priority over an interest in prenatal
life. For example, in the case of
L.C. v Peru, the CEDAW Committee found that the government had violated a
pregnant person’s rights by prioritising the fetus over the pregnant
person’s health by postponing essential surgery until the person was no
longer pregnant. The person’s continued pregnancy
posed a substantial risk
to their physical and mental health, and the CEDAW Committee held that the
denial of a therapeutic abortion
and the delay in providing the surgery
constituted gender-based discrimination and violated their rights to health and
freedom from
discrimination.24
Right to
Health
- The
World Health Organization (WHO) has recommended that “laws and policies on
abortion should protect women’s health
and their human rights” and
that “regulatory, policy and programmatic barriers that hinder access to,
and timely provision
of, safe abortion care should be removed.25
- Article
12 of the ICESCR sets out the key provision on the right to health and provides
for “the right of everyone to the enjoyment
of the highest attainable
standard of physical and mental health.” Abortion is a core element of the
right to health. In General
Comment 14, the UN Committee on Economic, Social and
Cultural Rights explicitly states that “The right to sexual and
reproductive
health is an integral part of the right to health” enshrined
in article 12 of the
22 ICCPR and ICESCR Article 3 set out the right to
equality before the law; ICESCR, Article 2.2 (“The States Parties to the
present
Covenant undertake to guarantee that the rights enunciated in the
present Covenant will be exercised without discrimination of any
kind as to
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other
status”); ICCPR, Article 26
(“All persons are equal before the law and are entitled without any
discrimination to the
equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective
protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national
or social origin,
property, birth or other status”).
23 Section 19, BORA provides that “Everyone has the right to
freedom from discrimination on the grounds of discrimination in the
Human Rights
Act 1993.” Section 21, Human Rights Act 1993 sets out the prohibited
grounds of discrimination, which among other
things includes sex.
24 UN CEDAW Committee, Communication
No. 22/2009: L.C v Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011),
para. 8.15.
25 World Health Organisation, Safe
abortion: technical and policy guidance for health systems Second
Edition (2012, WHO, Geneva), pg. 9.
ICESCR.26 The Committee outlines key government obligations in
achieving full realisation of the right to health, and the four essential and
interrelated elements of the right: availability, accessibility, acceptability
and quality.
- The
right to health is also outlined in Article 12 of the CEDAW which commits States
to “eliminate discrimination against women
in the field of health care in
order to ensure, on a basis of equality of men and women, access to health care
services, including
those related to family planning.”27 The
CEDAW Committee’s General Recommendation 24 on Article 12 of the
Convention (Women and Health) clarifies that “access
to health care,
including reproductive health, is a basic right under the
Convention.”28
Right to
privacy
- Article
17 of the ICCPR protects the right to privacy. The UN Human Rights Committee has
confirmed that privacy includes autonomy
over one’s body29 and
has found that the Irish ban on abortion violated several articles of the ICCPR,
including the right to privacy.37
- The
right to privacy formed the basis of the landmark United States Supreme Court
decision in Roe v Wade which recognised for the first time that the
constitutional right to privacy “is broad enough to encompass a
woman’s decision
whether or not to terminate her
pregnancy.”30
- In
a number of cases, the European Court of Human Rights has found a violation of
the right to privacy under Article 8 of the European
Convention on Human
Rights.31
Freedom from cruel
and degrading treatment
- Article
7 of the ICCPR guarantees that no one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment.
This right is also protected under
the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (CAT).
- The
UN Human Rights Committee in the case of K.L. v Peru established that the
denial of a therapeutic abortion, where continued pregnancy posed a significant
risk to the life and mental health
of the pregnant woman, violated the
woman’s right to be free from cruel, inhuman, or degrading
treatment.32 Furthermore, the Committee’s General Comment 36 on
the right to life
26 UN Committee on Economic, Social and Cultural
Rights,
General
Comment No. 14 (2000) The right to the highest attainable
standard of health,
UN Doc. E/C.12/2000/4, para. 1.
27 Other treaties provide the right to health including CERD,
Article 5(e)(iv); CRC, Article 24; CRPD, Article 25. 28 UN Committee
on the Elimination of Discrimination against Women, General recommendation
no. 24: Women and health (article 12) para. 1.
29 UN Human Rights Committee, K.L v Peru Views
Communication No. 1153/2003,
UN Doc. CCPR/C/85/D/1153/2003.
37 UN Human Rights Committee, Wheelan v Ireland,
Views
Adopted concerning communication No. 2425/2014 (12
June 2017) UN Doc. CCPR/C/119/D/2425/2014.
30 Roe v Wade, [1973] USSC 43; 410 U.S. 113 (1973), para. 153.
31 See Tysiac v Poland (application no. 5410/03); A, B
and C v Ireland (application no. 25579/05); P and S v Poland
(application no. 57375/08).
32 UN Human Rights Committee, K.L v Peru Views
Communication No. 1153/2003,
UN Doc. CCPR/C/85/D/1153/2003 (22 November 2005); UN Human Rights Committee,
General
Comment no. 36 on article 6 of the International Covenant on Civil
and Political Rights, on the Right to Life,
UN Doc. CCPR/C/GC/36 (30 October 2018) at para. 8.
provides that regulation of abortion should not result in violation of the right
to life of the woman or pregnant person, or other
rights under the Covenant
including the prohibition against cruel, inhuman and degrading
treatment.41
- The
Committee Against Torture has further stated that punitive abortion laws should
be reassessed since they lead to violations of
a woman’s right to be free
from inhuman and cruel treatment.33
- CEDAW
Committee comments to New Zealand
- In
2012, the CEDAW Committee reviewed New Zealand’s compliance with the
CEDAW. In its
Concluding Observations, it noted with concern:
. . . the
convoluted abortion laws which require women to get certificates from two
certified consultants before an abortion can be
performed, thus making women
dependent on the benevolent interpretation of a rule which nullifies their
autonomy. The Committee is
also concerned that abortion remains criminalized in
the State party, which leads women to seek illegal abortions, which are often
unsafe.34
- Accordingly,
the Committee urged New Zealand:
- To
review the abortion law and practice with a view to simplifying it and to ensure
women’s
autonomy to choose;
- To
prevent women from having to resort to unsafe abortions and remove punitive
provisions imposed on women who undergo an
abortion.44
- The
previous Government’s response to these recommendations was that it had no
plans to review the law on abortion but that
the Ministry of Health was
currently developing a new sexual and reproductive health action plan that will
review the availability
of abortion services.35
- In
July 2018, the CEDAW Committee undertook its eighth periodic review of New
Zealand. New Zealand’s report for this review
was submitted by the
previous Government in June 2016. The report noted that between March 2012 and
March 2016 staff from the Ministry
for Women conducted public and private
meetings throughout New Zealand on issues that concern women. Among the issues
raised at the
meetings was the need for “a review of abortion law and
practice
UN Human Rights Committee, General
comment No. 36 on article 6 of the International Covenant on Civil and
Political Rights,
on the right to life, Revised draft prepared by the Rapporteur.
33 UN Committee against Torture, Concluding
observations on the
second periodic report of Ireland (Advanced
version, undated) para.
31: The Committee expressed concern at the “severe physical and mental
anguish and distress experienced by women and girls
regarding termination of
pregnancy due to the State policies.”
34 UN Committee on the Elimination of Discrimination Against
Women,
Concluding
observations of the Committee on the
Elimination
of Discrimination against
Women,
New Zealand UN
Doc. CEDAW/C/NZL/CO/7 (6 August 2012) paras. 34 and 35(a)-(b).
35 UN Committee on the Elimination of Discrimination Against
Women, Eight
periodic report of States parties due in 2016, New
Zealand UN
Doc. CEDAW C/NZL/8 (15 July 2016) pg. 48.
to reflect abortion as an essential reproductive health care and ensure
equitable access to abortions.”36
- In
the list of issues and questions prepared by the CEDAW Committee in preparation
for the review, it has asked the Government to
provide them with further
information:
- The incidence of
unsafe abortion and its impact on women’s health, including maternal
mortality;
- Measures being
taken to amend the Crimes Act in order to expand the grounds for legal abortion
to include rape;
- Measures taken
to revise the CSA Act in order to alleviate the onerous procedure for procuring
an abortion, which requires women to
obtain certificates from two certified
medical consultants and reportedly creates long waiting lists for women and
girls;
- Steps being
taken to shift oversight over abortion laws, policies and services from the
Ministry of Justice to the Ministry of Health;
and
- The status of
the National Sexual and Reproductive Health Action Plan being developed by the
Ministry of Health, and the extent to
which relevant stakeholders have been
involved in its elaboration.37
- In
its response, the New Zealand government stated the Government plans to refer
the CSA Act to the Law Commission for review and
will ask for recommended
changes to ensure abortion laws are consistent with treating abortion as a
health issue that is a reproductive
choice for women, rather than a criminal
issue.38
- The
concluding comments by the CEDAW Committee welcomed the Government’s steps
to obtain advice on necessary legislative change
to treat abortion as a health
issue. However, the Committee remained concerned about the existing restrictive
grounds for lawful
abortion and that the Ministry of Health new childcare alert
system included fetuses in the definition of “child” and
has
resulted in fetal protection measures which undermine the bodily autonomy and
reproductive health rights of pregnant women. The
Committee recommended the
following:
- that
New Zealand remove abortion from the Crimes Act 1961 and amend the CSA Act in
order to fully decriminalize abortion and incorporate
the treatment of abortion
into health services legislation;
- Ensure
that abortion is legalized, at least in cases of rape, incest, threats to the
life or health of the pregnant woman or severe
fetal impairment, and ensure
access for women to safe abortion and post-abortion care and
services.39
36 Ibid. pg. 54.
37 UN Committee on Discrimination Against Women,
List
of issues in relation to the either periodic report of New Zealand UN Doc.
CEDAW/C/NZL/Q/8 (24 November 2017) para. 16.
38 Committee on Discrimination Against Women, List of issues
and questions in relation to the eight periodic report of New Zealand –
Addendum Replies of New Zealand, UN Doc. CEDAW/C/NZL/Q/8/Add.1 (16 April
2018) para. 161.
39 Committee on Discrimination Against Women, Concluding
observations on the eight periodic report of New Zealand, UN Doc.
CEDAW/C/NZL/CO/8 (25 July 2018) para. 40.
III. The application of international human rights law to the
Abortion Legislation Bill
- Abortion
as a health issue
- The
Commission strongly supports abortion being treated as a health issue. Making
abortion a private matter between a woman or pregnant
person and their health
practitioner, like other health services, is in line with the right to health
and the right to privacy. As
stated above, abortion is a core element of the
right to health enshrined in ICESCR and CEDAW. Treating abortion as a health
issue
provides women and pregnant persons autonomy over their bodies which the
UN Human Rights Committee has found comes within the right
to health. Treating
abortion as a health issue also assists in normalising abortion in society and
makes earlier abortions safer
for women and pregnant persons.
- Aligned
to abortion being treated as a health issue, the Commission supports the
oversight functions of abortion to come within the
Ministry of Health and the
Law Commission’s recommendation that it issue best practice guidance for
health practitioners involved
in abortion care with input from appropriate
experts including from Māori in consistency with the principle of
partnership under
te Tiriti.
- Decriminalisation
- UN
treaty bodies have repeatedly called for States to remove abortion from their
criminal laws:
- UN Committee
on the Elimination of Discrimination Against Women
- Violations
of women’s sexual and reproductive health and rights, such as
criminalisation of abortion is a form of gender-based
violence that may amount
to torture or cruel, inhuman or degrading treatment.40
- Recommended
that States repeal laws that criminalise abortion.41 As noted
earlier, following its review of New Zealand, the CEDAW Committee raised concern
that abortion is still criminalised and
urged New Zealand to remove punitive
provisions imposed on women who undergo an abortion.
- UN Committee
on Economic, Social and Cultural Rights
- States
have an obligation to reform laws that impede the exercise of the right to
sexual and reproductive health, including laws criminalising
abortion.42
40 UN Committee on the Elimination of Discrimination
Against Women, General recommendation No. 35 on gender-based violence
against women, updating general recommendation No. 19 UN Doc. CEDAW/C/GC/35
(26 July 2017) para. 18.
41 Ibid. para. 29 (c) (i).
42 UN Committee on Economic, Social and Cultural Rights,
General
comment No. 22 (2016) on the right to sexual and reproductive
health (article 12 of the International Covenant on Economic, Social and
Cultural Rights)
UN
Doc.
E/C.12/GC/22 (2 May 2016) paras. 40, 49.
- Violations
of the obligation to respect the right to sexual and reproductive health include
the establishment of legal barriers impeding
access by individuals to sexual and
reproductive health services, such as the criminalization of women undergoing
abortions.43
- UN Committee
for the Rights of the Child
- Urged
States to decriminalise abortion to ensure that girls have access to safe
abortion and post-abortion services, and to review
legislation with a view to
guaranteeing the best interests of pregnant adolescents and ensure that their
views are always heard and
respected in abortion-related
decisions.44
- UN Committee
against Torture
- Punitive
abortion laws should be reassessed since they lead to violations of a
woman’s
right to be free from inhuman and cruel treatment.45
- UN Human
Rights Committee
- Recognised
in the case of Mellet v Ireland that the prohibition and criminalisation
of abortion contravene international human rights
law.54
- Independent
UN experts have also raised concerns about the treatment of abortion as a
criminal issue. The Special Rapporteur on torture
has urged States to abolish
laws that criminalise abortion.46 Moreover, the former and current
Special Rapporteurs on the right to health have recommended that States
decriminalise abortion in
line with international human rights norms, and have
made the following observations:
- Criminal laws
penalising and restricting induced abortion are the paradigmatic examples of
impermissible barriers to the realisation
of women’s right to health and
must be eliminated.47
- These laws
infringe women’s dignity and autonomy by severely restricting decision-
making by women in respect of their sexual
and reproductive health; and
consistently generate poor physical health outcomes, resulting in deaths that
could have been prevented,
morbidity and ill-health, as well as negative mental
health outcomes, not least because affected women risk being thrust into the
criminal justice system.48
43 Ibid. para. 57.
44 UN Committee on the Rights of the Child, General
comment No. 20 (2016) on the implementation of the rights of the child
during adolescence UN.
Doc CRC/C/GC/20 (6 December 2016) para. 60.
45 UN Committee against Torture, Concluding
observations on the second periodic report of Ireland (Advanced
version, undated) para.
31. See also Committee against Torture CAT/C/PER/CO/4, para. 23; CAT/C/NIC/CO/1,
para. 16; and CAT/C/CR/32/5, para. 7.
46 Human Rights Council, Report of the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment
UN Doc. A/HRC/31/57 (5 January 2016) para. 72.
47 Human Rights Council, Report of the Special Rapporteur on
the right of everyone to the enjoyment of the highest attainable standard
of physical and mental health UN Doc. A/HRC/32/32 (4 April 2016) para.
92.
48 Ibid. para. 113 (b).
- Creation or
maintenance of criminal laws with respect to abortion may amount to violations
of the obligations of States to respect,
protect and fulfil the right to
health.49
- Criminalisation
of abortion infringes on dignity and amount to violations of the obligations of
States to guarantee the right to health.50
- The
UN Working Group on discrimination against women in law and practice has also
highlighted the grave harm criminalisation of abortion
does to women’s
health and human rights by stigmatising a safe and needed medical
procedure.51 The Group has noted that “criminalization of
termination of pregnancy is one of the most damaging ways of instrumentalizing
and politicizing women’s bodies and lives, subjecting them to risks to
their lives or health and depriving them of autonomy
in decision-making about
their own bodies.”52
- The
proposed Bill which decriminalises abortion, treating it as a health issue, will
bring New Zealand law more firmly in line with
its international human rights
law obligations. The Commission therefore strongly supports the
decriminalisation of abortion in the
Bill.
- Access
to services
- International
human rights mechanisms have repeatedly called on States to ensure that abortion
is available and accessible to all
women and pregnant persons. For this to
happen, considerable investment into abortion services may be required in New
Zealand.
- The
right of women and pregnant persons to access sexual and reproductive health
information and services (including with regard to
abortion) is firmly grounded
in international human rights law. International human rights mechanisms have
regularly called on States
to remove barriers to accessing abortion services.
For example, the UN Committee on Economic, Social and Cultural Rights has said
that:
States must not limit or deny anyone access to sexual and
reproductive health, including through laws criminalizing sexual and
reproductive
health services and information, [...]
States must reform laws that impede the exercise of the right to sexual
and reproductive health.53
- Furthermore,
a number of UN experts speaking ahead of the International Safe Abortion Day in
2016 called on States across the world
to repeal restrictive abortion laws and
policies and all
49 Secretary General, Right to everyone to the enjoyment of the
highest attainable standard of physical and mental health UN Doc. A/66/254 (3 August 2011) para.
21.
50 Human Rights Council, Report of the Special Rapporteur on
the right of everyone to the enjoyment of the highest attainable standard
of physical and mental health UN Doc. A/HRC/32/32 (4 April 2016) para.
92.
51 Human Rights Council, Report
of the Working Group on discrimination against women in law and practice report
on health
and safety UN
Doc. A/HRC/32/44 (8 April 2016) para. 80.
52 Ibid. para. 79.
53 UN Committee on Economic, Social and Cultural Rights,
General
comment No. 22 (2016) on the right to sexual and reproductive
health (article 12 of the International Covenant on Economic, Social and
Cultural Rights UN
Doc.
E/C.12/GC/22 (2 May 2016) para. 40.
punitive measures and discriminatory barriers to access safe reproductive
services. They recommended women’s access to safe
abortion services, on
request during the first trimester of pregnancy.54
- The
Standards of Care for Women Requesting Induced Abortion in New Zealand
set out standards in relation to access and referral to abortion services.
Some of the relevant standards, which are based on the
Royal College of
Obstetricians and Gynaecologists standards and guidelines, include:
- Standard 1: DHBs
must ensure all women have access to abortion services
- Standard 2:
Where possible women should have access to services within their own DHB or area
of domicile but if this is not practicable,
the DHB of domicile must make and
fund appropriate arrangements with another abortion provider as close as
possible to the domicile
of the women. This funding must include transport and
accommodation.
- Standard 5: DHBs
must ensure access to both medical and surgical abortions.
- It
is also recommended under the standards that women should not have to travel
more than two hours to access first trimester abortion
services.
- In
New Zealand there are issues surrounding access, including difficulty,
inconvenience and cost of travel to obtain an abortion,
especially for women and
pregnant persons who live in rural areas. For example, in the South Island, only
five providers can provide
medical abortion.55 There is no option for
medical abortion for women and pregnant persons living on the West Coast,
between Dunedin and Timaru, or between
Christchurch in Nelson. For surgical
abortions after 14 weeks, women and pregnant persons must travel to
Christchurch. For some this
is approximately 8 hours’ drive.
- The
Abortion Supervisory Committee has raised access issues for women and pregnant
persons who live in South Auckland and recommended
in its 2017 report that
healthcare providers should consider setting up a local first trimester service
in South Auckland.
- Similar
issues have been identified regarding barriers to accessing general sexual and
reproductive health services and information,
including
contraception.56 It has been identified that barriers impact some
demographics more than others leading to inequalities.57 This can
have an impact on unplanned pregnancies and abortion rates in some
groups.
54 UN Office of the High Commissioner of Human
Rights,
“Unsafe abortion is still killing tens of thousands women around
the world” –
UN
rights experts warn (27
September 2016). Chair-Rapporteur of the Working Group on the issue of
discrimination against women in law and in practice; Special
Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of
physical and mental health; Special Rapporteur
on torture and other cruel,
inhuman or degrading treatment or punishment and Special Rapporteur on violence
against women.
55 Invercargill Southland Hospital (Invercargill) up to 10 weeks;
Dunedin Hospital up to 14 weeks; Christchurch Gynaecology Procedure
Unit up to
13 weeks; Christchurch women’s hospital; Nelson Hospital up to 13 weeks;
Wairua Hospital (Blenheim) up to 13 weeks.
Note that Ashburton Hospital
occasionally performs abortion however most patients from the area are referred
to the Gynaecology Procedure
Unit in Christchurch Hospital.
56 New Zealand Family Planning, Sexual
and Reproductive Health and Rights in New Zealand: Briefing to Incoming
Members of
Parliament (2017). See also Ministry of Health, Sexual
and Reproductive Health: A resource book for New Zealand health care
organisations (2003, Wellington, Ministry of Health).
57 Ibid.
- The
Commission suggests that the current Standards of Care framework is reviewed in
order to consider societal and structural barriers
in providing accessible
services across all cultures and ages. An intersectional approach to abortion
service provision requires
consideration of confidential community access,
particularly for young people and women who may face cultural backlash or
economic
hardship in travelling to access services. It is suggested that this
requires a more considered targeted investment, based on community
and provider
consultation, rather than a generic national policy. This would help to achieve
equality in accessing sexual and reproductive
health services, including
abortion, across ethnic groups and ages.
- The
Commission welcomes the introduction of self-referral, the widening of those
able to perform an abortion from a doctor to a health
practitioner in addition
to the repeal of the requirement for licencing of institutions to remove the
delay and cost barriers to
women and pregnant persons accessing abortion
services. This is in line with international human rights law outlined
above.
- Consent
Children
- The
WHO’s technical and policy guidance for health systems in relation to safe
abortion recommends that:
Third-party authorization should not be
required for women to obtain abortion services. To protect the best interests
and welfare
of minors, and taking into consideration their evolving capacities,
policies and practices should encourage, but not require, parents’
engagement through support, information and education.58
- Furthermore,
UN treaty bodies have explicitly stated that parental notification or
authorisation should not be required in order for
a child to access an abortion.
In its General Comment No. 20 on the rights of the child during adolescence, the
UN Committee on the
Rights of the Child stated that:
The
voluntary and informed consent of the adolescent should be obtained whether or
not the consent of a parent or guardian is required
for any medical treatment or
procedure. Consideration should also be given to the introduction of a legal
presumption that adolescents
are competent to seek and have access to preventive
or time-sensitive sexual and reproductive health commodities and
services.59
58 World Health Organisation, Department of
Reproductive Health and Research, Safe
abortion: technical and policy guidance
for health systems (2012),
p. 68, 95.
59 UN Committee on the Rights of the Child, General
comment No. 20 (2016) on the implementation of the rights of the child
during adolescence UN.
Doc CRC/C/GC/20 (6 December 2016) para. 39. See also, UN Committee on the
Elimination of Discrimination against Women, General recommendation no. 24:
Women and health (article 12) (1999) para. 31 (e).
- The
CEDAW Committee has also called on States to eliminate barriers that impede
women’s access to health services, such as preliminary
authorisation from
parents. 60 The CEDAW Committee has observed that the requirement
that a young person seek authorisation of a parent for an abortion may violate
the right to privacy and women’s access to health care on the basis of
equality of men and women.61
- New
Zealand law aligns with the international guidance set out above. Section 38 of
the Care of Children Act 2004 provides that a
female child of any age can
consent to or refuse to consent to an abortion. This is consistent with the
presumption under the Code
of Health and Disability Services Consumers’
Rights that every person has the competence to consent to a medical procedure,
unless there are reasonable grounds for believing they are not
competent.80
- Based
on the above, in New Zealand a certifying consultant considering whether to
issue a certificate for an abortion will consider
a young person’s
capacity to give consent, rather than their age. In accordance with the
Gillick test, the young person will be considered competent if they are
mature enough to fully understand the treatment that is proposed,
including the
purpose, risks, and benefits of treatment, and to choose whether to accept the
treatment.62 This test is outlined in detail in a Ministry of Health
publication on Consent in Child and Youth Health: Information for
Practitioners.63
- In
2014 the Justice and Electoral Committee’s report on Petition 2014/11 of
Hilary Kieft considered whether parental notification
or consent should be
required for access to abortion for children under 16. The Committee found that,
although it is best practice
for a young person to tell their parents that they
are pregnant, this should not be mandatory. The Committee sets out a number of
recommendations, including that the Abortion Supervisory Committee (ASC)
should:
- Collect
data on the uptake of post-procedure care by young persons, such as counselling
services
- Strengthen
post-procedure care and oversight
- Emphasise
a consultant’s responsibilities around post-procedure care and the
protection of children under 16 who have an abortion,
when renewing or
certifying a consultant
- Ensure
ongoing training is provided to consultants on the risk and safety issues around
parental notification
60 UN Committee on the Elimination of Discrimination
against Women, General recommendation no. 24: Women and health (article
12) (1999) para. 14.
61 Ibid. para. 31 (e).
62 House of Lords decision Gillick v West Norfolk and Wisbech
Area Health Authority [1985] UKHL 7; [1986] 1 AC 112 sets out the common law test for
competence of a child under 16 years.
63 Ministry of Health, Consent
in Child and Youth Health Guidelines.
- Confirm
best practice guidelines for pre- and post-procedure care, and mandatory follow
up for children under 16 years old, especially
those who opt not to inform a
parent of caregiver.
- The
ASC reviewed its Standards of Care guidelines and provides greater
guidance on the provision of abortion services to young women.64 The
standards recognise that young women should be provided accurate and
age-appropriate information and support. 65 The guidelines require
abortion service providers to assess a young women’s specific psychosocial
needs including their level
or support current or historical mental health, care
and protection and substance abuse concerns.66 The guidelines require
that young women are encouraged to involve whānau/family members or another
adult such as a youth worker
to support them to make their
decision.67
- The
Law Commission noted that existing legislation, the Care of Children Act 2004,
addresses the issue of young women and pregnant
persons and their capacity to
consent to abortion. Section 38 provides that consent by a female child of any
age to an abortion,
or refusal to consent to an abortion, is treated as having
the same effect as if the child was of full age.68 This is based off
the Royal Commission of Inquiry into the CSA Act which observed that a child and
their parents might disagree as
to whether the child has an
abortion.69 It concluded that abortion should not be forced on a
child against their will, likewise it would be harsh and illogical to deny a
child an abortion because of their age if they met the criteria for a lawful
abortion.70
- Based
on the above, the Law Commission therefore concluded the law does not require
the involvement of a young woman or pregnant person’s
parents unless the
young person lacks capacity to consent for reasons other than age. 71
The Law Commission noted that parental involvement should be encouraged but not
compulsory. The Law Commission recommended that no
reform was necessary to the
law that currently governs how young women, young pregnant persons and children
give informed consent
to abortion or parental notification. This is reflected in
the Bill.
- The
Commission agrees that while it is desirable for parents to be involved in a
young woman’s, young pregnant person’s
or child’s decision
about an abortion, it supports that this is not a mandatory requirement under
the proposed legislation.
This approach is consistent with the international
human rights obligations.
Women and
pregnant persons with disabilities
- The
CRPD, ratified by New Zealand in 2008, recognises that despite States
international human rights obligations, persons with disabilities
continue to
face barriers in their participation as equal
64 Para. 9.25.
65 Para. 2.43.
66 Para. 9.25.
67 Paras. 2.43 and 9.25.
68 Para. 9.22.
69 Para. 9.23.
70 Para. 9.23.
71 Para. 9.22.
members of society.72 The CRPD therefore provides a legally binding
disability specific human rights framework for civil, political, economic,
social and
cultural rights. The CRPD recognises the importance of the inherent
dignity, individual autonomy and independence, including the
freedom of people
with disabilities to make their own choices.73
- The
practice of forced or coerced abortions of women and pregnant persons with
disabilities undermines the principles and standards
set out in the CRPD. UN
treaty bodies have raised concern about this practice, finding that it violates
the right to non-discrimination,74 integrity of the
person,75 can amount to cruel, inhuman or degrading treatment or
punishment,76 and may constitute a form of gender-based violence
against women.77
- The
CRPD sets out the primary human rights considerations when it comes to the legal
capacity of people with disabilities. Article
12 provides: “Persons with
disabilities enjoy legal capacity on an equal basis with others in all aspects
of life.” Article
12(4) elaborates further on States
obligations:
States Parties shall ensure that all measures that
relate to the exercise of legal capacity provide for appropriate and effective
safeguards to prevent abuse in accordance with international human rights law.
Such safeguards shall ensure that measures relating
to the exercise of legal
capacity respect the rights, will and preferences of the person, are free of
conflict of interest and undue
influence, are proportional and tailored to the
person's circumstances, apply for the shortest time possible and are subject to
regular
review by a competent, independent and impartial authority or judicial
body. The safeguards shall be proportional to the degree to
which such measures
affect the person's rights and interests.
- The
UN Committee on the Rights of Persons with Disabilities (CRPD Committee), the
body responsible for monitoring implementation of
the CRPD, has interpreted
Article 12(4) to require that States create appropriate and effective safeguards
for the exercise of legal
capacity:89
- The primary
purpose of the safeguards must be to ensure respect of the person’s
rights, will and preferences, and in order to
do this the safeguards must
provide protection from abuse on an equal basis with
others.
72 Preamble (k).
73 See CRPD Preamble.
74 Committee on the Rights of Persons with Disabilities,
General comment no. 6 (2018) on equality and non-discrimination UN. Doc
CRPD/G/GC/6 (26 April 2018) para. 7; Committee on the Rights of Persons with
Disabilities, General comment No. 3 on women and girls with
disabilities UN Doc. CRPD/C/GC/3 (25 November 2016).
75 Committee on the Rights of Persons with Disabilities,
General comment No. 3 on women and girls with disabilities UN Doc.
CRPD/C/GC/3 (25 November 2016) para. 54.
76 Committee on the Rights of Persons with Disabilities,
General comment No. 3 on women and girls with disabilities UN Doc.
CRPD/C/GC/3 (25 November 2016) para. 32; Human Rights Council, Report of the
Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health UN Doc.
A/HRC/32/32 (4 April 2016) paras. 39, 45, 86, 94.
77 Committee on the Elimination of Discrimination Against Women,
General recommendation No. 35 on gender-based violence against women,
updating general recommendation No. 19 UN Doc. CEDAW/C/GC/35 (26 July 2017)
para. 18; Committee on the Rights of Persons with Disabilities, General
comment No. 1 (2014) Article 12: Equal recognition before the law UN
Doc. CRPD/C/GC/1 (19 May 2014) paras. 20-22.
- Where, after
significant efforts have been made, it is not practicable to determine the will
and preferences of an individual, the
“best interpretation of will and
preferences” must replace the “best interests”
determinations.
- The “best
interests” principle is not a safeguard which complies with article 12 in
relation to adults. The “will
and preferences” paradigm must replace
the “best interests” paradigm to ensure that persons with
disabilities enjoy
the right to legal capacity on an equal basis with
others.
- Safeguards for
the exercise of legal capacity must include protection against undue influence;
however, the protection must respect
the rights, will and preferences of the
person, including the right to take risks and make mistakes.
- Specifically,
the CRPD Committee in its General Comment No. 3 on women and girls with
disabilities has observed that:
In practice, the choices of women
with disabilities, especially women with psychosocial or intellectual
disabilities, are often ignored
and their decisions are often substituted by
those of third parties, including legal representatives, service providers,
guardians
and family members, in violation of their rights under article 12 of
the Convention. All women with disabilities must be able to
exercise their legal
capacity by taking their own decisions, with support when desired, with regard
to medical and/or therapeutic
treatment, including by taking their own decisions
on retaining their fertility and reproductive autonomy, exercising their right
to choose the number and spacing of children, consenting and accepting a
statement of fatherhood and exercising their right to establish
relationships.
Restricting or removing legal capacity can facilitate forced interventions, such
as sterilization, abortion, contraception,
female genital mutilation, surgery or
treatment performed on intersex children without their informed consent and
forced detention
in institutions.78
- Accordingly,
the CRPD Committee recommended that States combat multiple discrimination by
prohibiting all forms of forced abortion
and non-consensual birth
control.79
- In
New Zealand, capacity to consent to abortion is assessed under the Code of
Health and Disability Services Consumers’ Rights.
Under the current CSA
Act, where a woman or girl lacks mental capacity to consent to an abortion, the
certifying consultants must
consult with a medical practitioner or other
appropriately qualified person to assess the patient’s condition and the
likely
effects of an abortion and continued pregnancy.80
- The
Protection of Personal and Property Rights Act (PPPR Act) provides protection of
the personal and property rights of persons who
are not fully able to manage
their own affairs. If a person is found to lack capacity under Section 6 of the
PPPR Act, the Court
may make an order under
78 Committee on the Rights of Persons with
Disabilities, General comment No. 3 on women and girls with disabilities
UN Doc. CRPD/C/GC/3 (25 November 2016) para. 44.
79 Ibid. para. 63 (a).
80 Section 34, CSA Act.
Section 10(1)(f) “that the person be provided with medical advice or
treatment of a kind specified in the order.” In
Re H, Judge Inglis
held that abortion falls within the definition of medical care if it is in the
person’s best interest.81
- In
Re H, Judge Inglis addressed the relationship between the CSA Act and
PPPR Act. Judge Inglis held that the Court first must authorise
an abortion
under Section 18(2) of the PPPR Act, allowing the welfare guardian or applicant
to apply on the woman's behalf for an
abortion under the CSA Act. Under s 19(1)
of the PPPR Act, the welfare guardian's decision is treated as if it is the
decision of
the person for whom the guardian is acting and that person had full
capacity to make the decision. However, the final decision to
authorise the
abortion is that of the appropriate medical professionals under the CSA
Act.82 The Court's role in an application for a personal order under
Section 10 is confined to authorising an application for an
abortion.83 An exception to consent to abortion without the
Court’s approval would only arise in emergency cases where an abortion is
required
to save the pregnant person’s life or prevent serious harm to
their health.84
- In
X v Y, Miller J agreed with Judge Inglis in Re H that the first
and paramount consideration shall be the promotion and protection of the welfare
and best interests of the person in
respect of whom the application is made
under Section 10.85
- In
considering the issue of consent of women and pregnant persons with limited
mental capacity, the Law Commission considered existing
regulatory requirements
and medical standards health practitioners must observe in providing health
services. The Code of Rights
presumes every person to be competent to give
informed consent unless reasonable grounds for believing otherwise. Where a
person
is not competent to give informed consent, a legal guardian or person
holding an enduring power of attorney may consent on their
behalf. Where there
is no one available to consent on the consumer’s behalf, a health
practitioner is guided to consult a suitably
experienced colleague before
proceeding.
- The
Law Commission was satisfied that existing regulatory requirements and medical
standards provide sufficient safeguards to ensure
informed consent is given by
women and pregnant persons with disabilities. The Commission notes that the
existing guidelines and
requirements provide protection for women and pregnant
persons with disabilities to ensure consent of those with limited mental
capacity
is appropriately obtained.
- Therefore,
the Commission strongly supports the repeal of s 34 of the CSA Act so there is
no longer a requirement for consultation
with a third party where a woman is
considered to have limited mental capacity. This will bring New Zealand law more
closely aligned
with its international human rights obligations to ensure that
persons with disabilities enjoy legal capacity on an equal basis with
others.
81 Re H [1993] NZFLR 225 (FC).
82 X v Y [Mental Health: Sterilisation] [2004] NZHC 1328; 23 FRNZ 475 (HC),
pg. 492.
83 X v Y, pg. 492.
84 CSA Act, section 18(1)(c); X v Y at [56].
85 X v Y, at [59], [61].
- Antenatal
screening
- The
New Zealand Independent Monitoring Mechanism (IMM) under the CPRD, which is made
up of the Human Rights Commission, the Office
of the Ombudsman and the Disabled
People’s Organisations Coalition, recently raised issues around antenatal
screening in its
submission to the CRPD Committee. This was in order to inform
the list of issues prior to the CRPD Committee’s review of New
Zealand
that will take place in 2019.
- The
IMM submission noted the following:
A disability-selective
antenatal screening policy that has the purpose or effect of birth prevention of
a protected minority group
could be considered as raising issues of
discrimination insofar as it impacts the social (and other rights) of the
protected group.
Practically, birth prevention of a specific group impacts on
that group and the wider disability community in that it increases stigma
in
society, means there are fewer people with lived experience to advocate for
protections and services, and adds to the notion that
disability is a negative
experience rather than a facet of human diversity. 86
- Accordingly,
the IMM recommended that the CRPD Committee require New Zealand to provide
information on the legal and policy requirements
that are in place to ensure
that doctors and other medical professionals provide full information to people
who receive positive
prenatal test results for Down syndrome and other
conditions.
- This
issue was reflected in the CRPD Committee’s final list of issues in which
it is asked to provide
information on:
Measures taken and any legal and policy
requirements placed to ensure that doctors and other medical professionals
provide full information
to people who receive positive prenatal test results
for disabilities, particularly Down’s syndrome.87
- From
an international human rights perspective, there is some disagreement between UN
bodies regarding the practice of prenatal screening
and the ability for women
and pregnant persons to terminate a pregnancy based on “fatal
impairment.” The UN Human Rights
Committee recently released its Draft
General Comment that provides guidance for State parties on Article 6 of the
International
Covenant for Civil and Political Rights - the right to life. Among
the issues the Committee addresses is access to abortion services.
Among other
things, the Draft General Comment states that:
86
Submission from New Zealand’s Independent Monitoring Mechanism to Inform
the Development of the List of Issues – Prior to Reporting
for New Zealand’s 2nd
Periodic Review under the Convention on the Rights of Persons with
Disabilities (30 November 2017).
87 Committee on the Rights of Persons with Disabilities, List
of issues prior to submission of the combined second and third periodic
reports of New Zealand (23
March 2018) UN Doc. CRPD/C/NZL/QPR/2-3, para. 21.
States parties must provide safe access to abortion to protect the life
and health of pregnant women, and in situations in which carrying
a pregnancy to
term would cause the woman substantial pain or suffering, most notably where the
pregnancy is the result of rape or
incest or when the fetus suffers from fatal
impairment.88
- The
CRPD Committee submission on the Draft General Comment called for the deletion
of the sentence “most notably where the pregnancy
is the result of rape or
incest or when the fetus suffers from fatal impairment,” stating
that:
Laws which explicitly allow for abortion on grounds of
impairment violate the Convention on the Rights of Persons with Disabilities
(Art,. 4,5,8). Even if the condition is considered fatal, there is still a
decision made on the basis of impairment. Often it cannot
be said if an
impairment is fatal. Experience shows that assessments on impairment conditions
are often false. Even if it is not
false, the assessment perpetuates notions of
stereotyping disability as incompatible with a good life.
- In
the final version of the General Comment adopted by the Human Rights Committee,
the reference to fatal impairment was changed to
“not viable” but
not removed as per the CRPD Committee recommendation.89
- On
the other hand, the UN Rule of Law, Equality and Non-Discrimination Branch of
the UN Office of the High Commissioner for Human
Rights welcomed the aspects of
the Comment that relate to abortion. The Working Group on the issue of
discrimination against women
in law and in practice did not think the Draft
General Comment went far enough. The Working Group thought that the current
formulation
could lead to a regressive interpretation of Article 6 setting back
the considerable progress made by UN human rights mechanisms
in recognising
women’s human rights to dignity, autonomy, highest attainable standard of
health and respect for private life
on a basis of equality with men, without
discrimination.90
- In
one case, the UN Human Rights Committee recommended that a Spanish law that
distinguished the period allowed within which a pregnancy
can be terminated
based solely on disability be abolished.91
- In
New Zealand, all women and pregnant persons who are less than 20 weeks pregnant
must be advised about the availability of antenatal
screening for Downs syndrome
and other conditions.
88 Human Rights Committee, General
comment No. 36 on article 6 of the International Covenant on Civil and
Political Rights,
on the right to life, Revised draft prepared by the Rapporteur, (advanced
unedited version, undated) para.
9.
89 Human Rights Committee, General
Comment no 36. On article 6 of the International Covenant on Civil and Political
Rights, on
the Right to Life, UN Doc. CCPR/C/CG/36 (30 October 2018) para 8.
90 Mandate of the Working Group on the issue of discrimination
against women in law and in practice,
Inputs
on the Human
Rights Committee draft general comment No. 36 on article 6 of the International
Covenant on Civil and Political Rights,
on the right to life (October
2017).
91 The law allowed pregnancy to be terminated up to 14 weeks and
included two specific cases in which the time limits for
abortion are extended if the foetus has a disability: until 22 weeks of
gestation, provided there is “a risk of serious
anomalies in the foetus”, and beyond week 22 when, inter alia,
“an extremely serious and incurable illness is detected
in the
foetus”. See Committee on the Rights of Persons with Disabilities,
Concluding observations of the Committee on the Rights of Persons with
Disabilities UN Doc. CRPD/C/ESR/CO/1 (19 October 2011) paras. 17, 18
The screening is optional for all women and pregnant persons and the Guidelines
for health practitioners on Antenatal Screening for
Down Syndrome and Other
Conditions guide the process for such screening.92 In 2017, the
Abortion Supervisory Committee recorded 13,285 abortions. Of those, 208 cited
the grounds of “handicapped child,”
along with other factors, making
up approximately 1.6% of the total abortions in
2017.93
- The
Guidelines for health practitioners on Antenatal Screening for Down Syndrome and
Other Conditions guide the process for such screening:
If
screening shows an increased risk of a genetic condition, women may require more
information to enable them to make an informed
decision about the ongoing
management of their pregnancy; one which they feel is best for themselves and
their families.94
- The
Commission notes that it is important that parents, who have received a positive
result for Down syndrome or other conditions,
are provided with balanced
information on the implications of having a child with a disability. This should
include options and information
about raising a child with a disability, not
just the option of termination. As the Committee on the Rights of the Child has
stated:
“We must celebrate diversity and learn to celebrate the birth of
every child, with or without disability.”95
- The
Law Commission report noted several submitters who expressed concern about
abortions sought on the basis of fetal impairment.
On this matter
stated:
Ultimately, the broader societal concerns and
implications of abortions sought on the grounds of sex or fetal impairment are
outside
the scope of the advice the Commission has been asked to provide. These
matters are also inseparable from the law and policy around
prenatal screening,
which is likewise beyond the scope of this briefing paper. These are matters the
Government may wish to consider
further.
- The
Commission welcomes the removal of s187A of the Crimes Act which refers to
antiquated terminology of “handicapped”
and the reference to
disability as a ground for abortion. Although it might not be a matter easily
included in the legislation, the
Commission believes it is vitally important
that there is entrenched policy and practice to support the mandatory provision
of balanced
information regarding the raising of children with disabilities.
This information should include what support may be
available.
- Conscientious
objection
- The
current law provides that a medical practitioner, nurse or other person that has
a conscientious objection to abortion is not
required to perform or assist in
the performance of an
92 Ministry of Health, Antenatal
Screening for Down Syndrome and Other Conditions: Guidelines for health
practitioners (2013, Wellington, Ministry of Health).
93 Table 8.1, pg. 21.
94 Pg. 23.
95 Committee on the Rights of the Child, Children
with Disabilities,
para. 329.
abortion. Under the procedure for women and pregnant persons seeking an
abortion, it provides that where their doctor does not propose
to perform the
abortion, they shall be referred to another medical practitioner who will be
willing to perform the abortion.
- The
Bill clarifies that practitioners who object on the grounds of conscience must
disclose their objection to the pregnant woman
at the earliest opportunity. The
Bill further introduces the requirement that a practitioner who objects on the
grounds of conscience
must tell the woman how she can access the contact details
of the service requested, which is maintained by the Director-General
of
Health.
- The
Commission supports the Bill’s clarity around conscientious objection
which is consistent with international human rights
law on this matter. For
example, the WHO guidelines on abortion provide that:
Health-care
professionals who claim conscientious objection must refer the woman to another
willing and trained provider in the same,
or another easily accessible
health-care facility, in accordance with national law. Where referral is not
possible, the health-care
professional who objects must provide abortion to save
the woman’s life or to prevent damage to her health. Health services
should be organized in such a way as to ensure that an effective exercise of the
freedom of conscience of health professionals in
the professional context does
not prevent patients from obtaining access to services to which they are
entitled under the applicable
legislation.96
- Definition
of a woman or pregnant person
- The
Bill refers to “woman” throughout the Bill to refer to persons who
may become pregnant and consequently may require
an abortion. There is a
definition in the interpretation of the Bill that states:
Woman
means a person of any age who is capable of becoming pregnant.
- The
Commission notes that this definition is not as inclusive as the Law
Commission’s briefing
paper which states:
This briefing paper refers to the
“woman” seeking an abortion and uses the pronouns she/her. In doing
so, the Commission
intends to include any person who is capable of becoming
pregnant. The Commission acknowledges that not every person seeking an abortion
is a woman; trans men, takatāpui (a term encompassing diverse Māori
gender and sexual identities) and other gender diverse
people may also become
pregnant and seek an abortion.
- The
Commission commends the Law Commission’s acknowledgment of the diverse
group of persons who may become pregnant and seek
an abortion. The Commission
recommends that the Bill be more inclusive in its terminology. In order to
recognise that trans men,
takatāpui, other
96 Para. 4.2.2.5, pg. 96 Conscientious Objection
Section 8 (1)(b).
gender diverse people, and intersex people can become pregnant and may seek an
abortion, the Commission recommends that the Bill
replace the definition and use
of the term “woman” to a more inclusive term “woman or
pregnant person” throughout
the Bill.
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