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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

  1. 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.
  2. 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.
  3. 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.
  4. The aim of this submission is to provide the Abortion Legislation Committee with:
    1. information on the international human rights laws, principles and standards that apply to abortion;
    2. application of international human rights laws, principles and standards to the proposed Abortion Legislation Bill;
    3. recommendations for the Abortion Legislation Committee to consider.
  5. 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.
  6. Based on New Zealand’s international and domestic human rights obligations, the Commission:
    1. supports changes which treat abortion as a health issue in line with the right to health;
  1. supports the decriminalisation of abortion;
  2. supports the changes which will allow greater access to women and pregnant persons seeking abortion;
    1. supports the Bill’s approach to consent, particularly the omission of a mandatory
requirement for parental involvement in a child’s consent;
  1. 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;
  2. 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.

  1. 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.
  2. 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

  1. Current abortion law in New Zealand
  1. 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.
  2. Under the current abortion law, an abortion is only lawful before 20 weeks into the pregnancy if it is believed that:
  3. 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.
  4. 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.

  1. Law Commission’s briefing paper: “Alternative approaches to abortion law”
  1. 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
  2. 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
  3. 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
  4. 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
  5. 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:


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;
women and pregnant persons accessing abortion services; and

  1. Abortion Legislation Bill
  1. 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 —
  2. 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.
  3. 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

  1. 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.

  1. New Zealand Bill of Rights Act 1990
  1. 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
  2. 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.

  1. International human rights framework
  1. 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
  1. 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).
  2. 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.
  3. 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

  1. 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

  1. 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.
  2. 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
  3. 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

  1. 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.
  2. 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.”
  3. 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

  1. 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
  2. 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.
  1. 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

  1. 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
  2. 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
  3. 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

  1. 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).
  2. 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
  1. 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

  1. CEDAW Committee comments to New Zealand
  1. 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

  1. Accordingly, the Committee urged New Zealand:
    1. To review the abortion law and practice with a view to simplifying it and to ensure women’s

autonomy to choose;

  1. To prevent women from having to resort to unsafe abortions and remove punitive provisions imposed on women who undergo an abortion.44
  1. 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
  2. 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
  1. 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:
  2. 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
  3. 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:
    1. 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;
    2. 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

  1. Abortion as a health issue
  1. 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.
  2. 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.
  1. Decriminalisation
  1. UN treaty bodies have repeatedly called for States to remove abortion from their criminal laws:


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.

right to be free from inhuman and cruel treatment.45
  1. 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:

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).

  1. 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
  2. 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.

  1. Access to services
  1. 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.
  2. 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

  1. 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
  1. 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:
  2. It is also recommended under the standards that women should not have to travel more than two hours to access first trimester abortion services.
  3. 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.
  4. 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.
  5. 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.

  1. 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.
  2. 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.

  1. Consent

Children

  1. 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

  1. 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).

  1. 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
  2. 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
  3. 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
  4. 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:
    1. Collect data on the uptake of post-procedure care by young persons, such as counselling services
    2. Strengthen post-procedure care and oversight
    1. 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
    1. 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.

  1. 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.
  1. 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
  2. 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
  3. 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.
  4. 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

  1. 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
  1. 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
  2. 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.

  1. 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


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.

  1. 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

  1. Accordingly, the CRPD Committee recommended that States combat multiple discrimination by prohibiting all forms of forced abortion and non-consensual birth control.79
  2. 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
  3. 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
  1. 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
  2. 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
  3. 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.
  4. 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.
  5. 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].

  1. Antenatal screening
  1. 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.
  2. 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

  1. 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.
  2. 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

  1. 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

  1. 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.

  1. 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
  2. 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
  3. 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
  4. 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
  1. 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

  1. 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
  2. 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.

  1. 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.

  1. Conscientious objection
  1. 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.
  1. 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.
  2. 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


  1. Definition of a woman or pregnant person
  1. 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.

  1. 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.

  1. 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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