Abortion and Euthanasia in New Zealand

1

Abortion and Euthanasia in New Zealand The issues concerning both the Abortion and Euthanasia have been full of controversies in New Zealand as there are those supporting them and those opposing them. Although currently, abortion is legal in New Zealand under the provided framework of the Abortion Legislation Act 2020, which states that pregnancy termination is permitted for up to 20 weeks of pregnancy, there still exist those people in New Zealand's society that feels that abortion is wrong because it involves ending one life. On the other hand, euthanasia is illegal under current New Zealand's Law, which states that it is an offense to aid and abet a person to commit suicide as prescribed under the Crimes Act 1961. However, there have been proposed changes in the laws governing both euthanasia and abortion, which may see euthanasia being legalized and restrictions on the procedure of undertaking abortion being removed. Thus, due to the current proposed changes in liberal/progressive abortion Law, New Zealand's society is ready for euthanasia. There is already a referendum held alongside the 2020 general election to bind the End of Life Choice Bill passed in 2019. In the past years, abortion in New Zealand was a stigmatized and backroom activity.

Still, recently, the perceptions have changed as abortion is now seen as an alternative for women with unwanted pregnancies1. The permissive abortion legislation enacted in 1977 has played a vital role in making abortion an acceptable activity in New Zealand as a society, bringing many risks to societal moral standards. Although permissive legislation on abortion led to the change in attitude towards this Activity and made it acceptable to the society, there has been a gradual and significant decline in the general rate of abortion despite having no changes in Abortion Law. For example, in 2003, the rate of abortion was 20% per 1000 women. A rate that gradually and significantly declines to 13% in the year 2016. Euthanasia, on the other hand, is still illegal 1

Margaret J Sparrow, “Euthanasia and Abortion,” Home (The New Zealand Medical Journal, January 19, 2018), https://www.nzma.org.nz/journal-articles/euthanasia-and-abortion.

2

in New Zealand, and depending on the facts of the case provided in the court, the defendants end up being charged with either of these four offenses: murder, attempted murder, manslaughter, and aiding and abetting suicide2. However, there have been attempts to legalize euthanasia in New Zealand, which were defeated by voting in Parliament. The first attempt was through Member's Bill, followed by the Death with Dignity Bill, and then a second Death with Dignity Bill. Recently, there is End of Life Choice Bill proposed in the Parliament to legalize euthanasia.

However, the status of this current Bill is not known as it may pass or fail. In comparing euthanasia and abortion, there exist similarities and differences between them. Starting with similarities, both involve the termination of life, and most of them have been practiced outside the medical context. However, they have been recently medicalized partly for safety reasons3.

Both involve the decision being made by the most concerned person despite their decision being forbidden by some religions. Additionally, the common feature between them is compassion.

However, there exist substantive differences between abortion and euthanasia. They both occur at the opposite end of the lifespan. Abortion is more time-sensitive and affects only women, while euthanasia affects both men and women. Euthanasia is more ethical because the person requests it themselves, unlike in abortion, where another person makes the request. Lastly, abortion is a common gynecological procedure, while euthanasia is uncommon. The New Zealand's abortion law dates back to 1866 when it adopted English Law, Offences Against the Person Act 18614. The Act criminalized anyone attempting to procure an abortion whether the woman was pregnant or not. In 1893, Criminal Code Act was passed by New Zealand, an Act that reduced the years that a woman could spend in prison to a maximum of seven years, while at 2

Sarah Elizabeth Mathieson, “Live and Let Die: The Legalisation of Euthanasia in New ...,” Otago, October 2013, https://www.otago.ac.nz/law/research/journals/otago085109.pdf, 9.

3 Margaret J Sparrow, “Euthanasia and Abortion,” Home (The New Zealand Medical Journal, January 19, 2018), https://www.nzma.org.nz/journal-articles/euthanasia-and-abortion.

4 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

3

the same time retaining life imprisonment for other involved in the Activity5. The Criminal Code Act was followed with the enactment of the Crimes Act in 1908, an Act that was enacted to protect the obstetrician who may wish to safe the mother by sacrificing the child6. Under section 182, the Crimes Act defines when a child becomes a human being and relates to killing a child before or during birth. Additionally, the 1939 case where a 14-year-old girl had been raped, leading to pregnancy, further influenced abortion law interpretation in New Zealand7. Dr. Aleck Bourne had brought the case in defense that the abortion was carried to protect the girl from physical or mental wreckage that would have affected her if the pregnancy continued. Although in 1961 the Crimes Act was revised, the section concerning abortion was not changed, and it was until 1969 to 1971 that New Zealand laws gave a more liberal interpretation on abortion8. The interpretation of what was lawful in between this period gave New Zealand women, with means, a way to obtain a legal abortion. In 1974, The Hospitals Amendment Bill, also known as Wall Bill, was enacted to restrict abortion to public hospitals only9. The Bill was further amended to include licensed hospitals, but it was later invalidated by Justice Speight in 1975, citing that the Act related to the wrong section 182 of the Crimes Act. In 1976, another bill similar to Wall Bill, called Gill Bill, was introduced with the same aim of restricting abortion to public hospitals.

However, a movement by National’s George Gair deferred any action of the Bill until after the release of the Royal Commission's report. The Royal Commission’s report, which was released in March 1977, was very conservative and controversial, as despite recommending 12-14 5

Courtney Naughton, “Abort Mission: A Recommendation for Reform of New Zealand’s,” Otago, October 2017, https://www.otago.ac.nz/law/research/journals/otago672752.pdf.

6 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

7 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

8 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

9 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

4

abortion panels, it did not trust women, the Health Department, or Doctors10. The controversies and conservativeness of the report led to the introduction of the CS&A Bill in December 1977.

Crime Act and the other seven Acts were also amended by the Parliament, which included creating the Abortion Supervisory Committee11. The CS&A Bill, a legislation that governs abortions in New Zealand, has been in force until date. Since the enactment of the CS&A Bill, there have been other Acts and Bills. One such Act includes The Care of Children Act, which was passed in November 200412. Amendments to this Act, which attempted to notify the parents of the girls seeking an abortion and are under 16 years of age a requirement. Also, Abortion Legislation Bill was introduced by Minister of Justice, Andrew Little, in August 201913. In August 2019, the first amendment of the Bill was passed and referred to a committee which reported back in February 2020 with small changes to Bill. The second reading of the Bill was passed on March 3, 2020, and was referred to the Whole House Committee. On March 18, 2020, the third reading of the Bill was passed, and on March 23, there was Royal Assent14. Finally, on March 24, 2020, the Abortion Legislation Act became law. The Abortion Legislation Act 2020, which became Law in March 2020, provides a framework through which pregnancy can be terminated. Under the Abortion Law, the health practitioners are allowed to terminate a pregnancy of up to 20 weeks if they reasonably believe that doing so is clinically appropriate under the given circumstance15. In other words, the current law on abortion allows health 10

Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

11 Courtney Naughton, “Abort Mission: A Recommendation for Reform of New Zealand’s,” Otago, October 2017, https://www.otago.ac.nz/law/research/journals/otago672752.pdf.

12 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

13 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

14 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

15 Richard Pérez-peña, “New Zealand Eases Abortion Restrictions,” The New York Times (The New York Times, March 18, 2020), https://www.nytimes.com/2020/03/18/world/australia/new-zealand-abortion.html.

5

practitioners to pregnancy if continuing it will seriously affect the woman either physically or mentally, thereby putting the woman in danger. It also means that the pregnancy can be terminated if there is a serious fetal abnormality or a serious risk to the overall well-being of the woman. On the other hand, the End of Life Act 2019 provides a framework through which persons can request medical assistance in ending their lives upon meeting certain criteria or are terminally ill. The Act also provides a lawful process through which health practitioners can help eligible persons terminate their lives. Generally, the Act aims at providing lawful termination of the life of a person who, beyond a reasonable doubt, has seriously suffered due to terminal illness, which, if left continue tormenting the person, is likely to end the person's life in less than a year. Furthermore, a comparison between abortion law and the End of Life Act 2019 shows that they both have conditions to be met before performing on a person. In abortion law, the pregnancy should be up to 20 weeks for abortion to be procured by the woman. If the pregnancy is beyond 20 weeks, the abortion will only be legal if health practitioners reasonably believe that it would be medically appropriate to terminate the pregnancy. On the other hand, the End of Life Act 2019 requires a person to be aged 18 years and above, be a New Zealand citizen, suffering from a terminal illness, is unbearably suffering, and is competent to decide being assisted to die.

Failure to meet these conditions, a person is deemed not eligible to perform the Activity.

Generally, the persons must meet these conditions for either the abortion or ending the life to be performed. Recently the government of New Zealand has been focusing on ensuring that abortion laws are consistent and treating abortion as a medical issue that is a reproductive choice.

The government asked the Law Commission to conduct a review on possible changes on abortion law and report back to the Minister of Justice in 201816. Following the review, the Law 16

Danger Ahead, “The Nathaniel Centre,” Euthanasia, 2019, http://www.nathaniel.org.nz/euthanasia/20campaigns.

6

Commission advised the government to revise Abortion Law and presented their proposals to Parliament. The proposed changes on abortion law are in line with Labours’ 2017 election campaign intention, which had the promise to review processes and practices of abortion. Under the current Abortion Law, the government of New Zealand permits termination of pregnancy up to 20 weeks if keeping it will result in danger to the life, physically or mentally, of the woman, if pregnancy results from an incest relationship or the woman are deemed impaired17. Beyond 20 weeks, the health practitioners will perform an abortion if they reasonably believe that terminating the pregnancy is clinically necessary. If, after 20 weeks, the health practitioners believe that discontinuing the pregnancy will be of the woman's well-being, thereby preventing permanent physical or mental health injury, the abortion is permitted by the law. However, the proposed new abortion law states that termination of pregnancy of up to 20 weeks is legal, only that, this time, statutory test for eligibility is not required18. In other words, the proposed law allows abortion on demand under any circumstances provided the pregnancy is up to 20 weeks.

The health practitioner performing the abortion procedure will only be required to ensure the woman's choice is informed and give informed consent. The revised law suggests that pregnancy beyond 20 weeks and up to birth requires a statutory test, where health practitioners reasonably believe that it would be necessary to terminate the pregnancy to prevent the woman from suffering physical and mental health injury and for her general well-being19. Thus the proposed new law will make it easier for women to access late abortion. Owing to the recent changes in liberal/progressive Abortion Law, New Zealand is ready for euthanasia. Although euthanasia is

17

Danger Ahead, “The Nathaniel Centre,” Euthanasia, 2019, http://www.nathaniel.org.nz/euthanasia/20campaigns.

18 danger Ahead, "The Nathaniel Centre," Euthanasia, 2019, http://www.nathaniel.org.nz/euthanasia/20campaigns.

19 Danger Ahead, “The Nathaniel Centre,” Euthanasia, 2019, http://www.nathaniel.org.nz/euthanasia/20campaigns.

7

illegal under the current laws in New Zealand20It is going to be legalized, just like as seen in the background of the abortion law. At first, abortion in New Zealand was illegal, but the March 2020 Abortion Legislation Act became law, thus permitting termination of pregnancy21. Like the changes witnessed in abortion law, the euthanasia is witnessing changes as already the End of Life Choice Bill was passed in 201922. The passing of the Bill legalizes euthanasia. If people vote in favor of the Bill in the referendum to be held alongside the 2020 general election, the law will allow the termination of the lives of terminally ill people with less than six months to live.

According to a poll conducted recently, 72 percent of New Zealand people support some form of assisted dying23. Thus, the End of Life Choice Bill is likely to pass into law after the referendum, legalizing euthanasia in New Zealand.

Bibliography

20

Sarah Elizabeth Mathieson, “Live and Let Die: The Legalisation of Euthanasia in New ...,” Otago, October 2013, https://www.otago.ac.nz/law/research/journals/otago085109.pdf, 9.

21 Margaret Sparrow, “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803,” Abortion Timeline, March 2020, http://alranz.org/wp-content/uploads/2020/06/Abortion-Timeline-2020.pdf.

22 BBC, “New Zealand to Hold Referendum on Euthanasia,” BBC News (BBC, November 13, 2019), https://www.bbc.com/news/world-asia-50408033.

23 https://www.bbc.com/news/world-asia-50408033.

8

Ahead, Danger. “The Nathaniel Centre.” Euthanasia, 2019. http://www.nathaniel.org.nz/euthanasia/20-campaigns.

BBC. “New Zealand to Hold Referendum on Euthanasia.” BBC News. BBC, November 13, 2019. https://www.bbc.com/news/world-asia-50408033.

Mathieson, Sarah Elizabeth. “Live and Let Die: The Legalisation of Euthanasia in New ...”

Otago, October 2013. https://www.otago.ac.nz/law/research/journals/otago085109.pdf.

Naughton, Courtney. “Abort Mission: A Recommendation for Reform of New Zealand’s.”

Otago, October 2017. https://www.otago.ac.nz/law/research/journals/otago672752.pdf.

Pérez-peña, Richard. “New Zealand Eases Abortion Restrictions.” The New York Times. The New York Times, March 18, 2020. https://www.nytimes.com/2020/03/18/world/australia/new-zealand-abortion.html.

Sparrow, Margaret J. “Euthanasia and Abortion.” Home. The New Zealand Medical Journal, January 19, 2018. https://www.nzma.org.nz/journal-articles/euthanasia-and-abortion.

Sparrow, Margaret. “A BRIEF HISTORY OF ABORTION LAWS IN NEW ZEALAND 1803.”

Abortion Timeline, March 2020. http://alranz.org/wp-content/uploads/2020/06/AbortionTimeline-2020.pdf.