The Nathaniel Centre

Submission to ACART on Proposed Changes to Donation Guidelines and Surrogacy

Staff of The Nathaniel Centre

In September 2017 the Advisory Committee on Assisted Reproductive Technology (ACART) sought public feedback on its proposal to replace four separate guidelines with one that would cover the four procedures of: family gamete donation, embryo donation, the use of donated eggs with donated sperm, and clinic-assisted surrogacy. The most significant policy shift being proposed was to rescind the “biological link” requirement that currently underpins all four donation guidelines. The Nathaniel Centre’s submission to ACART focused on that key issue. A summary of our submission is printed below.

Background

A Catholic approach to the transmission of human life is characterised by two key beliefs: the inviolable dignity of the human person and, flowing from that, a belief that the context in which humans are conceived and the means that are used to conceive can positively or negatively impact on this dignity. This means that children must be conceived in a way which shows that they are respected and recognised as equal in personal dignity to those who give them life. This rules out actions which instrumentalise or treat the child as an object (commodity), whether intentionally or otherwise.

At the emotional, psychological and spiritual levels we all need to experience ourselves as ‘contingent beings’; that is, as beings who came about in a ‘fortuitous’ way – conceived in a way that is free from the manipulation of others, conceived for no other reason than love and out of love. Morally speaking, such a love can be described as ‘disinterested’ and ‘selfless’, as focussed overwhelmingly on the needs and well-being of the child to be born. A disinterested and selfless love calls for parents to accept children as ‘gifts’ without introducing a conditional element into their acceptance into a family. Technological interventions that allow parents to exercise ever greater control and dominance over the sorts of children that are born potentially create a very different context for human procreation.

As philosopher Jurgen Habermas notes:

To impose your preferences upon a potential person is to treat that person as an object, a thing made, rather than to treat as a subject, an autonomous individual. To impose upon another a decision about his genetic composition according to your own preferences is to treat a person as a creature of your preferences, and to constrain that person’s ability to self-actualise. It is to adopt an attitude of domination, of instrumentalising.1

The Significance of Biological Ties

We focused our feedback on one key issue – the significance of a biological connection between parents and the children they raise.

We are greatly concerned about the proposed move to rescind the biological link policy, which, because it radically redefines the traditional understanding and structure of the human family, has broader societal consequences that generate important questions not raised in the Consultation Document.

Our strongly held view is that the requirement for a gestational or genetic link between intending parents and a resulting child must be retained as part of the guidelines governing the use of assisted reproductive technologies.

The recommendation that all biological links be rescinded is premised, we argue, on a lack of regard for the personal/emotional, cultural, societal and spiritual significance of being raised by those to whom we are biologically connected/related and constitutes a lack of respect for the dignity of the child to be born.

It is one thing to accept that there are situations in which a birth parent or parents cannot care for their biological child and doing the (next) best thing that promotes the best interests of that child, as occurs with adoptions, but it is quite something else to intentionally set out to deprive children of the right to grow up in their biological families.

To minimise the significance of biological connection for an individual’s overall well-being and identity in favour of the needs and desires of adults for whom donated gametes/eggs represents the “best or only” opportunity to have a child, effectively categorises it as some sort of ‘optional extra’ and creates what one author has referred to as “existential challenges of novel dimensions.”

The Consultation Document emphasises the importance of children being informed about their biological (and gestational) origins, but we argue that children have a fundamental right to grow up within the family networks that are generated by their genetic and gestational ties. Apart from situations of abuse or neglect, arrangements that intentionally exclude children from growing up within families with whom they have biological ties are less than optimal even when, or if, they are ‘informed’ of their biological origins. This stance provides the strongest possible rationale for allowing only those Assisted Reproductive

Technologies (ARTs) which hold together the genetic, gestational and social dimensions of procreation, and for rejecting those procedures which fracture these three dimensions.

In support of our stance, we note the importance that is given to promoting and/or maintaining the relationship between children and their biological families of origin in critical areas of social and public policy and practice. For instance, the Ministry of Social Development has always emphasised the importance of supporting birth families to care for their children and, when required, has given priority to children being placed with their own wider family or whānau whenever possible. Removing the biological connection would represent a significant adjustment to the principles that guide New Zealand policies and practices concerning children and whānau/ families.

It is one thing to accept that there are situations in which a birth parent or parents cannot care for their biological child and doing the (next) best thing that promotes the best interests of that child, as occurs with adoptions, but it is quite something else to intentionally set out to deprive children of the right to grow up in their biological families.

We also note that rescinding the biological link as a matter of policy is out of step with UNCRC Article 8 which reads: “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.”2

Consequently, we maintain that the recommendation to remove the requirement that there be a gestational or genetic link between intending parents and a resulting child is inconsistent and out of step with (i) current national and international public policy and practice relating to the care of children and (ii) cultural practices of Maori.

For these reasons we maintain that the arguments offered in the Consultation Document fail to give proper consideration to Principles f) and g) of the HART Act: adequate respect for the needs, values and beliefs of Māori, as well as the different ethical, spiritual and cultural perspectives. This, in addition to our belief that the proposed changes fail to adequately take into account the health and wellbeing of children born as a result – principle a).

We readily acknowledge that maintaining the biological link policy rules ‘in’ only certain means of conceiving children. In response to the Consultation Document which suggests that the current requirement for a biological or gestational link is “a source of potential discrimination” (n. 49), we argue that our commitment to the status quo is more accurately described as ‘a positive commitment to showing proper respect for the health and wellbeing of children’ born as a result of such practices.

From this it follows that the rejection of certain means and situations for conceiving human life is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children. We therefore reject the view that our stance discriminates against certain categories of intending parents (single men or single women) or certain types of couple relationships (which we note include both heterosexual as well as same-sex couples).

In response to those who see the current guidelines as an unjustified limitation on their choice, we note that our stance articulates the critically important idea that there are limits to autonomy. As stated by Atkin and Reid in 1994: “… individual rights can be limited when the aim is to protect important social interests … that different people’s rights overlap, that rights are subject to various limitations.”3 And also: “Members of many cultures, including Māori, have collective values which may intercept the limits of autonomy and these new limits of autonomy must be negotiated.” 4

Allowing parents to conceive children with whom there is no biological or gestational link would be a significant and concerning step along a path that redefines parenthood as a social construct rather than a biological phenomenon.

For the reasons outlined above, we argue for retention of the biological link which, by insisting that at least one of the intending parents must have a gestational or genetic link, holds together at least two of the three inter-related components of conceiving and rearing children – either social and gestational or social and genetic.

Conclusion:

We acknowledge that there is an inherent tension in the use of ARTs which results from holding the welfare and well-being of such children in a creative balance with respect for the rights and choices of intending parents who seek to use reproductive technology.

We argue that the regulations governing the use of ARTs in New Zealand since the ACART Act was passed in 2004 have, to date, managed to successfully maintain that creative balance between the two (at times competing) realities. However, rescinding the biological link represents a significant shift in that balance away from the rights and well-being of the child.

To the extent that there is a right to have a child we argue that it exists as a ‘negative right’ rather than a ‘positive right’. The 1994 Report on Assisted Human Reproduction concurs: “Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift.”5

When considering the eligibility criteria for intending parents who wish to enter a surrogacy arrangement and/or use donated gametes or donated embryos, our position is that an ethical commitment to the optimal well-being and flourishing of the child means giving over-riding priority to the maintenance of a genetic or gestational connection.

On this basis, we conclude that the recommendation to rescind the biological link between intending parents and their children makes the well-being of children secondary to the needs and desires of adults.

Allowing parents to conceive children with whom there is no biological or gestational link would be a significant and concerning step along a path that redefines parenthood as a social construct rather than a biological phenomenon. This would represent a significant ethical and social change for the whole of society, which should not be implemented without much wider public discussion and consensus.

As noted above, it is one thing to accept there are situations where children are unable to grow up with their biological family but quite another to intentionally create such scenarios. For this reason, we regard the donation and adoption of so-called ‘spare’ embryos by intending parents who are not biologically connected as ethically and morally distinct from the deliberate creation of such embryos.

Guidelines associated with embryo creation and surrogacy should stem from an ethical framework rather than simply respond to the next stage in the development and availability of assisted reproductive technologies. To this end we recommend the ‘ethic of care’ that is articulated by Atkin and Reid in their 1994 Report: … an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests … the priority … is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.6

Endnotes

1 See Rorty, M (2003) in her review of Habermas, Jurgen, The Future of Human Nature.
2 See http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
3 See Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P. 30.
4 Ibid., p. 30.
5 See (Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. P.31.
6 Ibid., p. 28

Proposed Abortion Law Reform in New Zealand

The request from the Minister of Justice that the Law Commission review the abortion laws centres on the Government’s stated desire “to make changes to ensure New Zealand’s abortion laws are consistent with treating abortion as a health issue that is a reproductive choice for women, rather than as a criminal issue” (Letter from the Prime Minister, Rt Hon Jacinda Ardern, to Minister of Justice, Hon Andrew Little – not dated).

In response to the question of whether the current legal framework needs to change we offer the following points for consideration.

Abortion is best treated as both a justice issue and as a health issue. The starting presumption should always be in favour of human life, no matter the stage of development of that life. Any decision to end a human life should only be granted as an ‘exception’ to the principle that all members of the human family have an inherent dignity. This principle, spelled out in the United Nations Declaration of Human Rights, is meaningless if it is not enshrined in the law. The Contraception Sterilisation and Abortion Act 1977 holds the rights of the child and the rights of the mother in tension, having due regard for both. This should not change.

In every abortion there are two human lives involved and at least one life is at stake. Our present laws reflect the fact that human life should not be taken without good reason. Making abortion solely a ‘health issue’ places the fundamental right to life, something that should be a presumption for all human life, outside of any law and making the rights of the unborn child totally dependent on the choice of the mother. This which would potentially allow for abortion for any reason, including gender selection. We need legislation which clearly specifies the circumstances under which abortion remains unlawful and under which abortion providers will be prosecuted for unlawful abortions.

Any change in legislation needs to ensure women are free to make informed choices, including the choice to continue their pregnancy. Abortions have been shown to cause psychological and mental harm to some women, affecting their physical and emotional well-being. What is required are better processes that support women and allow them access to unbiased information and adequate safeguards by way of independent counselling. In the face of evidence which shows that many women choose abortions under duress – whether from a partner or family or because of financial or social reasons – the introduction of mandatory independent counselling will allow them greater control and choice while minimising the risks to health and well-being that often follow.

The current law does not make criminals of women – a fact often misrepresented by those proposing change. Any woman in New Zealand who procures an abortion within the current regulatory framework is not committing an illegal act. The law does, however, protect them from unlicensed and unscrupulous abortion providers. “Unlawful” providers can be prosecuted under current legislation but the woman seeking an abortion cannot be prosecuted. Sec 183 of the Crimes Act specifically states that while the person who “procures” the miscarriage is liable for imprisonment, the “woman or girl shall not be charged as a party” to any offence.

Abortion Law Reform and the State’s Interest in Protecting Unborn Life [SYNOPSIS ONLY]

Ian Bassett

In the wake of the current debate about abortion laws, Ian Bassett briefly outlines the legal history surrounding the protection of human life in all its forms – from our tradition of English common law through to more recent statements by the New Zealand judiciary. The long-standing protection of life is put at risk by the latest moves to remove abortion from the Crimes Act. The gravity of what is being proposed should initiate a broad and informed public debate. 

The full article is available by subscription to The Nathaniel Report

Review of the Abortion Laws in New Zealand: Submission to the Law Commission – May 2018

Joint submission by the New Zealand Catholic Bishops Conference & The Nathaniel Centre

The Status of Unborn Human Life: Our Position

The debate about when human life begins is uncontroversial. As reported by the Royal Commission on Contraception, Sterilisation and Abortion (1977): “From a biological point of view there is no argument as to when life begins. Evidence was given to us by eminent scientists from all over the world. None of them suggested that human life begins at any time other than conception.” 

The ethical questions around abortion and research on embryos centre on the sort of respect or protection we should accord human life; in particular, whether it is ethically consistent to accord a different level of respect to humans in the earliest stages of life, as well as whether there are ever factors that mitigate the respect due to human life at any stage of development. 

Most people, whatever their position on issues such as abortion or embryo research, agree that human life deserves a ‘special’ status even if they do not accord unborn human life the same moral status as human life post-birth. The belief held by some that the life of a human embryo matters less than other human life at a more developed stage may reflect the fact that it is largely unseen.  However, an embryo is not simply a collection of cells that happen to be contiguous. These cells are a human embryo, a new human individual and part of the human family. Embryos and foetuses become children just as children become adults, not by some addition to what they are, but simply by developing further as the kind of beings they already are.

The common understanding of ‘person’ in our culture has, latterly, been shaped by an emphasis on self-consciousness as the mark of personhood. A much older understanding of person, however, locates personhood in the dignity of a being's rational nature, irrespective of whether that being is even ‘conscious’ at a particular phase in his or her life. According to this traditional view, there is nothing problematic about saying that an unborn child or a persistently unconscious patient is a person, for they are truly our fellow human beings. 

Recognising that the status of the human embryo or fetus flows from their inherent connection to the human family is key to understanding why Catholic teaching holds they ought to be treated with unconditional respect whatever the stage of development – a life is begun which is neither that of the mother nor the father. It is already the human being it will always be and will only grow in size and complexity. Mothers instinctively recognise this by invariably referring to the embryo or foetus within the womb as their baby.

On that basis, embryos and foetuses are entitled to be granted a place in the human family and treated with the same respect as persons.  As the Royal Commission stated: “The unborn child, as one of the weakest, the most vulnerable, and most defenceless forms of humanity, should receive protection.”

Introductory Comments: 

1. There is a lack of clarity that has led to confusion in the community about the precise meaning of the brief that has been given to the Law Commission by the Minister of Justice. We are assuming that the wish to treat abortion as “a health issue that is a reproductive choice for women”¹ centres around a wish to provide for ‘abortion on demand’ in New Zealand – that is, a wish to make it a decision solely between a woman and a doctor as is the case for reproductive choices involving contraception. However, this is nowhere clearly spelled out, something which makes it difficult to comment on your brief in a truly informed way. 

2. If our assumption is correct, then what the Law Commission is being asked to do represents a significant policy change. As we understand it, the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, sets up a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. Making abortion solely “a health issue that is a reproductive choice” would ignore this tension, removing any requirement to consider the rights of the unborn child.

3. Meanwhile, we note that in public comments explaining your brief,² you state that the Law Commission will not be commenting on policy issues. 

4. In our minds there is a degree of incongruity between the brief and your public comments. In which case we interpret your comments about policy to mean that it is not part of your task to recommend that any changes be made to the eligibility criteria for abortion or to promote any alternative approaches as preferable to the existing policy approach.

5. The public and other interested parties have a right to be fully consulted on any changes to the current policy approach, including eligibility criteria. It concerns us that the Law Commission could potentially be cooperating in a policy change by stealth.

6. That your brief falls short of the “full review of the legislation” that Justice Minister Andrew Little was reported as saying “would first take place” adds to our concern about a lack of proper process on what is a critically important piece of legislation.³

7. In line with the Catholic position stated above, we are opposed to any change in the law which would either lessen or, worse, totally remove the (limited) rights the current law accords to the unborn child. The changes we would advocate for (and which would not constitute a policy change) are those which would (i) ensure continued consideration of the rights of the unborn child and (ii) promote the well-being of women, including better processes to ensure adequate informed consent. 

8. Indeed, along with the 65% of New Zealanders identified in the 2017 Curia Poll,⁴ we would like to see changes implemented that would further reduce the number of abortions occurring in New Zealand. 

9. We understand that under current law there is no ‘right’ to have an abortion in New Zealand and that administering (or supplying the means for procuring) an abortion is unlawful except when certain eligibility criteria are met as spelt out in Sec 187A of the Crimes Act 1961. The current situation is arguably well-described as providing for ‘abortion on request’ insofar as any discussion about abortion must be initiated by the woman but ultimately depends on two appointed doctors being satisfied that critical eligibility criteria are met.

10. We note that there are certain groups and individuals pushing for change who claim that the current law criminalises women. Sec. 183 of the Crimes Act 1961 specifically states that “a woman (or girl) shall not be charged as a party to an offence against this section” (the relevant section being that which describes “unlawful abortions”).  We therefore regard such claims as both inaccurate and mischievous – under current abortion legislation, women are not liable for prosecution except in situations where they attempt to procure their own abortion, something we comment on below. 

Our Key Arguments:

11. The ‘tension’ that we believe characterises the current regime (see above) is revealed in the legislation in several places: 

    1. It is spelt out in Section 30(5) of the CS&A Act which stipulates that the appointment of members to the Abortion Supervisory Committee should have regard to views ‘incompatible’ with the tenor of the CS&A Act. The views described as ‘incompatible’ are: 

       (a) that an abortion should not be performed in any circumstances:

       (b) that the question of whether an abortion should or should not be performed in any case is entirely a matter for the woman and a doctor to decide.

    2. It is also evident in the longer title of the CS&A Act: An Act … to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child…

    3. That the unborn child has a status that gives it rights is also upheld in Section 182 of the Crimes Act (“Killing unborn child”) which, we note, you have been instructed need not be reviewed (Letter from Minister of Justice Hon Andrew Little to Hon Sir Justice White QC, 27 February 2018 – letter released under the Official Information Act). Logically speaking, the ongoing existence of Section 182 andthe existence of a parallel law making abortions solely a matter between the woman and her doctor, would set up an inherent contradiction between two laws. 

12. Making abortion solely a health issue, in the sense of making it merely a matter between a woman and her doctor, will deny many women the chance to manage the tension that lies at the heart of all abortion decisions. That is, it will deny women the chance to deal with abortion as a significant ‘moral issue’ involving the ending of a human life. This, we argue, would not be in women’s interests. As the feminist writer Naomi Wolf has stated: “I will maintain that we need to contextualise the fight to defend abortion rights within a moral framework that admits that the death of a foetus is a real death: that there are degrees of culpability, judgment and responsibility involved in the decision to abort a pregnancy; that the best understanding of feminism involves holding women as well as men to the responsibilities that are inseparable from their rights…”.⁵

13. Most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. This is signified, among other things, by the way women who have had abortions commonly speak of their ‘child’ rather than using terms such as ‘the products of conception’. In a peer-reviewed qualitative exploration of women’s needs and preferences in clinical care during the process of having an abortion, one of the strong themes to emerge was that women want to be recognised as “grappling with a real-life moral decision”; to be affirmed as “moral decision-makers”, something that only occurs “when medical personnel recognized this conflict and affirmed the decision as moral …”⁶

14. Using language which either denies what is happening or which disguises the complexity and moral dimensions of abortion, is ultimately not in the interests of women. Equally, and even while it might be presented as empowering women to make their own decisions without interference from the State or others, creating an altered legal regime that frames abortion as being solely about the well-being of the mother will potentially undermine women’s sense that abortion is a serious moral issue and, consequently, their moral agency. Were that to eventuate, the State would be party to undermining the true ‘moral’ dimension of abortion and would be potentially contributing to poorer outcomes for many women. 

15. It is our considered and strongly held view that the tension that characterises the current legal approach must be retained. To be retained, it must be reflected in the legal framework governing access to abortion. 

16. There are three other important reasons for retaining certain provisions relating to abortion in the Crimes Act that we wish to highlight: 

    1. Under the current law, there is protection provided to women from unscrupulous abortion providers. This needs to remain and it is proper that the Crimes Act continue to spell out sanctions to prevent and/or punish such actions. 

    2. The increased use of medical abortifacients and their ready availability from other countries via the internet, means that some women may seek to import such drugs and take them without proper medical supervision. This is particularly a risk for young women who feel the need to keep their pregnancy and abortion decision secret. Whether they import the drugs directly or fall prey to unscrupulous providers, it is for the protection of these women that the importation of such drugs must be restricted in law.

    3. If treating abortion as a ‘health issue that is a reproductive choice’ means, as we suggested above, ‘abortion on demand’, then this allows for abortion for any reason, including gender selection and disability. These reasons for abortion are highly contentious. We note here the Curia poll of 1,000 New Zealand residentswhich found that only 9 percent of respondents supported sex selective abortions, and 90 percent were opposed. For females, only 1 percent supported sex selective abortion while 94 percent opposed it.

17. For all the reasons spelled out above, we argue that abortion needs to be treated as both a justice and a health issue. We argue this requires legislation which clearly and precisely specifies the circumstances under which abortion remains unlawful and under which abortion providers will be prosecuted for unlawful abortions.

18. In support of our position we note that the Abortion Supervisory Committee (ASC) has notbeen advocating for a significant change in the way that abortions are administered in New Zealand. In the 2017 Report to Parliament’s Justice Select Committee, the ASC stated that: “The ASC does not propose amendments that would change the original intent of the Act.”

19. Furthermore, and importantly, in the same 2017 Report it is written that “[T]he ASC recognises the merit in having a robust pathway in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.” While there are some who argue that the current law disempowers women because it makes what should be a personal decision subject to external interference, to cumbersome and intrusive legal and procedural obstacles, we argue that choices are always limited by the constraints of knowledge and by context, including coercion^,.^8,9 As The Nathaniel Centre has previously stated: 

    Many women, after the event, report feeling that they had no other option at the time but to proceed, often because of pressure from parents, partner and/or peers. At times this pressure is also experienced as coming from staff at the Termination of Pregnancy Units. For other women, the pressure they feel is generated by employment or social factors. In the words of another commentator, in such situations, the decision for an abortion is best described as a tragic response to lack of choice.¹⁰

20. It is therefore in the interest of free and informed consent that all women should be offered independent counselling that (i) addresses the coercive realities surrounding many abortions and (ii) canvasses the other options that exist. The law has an important role in ensuring that women are given the opportunity to understand and work with the complex moral, personal, family and social contexts within which they find themselves contemplating an abortion. ‘Abortion on demand’ will not achieve this. In other words, it is important to keep in place carefully considered eligibility criteria as well as providing a robust pathway of options that is clearly laid out in law. 

21. Furthermore, reducing abortion decision-making to ‘a reproductive choice for women’ denies the fact that many others are involved in and/or impacted by the decision. As Germaine Greer has written: 

    
    Pregnancy is unlike other patient-doctor relations in that there are two other individuals involved - the father-to-be and the child-to-be … What women ‘won’ was the ‘right’ to undergo invasive procedures in order to terminate unwanted pregnancies - unwanted not just by them but by their parents, their sexual partners, the governments who would not support mothers, the employers who would not employ mothers, the landlords who would not accept tenants with children, the schools that would not accept students with children.¹¹

22. Women are reported in the literature as taking into account a range of persons and factors when contemplating an abortion including “the woman herself, the potential child, her sexual partner, existing children, the extended family, and financial matters.”¹² Women contemplating an abortion are well aware of the broader ramifications of such a decision and it would be a moral and social disservice to them if the language and regulatory frameworks around abortion conveyed something different. The legal model for regulating abortions in New Zealand must acknowledge and account for this broader reality. A narrow framework focussed solely on the mother will not achieve this.

23. If the law is to protect and promote genuine informed consent, then women contemplating abortion must be given the time and support required to make a genuine decision. A decision for an abortion can only be described as a truly ‘free’ choice if the woman knows there is tangible support (familial, financial, emotional, social) that enables her to choose to keep the child. This requires a parallel review of the social support structures that our society offers to women who are pregnant.

24. We note that the health risks associated with an abortion are widely acknowledged in the research literature. While there is some disagreement in the research literature about the extent of the negative health consequences of abortion for women, the negative effects on some women are incontestable. This provides a further reason in our minds for clearly laid out and robust processes, including the funding and availability of independent counselling provided by an individual or organisation otherthan the abortion provider.

25. Referring again to the 2017 ASC Report, as well as the 2016 Report, we do agree that some of the language used in the present CS&A Act is outdated and clumsy and needs to be reviewed.

26. Public awareness of the complexities of this issue is illustrated in the Curia Poll¹³ referred to above. Some of the findings of this poll include: 

    1. 52 percent of respondents ‘generally support abortion’ but 29 percent ‘oppose’ and 19 percent were ‘unsure/refuse’; 

    2. Of respondents aged 18 to 40 years, only 47 percent ‘support’ abortion, with 34 percent opposed and 19 percent ‘unsure/refuse’. 

    3. 65 percent of respondents agree that society should work together to reduce the number of abortions; only 17 percent disagree; 

    4. Of those who generally support abortion, 63 percent agree we should reduce the number of abortions. 

    5. Only 9 percent of respondents support a time limit of 20 weeks (the current legal limit); 4 percent support time limits over 20 weeks; 41 percent support time limits of 15 weeks or less. 

27. It is noteworthy that in New Zealand, abortion numbers and rates have been declining since 2007. That is, the numbers of abortions, the ratio of abortions (number of abortions per 1000 pregnancies) and the rate of abortion (number of abortions per 1000 women aged 15-44) have all declined. While the reasons for this are not understood, those on both sides of the divide can agree this is a good thing. We suggest that while the reasons for this decline are not understood, it is a precarious time to tamper with the law. Any proposed changes should be considered keeping this in mind.

Conclusion: ‘Abortion is both a health and a justice issue’

28. Human life begins at conception and is entitled to the full protections offered to human persons from that point forward. 

29. The inherent dignity of human life from conception means that the starting presumption should always be in favour of human life, whether born or unborn. It’s on this basis that we oppose establishing a ‘right’ to abortion. This being so, it is appropriate that the unborn enjoy the same fundamental protections the Crimes Act provides for all other human beings. Therefore, if the State is to continue providing abortions in certain situations, the law should only ever provide for abortion as an ‘exception’ to the fundamental right to life. 

30. Our considered view is that abortion is both a health and a justice issueand it should be treated by the law as such. 

31. There is much at stake in a review of the abortion laws; it is a deeply moral issue involving the future of a human life as well as the well-being of the woman and her family. The State has an essential responsibility to protect and care for allhuman life. It would abdicate this responsibility by making abortion solely a matter between a woman and her doctor. 

32. We need legislation which clearly specifies the circumstances under which abortions remain unlawful and under which abortion providers will be prosecuted for unlawful abortions.

33. We do not support changing the original intent of the Contraception, Sterilisation, and Abortion Act 1977. The current law acknowledges and upholds a ‘tension’ between the effect of the pregnancy on the woman and the rights of the unborn child. This must not be lost in any review of the current laws. 

34. The changes we would advocate for are those which would (i) further recognise the rights of the unborn child, (ii) promote the well-being of women, including better processes to ensure adequate informed consent and (iii) lead to fewer abortions occurring in New Zealand. 

35. We want to see the law provide a more “robust pathway” governing abortions in New Zealand, one that acknowledges women’s need for full and independent information and support in order that genuine informed consent can take place. To this end, we want to see the provision of independent and publicly funded counselling for all women considering an abortion. 

[Synopsis Only] Reasons Women Seek Abortions

Cynthia Piper

Cynthia Piper highlights the reasons why women seek abortions, something that is not often explored. Women facing an unexpected pregnancy are inevitably frightened and distraught. The prevalence of socio-economic drivers indicates the need for adequate and independent pre-decision counselling and support to empower women to make real choices.

The full article is available by subscription to The Nathaniel Report

[Synopsis Only] Mind the Gap: Every Pregnancy Needs to be Celebrated

This true story of one woman’s experience of an unexpected pregnancy, offers personal insights into the social and cultural challenges women can face. As this case reveals, the response of those within the Catholic community can vary. Catholic faith communities should be the safest place in New Zealand for a woman to be pregnant, whatever the circumstances of the conception.

The full article is available by subscription to The Nathaniel Report

GUEST EDITORIAL: Poverty and abortion

Lisa Beech

Last year I encountered a young woman’s abortion story.  She described sobbing as she saw the results of her pregnancy test.  Her husband heard her, came into the bathroom and hugged her and cried.  She said to me they didn’t need to talk about it, they both knew they couldn’t afford another child.  

Although they had both been working, they couldn’t pay their bills on one income; she had just finished maternity leave after the birth of a previous child and needed to go back to work. She said in another world she would have liked to have another child, but she couldn’t see how it could be possible.  

Her feelings after the abortion were primarily of relief, that they would manage to cope financially.  The rent would be paid; power wouldn’t be disconnected; there would be food in the cupboard.  However, what I heard above all was a sense of pride that - despite their feelings and wishes - they had managed to do what they thought was the responsible thing to do; they would not have a child that they could not afford.

It’s rare for people to talk me about their abortion – the cross around my neck usually precludes this.  But the subject of our conversation hadn’t been the ins and outs of pro-choice and pro-life positions, or the dignity of human life, or the point when human life begins.  

The conversation was about poverty. And these two lovely young people, teritary educated, were in low-paying jobs with little long-term security, without any hope or possibility of home ownership, frightened of being evicted from a cold rental home which they couldn’t afford to heat in winter; trying to keep an old car on the road in order to go to work in service jobs which started and finished at hours when no public transport was available.

What saddened me was that they thought abortion was a satisfactory outcome, even though they would have welcomed another child.  What alarmed me was that they had absorbed and internalised messages that they alone had the responsibility for keeping their family out of poverty.  What outraged me was that because of their own experience, they agreed with politicians who argued that beneficiaries who had additional children should be penalised.

Forty percent of children in New Zealand living in poverty are in homes where at least one parent is in employment.  There are numerous reports about what poverty in New Zealand means in practice: the child poverty monitor of the Office of the Commissioner for Children (www.childpoverty.co.nz) is one source of information. Families living in poverty are usually experiencing deprivation in multiple areas – for example, living without warm clothing, adequate food, a bed for each person  and participation in the community.  It looks different in different settings.  

Statistics tell us some of the picture; what I hear and meet are stressed and worried parents who cannot see any way out of poverty, whether on benefits or in paid work. While this is a societal responsibility, the outcome of deliberate public policy decisions over the past 30 years, the message society sends to parents in these circumstances is one of judgement, condemnation , guilt and shame.

Consequently, too many people living in poverty have absorbed the political rhetoric of individual responsibility, and now see hardship primarily as an individual matter about which they alone have made their own choices.  It is especially heartbreaking and unjust that some parents regard abortion as an answer to poverty; as a solution to their problem of  high rents, low wages and unaffordable childcare.

A consistent ethic of life affirms that we care about life from conception to natural death; however, that isn’t what comes across to people in mainstream rhetoric about abortion. What many people perceive is that anti-abortion/pro-life organisations and voices are only concerned about life before birth, and are content to leave a child  to live in poverty after they are born.  

Welfare policy continues to be a strongly debated topic, and not every pregnancy that is ended is because of financial hardship. However, it is an area where we can find common ground with people of different perspectives.  At a Welfare Working Group forum in 2010 I unexpectedly found support from a representative of a family planning group when I stood to oppose proposals that would have penalised women who had additional children while receiving a benefit. We had different philosophies and different approaches to issues of welfare and sexuality.  But we were able to stand together and publicly agree that poverty is the worst possible reason to have an abortion.  

Rather than just focusing narrowly on the debate about the legal availability for abortion, we need to be visible participants in working on issues around low incomes, housing affordability and job security. So our society becomes one where a working family does not just sob in the bathroom at the news of an unexpected pregnancy, but where parents know that they can afford to welcome another life into their home and that they will be supported and cherished by the wider community.

Lisa Beech is Justice, Peace and Development Advisor in the Archdiocese of Wellington. As a sole parent, at different times on wages and on a benefit, she raised three children, who are now adult.

Submission to ACART on Posthumous Reproduction: A review of the current Guidelines

Staff of The Nathaniel Centre

In July 2018 the Advisory Committee on Assisted Reproductive Technology (ACART) sought public feedback on significant policy issues about whether and in what circumstances posthumous reproduction is acceptable. A summary of the Nathaniel Centre’s submission to ACART is printed below.

Introductory Comments:

1. A Catholic-Christian approach to the moral/ethical issues associated with posthumous reproduction rests on a number of core values and principles. Those that are particularly relevant to this Consultation Document are listed below in no particular order:

1. Respect for the dead
   The bodies of the dead must be treated with respect and charity. A person’s identity is always an embodied one and respect for a person involves respect for their bodies, something which holds true in both life and in death.

   While enduring respect for a deceased person includes the duty to uphold their previously expressed wishes, this does not mean acceding to all their wishes. Just as a person’s wishes are not treated as absolute in life but remain subject to the considerations of others, including the common good of society, so the wishes of a deceased person must be weighed up against the demands and impacts on others.
   

2. Unconditional respect for human life at all stages of its development
   Catholic teaching holds that, without exception, the living embryo has, from the moment of fertilisation, an absolute right to life. A unique human life is begun - it is already the human being it will always be and will only grow in size and complexity. On that basis, all embryos are entitled to be treated with the same respect as persons and each has its own ‘intrinsic dignity’ which is independent of the wishes and desires of any related adults. By virtue of the fact that embryos already possess an inherent right to life, we submit that the posthumous use of gametes involves different ethical and legal considerations from the posthumous use of embryos.
   

3. The rights and well-being of the child
   This implies a commitment to reflect on the ethical issues from a perspective that actively considers and gives primacy to the rights and well-being of the child that is to be conceived. The voice and interests of children are routinely overshadowed in our society, characterised as it is by a neo-liberal framework which privileges autonomy and, de-facto, privileges the rights and choices of adults, in many cases to the detriment of children.
   

4. Upholding the genetic, gestational and social dimensions of parenting
   Catholic teaching on the transmission of human life reflects a commitment to holding together the genetic, gestational and social dimensions of family and parenting. This commitment is demanded by our status as relational beings. It is also demanded by the nature of parenthood which, we argue, brings with it a responsibility to ‘parent’ a child. Within the Catholic tradition of moral teaching, upholding this principle rules out the use of third parties in assisted reproduction. The posthumous use of gametes involves knowingly disconnecting genetic parenting from social parenting; there is the deliberate conception of a child who will be denied the prospect of ever knowing or being cared for by the deceased mother/father.
   

2. We have argued in previous submissions to ACART that to set out to deliberately deprive children of their genetic or social parent, for the sake and needs of the adults involved, constitutes an injustice to the child concerned. When, as sometimes happens, a man dies after conceiving a child but before that child is born, this is rightly considered a tragic event. While such children can and do grow up well-adjusted, it is ethically speaking quite something else to allow the inherent relational integrity that characterises natural human procreation to be intentionally fractured.
   

3. We have also argued that no-one has an absolute ‘right’ to have a child. To the extent that there is a right to have a child, we would argue that it exists as a ‘negative right’ⁱ rather than a ‘positive right’. The 1994 Report on Assisted Human Reproduction concurs, noting, in addition, that “Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift.”ⁱⁱ

4. In our considered view, proper respect for the dignity of any child who might be conceived, for the deceased person and for the nature of human procreation precludes the use of posthumous conception. Thus, we oppose posthumous conception in all its forms.

5. We use the term ‘conception’ very carefully and deliberately to reflect what is an important metaphysical distinction between the moral status of embryos and that of gametes (as noted above). In line with our belief that every embryo represents a unique human life already begun, we argue, drawing on an ethic of care, that embryos (presumably created with the consent of a deceased spouse/partner) already possess a right to be implanted by a surviving spouse or partner without the need for further explicit consent.

6. We note that the Consultation Document employs rather loose language in a number of places. For example, n.25 refers to a person having “agreed that in the event of their death they wanted to become a parent.” Philosophically and socially speaking, we would argue that it is nonsensical to speak in such a way given that, in common parlance, parenting implies a commitment to be an active part of the child’s life, something that a deceased person cannot do. At best, a person can only give advance consent to become a ‘biological father or mother’ to a child conceived after their death in the sense of contributing their gametes. The inability of a deceased person to be a parent in the fullest and normal sense of that notion goes to the heart of the issue when considering the implications of posthumous reproduction for the welfare of any child.

7. Posthumous conception is not simply an extension of the normal experience of deciding to have a child made possible by developments in technology. The normal experience of proceeding to have a child involves genetic and social parenting in the case of a male and a female and gestational parenting for the female partner. Thus, posthumous conception is most accurately described as a significant deviation from normal human reproduction, and the legal and ethical processes surrounding such decisions should reflect that, including the need for explicit consent and an external review process.

8. In ethics, attention to language includes recognising that the way in which practices are described shapes one’s ethical analysis of the issue at hand. With respect to assisted human reproduction, the legal issues associated with the storage of gametes and embryos and their use often revert to arguments around ownership and control. We regard this as inadequate for a number of reasons, in particular because a ‘property-based’ approach that leans heavily on rights and consent fails to adequately acknowledge critical relational notions such as attachment and care. These notions are critical because we are dealing with the creation of ‘persons’ whose well-being and identity is intrinsically connected to existential issues that include a sense of belonging and the need to be loved unconditionally.

9. Notwithstanding the foregoing, we understand that the current state of regulations in New Zealand already allows for the posthumous retrieval of gametes for the creation of embryos in a limited number of instances. Accepting this is the case, we wish to emphasise three key points in our submission:

1. There must be explicit consent on the part of the deceased or permanently incapacitated and imminently dying person from whom the gametes are to be retrieved before the case for posthumous conception can even be considered.

2. The well-being of children must be given greater precedence in guidelines concerning the use of posthumous reproduction than is currently evident in the Consultation Document. In line with the first principle in the HART Act, respect for the consent of the deceased or imminently dying person should be independently weighed against concern for the dignity and well-being of the children who will potentially be conceived posthumously. This should be considered by ECART on a case-by-case basis.

3. In line with the principle that the genetic, gestational and social aspects of parenting need to be held together, we submit that case by caseconsideration of the merits ofposthumous conception must be limited to surviving spouses or partners to whom a deceased person was married or in some other type of permanent long-term relationship akin to the committed nature of marriage.

Autonomy and Reproductive Choices:

10. Belinda Bennettⁱⁱⁱ has argued for autonomy to be seen as “in connections and relationships with others” (p. 300). She further argues for autonomy to be understood to mean “self-governing moral agency, rather than independent or self-contained decision-making. Self-governing in an ethic of care does not mean governing alone by abstract reasoning and distant observations, but means choosing options with respect to responsibilities, relationships, conversations, and dialogues with others”.^iv

11. In Bennett’s words, individualised autonomy “provides us with [nothing] other than a basis for competing rights which must then be mediated with reference to some other principle”.^v Accepting her ‘ethic of care’ model for autonomy enables a more adequate consideration of the relational aspects of posthumous reproduction. Then it can be seen that “… posthumous reproduction changes the shape of the deceased individual’s life and the relationships of that individual with others.”^vi

12. There are justifiable limits to carrying out a person’s wishes after their death. Because the conception of a child rightly takes place within a relationship, there must be willingness and consent on the part of both partners (‘gamete providers’). Thus, even if explicit written consent exists on the part of the deceased person for their gametes to be used for posthumous reproduction, no-one would argue that the surviving partner has no choice in the matter.

13. In considering the merits of posthumous reproduction, an ethic of care demands that the wishes of the adults involved must always be balanced by what is in the best interests of the child being conceived and for whom the ‘gamete providers’ have a duty of care demanded by the commonly accepted understanding of what is involved in responsible parenting. As Atkin and Reid noted in 1994: “… individual [adult] rights can be limited when the aim is to protect important societal interests … that different people’s rights overlap, that rights are subject to various limitations ...”.^vii Our analysis of the Consultation Document is that the ‘responses options’ defaults to a narrow legal framework focusing on the need for ‘consent’ and ‘authorisation’, and ultimately fails to give adequate recognition to the well-being of any future children. As Atkin and Reid argue: “… an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests … the priority … is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.”^viii

14. There is, in other words, a need for a consideration of issues that goes wider than ‘consent’ and ‘authorisation’.

15. The obvious benefits of collecting and using gametes from a deceased person for their family or partner, and the less obvious and tenuous nature of the philosophically thin arguments that the conception of a child ‘after death’ is potentially in the interests of the deceased gamete provider, mean that the starting point for each and every such case should involve a hermeneutic of suspicion. What is required is a careful deliberation that takes into account a range of factors concerning not just the decedent’s wishes. For this reason, we argue that each and every case for posthumous conception can only be properly investigated by an accredited ethics committee such as ECART.

16. There would also need to be separate consideration of the legal status and inheritance rights as well as the possible psychological impact on any child-to-be conceived and on other family members, including other children.

Consent:

17. The notion of ‘consent’ in the case of posthumous reproduction is complex. The fact that a person wanted to have children is not a clear indication of their wish to have a child after they have died.

18. Therefore, it must never be presumed that consent given by a person to have their gametes stored while undergoing treatment, in the hope they could still become a parent at some time in the future, i.e. post-treatment, implies a consent to have their gametes used to have a child in a situation when they can never parent that child.

19. The consent process and forms used by Fertility Providers must be very specific in this regard. Even then, it is arguably very difficult to anticipate a situation where one does not survive and to make a truly informed decision that one’s gametes can be used posthumously to conceive a child.

20. Accordingly, regarding the question of inferred consent, we reject the adequacy of ‘substituted judgement’ on behalf of a deceased person (Consultation Document, n. 99). We admit that this could (unfairly) rule out some cases where a person might well have wanted their gametes to be used by their partner in order to conceive a child posthumously. However, as Bennett notes: “… it is difficult to see why it is any more fair to presume consent on the part of those who have contemplated posthumous conception but who decided against it while omitting to record their objections for posterity.”^ix

21. We are aware that New Zealand guidelines allow for families to give consent to the posthumous removal and donation of organs from a loved one in the absence of explicit consent. We also note that analogies are sometimes drawn between posthumous retrieval of gametes for reproduction and the posthumous donation of organs as an argument in support of substituted consent. However, we consider that there are significant differences between the two situations which ultimately override any similarities, differences that are grounded, once again, in the very different outcomes sought – one being “life-sustaining” for one or more anonymous recipients and the other “life-creating”.

22. Orr and Siegler offer a valuable insight into the difference between posthumous organ donation and the retrieval and use of posthumous gametes:

In our view, there is a difference in kind between autopsy and organ retrieval on the one hand, and sperm retrieval. Giving consent for autopsy or for organ retrieval for transplantation is giving to benefit others. But requesting sperm retrieval after death without the consent of the dead man is not the same; in fact it is not giving at all—it is instead taking, because its aim is to benefit the person making the request. While retrieval of organs after death without the explicit consent of the decedent is likewise taking, it is different in that the family who is giving consent is altruistically giving the organs for someone else’s benefit. The parents or woman who request sperm retrieval after death without the explicit consent of the dead man are making a request for their own benefit. Thus, proxy “consent” in this situation is not consent at all.^x

23. As the Consultation Document itself notes with reference to the Code of Health and Disability Services Consumers’ Rights: “It is not legally permissible to carry out procedures on … people just because those procedures will benefit someone else” (n. 19). This principle, closely aligned as it is with the notion of informed consent, underpins the whole approach to healthcare and research in New Zealand.

24. Consent from both partners is also consistent with viewing children as a ‘gift’ rather than a ‘right’. That being so, then the means used to conceive a child must be synonymous with a gifting paradigm. This in turn means that human conception must be an intentional act by both parties, something that is best measured by the presence of explicit consent.
    

25. While explicit consent for one’s gametes to be used by a surviving partner for the purposes of conceiving a child is a sine qua non, it is not of itself adequate for the purposes of assessing the merits of posthumous conception. We submit that every application for posthumous conception must, in addition be subject to independent consideration by the ECART Committee which can then reflect on and review the broader range of issues that are of relevance from a perspective that favours a care-based guardianship approach (which gives primacy to the best interests of children) rather than a property-based ownership/rights approach.^xi

     

Best interests of children:

26. The Consultation Document asks for responses on the issues of: consent, authorisation for removal of gametes or tissue, the best interests of the deceased, who should be permitted to use the material, and ethics review. This is entirely ‘adult-centred’ and does not consider the impact of a posthumous reproduction policy on the position of children in our society.
    

27. While it is difficult to consider the ‘rights’ or ‘dignity’ of a child who would not be born but for the posthumous use and/or retrieval of gametes, it is nevertheless possible to consider the rights and dignity of children in general when considering policies that govern these practices.
    

28. We note the Document discusses the particular effects on the ‘resulting child’, such as inheritance rights or the potential negative effects on the child depending on the motivations of the parents. However, there is a broader effect on ‘children in general’ of prioritising the ‘rights’ of a parent to create a child using posthumous gametes, that is not adequately considered.
    

29. Posthumous reproduction potentially springs from and supports a view of children as desired ‘products’, that can satisfy the wishes and needs of a surviving parent, and even a deceased parent.
    

30. This positioning of the child as a ‘desired product’ for the parent/s not only contravenes the spirit of the Universal Declaration of Human Rights but also contravenes Article 3 of the United Nations Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.^xii
    

31. The Consultation Document (p.14) refers to research that indicates outcomes for children created from material retrieved posthumously “are not different from a child produced by other assisted reproductive technologies”. However, the paper cited discussed only four cases and focuses particularly on physical health. There is no evidence presented, positive or otherwise, of the psychological or emotional outcomes for children once they become aware of their origins and have reached an age where this is likely to be of significance to them.
    

32. As we stated in our submission to ACART on Proposed Donation Guidelines: for family gamete donation, embryo donation, use of donated eggs with donated sperm and surrogacy, “the rejection of certain means and situations for conceiving human life, … is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children.”

33. We recognise that parents routinely choose to have children for their own reasons and without the broader oversight of an ethics committee. However, given our argument that posthumous conception is a deviation from natural conception rather than simply an extension of it, we believe such scrutiny is warranted. Policies on posthumous reproduction must take account of the broader implications or ‘unintended consequences’ beyond the desires of intending parents.

     

Conclusion: Posthumous conception represents a significant deviation from normal human reproduction. To speak of a deceased person becoming a ‘parent’ has a qualitatively different meaning from ‘parenting’ understood in the normal sense, which implies the ability and willingness to enter into an ongoing relationship of care. The legal and ethical processes surrounding posthumous reproduction should reflect that fact, including the need for explicit consent and a case-by-case external review process.

We oppose posthumous conception in all its forms on the basis that it is precluded by proper respect for the dignity of any child who might be conceived, for the deceased person and for the nature of human procreation.

Staff of The Nathaniel Centre September 2018.