The Nathaniel Centre

Joint Written and Oral Submission to the Abortion Legislation Committee NZ Catholic Bishops Conference and The Nathaniel Centre

This article is an abridged version of the written and oral submission made to the Special Abortion Select Committee in September 2019. The full submission may be accessed at www.nathaniel.org.nz.

Key Concerns with the Proposed Legislation Changes

1) There are always at least two human lives at stake in an abortion. It is unacceptable that the proposed abortion law removes the current statutory requirement to consider the rights of the unborn child. The proposed Bill is in breach of our commitment to the UN Convention on the Rights of the Child.

2) It is unacceptable that the proposed Bill will enable abortions to occur without requiring any justification up to 20 weeks gestation, especially when a request might be the product of coercion. We wish to see the eligibility criteria for the current law retained for abortions up to 20 weeks.

3) It is unacceptable that the proposed Bill lowers the threshold for obtaining abortions after 20 weeks gestation. The proposed criteria for the statutory test are vague and open to broad interpretation and will legally allow abortions up to birth. Given that the wording of the statutory test virtually mirrors the current wording for eligibility up to 20 weeks, we believe that the proposed criteria will, in practice, lead to abortion on demand after 20 weeks.

4) We believe disabled unborn children will be more vulnerable under the proposed law. The current law explicitly prevents abortions on the basis of “fetal abnormality” after 20 weeks. That the proposed law does not do this is a major step backwards in terms of disability rights.

5) The proposed law will allow for abortions on the basis of gender discrimination up to 20 weeks, and arguably beyond that given the broad parameters of the statutory test for abortions after 20 weeks.

6) A woman of any age can self-refer under the proposed law, including pregnant teenagers. Under the current law, the process of requiring a doctor to refer, and two certifying consultants to sign off, provides layers of scrutiny and support for pregnant teenagers that will no longer exist. There are no safeguards in the proposed law to ensure that teenage mothers are not seeking an abortion because of abuse or coercion or a lack of awareness of other options.

7) The proposed law will not assist women to deal with the coercive realities that surround many abortions. We wish to see independent counselling built into the process of obtaining an abortion.

8) If the stated aim is to bring abortion more in line with other health services, then the proposed Bill is a step backwards because it will not promote informed consent. The existence of a robust process, including awareness of the risks and options other than abortion, is essential for protecting women’s choice.

9) As part of promoting informed consent, we would like to see a resource published that will provide balanced and objective information about the consequences of abortion, as well as knowledge of and access to the various financial, practical and emotional supports available.

10) The proposed Bill fails to adequately protect health practitioners’ rights to freedom of conscience.

11) There is no attempt in the proposed Bill to address the socio-economic coercive realities that lead women or couples to choose an abortion. Poverty should never be the reason for an abortion.

Written Submission

General comments

1) We welcome the opportunity to contribute to the debate about abortion law reform in New Zealand. Our arguments are informed not only by our religious tradition, but also by our pastoral and practical experience of caring for women who are pregnant and women who have had abortions.

2) We are opposed to the Abortion Legislation Bill for reasons outlined in this submission.

3) The Explanatory note of the proposed Abortion Legislation Bill claims that the intention of the Bill is to “better align the regulation of abortion services with other health services” and to “modernise the legal framework for abortion”. This suggests that the changes being considered are modest in nature. As we see it, however, the proposed new law heralds a significant and substantial change, ethically and legally, to the way the State views its duty towards the protection of unborn human life.

4) That change is readily identifiable in Part 1, Section 4 of the Bill which states that the Long Title of the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act) is repealed. Critically, the significance and nature of this change becomes evident when considering that what is edited out are the words “after having full regard to the rights of the unborn child”.

5) Thus, while the present law acknowledges the tension between the needs of the woman and the rights of the fetus/unborn child and seeks to balance both, the proposed law obscures this tension by dissolving it from our statutes; there will no longer be any requirement to take into consideration the rights of the unborn child when decisions about abortions are being made. In effect, the proposed law effectively removes all legal protections for the unborn. There is nothing, for example, to proscribe abortions on the grounds of gender.

6) Ethically and legally, this change is inconsistent with Section 182 of the Crimes Act (“Killing unborn child”), which remains unchanged. It is inconsistent because, biologically and humanly speaking, the reality is the same in both situations – the death of an unborn child. What is deemed criminal in one context is framed as a ‘health’ issue in the other only by virtue of the subjective intentions of others.1

7) We are opposed to any changes that would either lessen or, as the proposed new law seeks to do, totally remove the (limited) rights the current law accords to the unborn child. The changes we 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; (ii) promote the well-being of women, including better processes to detect coercion and ensure adequate informed consent; and (iii) address the socio-economic factors that can set in motion an abortion trajectory.

8) Along with the 65% of New Zealanders identified in the 2017 Curia Poll,2 we would like to see changes implemented that would further reduce the number of abortions occurring in New Zealand. The proposed Bill fails to consider how such changes could be made.

9) We believe it was seriously remiss of the Minister of Justice not to ask the Law Commission to carry out a full review of the abortion legislation, especially after he was reported as saying that this would first take place.3 An extensive and objective investigation by this independent, statutory body would have provided a solid and robust basis for a review of our abortion law reforms, something that is currently lacking.

Area of concern 1: Children need appropriate legal protection before as well as after birth

10) We will use the term “unborn child” throughout this submission, not only because this reflects what is for us a self-evident human reality, but because this is also the language used in the longer title of the CSA Act 1977, as well as in Section 182 of the Crimes Act 1961.

11) We understand and support the fact that under the current law there is no absolute ‘right’ to have an abortion in New Zealand. The proposed law will change this for women not more than 20 weeks pregnant. Because the statutory test for women more than 20 weeks pregnant is so weak as to make abortions in these situations a ‘right’ in all but name, we believe that the proposed law will, in practice, also allow abortion on demand after 20 weeks gestation, including viable babies (i.e. from 32 weeks to birth4 ). This is unacceptable to us and many others.5

12) We urge you to draft a law that acknowledges the tension between the rights of the mother and the rights of the child, as the current regulatory approach to abortion does. The proposed law, by focusing exclusively on an impoverished conceptualisation of a woman’s well-being, effectively obscures the fact that there is another human life at stake. In this regard, the present abortion laws, by virtue of the fact that they seek to balance the rights of the unborn child with the mother, are more honest and more ethical.

13) In every abortion a human life is at stake. Therefore, it is appropriate that abortions be subject to some sort of ‘test’ according to an agreed set of eligibility criteria. These criteria must consider the rights of the unborn child. The State fails in its fundamental obligation to protect human life, an obligation borne out in our common law tradition,6 if it does not apply some sort of criteria.

14) The alternative to this approach is State and societal acquiescence to the idea that a human life can be ended for any reason at all. This will clearly be the case under the proposed new abortion law for women not more than 20 weeks pregnant. The abortion laws of our country should require that substantial consideration be given to the humanity of the fetus as part of the process of weighing up an abortion decision.

15) Various international treaties and covenants support the notion that the State has an interest in the protection of the life of the unborn child, including the UN Convention on the Rights of the Child, which, in its Preamble states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.7

16) We conclude that the proposed scrapping of any statutory test for women not more than 20 weeks pregnant amounts to an overt breach of New Zealand’s commitment to the ‘UN Convention on the Rights of the Child’ to which it is a signatory. In addition, we conclude that the nature of the statutory test proposed for women more than 20 weeks pregnant fails to meet the level of appropriate legal protection demanded for unborn children by the same UN Convention.

Area of concern 2: Promoting an intellectually honest and respectful discussion about abortion law reform that prioritises accurate information

17) We are concerned that some of the discussion about abortion law reform in New Zealand is characterised by deliberate obfuscation and confusion.

18) Firstly, we note that there are groups and individuals pushing for change who claim, incorrectly in our view, that the current law “criminalises” women. Section 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 Explanatory note to the proposed Bill itself states that it is only unlawful abortions that are a criminal offence.

19) From a strictly legal perspective, it seems the only real effect of ‘decriminalising abortion’ is that it will take away the possibility of legal sanctions against Health Practitioners who fail to adhere to the necessary standards when performing an abortion.

20) Secondly, we note there are various commentators who claim that the current abortion regime forces women to “lie” because they have to “create fictions and rely on some issue of mental instability to get the help they need, and that is not okay.”8 We see this as a mis-representation of the Crimes Act. There, Section 187A states that an abortion is not unlawful in circumstances where the certifying consultants or abortion provider believe “that the continuance of the pregnancy would result in serious danger ... to the life, or to the physical or mental health, of the woman or girl ...” (emphasis ours). It is this stress of not being able to cope in the future that currently provides the legal grounds for certifying consultants to approve the abortion.9

21) Thirdly, we question the claim in the Explanatory note of the Abortion Legislation Bill that “[t]he changes will mean that abortion is, in general, provided like other health services.” Phrasing it this way infers that abortions in New Zealand are not already provided like other health services. It is clear that the current process is already a medically driven one, with health practitioners already subject to the range of legislation and regulations that govern the safe provision of all health services.

22) Consistent with what we have already argued above, we maintain that the “additional layers of legislative requirements” that characterise the current regime (Explanatory note), are appropriate for at least two reasons: (i) the “set of processes that no other person seeking a medical procedure has to go through”10 appropriately reflect the fact that abortion is distinctive from all other medical procedures because it involves ending another human life; (ii) as argued below, we primarily see the “additional layers” that are part of the current abortion regime as supporting both the principle and the process of free and informed consent which underpins all good medical care. Our view of these layers is that they provide a means into deeper discussions in which the woman concerned can genuinely explore her options. Therefore, we reject the idea that the additional layers that characterise the current abortion regime “are out of step with modern health law” (Explanatory note).

23) Fourthly, we challenge the veracity of comments made by the Justice Minister, Hon Andrew Little, that “claims that the Government’s planned reform of abortion laws unveiled today will allow abortions right up to birth are absurd and the sort of statement that gets made by ‘fanatic anti-abortion people’.”11 A number of doctors and lawyers have, independently, observed that abortions up to birth will not be legally prohibited under the proposed Bill.

24) Fifthly, we wish to see an honest recognition of the widely researched and documented risks associated with abortions coming through in this review of the proposed law. These risks, which include the negative emotional and spiritual consequences of abortions experienced by many women, are too often denied or minimised.12 There can be no fully informed consent to an abortion without a robust and standardised approach which objectively lays out all of the potential risks. To insist on this is to insist on what is routinely expected for all health interventions as spelled out in Right 6 of the Code of Health and Disability Services Consumers’ Rights.

25) In keeping with Right 6 (4), “Every consumer has the right to receive, on request, a written summary of information provided”, we would like to suggest that the Ministry of Health, in consultation and collaboration with a wide range of appropriately qualified interested parties, including those involved in the counselling of women post-abortion, produce materials that lay out, in a clear form, what is involved in an abortion, including the potential risks and consequences of an abortion as well as alternative options. Such a resource would be entirely in keeping with the proposed Bill’s stated aim to “better align the regulation of abortion services with other health services”.

Area of concern 3: Abortion is a significant moral issue and this should be reflected in the processes surrounding a request for an abortion

26) Because we believe that abortion is both a justice and a health issue, we believe that it is problematic to create a regulatory regime that frames abortion as if it is only a health issue, as the proposed Bill seeks to do. The proposed changes will deny many women the chance to manage the inescapable moral and ethical tension that lies at the heart of all abortion decisions – the tension between doing what they genuinely perceive is best for themselves or their family, while being simultaneously aware that their decision involves ending a human life. As the feminist writer Naomi Wolf has stated, women have a right to deal with abortion as the significant moral issue that it is:

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.13

27) In a peer-reviewed qualitative exploration of women’s needs in clinical care during the process of having an abortion, one of the strong themes to emerge was that the women in the study wanted to be recognised as “grappling with a real-life moral decision”, something that only occurred “when medical personnel recognized this conflict and affirmed the decision as moral” in nature.14

28) At the same time, if we are to treat abortion as a health issue, then it deserves to be viewed through a healthcare lens. We argue that the true test of whether any law is in keeping with modern health law is the extent to which the process as a whole supports the concept of free and informed consent.

29) Within the health framework, free and informed consent, without which there can be no exercise of true autonomy, is facilitated by good processes and supportive, responsive and honest relationships. As an example, this is clearly illustrated in the carefully regulated practices that govern health research in this country; practices that are designed not as “onerous or bureaucratic”15 but for the purposes of protecting research participants. Significantly, the importance of such practices for abortion decisions has been flagged by the Abortion Supervisory Committee (ASC) in its 2017 Report to Parliament: “[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.”

30) The very real risk of coercion is yet another dimension which makes abortion distinctive from almost all other medical procedures. As Germaine Greer puts it:

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.16

31) The reality of reproductive coercion in New Zealand has been highlighted by Women’s Refuge in a 2018 Report titled “Reproductive Coercion in Aotearoa New Zealand”:

Over one third of participants had experienced a partner trying to prevent them accessing an abortion, and just over one quarter had experienced a partner attempting to pressure them into terminating a pregnancy. Just under one third had also experienced a partner deliberately trying to cause them to miscarry, for example by using physical violence.17

The same Report makes it clear that the response of health professionals to reproductive coercion in a clinical setting is often seriously lacking.

32) We are concerned that there is no protection in the proposed Bill for a woman who is being coerced. If she presents herself as wanting an abortion then, regardless of the coercion behind that, the health practitioner concerned has no legal ability to deny the request.

33) Coercion and free choice are intrinsically opposed to each other. In this regard, we suggest that there is a fruitful analogy to be made with the well-developed consultation and counselling processes that surround the donation of organs, especially cases of live donation involving a family member or close friend. No-one argues that these processes are disrespectful to a person’s willingness or ability to make such a donation. Rather, the “additional layers” of requirements exist specifically in the service of promoting autonomy and real choice for the potential donor, as well as for the purposes of detecting and dealing with coercion.

34) The problem with the proposed Bill asking health practitioners to “advise women of the availability of counselling services if they are considering an abortion” (Explanatory note, emphasis ours) is that this way of framing sets counselling up as an optional activity. The assumption that counselling doesn’t make an essential contribution to the process of making a free and informed decision flies in the face of common sense, as well as good clinical practice. We believe that independent counselling by suitably qualified personnel is an essential step for any woman contemplating an abortion, especially given that many women will be genuinely undecided about what to do. We want to see counselling built into and presented as a part of a robust process of making what is a life-changing decision.18

35) The reason a woman contemplates having an abortion may well arise from a lack of awareness of the other potential options that exist. Just as a good surgeon would be expected to discuss non-surgical pathways as well as surgical pathways in the interests of informed consent, so women who are contemplating an abortion need to have an opportunity to explore the choice not to have an abortion as well. The option to keep the child should be a genuine choice for every mother.

36) Therefore, in keeping with the Minister of Justice’s stated aim of placing abortions “in a health framework where it properly belongs,”19 we conclude that the key changes being proposed in the Bill are, in fact, out of step with modern health law practice – out of step by virtue of the fact that they substantially weaken the processes for obtaining informed consent and detecting coercion. In this respect, we believe that the proposed law is a step backwards.

Area of concern 4: Conscientious objection

37) We understand that, under the current law, a registered medical practitioner is not required to refer the pregnant woman to another practitioner. We support this provision remaining. The proposed Bill goes too far in making it mandatory to tell a pregnant woman how she can access the contact details of an abortion provider. This requirement makes the practitioner complicit in the abortion process.

38) Allowing healthcare employers to consider whether a potential employee’s conscientious stance would affect an organisation’s ability to provide abortion services, effectively legitimises employee discrimination on the basis of conscience. This move, in a context where there is also a lower statutory threshold for abortions more than 20 weeks gestation and a weaker conscientious objection provision, potentially brings a new and unacceptable level of coercion into the employer-employee relationship; finding themselves in an impossibly difficult situation, employees with conscientious obligations and financial commitments to their own family may well feel they have no choice but to acquiesce to an employer’s demands.

39) It seems clear to us that the Minister of Justice anticipates the sort of dispute we allude to by virtue of the fact that the proposed Bill points out a pathway to remediation for employees forced to defend their right to employment.

Conclusion

40) The inherent dignity and worth of human life from conception means that the starting presumption should always be in favour of human life, whether born or unborn. It is appropriate that the unborn enjoy the same fundamental protections the Crimes Act provides for all other human beings. 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 based on serious reasons.

41) 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 all human life. It would abdicate this responsibility, captured in the UN Convention on the Rights of the Child, by creating an abortion regime in which statutory consideration of the rights and needs of the unborn child are excluded from the decision-making process.

Oral Submission

1) As outlined in our written submission, Catholic teaching on abortion is premised on a belief that embryos and fetuses are entitled to be granted a place in the human family and to be treated with the same respect as persons, whatever their stage of development. This leads to the first of two points we want to emphasise; every pregnancy involves at least two lives – the mother and her unborn child – and therefore at least two sets of human rights. As the late Pā Henare Tate, Māori theologian and cultural commentator has written: “The tapu of the child is already intrinsic tapu. The child has its own tapu i a ia, its own existence, as opposed to that of another, even of its mother ... This is because in the womb the child already has its own identity. It also has its own identity within, and not just in relation to, whānau, hapū and iwi.”20

2) To hold that the fetus is not a ‘legal person’ ignores the fact that a genetically unique human life has begun which is neither that of the father or the mother. As Judge Sir John McGrath observed, in Harrild v Director of Proceedings (2003), a New Zealand case exploring whether ACC cover was available as a result of medical misadventure leading to the death of the fetus: “... the rule according legal rights only at birth is in modern times one founded on convenience. It does not rest on medical or moral principle.”21 A fundamental flaw of the proposed new legal regime is that there will no longer be any requirement to take into consideration the rights of the unborn child. This is biologically, humanly and ethically dishonest. The current abortion law rightly recognises that every abortion decision involves the resolution of a tension between the rights of the mother and the rights of the unborn child.

3) Ignoring the existence of the unborn child is not only inconsistent with maintaining Section 182 of the Crimes Act, but it denies women the right to deal with abortion as the significant moral issue that it is, a point well-made by the feminist writer and abortion supporter Naomi Woolf, whom we quote in our written submission. Both the law and the processes surrounding an abortion must allow those involved to grieve the loss involved. We do not serve women well by creating a legal narrative that abortion is only about the rights and choice of women. Every woman who chooses an abortion needs to know there is an emotional, spiritual and psychological space within which she can later deal with her decision, as required. That space is, in the first instance, either created or destroyed by the language we use, including the narrative generated by the law governing abortions.

4) To our second point. Looking at abortion as a health issue, one of the factors that distinguishes abortion from other medical procedures is the risk of coercion.22 Choices are always made in a context and shaped by that context – in many cases limited by our context. Abortion is not an acceptable societal response to financial poverty or to a lack of physical or emotional support. Neither is it an acceptable solution to partner pressure or sexual violence. Those women whose decision to have an abortion is made from a place of ‘no other choice’ are much more likely to experience negative emotional and psychological consequences.23

5) All of which underscores the importance of free and informed consent, without which there can be no exercise of true autonomy. Autonomy relies on good processes and supportive and honest relationships. The importance of such practices for abortion decisions has been flagged by the Abortion Supervisory Committee itself in its 2017 Report to Parliament: “[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.”24

6) So, while the Explanatory note of the proposed new law speaks of “additional layers of legislative requirements that are out of step with modern health law” as a problem, we are led to conclude the very opposite; precisely because of what is at stake, including the potential for negative consequences for the woman, it is entirely appropriate that the regulations surrounding abortion involve “additional layers” of requirements not attendant on other medical procedures. Indeed, we would go so far as to say that it is the proposed Bill that is more out of step with modern health law; out of step because it substantially weakens the processes for obtaining informed consent and detecting coercion, processes that lead us to recommend that every abortion should necessarily involve a counselling session by someone independent of the abortion provider.

7) Finally, we wish to reinforce to the Committee our concern that the proposed law will (i) allow abortions on the basis of gender (ii) in practice, enable late abortions ‘on demand’ because of an incredibly weak test and (iii) no longer explicitly prevent late abortions on the basis of “fetal abnormality”.

Endnotes

1 We understand that the reference to “unborn child” only occurs in the section heading which is technically not part of the Crimes Act, and that Section 182 (1) refers to “the death of a child that has not become a human being”. On this basis, many argue that there are no ‘human’ rights involved because the child has not yet got to the stage of being a ‘human’. Nevertheless, there is in Section 182 explicit recognition of there being a “child” involved, and the crime of killing a child is preserved. Further, because there is no mention of the mother (or any other person) being protected in Section 182, it is clearly correct to say that this section accords legal recognition to the unborn child – a recognition that brings with it certain rights that are: (i) separate from the rights of the mother; (ii) correctly described as being ‘human rights’; and (iii) appropriately dealt with under criminal law.

2 Curia Market Research. Abortion Poll, February 8 2018, https://www.curia. co.nz/2018/02/abortion-poll-2/, accessed 3 September 2019.

3 See Craig McCulloch, “No abortion changes until ‘well into next year’”, 2 November 2017, accessed 29 August 2019: https://www.radionz.co.nz/ news/political/342899/no-abortion-changes-until-well-into-next-year.

4 While babies can be kept alive from at least 24 weeks on, it is generally accepted that, from 32 weeks on, babies have a good chance of surviving independently outside the womb.

5 The proposed grounds for a post-20 week abortion are essentially the same eligibility criteria currently applied for pregnancies up to 20 weeks. Commenting on the current criteria, Dr Christine Forster, former chair of the Abortion Supervisory Committee has said: “We do essentially have abortion on demand or request, however you like to put it.” Reported in the Sunday Star Times, 5 Nov 2000.

6 The proposed law would repeal over 800 years of legal protection of the unborn child in English common law, a system that our own legal framework is based on.

7 See https://www.ohchr.org/en/professionalinterest/pages/crc.aspx, Preamble, accessed 3 September 2019.

8 For example, Hon Amy Adams in her speech to the House during the first reading of the Abortion Legislation Bill: “I agree with the Minister and the Attorney-General when they said women currently are put into the position of having to lie and create fictions and rely on some issue of mental instability to get the help they need, and that is not okay.” Similarly, Hon Paula Bennett: “... we should not be telling them that they have to lie to the medical practitioner that they’re in front of so that they can get the medical help that they want.” See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/ HansDeb_20190808_20190808_12.

9 It might be, and has been, argued that the provisions in Section 187A are being interpreted by consultants in a much wider way than was the original intention of parliament in 1977 when it first passed the CSA Bill. We regard that as a separate discussion. Further to our point, we note that the wording of the statutory test for abortions post 20 weeks in the proposed Bill adopts terminology that is very similar to the ‘problematic’ terminology used in the current law. If the eligibility criteria are a problem in the current law, then why are similar criteria not a problem in the proposed law?

10 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.

11 As reported by TVNZ: https://www.tvnz.co.nz/one-news/new-zealand/ andrew-little-says-claims-reforms-allowabortion-up-birth-absurd-v1, accessed 30 August 2019.

12 As Dr Christine Forster, former Chairwoman of the New Zealand Supervisory Committee has previously stated: “Every woman I have seen who has had a termination has a difficult time subsequently. They have a grief process and sorting out time to go through. It certainly doesn’t leave them unmarked and I have never met a woman who has had one who would want to go through it again of her own free will.” Quoted by Dr Michael McCabe, Editorial: Anniversaries, The Nathaniel Report, Issue 11, November 2003.

13 “Naomi Wolf on Abortion: ‘Our Bodies, Our Souls’”. New Statesman, 27 January 2013 http://www.newstatesman.com/politics/politics/2013/01/ naomi-wolf-abortion-our-bodies-our-souls, accessed 3 September 2019.

14 Altshuler, A. L., Ojanen-Goldsmith, A., Blumenthal, P. D., & Freedman, L. R. (2017). A good abortion experience: A qualitative exploration of women’s needs and preferences in clinical care. Social Science & Medicine, 191, 109- 116.

15 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.

16 Greer, Germaine. The Whole Woman. Black Swan. London. 2011.

17 See https://womensrefuge.org.nz/wp-content/uploads/2018/10/ Reproductive-Coercion-Report.pdf, accessed 3 September 2019.

18 A good model for promoting autonomy and informed consent is provided by Capital Coast District Health which has built “counselling” into the process of applying for an abortion. As stated on their website: “Counselling is a[n] essential part of the process ... As well as offering counselling they will also explain the process and options available to you. The counsellor is also available to you after you have been through the termination.” See https://abortion.org.nz/providers/capitalcoast/ wellington-hospital. And, in another part of the website explaining what will happen: “... you will see a counsellor to discuss your decision, review procedures and provide contraceptive education and planning. You will then see a doctor for a medical assessment, examination and certification.” See https://www.healthpoint.co.nz/public/obstetricandgynaecology/capital-coast-dhb-termination-of-pregnancy/, accessed 3 September 2019.

19 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.

20 2012, He Puna Iti I te Ao Mārama: A Little Spring in the World of Light. Auckland: Libro International.

21 See Harrild v Director of Proceedings – [2003] 3 NZLR 289 available at http://www.lawreports.nz/harrild-v-director-of-proceedings-2003-3- nzlr-289/.

22 See for example https://womensrefuge.org.nz/wp-content/ uploads/2018/10/Reproductive-Coercion-Report.pdf, accessed 3 September 2019.

23 Törnbom, M., Ingelhammar, E., Lilja, H., Svanberg, B. & Möller, A. (1999) Decision-making about unwanted pregnancy. Acta Obstetricia et Gynecologica Scandinavica 78:636-641; Kirkman, M., Rosenthal, D., Mallett, S., Rowe, H. & Hardiman, A. (2010) Reasons women give for contemplating or undergoing abortion: a qualitative investigation in Victoria, Australia. Sexual and Reproductive Healthcare 1:149-155; Söderberg, H., Janzon, L. & Sjöberg, N.O. (1998) Emotional distress following induced abortion. A study of its incidence and determinants among abortees in Malmö, Sweden. European Journal of Obstetrics & Gynecology and Reproductive Biology 79:173-8; Korenromp, M.J., Christiaens, G.C., van den Bout, J., Mulder, E.J., Hunfeld, J.A., Bilardo, C.M., Offermans, J.P. & Visser, G.H. (2005) Long-term psychological consequences of pregnancy termination for fetal abnormality: a cross-sectional study. Prenatal Diagnosis 25:253-260.

24 See Report of the Abortion Supervisory Committee 2017, available at https://www.justice.govt.nz/assets/Documents/Publications/ASC-AnnualReport-2017.pdf, accessed 3 September 2019.

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The full article is available by subscription to The Nathaniel Report

I am Pro-Life. Don’t Call me Anti-Abortion [SYNOPSIS ONLY]

In this candid article, Charles Camosy elucidates how the struggle in the abortion debate is a struggle over language.  He challenges the use of language that allows critics to dismiss pro-lifers as single-issue obsessives, while highlighting the ways in which language is employed to hide the dignity of the vulnerable.  Our ‘throwaway culture’ has infected our attitude toward marginalized populations such that some use terms like ‘sub-humans’, ‘defective humans’, and ‘parasites’.

The full article is available by subscription to The Nathaniel Report

Law Commission Recommendations

In October 2018, the Law Commission reported back to the Minister of Justice, responding to a request for advice on what alternative legal approaches could be taken in the event the Government decided to propose a policy shift to treat abortion as a health issue.

The Law Commission has set out three alternative legal models that could be adopted if abortion is to be treated as a health issue: Under Model A there would be no statutory test that would need to be satisfied before an abortion could be performed – the decision whether to have an abortion would be made by a woman in consultation with her health practitioner; under Model B, a statutory test would need to be satisfied before any abortion could be performed – a health practitioner who intended to perform the abortion would have to reasonably believe the abortion was appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing; under Model C, for pregnancies of not more than 22 weeks gestation, it would be the same as Model A; and for pregnancies of more than 22 weeks gestation, same as Model B.

Some corollaries of the law change and other comments by the Commission:

• Model A contemplates no specific abortion legislation and would therefore involve repealing the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977.

• Models B and C would retain a specific statutory regime for abortion, although both would be significantly simpler than the current regime.

• There would be two changes to the law that would be required under all of the three models: the current 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.

• The Commission has proposed either repealing the criminal offences for abortion or amending them so that they only apply to unqualified people who perform abortions.

• The Commission considers that the current law and guidance surrounding informed consent for health procedures would be sufficient for the purposes of regulating abortions.

• The Commission has suggested that counselling should not be mandatory for women seeking abortion, although it should remain available to women who want it.

• While not suggesting removing the current conscientious objection rights of health practitioners, the Commission suggested that the Government consider changing the law to ensure that conscientious objection does not unduly delay women’s access to abortion services.

• The Commission recommends that Health Practitioners with an objection be required to actively refer a woman seeking an abortion to someone who can provide the service. (This represents a significant departure from current legal approach to allow doctors to exercise their freedom of conscience.)

• The Commission acknowledges a concern that if abortion becomes more easily accessible, it might be used for reasons related to the sex of the fetus or fetal impairment, and that this may warrant further consideration.

• The Crimes Act contains a provision that makes it an offence to kill an unborn child, an offence not aimed at abortion, but rather at the killing of children during birth or through assaults on pregnant women. The Commission suggested that as the wording of the offence is wide enough to cover abortions performed at later gestations, the Government may wish to consider amending the provision to ensure it is consistent with the Government’s preferred policy approach to abortion.

The Law Commission Report raises a number of serious concerns that include the following:

In the submission to the Law Commission made by the NZCBC and The Nathaniel Centre, we noted that the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, upholds a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. The different Models, all of which start with the premise that abortion is a health procedure, uphold this tension to different degrees, with Model A arguably removing the tension in all cases and Model C removing the tension for all abortions performed before 22 weeks, that is, more than 99% of all abortions (ASC Report 2017).

In the health approach being presented, there is nothing acknowledging that there are at least two human lives involved in every abortion. As noted in our submission, most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. Creating an altered legal regime that frames abortion as being solely about the well-being of the mother potentially undermines a women’s sense that abortion is a serious moral issue and, consequently, their moral agency.

Because all three of the proposed models frame abortion as a matter solely between a woman and her doctor, there is nothing to prevent the ‘inappropriate’ use of abortion for sex-selection or for reasons of impairment. The Law Commission suggests this ‘may warrant further consideration by the Government’, a view with which we concur.

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.

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.

[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

[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

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. 

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

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.

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

Have your say on proposed abortion law reform

The Law Commission has been asked to provide advice on the possible changes to New Zealand's law concerning abortion. The Law Commission will conduct a review and report back to the Minister of Justice.

The Law Commission is inviting feedback from the public about the law change. Input can be provided until 5pm on 18 May 2018.

Information about the current law is available at: http://abortionlaw.lawcom.govt.nz/

The link to online feedback is: http://abortionlaw.lawcom.govt.nz/views/

A submission guide is available at: http://www.chooselife.org.nz/wp-content/uploads/2018/04/Law-Commission-Submission-Guide.pdf

Other information:

A Curia Poll:
https://www.familyfirst.org.nz/wp-content/uploads/2018/01/Abortion-Poll-Results-January-2018.pdf

Abortion and Women's Health: https://www.spuc.org.uk/~/media/Files/Abortion-and-Womens-Health_April-2017.ashx

Abortion Supervisory Committee Annual Report 2017: https://www.justice.govt.nz/assets/Documents/Publications/ASC-Annual-Report-2017.pdf

Some Resources:
the Buttons Project
https://www.buttonsproject.org/

Pregnancy Help: This email address is being protected from spambots. You need JavaScript enabled to view it.

P.A.T.H.S. Post Abortion Trauma Healing Service
http://www.postabortionpaths.org.nz

Pregnancy Counselling Services
http://www.pregnancycounselling.org.nz

The Buttons Project – Towards healing from abortion

Marina and Peter Young

The Buttons Project aims to create an opportunity for those affected by abortion – mothers, fathers, grandparents, siblings and friends – to share their stories. It was launched in 2008 by a couple, Marina and Peter, who had themselves experienced the grief and healing of abortion and wanted to do something to help others heal after their abortions.

Their dream was to encourage those affected by abortion to send in a button in order “to commemorate the babies we never met”. Why buttons? They are easy to find and send; each one can be unique; they are long-lasting; buttons symbolise closure; and buttons join, they ‘bring together’ - ‘we are not alone’.

Marina explains that people who have had an abortion can no longer hold their baby and tell that lost child what they want to say, but they can hold a button. A button allows people to share their stories and to also create a memorial for their babies lost to abortion.

Marina and Pete tell the stories of their own abortion journey in a booklet The Unforgotten Babies. In Marina’s words: “I have walked a long road of grace, forgiveness and healing. But how do others find some closure and healing? Where do they turn for help? Abortion is often a taboo subject, no one wants to talk about it or acknowledge the aftermath of abortion. So, to avoid judgement, too many struggle on their own. It becomes a deep dark secret which affects who they are … My dream was – and remains – to collect thousands and thousands of buttons to create an amazing memorial. It will be a place to visit without judgement, a place to remember, to imagine, to grieve, and to then move on from with some peace and healing … For many, abortion is a life-changing event. Abortion can harm women and yet there are individuals and groups who refuse to acknowledge this, or minimise it, seeming to place the right to obtain an abortion at a higher priority than the long-term health and welfare of women. There is much I could discuss with those people, and much we would probably disagree on, but I do want to say this: ‘Whatever your beliefs are, we need to walk gently in people’s lives as we do not know the journey someone has travelled, or the choices the woman had to choose from, that brought her to having an abortion’.”

Peter tells his own story of experiencing abortion and the different way in which he managed or tried to manage his own reaction to it: “… we thought it was the best thing to do: do it, then leave this unfortunate incident behind us and get back on our road to future happiness. I was completely naïve to what was about to unfold … I realised I needed to acknowledge my failings, admitting my mistakes and seeking Marina’s (and Hope’s) forgiveness, for not being their support and their protector in that situation … The Buttons Project is the beauty from the ashes in our life.”

Over 20,000 buttons have been sent to the Button Project, some arriving anonymously, some carefully wrapped, and many with stories and comments. The Buttons Project website, https://www.buttonsproject.org/ includes picture of some of these buttons with their personal messages. While most messages are from the mothers, many are from aunts or siblings of those lost to abortion as well as from friends of the mother, persons whose grief is either not recognised or forgotten.

Marina and Peter have named their baby ‘Hope’: “The button and her name represent hope for the future, peace now, and freedom from the past. It is for closure, and to commemorate something that was part of us.”

To order a copy of Marina and Peter’s booklet, “The Unforgotten Babies”, please email Marina on: This email address is being protected from spambots. You need JavaScript enabled to view it. or order through https://goo.gl/forms/g0LPL8ioaSZ3AmDg1 

Editorial - Allowing Grace to Catch Up

Michael McCabe

At the 2015 Synod on the Family held in Rome, there was considerable reflection on the moral principle of gradualism, a principle whose roots lie in the thinking and writing of Blessed Paul VI and which has been further developed by Saint John Paul II in Familiaris Consortio (nn. 9 & 34) and Pope Francis in Amoris Laetitia (nn. 295 & 300).

Simply put, people grow in different ways and at different times on their faith journey – and that is just as true for each community as it is for each person. The personal and pastoral challenge for each of us is living with that reality; living with ourselves and living with it in our relationships, our families, our faith communities and society.

The key moral question is how to retain compassion and charity towards those who think and act differently to us? Do we run away? Do we seek out a like-minded group? While flight is necessary for our soul’s growth at times, it does not always lead to growth, compassion, better understanding or wisdom simply because we may be avoiding a deeper issue.

The Gospel passage about the two sons, Matthew 21:23-32, provides a picture of gradual growth:

‘What do you think? A man had two sons; he went to the first and said, ‘Son, go and work in the vineyard today.’ He answered, ‘I will not’; but later he changed his mind and went. The father went to the second and said the same; and he answered, ‘I will go, sir’; but he did not go. Which of the two did the will of his father?’ They answered, ‘The first.’

In his commentary on this Gospel passage, Father Michael Hayes, tells the story of a Catholic High School teacher who was running into difficulty presenting the Catholic position on abortion to her class. The students seemed to be rejecting the viewpoint that she was presenting, so she asked the school’s guidance counsellor for help. He began his presentation to the students by saying how difficult the practical decisions surrounding abortion can be. The counsellor also spoke of the need for compassion and charity when people make decisions we cannot accept.

At that point the students seemed to change their response. They had no difficulty in acknowledging the objective wrong of abortion. But, unbeknown to their teacher, the issue that had tied them in knots was a classmate who had recently had an abortion – they did not want to turn their back on their friend.

So what seemed to be a ‘No’ for an issue of faith and morality actually contained a ‘Yes’ hidden within – a ‘Yes’ to compassion and charity.

Reading that story reminded me of a couple who called the Presbytery one Saturday morning. The woman, from Europe, was in the early stages of pregnancy. I agreed to meet her and her partner in the chapel. They wanted to talk with me about having an abortion. Their relationship had ended and she was returning to Europe the following week and had already booked into Auckland Hospital for an abortion on the Monday morning. I listened to them both and we prayed. I then asked if I might give them both the Sacrament of Anointing. They agreed to that. The woman told me that this sacrament would not change her mind. It would be her decision, and hers alone. I simply replied, as I have in similar cases, “I pray, that whatever you decide, and fully respecting your conscience, that this child will be a blessing to you both…”

They both cried during the anointing and asked me to leave them in the chapel. That Saturday, a grey wet day, I later saw them out walking and I again prayed for them and their baby.

The woman called me later that week to thank me. She had flown to Auckland to have the abortion. While on the gurney, waiting to go into the theatre, she hopped off the trolley, went back to her room, got dressed, and discharged herself. She had decided to keep the baby. Her former partner had promised to help her raise it, even while they both acknowledged their relationship was finished. She was returning to Europe. She then said, “I never want to see you again but I do want you to know how grateful I am for your time and for the Sacrament of Anointing.” She added that she still felt “very raw” and faced an “uncertain future” but knew she had “made the right decision" and was at peace.

So, what looked like a ‘No’ was actually a ‘Yes’ masking as a ‘No.’

In the Gospel parable, the first son changes his mind. In other words, he allows God’s unfailing grace to catch up with him.

I think it was the same for that woman and her former partner. Likewise with the High School class and likewise for ourselves. In reaching out to those on the peripheries, and in our own moral development, the gradual responding to grace takes time and requires great wisdom.

Rev Michael McCabe (PhD) is founding director of The Nathaniel Centre and Parish Priest of Our Lady of Kapiti Parish

Abortion Trauma, Grief and Healing

It is argued by some that the politics surrounding abortion have contributed to the lack of consensus in in the literature regarding post-abortion experiences, in particular whether some women’s subsequent mental health struggles were connected to other factors in their lives rather than their experience of having an abortion (see Dawn de Witt, Issue 51 of The Nathaniel Report).

One of the risks of denying post-abortion trauma is that it can add to the shame and stigma women might already experience and it can leave them with unacknowledged grief, a grief they may be told or may feel, is unreal. “At present health professionals are not being trained to diagnose, treat or prevent abortion trauma, and are generally reluctant to investigate when problems arise subsequent to an abortion, offering at best, symptomatic treatment (or worse, further traumatizing and isolating the sufferer). Therapists who are concerned about abortion trauma, not unreasonably fear being professionally attacked or isolated (particularly from those with a ‘personal investment’ in the safety of abortion) if they speak publicly or professionally of their concerns. Consequently, most women and men traumatised by abortion, have no access to the professional help they need”.¹ Moreover, as pointed out in the same article “abortion referral agencies and institutions, because of their role in facilitating denial and dehumanising the unborn, have a conflict of interest, and are inappropriate venues for abortion grief therapy”.

Many women are at risk of experiencing long-term emotional, spiritual, psychological, and relationship difficulties post-abortion but the lack of recognition of these experiences means they are unable to access the support they need.

Some agencies that specialise in providing support are listed below.

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Endnotes

1. “Post Abortion Syndrome. The Silent Suffering” available at: https://www.abortiongrief.asn.au/abortion-trauma.php

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Project Rachel

Project Rachel is a confidential ministry for anyone who desires healing after being impacted by abortion. This includes the mothers and fathers of children lost to abortion, grandparents and other relatives, health care providers, and many others. Abortion crosses all boundaries of religion, race, age and socio-economic position.

Project Rachel's mission is to provide a confidential and compassionate ministry that offers resources for spiritual, emotional, and psychological healing to anyone who has been impacted by abortion regardless of faith background. We strive to convey God's forgiveness and mercy in order to restore and empower lives.

See: http://www.fli.org.nz/project-rachel

0800 111 811 (free call)
or text/call: 027 299 9815

Pregnancy Help

Practical support and advice to prepare for parenthood te tautoko me te tohutohu awhina mō te mātuatanga.

See: This email address is being protected from spambots. You need JavaScript enabled to view it.

Pregnancy Help
PO Box 12000
WELLINGTON, 6144

P.A.T.H.S. Post Abortion Trauma Healing Service

See: http://www.postabortionpaths.org.nz

0800 728 470

This email address is being protected from spambots. You need JavaScript enabled to view it.

Pregnancy Counselling Services

http://www.pregnancycounselling.org.nz

0800 773 462

Text: 021 289 8727

Abortion and God’s Mercy and Grace

By Amanda Bradley

I have been an Anglican Priest for many years, also a contributor to Project Rachel in the form of counseling those who wish to come for reconciliation following a termination of pregnancy.

Over the years, I have spoken with, and listened to, many young women, and some men, for whom the experience of an abortion is new and raw. However, I have also met those for whom the experience is years old but has never gone away. One such meeting was with a woman of 93, in a Rest Home, who was very much afraid to die. I had been called by staff of the Home to speak to her because of her fear of dying.

She felt that God could never forgive her for a ‘sin’ she said she had committed more than 75 years previously. As an 18 year old student she had met a 20 year old man and they had fallen in love. She had become pregnant.

She did not know she was pregnant until after she experienced bouts of nausea and had fainted several times at her home where she lived with her father and stepmother. The doctor was called and the pregnancy was subsequently discovered.

The decision was then made that the doctor would carry out a termination at home and nobody would be any the wiser. This was carried out, she was forbidden to see the young man again and she was told, by the stepmother, that she would be going to hell for killing a child.

Some 4 years later this woman met her young man again, married him and they had many happy years together, as well as 5 lovely, successful children who, at the time I met her, were all middle aged.

Neither her husband nor her children knew about her abortion. Neither did this woman share her burden with anyone else. She lived all those years with the fear of a vengeful God waiting for her when she died. We talked at some length about the nature of God and of God’s forgiveness, mercy and grace. Eventually she agreed to tell her daughter in law, a school counselor, about her experience of so long ago. This she did, along with others in the family. Her family were all very supportive and sad that their mother had had to carry this burden alone for so long.

She died soon after, peacefully and unafraid.

Before she died she gave me permission to tell her story to anyone whom it might help.

I buried her, moved out of the family’s lives and changed parishes but I have often recalled this woman and given thanks that I can freely share her story to assist others.

During my next period of ministry, I attended a large church gathering of clergy and lay people where the subject of abortion, among other things, was raised. Some very judgmental opinions were voiced by a number of attendees and various punitive measures proposed by some. Eventually, I felt called to go to the microphone to tell the audience of my experience of Project Rachel. I reminded them of forgiveness, reconciliation, redemption and the mercy of God.

At lunch three women approached me. Two were tearful, admitting that they had each had an abortion when very young. The other shared sending her 16 year old daughter to Australia via SOS (Sisters Overseas) to terminate her pregnancy.

The four of us missed the next session as we talked together. All three expressed their gratitude that, after living for many years in silence, they had at last found an opportunity to tell someone about their regrets. I reminded them, as I gave them the prayerful absolution they craved, that God was waiting in the wings for them to turn to him in prayer and always had been. We then shared a time of prayer and while I felt gratitude that I had helped these women move on, yet I was saddened to see that all three had removed their name tags, not fully trusting me with who they were.

These were women who were very active in the church, in responsible positions, purporting to bring the love of God to others, yet they still could not fully trust God with their regrets or a priest working for Project Rachel with their identities. Work in the church-yes; prayers for others-yes; abortion details- yes; reveal their names- no.

It makes me think: ‘Just how many more women and men are out there living needlessly with such burdens?’

Rev Amanda Bradley is an Anglican priest who has worked as a nurse, taught at university, was a foster mother to seven children, and has worked with and counselled men and women post-abortion. Amanda and has been associated with Project Rachel for a number of years.

Editorial - Why are abortion advocates afraid of informed choice?

The polarising issue of abortion has come to the fore again, triggered by the Abortion Supervisory Committee’s annual report to Parliament. Despite the ASC chairwoman saying that the committee had no opinion on major reform of the abortion laws – that it was solely a matter for parliament – many commentators who want further liberalisation have taken the opportunity to lambaste the current law, labelling it a legal obstacle course, archaic, hypocritical, a charade, cumbersome, and intrusive.

The simple solution, they say, is abortion on demand – no need to ask any questions. As articulated by David Seymour MP: “The right thing to do is reform abortion law to reflect what actually happens: women exercise choice for their own reasons.” He and others argue that the current law disempowers women. As one blogger wrote: “At the heart of it all is a distrust of women, innit? … a failure to understand that women are full moral adults.”

The debate that has ensued highlights an important point: the current abortion law is being consistently undermined by the way in which it is being implemented. This is what undoubtedly leads supporters as well as some opponents of abortion to label the present regime as hypocritical.

While the debate raises many interesting questions, the one critical question not often asked is whether removing the procedures that are part of the current law will in fact lead to better choices and better outcomes for women contemplating an abortion.

Our choices are limited by the constraints of our knowledge and context. These constraints generally take two forms: (i) a lack of proper information and (ii) the presence of coercion. Informed and free consent based on full, balanced and factual information, while allowing time to adequately consider that information, is the ‘sine qua non’ for making quality choices.

Research into the potentially negative health effects of abortion is characterised by claims and counter-claims. For example, research reported by the Health Research Council of New Zealand (by Professor David Fergusson of the University of Otago’s Christchurch Health and Development Study, 2008) suggests “women who undergo an abortion face a 30 per cent increase in the risk of developing common mental health problems such as depression and anxiety.” Conversely, other overseas studies have concluded that the rates of mental health problems for women with an unwanted pregnancy were the same whether they had an abortion or gave birth. Academically speaking, the question of potential harm to women remains a contested one.

The strongest evidence that there are real negative health effects following an abortion arises out of the day-to-day work done by clinical psychologists and counsellors. Their consistent experience is that they encounter many women whose mental well-being has been adversely affected on a number of levels by their experience of abortion.

Further reflection on “what actually happens” to women who have had abortions highlights the reality of coercion. 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.

Section 14 of the Contraception, Sterilisation and Abortion Act, which details the functions of the Abortion Supervisory Committee, states that they are “to take all reasonable and practicable steps to ensure that sufficient and adequate facilities are available throughout New Zealand for counselling women who may seek advice in relation to abortion.” When women repeatedly recount they were offered five to ten minutes with a social worker before the abortion ‘if you want it’, and when there is reliable evidence that abortions are signed off by some consultants over the phone with no face-to-face interview, it is hard to argue that this provision is being properly implemented.

In which case, it becomes impossible to argue that the current New Zealand practices surrounding abortions consistently promote informed and free choice.

There is surely no greater expression of “distrust of women” than society paternalistically deciding, whether through law reform or the inadequate implementation of its current laws, to censor the information provided to women contemplating an abortion. Equally, it is surely also a failure of care to neglect to put in place mechanisms that can help women contemplating an abortion to recognise and deal positively with any feelings of ambivalence as well as the actualities of coercion.

It is in the interest of free and informed consent and empowerment that all women are offered independent counselling that addresses the coercive realities surrounding many abortions and which makes them aware of all the risks as well as all the options they have. Honest reflection on what is actually happening only reinforces the fact that abortion on demand will not achieve this.

If as a society we truly want to respect choice, then why would we be afraid of promoting free and informed consent?

Cynthia Piper has over 20 years’ experience as a trained volunteer lay counsellor working with pregnant women and teens and their families, and with Project Rachel, a post-abortion healing and support service.

Dr John Kleinsman is director of The Nathaniel Centre.

Please do not make a hole in the dike

ORAL PRESENTATION to Health Select Committee Inquiry into Ending One’s Life in New Zealand

Petrus Simons

18 November 2016

Today it is forty-nine years ago since I arrived in New Zealand from the Netherlands. I was welcomed by a very friendly society. Migrants have a unique opportunity to compare the society they hail from with the one that has welcomed them. Often, this gives us a unique perspective on things.

Sadly, as I tried to keep up with events in my old country, I became aware of a trend towards euthanasia which culminated in 2001 in a bill to legalise it, after the courts had allowed doctors to practise it under conditions that were steadily made less strict. I note also that until the legalisation of euthanasia in 2002, Belgium had proportionately more people aged 100 years than the Netherlands had. This is likely to change as Belgium has adopted the same legislation and has become even more aggressive in applying euthanasia and assisted suicide.

In my younger years, in the early 1960s an older colleague had a child who was completely handicapped intellectually. No one in the family ever received one glimpse of recognition from her. Yet, they cared for her 24/7 with a love they had never believed they were capable of. When they were mourning her death after 13 years, they realised that that was precisely the precious gift they had received from that child.

Currently, parents in such a case would be under enormous pressure to get the child killed at birth as one believes this to be more efficient and useful, although one would use the word ‘compassion’. I maintain that the sick, the fragile and the vulnerable enable us to love, by caring for them, whether as doctors, nurses, friends or family.

The current law acts as a boundary which doctors and nurses know they should not cross. It enables them to provide loving appropriate care. It also allows them to stop applying highly technical medical procedures when they can only protract the dying process and when palliative care is called for instead. The boundary is like a dike which keeps the sea at bay and enables life to go on inside the polders.

The boundary, the dike, is necessary to ensure that medical efficiency remains focussed on preserving and caring for life, without a cold calculation of utility and disutility. Without the boundary, one goes down the road of killing efficiently as it might appear to provide the greatest utility to the vulnerable and to society. This would not be the friendly New Zealand I have come to know and love in my 49 years here.

No matter what sort of bill would be written to enable assisted suicide and/or euthanasia, it will make a hole in the dike. Inevitably, such a hole will get larger and larger till the dike ceases to exist.

Please do not make a hole in the dike.

By Dr Petrus Simons

Dr Petrus Simons is a retired economist with a PhD in philosophy.

Reflections on Post Abortion Care

Dawn de Witt

Beginnings

Around 2000 I joined a small group of women to explore the merits of the Victims of Choice post abortion recovery programme from the United States. At the time, it struck me that I had very little knowledge of abortion issues despite my professional studies. In New Zealand, a termination of pregnancy is available through the public health system and is promoted as a safe medical option for those who do not wish to continue a pregnancy to term. The experience of the group was that there existed a real need for healing and reconciliation after abortion - and we wanted to make that possible.

The literature confounds

My interest in the issue prompted me to do a literature survey. This opened a Pandora's box for me. There were conflicting findings, heated debate, fierce criticism of unsound methodologies, vehement argument and counter argument. I was disappointed. The scholarly articles and debates seemed to be immersed in the politics and polarities surrounding abortion that were prevalent in American society, unable to transcend them. The title of the 1998 monograph of the American Psychological Association, The New Civil War: The Psychology, Culture, and Politics of Abortion1 appears to confirm that.

There was no consensus on the impact of abortion. In some reports, it was construed as just another stressful event. For others, it was a significant trauma associated with mental health issues and symptoms similar to Post Traumatic Stress Disorder (PTSD). The notion of Post Abortion Syndrome (PAS) was raised and rejected.

The American Psychological Association (APA) consistently asserted that the incidence of negative responses after abortion was low (19902, 19923). In 2006, a task force was assigned to evaluate the evidence.

The American Psychological Association Report on Abortion and Mental Health
In 2009, in their Report on Abortion and Mental Health4, the APA concluded that:
1. Most adult women who terminate a pregnancy do not experience mental health problems. Some women do, however.
2. The evidence regarding the relative mental health risks associated with multiple abortions is more uncertain.
3. Some women experience sadness, grief and feelings of loss following an abortion, and some may experience "clinically significant disorders, including depression and anxiety." 5
4. No evidence sufficient to support the claim that an observed association between abortion history and mental health was caused by the abortion per se, as opposed to other factors." 6
The results related to the experience of a single abortion as opposed to multiple abortions. The Report noted factors that may be predictive of more negative psychological responses following first-trimester abortion among women in the United States:

• perceptions of stigma
• need for secrecy
• low or anticipated low social support for the abortion decision
• a prior history of mental health problems
• personality factors such as low self-esteem and the use of avoidance and denial coping strategies
• characteristics of the particular pregnancy, and the extent to which the woman wanted and felt committed to it.

Here was clear acknowledgement that some women were experiencing grief and mental health issues after an abortion. Yet, despite the report warning about the dangers of making globalising statements, the message disseminated was: Abortion Has No Impact On Women's Mental Health. This message persists today.

To better understand the impact of abortion, I undertook to listen to those who were seeking help after abortion.

Impressions from the field

The deepest of sorrows

The most poignant learning has been the depth of grief and sorrow I encountered. This is no ordinary grief. It is complex and complicated. There are multiple losses; complex personal and social narratives; intense emotions; and some level of responsibility in the death. The grief is disenfranchised. It is socially unrecognised, unacknowledged and unsanctioned. There are no socially accepted rituals for mourning. At its heart is a death of a baby.

In those seeking help, this sorrow seems universal. It has presented in men and women; in relationships that are secure or in more tenuous, uncommitted or even undesirable relationships; whether there had been full responsibility or coercion; where there is faith and where there is no faith; where there have been pre-existing mental health issues and where there has not; in cases of secure attachment histories and in those with histories of insecure attachments; whether the pregnancy was unwanted or wanted; and whether there was a sense of connection with the foetus or not.

Anger is a part of grieving. Coupled with bitterness and resentments, it can become intense. It may be directed towards God, oneself or others. At times, we see that anger directed at 'the State', the 'system', or society at large; this anger is about unrealistic societal expectations, mixed messages from society, insensitive processes and a lack of information about the risks.

Four areas of wounding have emerged from my own listening and reading: the wound to the child; the wound to self (primarily for being implicated in the termination, intentionally or by default); wounded relationships (with others involved in the abortion) and wounded spirituality. Healing entails reconciliation(s) in each of these areas.

The feminine face of coercion

The incidence of coercion is high, consistent with that reported by the Elliot Institute.7 The classic picture of threats, intimidation, ultimatums, stand-over tactics and/or violence is seldom reported. More prevalent is the subtle psychological pressure applied by others, usually female, to compel a woman to terminate a pregnancy against her will.

Younger women, not yet fully individuated, still dependent on their parents and lacking the confidence to challenge parental authority, tend to fall victim to the female face of coercion - a mother, sister, or grandmother may persuade, cajole or harass, the subtle use of a position of trust, power and influence in a close relationship. Youth, obedience to parents and respect for authority add to the pressure to comply.

The message 'I know what's best for you' masquerades as care and may go unnoticed by the professionals involved. Reports include not being listened to by medical personnel; not being given an opportunity to be seen alone; and being sidelined while the dominating figure conducts the conversation. Passivity is easily misconstrued as consent and the process quickly moves to completion. Powerlessness, isolation and a sense of abandonment ensue. Violated boundaries, betrayals of trust and the losses of abortion give rise to anger and rage which, if internalised, may trigger depression.

Family narratives

Family stories underpin decisions to terminate a pregnancy.

Fathers shape their daughters' perceptions and expectations of men. A daughter observes her father's care for her, for her mother and how he relates to his wife/partner in pregnancy. The absence of a father may prompt a daughter to exchange sex for love. In my experience father narratives have been less prominent than mother-daughter narratives.

A woman's relationship with her mother is seen as central and ambivalence in the mother-daughter relationship is significant. Themes and patterns of behaviour are noted over three generations of women as they respond to trauma, life events, societal and familial attitudes to women and sociocultural trends.

Narratives passed down inform womanhood and produce powerful, often subconscious, beliefs about motherhood, for example, 'Once you're a mother, your life is not your own'. Injunctions like 'be successful' and 'do something with your life' subtly undermine the value of motherhood. Mothers who have been disappointed or who have struggled with motherhood subtly communicate this to their daughters.

Presence of historical sexual abuse was not surprising and is well documented in the literature.8 What is surprising is the high incidence I've noticed in peer support groups with whom I have been involved – over 80% on one occasion.

Lack of information

It is surprising that reports of insufficient information are regularly heard. With some dismay, women say: 'Nobody told me'; 'I didn't know'; or 'I never expected this'.

The Code of Ethics for Psychologists 9 states that obtaining informed consent from those with whom they are working is "a fundamental expression of respect for the dignity of persons and peoples."

A psychologist needs to:

1. provide "as much information as a reasonable or prudent person, family, whānau, or community would want to know before making a decision or consenting to an activity" (para. 1.7.6)
2. take reasonable steps to ensure that the information is understood (1.7.7)
3. take all reasonable steps to ensure that consent is not given under conditions of coercion or undue pressure from them (1.7.4)
4. "have an increased responsibility to protect and promote the rights of those who were vulnerable because they have lesser power" (1.7.1)
5. give sufficient time for the recipients to respond to the information (1.7.7).

The omission of informed consent in the protocols around abortion may, in part, reflect the fact that the Contraception, Sterilisation, and Abortion Act 1977 was promulgated before there was any developed notion of informed consent.

The fact that other health care professionals operate under equivalent codes of ethics regarding information and consent is not borne out in the stories I have consistently heard from women.

Conclusion

Experience confirms that abortion is a significant life event that can cause considerable loss and grief. The circumstances of the decision and the factors that influence the decision are diverse and complex. Simplistic restatements of research findings, without elaboration, do women a disservice.

Full and accurate information about risks and effective screening for coercion by way of independent and neutral counselling, and enough time to consider her response to an unwanted pregnancy, is every woman's basic right. As psychologists and healthcare professionals, it is our responsibility to ensure that.

I am deeply grateful to those men and women who have shared their stories with me and I thank them for enabling me to grow in this field.

Dawn de Witt is a Counselling Psychologist with a background in general practice, relationship counselling and family therapy. She presently co-ordinates Project Rachel in the Catholic Diocese of Hamilton, New Zealand and is on the retreat team of Rachel's Vineyard Retreats.

Endnotes

1. http://www.apa.org/search.aspx?query=the new civil war retrieved on 2 February 2017
2. Adler, et al. 'Psychological responses after abortion'. Science 06 Apr 1990: Vol. 248, Issue 4951, pp. 41-44. http://science.sciencemag.org/content/248/4951/41 accessed on 21 March 2017
3. Adler, et al. 'Psychological factors in abortion: A review'. American Psychologist, Vol 47(10), Oct 1992, 1194-1204. http://dx.doi.org/10.1037/0003-066X.47.10.1194 accessed on 2 February 2017
4. http://www.apa.org/pi/wpo/mental-health-abortion-report.pdf accessed on 2 February 2017
5. APA Press Release. http://www.apa.org/news/press/releases/2008/08/single-abortion.aspx accessed on 20 March 2017
6. Ibid.
7. http://www.theunchoice.com/articles/howcommoniscoercion.htm accessed on 20 March 2017
8. Boden, Joseph M; Fergusson, David M; & Horwood, L. John. 'Experience of sexual abuse in childhood and abortion in adolescence and early adulthood'. Child Abuse & Neglect, Volume 33, Issue 12, December 2009, pp. 870–876
9. Code of Ethics for Psychologists. Para 1.7 http://psychologistsboard.org.nz/cms_show_download.php?id=235 accessed on 6 March 2017.

Bioethics in the News A brief introduction to two recent developments in bio-technology – gene or genome editing and Non-invasive Prenatal Testing.

Gene or Genome Editing

While gene editing technologies have been around for several years, a new technique has recently been developed that is cheaper and more efficient than earlier technologies. Known as CRISPR-Cas9, this technique enables faulty sections of DNA to be located, then ‘cut’ out and either replaced with a healthy copy or inactivated. Gene editing could in future be used to treat single gene inherited conditions, such as cystic fibrosis and sickle cell anaemia, and in the treatment of diseases such as HIV and cancer. It also has the potential to be used with crops, for example to develop disease resistance or to increase crop yields that use less water, and in livestock to improve certain advantageous traits.

Recently it was reported that scientists in China had edited the genomes of human embryos, and earlier this year researchers in the United Kingdom were given permission to modify human embryos in order to better understand the causes of miscarriages. However, there is some disquiet about the use of these techniques for humans. Apart from concerns regarding the unknown effects of germline modification on later generations, there is concern that gene editing will be used to ‘enhance’ humans. Scientists and bioethicists are debating whether or not there should be some moratorium on human gene modification until safety issues are resolved, and there has been a thorough examination of the broader social and ethical issues concerning human ‘enhancement’, such as ableism and disability, as well as economic and health inequalities.

In 2000 the New Zealand Catholic Bishops noted in their submission to the Royal Commission on Genetic Modification that human dignity must be ordered to the integral good of the human person as well as respecting the integrity of other species and of all creation. They specifically noted that they did “not see the technology of genetic modification to be in conflict with ethical values“ so long as “safety issues are resolved within acceptable limits of risk.” These limits include proper respect for the innate dignity of human life which excludes all forms of destructive research involving human embryos. 

Non-invasive Prenatal Testing

While prenatal screening is currently available in New Zealand, the development overseas of a maternal blood test known as NIPT (non-invasive prenatal testing) that can more accurately detect some foetal chromosomal abnormalities has raised the issue of whether it should be publicly funded in New Zealand (it is currently available privately for payment). NIPT is able to analyse the small amount of cell-free DNA in maternal blood that comes from the placenta, and which mostly (98% of cases) matches the DNA of the foetus. This has meant that a blood sample taken from the mother can be analysed for the presence of certain chromosomal abnormalities, which include trisomy 21 (Down syndrome), trisomy 18 (Edwards syndrome) and trisomy 13 (Patau syndrome).

The test is a screening test, not a diagnostic test, as it indicates only the probability of a trisomy pregnancy and a follow-up invasive test is still required to confirm results. It also has certain limitations: It was originally validated on a population of high-risk women so the sensitivity of the test on the low-risk population is unknown. For this reason it is usually offered only to women who are in the ‘high risk’ group. It is also known to be less accurate when maternal weight is high and its accuracy in multiple gestation pregnancies is unknown.  The ease of use and safety of non-invasive testing is likely to lead to increased requests for testing and potentially the provision of free national screening. Because there is no ‘cure’ for these conditions, the reasons for informing mothers are to either enable them to begin to adjust to and make plans for living with a child with a disability, or for eugenic purposes, that is to enable them to seek a termination of the pregnancy.

The very availability and use of such screening carries an implicit message that raising a child with a disability is a burden both on the family and society, one that can be avoided. In France, the United Kingdom, Spain and Italy, between 90 and 95 percent of foetuses affected by Down syndrome, detected using current prenatal diagnostic techniques, are aborted. One of the consequences of the increasing use of pre-natal testing is that it introduces ‘eugenics’ by stealth, that is, without a proper debate taking place about  the desirability or ethics of preventing the birth of babies with certain detectable conditions. 

Submission to ACART on Informed Consent and Assisted Reproductive Technology

 Introductory Comments

Our approach to the moral/ethical issues associated with the use of assisted human reproductive technologies is based on a number of beliefs. Of those that are particularly relevant to this Consultation Document unconditional respect for human life at all stages of its development is the most important. 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.

Secondly, whatever people believe about the acceptability of IVF, a clear moral distinction exists between homologous IVF (where the gametes are sourced from both partners within the relationship) and heterologous IVF (where one or both gametes are sourced outside of the commissioning couple). This distinction rests on the fact that homologous IVF conserves the natural links between parenthood, family and genetic origins. Our sense of personal well-being is linked with a healthy self-identity, something that is intimately tied in with a lived knowledge of our biological ties. On this basis we believe that children have the right to grow up within the family networks that are generated by our biological ties. This right should only ever be compromised in situations where it is clearly in the interests of the child involved.

In previous ACART Discussion documents we have recognised and complimented ACART on the fact that there were real attempts to consider the ethical issues from a perspective that actively considers the rights and well-being of the child that is to be conceived. However, we are disappointed to note that, apart from Appendix 2, the term “potential offspring” arises only once in this document. While this might be understandable given the document’s specific focus on “informed consent”, in our view it highlights the serious short-comings of an “informed consent” approach for dealing with the ethical issues associated with the use of human assisted reproductive technologies. As we have previously stated: “An over emphasis on the sufficiency of individual informed consent … reflects a failure to acknowledge the wider impact of technological interventions.”  

Issues:

1. Access to information that must be disclosed to patients and donors prior to consent: We note that the Code of Health and Disability Consumers’ Rights upholds the right to be fully informed. We further believe that information provided to couples using heterologous IVF should summarise research on the importance of biological connections for the well-being of potential offspring.
2. Form of consent: We agree with the arguments set out in the document supporting the need for consent to be in writing.
3. Donor consent to use gametes or embryos for training purposes: We support the need to obtain consent from donors for the use of gametes or embryos for training purposes, as is consistent with Right 6 of the Code of Health and Disability Consumers’ Rights.
4. Placing conditions on donor consent: We support donors’ rights to place conditions on their consent. We consider that gamete and embryo donations are different from blood or organ donations because they create on-going relationships. However, we agree that gamete or embryo donors should not have the right to limit the decisions of prospective parents after an embryo has been created, or after a donated embryo has been transferred to a uterus.
5. Ongoing information for donors on the use of their gametes: We agree that gamete donors should be given the option of receiving ongoing information if the gamete is about to be used and on the outcome of the donation. Our status as relational beings demands respect for the genetic, gestational and social dimensions of human procreation. Providing on-going information to donors is consistent with the relational responsibilities that flow from human procreation and, in the situation where an embryo has been created from donated gametes, provides the best chance of maximising the possibilities of an on-going relationship between the potential offspring and their biological parent. While the law in New Zealand does not permit anonymous donation, it strikes us that information relating to a child’s biological origins still depends to a significant extent on the attitudes and willingness of the adults involved in the process.
6. Withdrawal or variation of consent by donors: We agree that donors should be able to withdraw or vary consent to the use of their gametes up to the point of fertilisation.
7. Consent of a partner, family or whānau to donation or use of donor gametes: We do not agree that the consent of partners should not be required. A spousal type relationship is based on a high level of trust and intimacy. In addition, it is of the essence of such relationships that they have a parental dimension. Direct involvement in parenting a child outside of such a relationship without disclosing it to one’s spouse/partner is arguably a violation of the trust, as well as the sense of exclusivity, that lies at the core of any permanent couple relationship – it has the potential to destabilise such a relationship, including commitments to any children that a donor might already have with her or his partner or might have in the future. We consider that although consent of family or whānau to the donation or use of a donor’s gametes should not be required, it is best, in the interests of transparency and relational integrity, that individuals be encouraged to consult their family or whānau (as happens generally with whāngai arrangements, for example). However, we do not think this should be mandatory.
8. Couple disputes about the future use of embryos: We agree there should be a ‘cooling off’ period of twelve months where one party in a couple disputes the future use of embryos that have been created for them. We reiterate our belief that embryos have their own ‘intrinsic’ dignity which exists independently of the wishes and desires of any related adults and that giving time to resolve any dispute is consistent with this dignity. It is our hope that adults would have access to counselling in this situation and that counselling would include presenting a case in favour of life from the perspective of the embryo. We do not agree that if the couple cannot resolve the dispute in that time, the embryos should be disposed of. Allowing embryos to die if the dispute cannot not be resolved effectively gives power of veto to the non-consenting party, while ethically the rights of both parties should carry equal weight. We suggest that in these cases the existing 10 year storage limitation period set out in the HART Act should apply.  Framing conflicts about the future of embryos in terms of whose interests should prevail – whether the male partner or the female partner – inevitably takes couples into a legal and therefore adversarial forum. We need to avoid an adversarial approach to conflicts over embryos because they are effectively based on (patriarchal) assumptions of ‘ownership’. A non-patriarchal and more child-centred approach is premised on the idea that parents have responsibilities towards their offspring, including embryos, rather than rights over them. A responsibility-based approach is more likely to bring about a satisfactory resolution without, even unwittingly, reinforcing the ‘ownership’ paradigm wherein the rights and dignity of embryos are too easily lost to view.  We further suggest that all couples need to be counselled about the possibility of such a conflict occurring before they consent to any procedures that will result in the creation of embryos.
9. Form of requirements for informed consent: We agree that the requirements for informed consent should be set out in regulations.
10. Final comments: We are concerned about the language used, specifically the reference to embryos being “disposed of”. In general parlance we dispose of ‘things’ – usually things that have no value to us and that are seen as ‘rubbish’. The presence of this language in the Consultation Document highlights for us one of the dangers inherent in the use of assisted reproductive technologies; replacing what is a very human and personal act (the conjugal act) with one that is of a more technical nature (IVF), no matter the motivation behind such a decision, means that the risk of commodification lies but a small step away. While not a step that is logically necessary, it can be a step we take without realising it. This step is often revealed by the language we find ourselves slipping into, including terms such as ‘dispose’. The presence of this language in the Consultation Document is further evidence of a lack of awareness in practice of the rights of any “potential offspring”, as was highlighted in our introductory remarks.

Staff of The Nathaniel Centre

Abortion, feminism and disability

Robyn Hunt

As a human rights practitioner, and a former human rights commissioner I clearly understand the status of the unborn child in human rights law. My standpoint is that of human rights, and in particular disability rights, as codified in the CRPD (the United Nations Convention on the Rights of Persons with Disabilities). New Zealand played a major role in developing this human rights standard and ratified it in 2008.

There are disability issues around abortion that make it a very difficult and nuanced issue for disabled feminists. For many feminists this is a really clear cut issue. For us, not so much.

Abortion is not a simple issue of choice for disabled women, especially given that for many of us our choices are more constrained than those of non-disabled women. Many disabled women do not have control over their own bodies, never mind their reproduction and sexuality. For example, over generations thousands of disabled and other “undesirable” women all over the world have been sterilised without their consent and disabled women are still sometimes sterilised without their consent.

As a disabled, feminist, prospective mother I had to contemplate whether or not any children I might bear would share my impairment. I didn’t know. It was a leap in the dark. But I had decided that my life was very much worth living and so would theirs be. That is a critical part of the issue: Whose lives are worth living?

There are a number of threads to this issue for us, but they are rarely explored in an environment where we feel safe enough to honestly discuss our concerns about some of the implications. The ‘caring’, disability support, and health professions are well populated with women, yet it is paradoxical that disabled women’s voices struggle to be heard and attended to on this and other issues that are important to us.

Eleanor Lisney, Sisters of Frida (a disabled women’s cooperative), described this struggle: “In the discourse of feminism, disabled people are seldom included … Disabled people are often seen as a ‘burden’ on the feminist from before birth to the older parent often portrayed as with dementia. The decision of aborting a disabled child is seen to be totally understandable, disabled people need caring for – usually by low paid or unpaid carers where women sacrifice themselves as carers.”

Disability is often seen as a ‘fate worse than death’. It arouses a fear of what is unknown and not understood and carries social stigma as well as social and medical pressures.

Questioning whose lives are worth living led to the ‘hidden holocaust’of World War II where over 200,000 disabled people were exterminated; this holocaust began with a German father asking the Nazi regime to kill his infant son. This was the logical culmination of the eugenics movement. But eugenics did not disappear with the end of that regime; it is still alive and well and living in New Zealand in the form of pre-natal testing which leads to some babies not being born because of their ‘abnormalities’. Would we tolerate birth selection on the grounds of race or gender? I hope not.

The crunch point for me is contained in the phrase ‘bearing a child she doesn't want’. How is that ‘doesn't want’ constructed? Is it because she is afraid and faces negative social and medical pressure? Is it because support services are woefully inadequate in some cases, and parents of disabled children can be isolated and unsupported?

And is this because of society’s fear of disability, and the eugenicist move to eliminate certain impairment groups? Is the mother afraid of social and economic sanctions if she goes ahead with the pregnancy?

However, many impairments are not detectable before birth and even when a child is born “perfect,” they may not stay that way. What then? Medical and other science may not always be able to cure, and not everybody wants to be fixed, and while there are ways of ameliorating conditions that were unheard of even a generation ago, an accident or illness can result in lifelong impairment. Imperfection and impairment are part of who we are as humans.

Abortion should not be used as a tool for eugenics. Disability cannot be eliminated this way. Disability is part of the human condition. Just think about the message this gives to people already living with the impairment – it says you are of no value – your life is worthless and your birth should have been prevented. They might be living lives they see as definitely worth living, not a fate worse than death. I have witnessed this very direct pain in people I know.

Abortion on the grounds of disability devalues disabled lives.

Robyn Hunt, ONZM, is a former Human Rights Commissioner, Disability leader and activist, writer, and a founder of Not Dead Yet Aotearoa (New Zealand).

This piece is based on an address given by the author to the Abortion Law Reform Association of New Zealand.

Jesús Valentino: 26 October - 10 November, 2014

Emma Gilkison

The following is an edited version of the tribute given by Jesús’ mother Emma at his funeral.

My darling baby boy, the first time I saw your heart you were just eleven weeks and five days old. It twinkled like a star above your chest on the scan screen. I read that day about ectopia cordis, a condition affecting eight in one million babies, whose hearts grow outside of their chests. You were one of them.

We searched for a way that your life might be saved through surgery, prayed that might be possible. Sadly, the list of problems affecting your heart was too long for any surgeon to attempt to fix. By then you were almost five months old and making your presence felt with little drum beats inside me. Would we continue the pregnancy and bring you to full term even though you would die shortly afterwards? We - your Mum and Dad - had to look deep into our hearts. I realised the longer we had with you, the greater the opportunity we’d have to love and cherish your living presence. And so it was decided.

As you continued to grow, some very special people came into our lives to offer us wisdom. Father James told us the story of Saint Cristopher who saved the life of a baby by carrying him on his back across a dangerously flooded river. Only as he crossed the river, Saint Cristopher realised it was the baby who was saving his life by giving him the courage and determination to get to the other side. Once safely on land, the baby, who was really the Christ child, disappeared. I told Camilla, a practitioner of Nichiren Daishonin Buddhism, I wanted to do my best for my baby and give him all the love I could. Camilla replied that was exactly what my baby would want to do for me. In the Buddhist tradition he was my Bodhisattva or agent for enlightenment. This was another wonderful idea to contemplate while you were getting bigger by the day. I loved carrying you inside me and felt like all your kicks and turns and taps and tickles were like a secret conversation between us. I was so proud when every scan showed how active you were, and your measurements placed you at the top of the growth charts. I have a hunch you orchestrated things so that I felt in good health and happy in spirit throughout my pregnancy.

My darling, I thought I was head over heels in love with you even before you were born, but nothing could prepare me for the joy of seeing your face and gazing into your beautiful eyes. They looked like glowing black pearls, tiny planets from a far off universe. You were baptized straight after you were born, not long after dawn, and I remember flames in the room, although that could have been the drugs they gave me for pain relief.

I had not imagined anything beyond your birth, yet here you were, a bonny baby, doing the normal things that babies do. My darling how can I thank you enough for staying on earth long enough for us to become properly acquainted? We were told your heart was unlikely to beat for even one day. We had fifteen and a half days with you. So I got to know your sweet ways and your gentle, considerate nature. You showed your amateur parents what you needed through patient repetition of expressions and sounds. You were also very brave.  

A week after you were born, we took to you to the Soka Gakkai Buddhist centre, then Sunday mass, and the next weekend we sat beside Suzanne Aubert’s grave while you drank from your bottle. There were many things said about your life by many people and perhaps there is truth in all the interpretations of your life, and yet the mystery of your soul remains. My darling baby JV, you have packed so much value into your life in and outside of the womb. Broadcaster John Campbell sent you a text:

‘JV you are remarkable. And the fact you don’t even know how remarkable you are makes you all the more remarkable – because this is a time when the least meritorious trumpet their own virtues as if they were real. To live beautifully, bravely, both inspiring love and surrounded by it too, and not to be made vain or pompous or self-satisfied by it, that makes you very special indeed. That makes you a gift. And every moment you stay is a moment more in which you remind us all that what matters most in life is how you make people feel. And you make people feel love. Which is the coolest thing there is, JV.’

My sweet baby Jesús Valentino, I miss you terribly and wish to have you awake in my arms again. But I promise I’ll do my best to keep my heart open and not get lost in the pain. I will keep loving you forever. I will always be your mother and you will always be my son. I look forward to seeing you again precious son.

Emma Gilkison is a communications advisor who lives in Hataitai, Wellington with her partner, Roy Costilla who is completing a PhD at Victoria University. Jesús Valentino was their first baby.

Does ‘Ethics’ get in the way?

Gerard Aynsley

A court somewhere in New Zealand is likely to be faced with the question of whether it is permissible to use the preserved sperm that belonged to 17 year old Cameron Duncan, a talented Auckland youngster who died of cancer 11 years ago. They will be asked to consider the legal and ethical aspects of the proposal and will also have the task of considering what sort of precedent is being developed and whether the direction in which such cases would lead us is a good one for our country. Is this something that should concern the wider public, or is it best left for expert ethicists to argue the case?

The Editor of the Sunday Star Times expresses a hope that this not “degenerate into a divisive national argument about reproductive ethics”, suggesting, it would seem, that such discussions are best left out of the public domain. But these sorts of cases invite broader questioning; about what it is to be a parent; about how our individual interests relate to the interests of others, and what it means to be human beings together in the advent of ever evolving reproductive technologies.  For this reason these sorts of cases do matter to the wider public and should evoke wide and robust debate. In fact they provide us with an important opportunity to reflect together on what it is that we most value.

Too often ethical discussions are narrowly confined by questions regarding actions and choices, and benefits and harms, within a very limited individualistic frame. While such questions are important, they too easily descend into debates about competing interests and degenerate into the sort of divisiveness that the editor cautions against. An example of this narrowing of our ethical focus is reflected in the way that consent often becomes the paramount concern – as if the establishing of consent is all that is required to establish ethical validity. Consent, of course, is an important consideration, one that brings into play the legitimacy of an individual’s choosing and the question as to whether the individual’s interests are being upheld and safeguarded. But, we also need to contemplate broader concerns.  We need an approach to ethics that goes beyond the elementary questions.

In 1981, American Philosopher Alaisdair MacIntyre wrote an important work entitled, “After Virtue”, a book that has led to a revival in Virtue Ethics and a revisiting of the question of Natural Law. He suggests that in the current context – influenced as we are by modern thought – we use words like ‘good’ and ‘bad’, ‘right’ and ‘wrong’ etc. without realising that they have become disconnected from an earlier, very specific and commonly accepted understanding of human flourishing from which they derived their original meaning. In other words, the moral terminology we use is often empty, enabling us to ‘fill’ the words with our own meaning.

Where might we obtain this meaning from? These days there are multiple worldviews or ideologies that frame – consciously or unconsciously – our thinking and which ‘compete for our vote’ so to speak. Think, for example, of a word like, ‘wellbeing’. It is a word used a lot, but does it mean – in today’s environment –  anything in and of itself, or is the word merely a ‘vessel’ in which we pour a particular idea of what ‘wellbeing’ means from our particular individual standpoint?

The same can be true too for our moral terminology. Inasmuch as there is no “shared conception of the human good” (MacIntyre, p.x) then our ethical discussions are going to falter and be characterised by divisiveness. A case like the one involving Cameron Duncan provides us, as a society, with an opportunity to consider what a shared conception of human good would look like.

To avoid our moral language being divisive and absent of meaning, McIntyre redirects us to the philosophical context that first gave rise to the moral language that we use, namely, to Aristotle and the Greek birthplace of Western thought. For Aristotle, ethics centred on the question as to what sort of human being we are capable of becoming and whether we are living a truly flourishing life. Importantly, it was a question that was always asked with consideration for the Common Good being paramount.  Aristotle recognised that virtue is necessary for a flourishing life and for the enhancement of the Common Good, and that human beings are ideally formed to be virtuous.

So, within this broader framework, focused on human flourishing, virtue and the Common Good, what insights can we bring to a discussion like the present one regarding the posthumous use of gametes? Within this broader framework, consideration of individual interests and the need to determine whether or not Cameron would have consented to his sperm being used will shift from being our exclusive or even central consideration. Rather, we are redirected to take a broader view that considers the good of the human person in unison with a concern for the good of society. The genius of this approach is that it avoids evaluating individual interests in isolation from (or as competing with) the Common Good.

An aspect of this relationship between human flourishing and the Common Good is the need for an adequate understanding of our human aspirations. There is something about the nature of a human being that leads us to strive for a good beyond ourselves, such as was the case in Cameron’s aspirations to be a father and to express his creative talents. We have hopes and dreams and the capacity to strive toward them. Nevertheless, our physical and material nature places limitations (or sets the parameters) for our aspirations.

Even when the accomplishment of our aspirations does not come about, the striving that occurs marks something important about our humanity and reminds us of horizons beyond the here-and-now. Virtue, as ‘second nature’, is necessarily associated with this, our ‘first nature’. Developing virtue as a support for our aspirations ensures that our flourishing as a human being and the pursuing of our human interests will coincide with the interests of society as a whole.

In particular, the prospect of Cameron, who died 11 years ago, becoming a father (in the biological sense) should cause us to think deeply about what it is to be a parent and how the interests of a child are taken into consideration.

In conclusion, the discipline that we call ethics invites us to take a step back, to consider the ethical frameworks that inform and frame such a debate. With the hope that we can move beyond heated ethical debates that will lead to divisiveness, I propose that we need to reclaim a shared and rich conception of the human good that takes as its starting point the notion that we are interdependent (rather than independent) persons who are born into and exist within a network of relationships. In the process of doing that, it will become clearer what actions are ‘ethical’.  That, in turn, can inform our efforts to create good public policies and laws.

Rev Dr Gerard Aynsley is a parish priest in the diocese of Dunedin. He holds a PhD in philosophy from Monash University in Australia.

Abortion law reform: What would Anna Patterson Stout say?

Frances Townsend

The National Council of Women of New Zealand (NCWNZ) passed a remit at its 2014 September Conference to review the Contraception, Sterilisation and Abortion Act 1977 "with a view to simplifying [the abortion law] and ensuring a women's right to choose." This remit was passed by a large majority.

NCWNZ is a federation made up of very different groups of women: radicals, conservatives, feminists, church groups, political parties, rural women, urban women, ethnic groups, business women, philosophers and philanthropists. It is a well-regarded umbrella organisation whose members include nationally organised societies of women, and NCWNZ branches. Individual members belong to the Branches together with representatives of these organisations. Consequently, the NCWNZ is a finely meshed net for catching the opinions of women.

NCWNZ has existed since 1896 to work for the benefit of women, families and community at local, national and international level. It researches the needs of women and the family, engages in education for women that helps to advance women, collects and redistributes information of service to the community. It maintains links with international councils. As an organisation NCWNZ is non-political and is not organised for the furtherance of any one interest.

At the very first meeting of NCWNZ in 1896, the gathered women discussed the many forms of violence against women, poor working conditions and the need for financial equity. The fact that in 2015 we are still discussing those things is an indication of just how long social change takes. But the pressure needs to be kept on. NCWNZ does that and over the years women have made steady gains.

One of the most effective ways NCWNZ goes about its task is to make submissions on every Bill that goes through Parliament which has a major impact on women, families and communities. The law makers appreciate this input from an organisation representative of a very wide and diverse segment of half the population. Some of the issues, like the Contraception Sterilisation and Abortion Act, are controversial, not least among the membership.

Lady Anna Patterson Stout (1858 – 1931) was a foundation member of NCWNZ, the most well-known of the founders after Kate Sheppard. She lived through momentous times that saw the gold rushes, phenomenal immigration, building the railways throughout the land, opening up the country to wool, wheat and frozen meat exports, the Boer War, becoming a Dominion instead of a colony, the First World War, patriotism, the first cars, and the Long Depression throughout the 1880s and much of the 1890s. The Long Depression saw much poverty, soup kitchens, drunkenness, and prostitution. All of these things defined Lady Anna Stout's life.

Anna's parents were well off. They were freethinkers and members of the temperance movement. Freethinking is a philosophy, its adherents holding that "it is wrong always, everywhere, and for anyone, to believe anything upon insufficient evidence" . Anna was greatly influenced by the principal of the Girls Provincial School in Dunedin which she attended from age 12. There she was taught womanly propriety, duty and service. She was brought up to believe in women's rights. At the age of 18 she married another freethinker, Robert Stout, a barrister and Member of Parliament who was knighted in 1886, at which point she became Lady Anna. From this position of eminence she worked for women, children and communities through a number of organisations: In 1885 she became a foundation member of the Women's Christian Temperance Movement and in 1892 she was elected president of the Women's Franchise League in Dunedin. In 1895 she founded the Southern Cross Society. This Society aimed to educate women politically, promote their independence and equality and improve the living conditions of women who worked for wages.

In 1896 she attended the convention in Christchurch as a representative of the Southern Cross Society and became a Vice-president of the newly created National Council of Women. She was a strong advocate of the Council representing all women's organisations. In 1897, she protested: "If the industrial, educational and philanthropic societies are not to be represented ... the Council could not be considered either national or representative".

Later she helped found the NZ Society for the Protection of Women and Children and the Plunket Society. In the post-war period Anna fought for women's rights to a full education not just domestic training. She fought for women to be treated in the same way as men were, in the matter of venereal disease and prostitution. Professor Raewyn Dalziel who wrote Anna's biography for the Dictionary of NZ Biography said of her that she had led a life at the cutting edge of change in women's public role. She was strategically placed to negotiate for women's advancement and this she had done publicly and privately.

What can we who are living in the 21st century learn from Lady Anna Stout; this feminist, fighter for justice, women's rights and equality, philanthropist and a woman deeply concerned about women's health and welfare? More specifically, what might be her contribution to the current debate about the Contraception, Sterilisation and Abortion Act?

Consider what she might say about these three hypothetical yet credible modern young women: One young woman believes in her autonomy over her own body especially in the matter of having unwanted children. The second young woman is a very sad woman. She suffers from depression and even contemplates suicide as a way out of her unhappiness. There are a number of reasons for her depression, but one that eats away at her is that she had an abortion. The third young woman is also a very sad woman. She cannot have children. She wants to adopt a child, if there were children to adopt, but there are few and the way to them is slow and difficult.

What would Lady Anna Stout say? With her freethinking background and as a feminist she would have sympathy and compassion for all three women. But she would want to see the evidence. First, she would want to study all the research on the consequences of abortion, especially the New Zealand based, internationally recognised, and long term research of Professor Fergusson and his team. In addition, she would want to study all the research that challenged his findings that there is a link between abortion and mental ill-health.

She would want to ask many questions such as: How is abortion actually criminalised under the Contraception, Sterilisation and Abortion Act, as some claim? Would easier abortion lead to more abortions? What has happened overseas where abortion is not curtailed by law? Would more abortions, if that happened, lead to more women suffering depression and suicidal thoughts? And would easier abortion lead to even fewer babies for adoption? Are there any changes that could be made to the Contraception, Sterilisation and Abortion Act that would lead to more babies for adoption? With her experience of the Liquor Industry's strong opposition to the Women's Christian Temperance movement, she would certainly want to look carefully at the abortion industry itself to see what pressures, commercial or otherwise, operate on women and groups like NCWNZ. Lady Anna Stout was not afraid of tackling difficult subjects and nor should we be afraid. She would want every aspect of women's health thoroughly researched, studied and discussed. She would argue for gender equality but, as a woman of integrity, she would also argue strongly for equality among all women within the NCWNZ family.

It is clear that there is a huge empty space opening up for those whose focus is on the rights of the unborn and the needs of pregnant women. It is important to keep an open mind to all evidence including research that shows the damaging effects of abortion on women. Whatever side of the debate we are on, we need to tackle the abortion issue with love not aggression. There is an urgent need for support for pregnant women who feel unable to cope with their pregnancy, for women who are childless and who are desperate to adopt, and for women whose babies die in childbirth. For the childless, The Sullivan Birth Certificate Act of 2014 is a breakthrough in legislation since it allows a birth mother and an adopting mother to both sign the birth certificate.

Members of the medical profession who carry out research in New Zealand, quite rightly in my view, do not want to be seen as allies of either side. We need objective research and the job of researchers is to get the results, to have their work peer-reviewed and make them known in reputable journals. Lady Anna Stout, who played a critical role in the founding of NCWNZ, believed in the importance of research evidence on which to base action in the support of women.

She was also a woman of great compassion and this is what must guide those on both sides of the issue.

NCWNZ has a ceremonial Rosebowl which was presented by a member in honour of her father, Sir John Clifton Webb, a distinguished politician and diplomat in the post-WWII period. This article was based on a presentation given by the author to the NCWNZ National Conference in October 2014 as part of the Rosebowl ceremony.

Dr Frances Townsend is a retired lecturer in teacher education and educational leadership at Auckland College of Education. She is a member of the National Council of Women of New Zealand, Papakura Franklin Branch and Auckland Catholic Women's League, Diocesan Council.

Monsignor Vincent Joseph Hunt

Every parent must look at a new-born baby, and ask what the future holds for the little one. ‘What then will this child become,’ as people asked when they looked at the newborn John the Baptist?

It would have been no different for James and Winifred Hunt on 14^th July 1924 when their son Vincent Joseph was born on the family farm in County Roscommon. They too would have looked at their son, hoping and praying for him. I suspect they prayed he would become a good and faith-filled man because they were people of faith. But these parents could never have imagined that their newborn would one day become such an instrument for good and such a universally loved and respected priest here on the other side of the world.

The Gospel we just heard speaks of the seed that falls into the ground and dies, but springs up to new life. And certainly Vince lived and died many times in his 90 years. Or to put it in another way, his was a life marked by self-emptying that brought new life. Not that he spoke very much about it because he was such a private person, but from time to time there were indications that his goodness came from following the path of the crucified Christ.

Often I wondered about his life on the family farm – he never seemed to be a farmer at heart, but he did have a deep love of nature and of all living things. The world of scholarship was his milieu, fostered by the Cistercian Fathers at their boarding school in Roscrae. Certainly that time with the Cistercians explains something of his contemplative spirit. So it is not altogether surprising that on leaving school young Vincent joined the Columban Mission Society and began studying for the priesthood at Dalgan Park. Within a very short time it became clear that his health could not withstand the rigours of missionary life, in fact, he had developed tuberculosis, and was asked to leave. This was one of his early spiritual experiences of self-emptying and loss that God would use to bring new life. During his time of recuperation Vince moved to Belfast where he began studying modern philosophy at Queen’s University. From this study he developed a deep-seated respect for the human person, a philosophy that was confirmed by Jesus’ relationship with all kinds of people. So, Vince would speak of what he called, “The grammar of human relationships.”

After the illness Vince applied to a diocese in California – I think it was San Francisco – and was accepted to continue his priestly studies in their seminary. However, the ship from Ireland had to call first of all at Ellis Island in New York harbour. There he was declared an unsuitable migrant because of his previous TB and was promptly put on a ship back to Ireland. (It was something he seldom spoke about, but it pained him deeply). More self-emptying, but with the promise of resurrection. Back in Belfast towards the end of his studies he heard that a certain bishop from Auckland, James Michael Liston was looking for priests, and so Vince was invited to complete his studies for priesthood at St Patrick’s Seminary, Thurles in County Tipperary.

Finally, after ordination in 1952 he travelled to New Zealand . Incidentally, on board that ship was a 5 year old boy by the name of Philip Handforth, migrating from England with his parents. In the strange ways of Providence, Philip was later to follow Vince as rector of the seminary in Auckland.

To many, Vincent was distinguished as a philosopher. Incidentally, I make no apology for constantly referring to him as Vince or Vincent, because for him the name he received at Baptism was always his preferred way of being addressed. In fact, on one occasion recently, when a senior priest called him, “Monsignor,” he replied very gently, “My mother used to call me Vincent.”

His passion for philosophy goes back to his time as an undergraduate student in Belfast. He told me that there he discovered the 20^th century Jewish philosopher Martin Buber, author of the highly regarded work, I and Thou. At the heart of the book is Buber’s conviction that human life finds meaning in relationships. That is why he would criticise any attempt at doing philosophy by “viewing the world through a key-hole,” as he called it. For him, as for Buber, true philosophy required an engagement with the other – not standing aloof, attempting to understand in a disengaged way. There was a short poem by the Irish poet, W B Yeats, that he loved to quote, making the same point: “God guard me from those thoughts men think in the mind alone. He that sings a lasting song thinks in a marrow bone.” To think in a marrow bone, not to think in a heady and disengaged way, but in the depths of one’s being. And isn’t this the way he related to everyone?  All the seminarians at Mosgiel loved his genuine concern for them and his ability to accept them just as they were. I often felt that he carried the pain of his own rejection when he was asked to leave the Columban seminary, and for that reason, he would never be responsible for making a student feel in any way unwelcome.

His kindliness as a professor is brought out in a story that is attributed to Vince. This particular student who struggled with philosophy handed in an assignment that was clearly copied from a book. According to the legend, Vince asked him to come up to his room to discuss the work. The first thing he asked was, “Is this your own work? Did you write it?” “No,” said the student, “I copied it out of a book.” “Well, I know,” said Vince. So he then asked, “What I want to know is, did you understand it?” “No,” said the student, “but I thought you would.”

This same genuineness and respect for his students in philosophy carried over into his later study of moral theology. He never thought of himself as a very good moral theologian, but his great strength in that field was his ability to understand and respect the human condition and the struggles people had. At that time he read and absorbed another Jewish philosopher, Emmanuel Levinas who insisted that people are responsible to one another in their face to face encounter. Or as Levinas preferred to say, philosophy is about the wisdom of love, rather than the love of wisdom.

And this talk of the wisdom of love draws us back to the love of Christ and the love of philosophy that in Vince’s life were inseparable. Always, in his homilies, he would include a subtle insight into the person and the human condition, and then show how the person flourishes through the grace of the Christ. His serious reading and pondering led inevitably to writing. Over the years he contributed to quite a number of journals and books, developing his thoughts in a simple yet profound way. In recent times Neil Darragh and others have been collecting and editing his written works for publication later this year, and our sorrow is that Vince will not be with us in corporeal form when that book is launched.

Though he was never a parish priest and worked only briefly in a parish, he was a priest of Jesus Christ through and through, with a sensitive pastoral heart open to all. How apt are the words of the first reading, that the life and death of each of us has its influence on others. He was such a gift to the Sister Disciples at St John Vianney House, and they in turn gave the gift to him of such very special care. And then St Paul adds, if we live, we live for the Lord; if we die we die for the Lord. Vince’s life and death touched so many of us, not the least during the final weeks of his illness. As he approached death he said that he found the Psalms more full of meaning than ever before. 

The Gospel we heard speaks of the seed falling into the ground and dying, but then springing up to a rich harvest. There were so many emptyings and sufferings in his life, and we knew only a few of them. There was his earlier struggle to become a priest with disappointment on disappointment. His ill health that led to part of his lung being removed. And what many wouldn’t realise, his own confusion about being named rector of a seminary. The day he was appointed he said to me in his typically self-deprecating way, “I don’t know why I was asked to be the rector; I’ve never organised anything in my life. I couldn’t even organise a brown paper bag.” But being a rector was not primarily about being an organiser, but a man with heart and soul, a humble man transformed by grace. In fact, I have lived with three saints in my life, and Vincent Hunt was one of them.

In the Gospel we heard, Jesus pray, “Father, glorify your name.” To glorify means that the grace and goodness of God may be manifest for all to see. And that is what we witnessed in the life of our dear brother, the power of goodness shining out through this frail and unassuming humanity.

 But then the voice from heaven replied, “I have glorified it and I will glorify it again.” What can we do to ensure that that glorification continues as God the Father promised? When I was a very young priest a much loved and respected priest of our diocese died. An older man said to me at the time, your mentor has died, but in the spirit of Elijah, why don’t you pray for his mantle to fall on you? In that story from the second book of Kings, the prophet Elijah was taken up to heaven, and as he went his disciple Elisha called out begging  that the great prophet’s gifts would fall on him, in the form of his mantle. That is what happened. Elijah’s mantle fell at the feet of Elisha, so that Elisha now shared in the gifts of his master, in fact, his shared goodness remained in two-fold measure.

So, I ask you to consider, what is one of the great gifts you admired in the life of Vincent Hunt? In the spirit of Elijah, why not ask today for that gift to fall on you, as our brother is taken up to the heavenly throne, where life is changed, not ended. Where the darkness of death gives way to the bright promise of immortality.   May he there rest in eternal peace.

Mass Readings

Rom 14: 7-9

Psalm 23

Jn 12: 20-28

Import and Export of Gametes and Embryos: Proposed advice to the Minister of Health

 A Submission to the Advisory Committee on Assisted Reproductive Technology

In March 2013 the Advisory Committee on Assisted Reproductive Technology (ACART) issued a background paper seeking feedback on various ethical and policy issues associated with the import/export of gametes and embryos. The response made by The Nathaniel Centre was printed in Issue 41 of The Nathaniel Report. After collating the feedback it received, ACART then issued its proposed advice to the Minister of Health in the form of a Consultation document and once again invited feedback. The following article is based on the submission made by staff of The Nathaniel Centre. 

Introductory Comments

In our previous feedback on the import and export of gametes and embryos we raised concerns about the ongoing viability of the current New Zealand framework in the face of increased opportunities to access human reproductive technologies overseas. We are pleased to see the strong emphasis in the Proposed Advice on upholding the well-established principles and values that underpin the Human Assisted Reproductive Technology (HART) Act, including in particular the long-standing commitment to altruism. Altruism is, as noted in the proposed advice, a cultural value consistent with other areas of domestic policy. It also lies at the heart of a 'gift-based approach'. For us, the idea that life is a gift represents a critically important ethical 'marker' in assessing the acceptability of using technology to assist the transmission of human life.

The logic of 'gift' is, we believe, inherent in the 'natural' form of human procreation, evidenced among other things by the language traditionally used to speak of the birth of a child. On the other hand, the use of technology, defined as it is by notions of production, (quality) control and efficiency, reveals a very different logic, one that is of its very nature antithetical to the gift. Thus, it is to be expected that the increased use of technology in human procreation naturally inclines us away from, and therefore poses a potential threat to, a gift-based approach to the transmission of human life. This is amply witnessed in the language that appears in debates about the use of human assisted reproductive technologies. It is also evident in the various practices which, in many countries, mean that gametes and embryos are being increasingly treated as tradeable objects subject to little more than the market norms of supply and demand. It is now evident that in certain parts of the world the harvesting and sale of eggs and the contracting of surrogates has become a 'booming business' creating significant wealth for those providing the service. Somewhat ironically, the appeal to children as a 'gift' is often used to market human assisted reproductive technologies by those who have most to gain financially from this 'business'.

A gift-based framework reflects the central Christian belief in the divine and spontaneous origins of all life. However, it is also recognised by many secular philosophers and anthropologists as the traditional basis for describing the transmission of human life independently of any religious perspective. In other words, the shift to view and treat human procreation more and more in terms of the marketplace represents a significant departure from the long-standing way in which societies across many cultural and religious divides have thought about parenting and the role of children. It is a shift that we strongly believe is detrimental to viewing and treating each child as a unique person who demands unconditional respect. It is a shift that needs to be consciously fought against, just as human slavery was and continues to be opposed on the basis that it involves the commodification of human beings.

As the use of technology in human procreation becomes more extensive, it will take considerable and intentional effort to continue to protect the transmission of human life as a 'gift' rather than a tradeable commodity. This remains one of the most serious concerns for us. We therefore welcome the determination being shown by ACART to preserve the ethical values and associated policy in the HART Act in its proposed advice to the Minister of Health.

Import and subsequent use of embryos

As noted in our introductory comments, we are firmly of the view that the principles that underpin the HART Act need to be upheld.

At the same time, this stance presents a dilemma for us given our belief in the inviolable right to life of the embryo no matter what the circumstances of its origin. As we have noted in other submissions, a consistent commitment to the principle of unconditional respect for the embryo rules out all activities on embryos already created by IVF other than for the purpose of implantation and bringing to birth the human life that has already begun.

On this basis, we would like to see an 'exception' being made in certain carefully defined cases where the circumstances do not meet New Zealand requirements for importing; namely those cases where a couple (or individual) seek to import embryos containing the genetic material of one of the applicants (or applicant) if those embryos were created while the applicant/s were resident overseas (in contrast to reproductive tourism) and where the embryos are to be used for the sole purpose of extending their family and where the couple had previously undertaken at least one cycle of IVF overseas using 'sibling' embryos. We do not think that there would be great difficulty in determining which cases met such a test, contrary to what is suggested in the Consultation document.

We admit that this could be seen by some as creating a situation of inequality thereby contradicting the principled stance taken by ACART to preserve the ethical values and associated policy in the HART Act which we whole-heartedly approve of. In our minds, however, we see such cases as the 'exception' to the rule, and therefore as sitting alongside the rule rather than undermining it or creating a precedent for other cases.

Export of gametes and embryos must be in accordance with the HART Act

We have previously stated our strongly held view that the deliberate separation of the biological, gestational and/or social aspects of parenthood are not in the best interests of the child. We believe that a sense of personal well-being is fundamentally linked with a healthy self-identity, which, in turn, is intimately and inextricably tied in with a lived knowledge of our biological ties - whakapapa. This knowledge is put seriously at risk by arrangements that exclude children from growing up within the families of their biological origins or, worse, deny them knowledge of their biological origins. The export of gametes and embryos means that in many cases children will effectively be denied the right to grow up surrounded by the family networks that are generated by their biological ties.

It follows that gametes and embryos that originate within New Zealand should have been sourced or created within the parameters of the HART Act. It will, of course, be difficult to follow up on the subsequent use of gametes and embryos once they have been exported, which means the approach being suggested is essentially based on a high level of trust. This parallels, in many ways, the approach taken by the health and disability research committees who make particular recommendations to researchers without knowing if they will always be followed through. Relying on the good will of those who make the application to export gametes or embryos means there may well be instances where the commitment made is (quite intentionally) not followed through. Even so, and without being able to identify or eliminate such cases, making the subsequent use of gametes and embryos subject to the requirements of the HART Act will send the strongest message possible about the robustness and integrity of our current New Zealand approach, as well as our commitment to the key principles and values that underpin the Act. To do anything else would expose us to the criticism of being ethically inconsistent.

We agree that gamete providers need to give informed consent to the export of gametes or embryos created from their gametes. The information provided as part of the consent process should include information about the HART Act as it applies, and the reasons for its requirements, so that the provider (donor) has a proper understanding of the reasons why New Zealand imposes the restrictions it does on the subsequent use of gametes and embryos. Any donors need to be appraised of the fact that ultimately New Zealand has no control or jurisdiction over the way in which gametes and/or embryos will be used overseas.

Decisions about import and export for assisted reproductive procedures and research

In general we agree that fertility services providers should continue to make the decisions about whether the import and export of gametes and embryos is consistent with the principles of the HART Act. We do, however, have concerns about providers making decisions relating to the export/import of gametes/embryos given the not insignificant financial stake they have in the procedures. Therefore we approve of moves to introduce more detailed and transparent requirements as outlined in the Consultation document.

With respect to decisions relating to the importing of embryos that fit the 'exceptional case' that we have argued for above, we believe that the Ethics Committee on Assisted Reproductive Technology (ECART) should provide an independent review and be responsible for the final decision. We understand that this would involve only a small enlargement in terms of the scope of ECART's existing functions and its current workload. As noted in the Consultation document when referring to "those prevented from bringing embryos back to New Zealand": "New Zealanders involved in trans-border reproduction appear to be a small proportion of those using assisted reproductive procedures in this country".  The particular fertility services provider could be made responsible for preparing the application and ensuring the information provided therein was correct.

As we have previously noted on numerous occasions, we are opposed to all research involving human embryos, including those that are so-called 'spare'. A thorough exposition of our reasons for this is outlined in a submission made to ACART on The use of gametes and embryos in human reproductive research: Determining policy for New Zealand in February 2007.

Donor compensation

This aspect of the Consultation document concerns us greatly. As argued in our Introduction, we agree whole-heartedly with retaining the critical distinction between altruism and commercial supply. However, we are specifically disconcerted by the suggestion of providing "compensation" for non-financial losses and in particular the rationale behind the idea that any increase in the level of expenses "should not leave donors in a significantly better position [presumably better financial position] than they would have been in without donating". It is not that we disagree with what is being stated here – i.e., we are not arguing donors should be able to find themselves in a better financial position. Rather, and to the contrary, we think the statement is potentially contradictory in so far as it, perhaps unwittingly, shifts the line between altruistic donation and doing something for financial gain.

In keeping with the real-life meaning of a 'donation' or 'gift', it is to be expected that normally speaking a donor is, in a tangible way, left 'worse-off' – worse off in the sense of having willingly taken on a 'cost' or 'burden' (whether financial or temporal) for the benefit of another. This is, surely, the whole point of giving – giving something of one's self or one's possessions to enhance the well-being of another who lacks something, while accepting that it involves a real personal sacrifice. Providing a monetary donation to an aid organisation is a good example of this – apart from any satisfaction associated with the act of giving, the giver is left, literally, 'out-of-pocket'. If that were not the case it could not be genuinely described as a 'donation'. Conversely, when a person does something for another on the basis of securing a tangible return, either because they don't want to be left worse off, or because they may even find themselves better off – whether "significantly" or otherwise is irrelevant – then that type of action no longer qualifies as a true gift or donation. The act is not necessarily a 'bad' one for that reason but, and this is our key argument, the possibility of describing that act as an altruistic one, and consequently the opportunity to provide a gift or donation, no longer exists. The act then belongs to a different class of action; it is, quite simply, more akin to a marketplace trans-action.

How does this thinking apply to compensation for donors of gametes or surrogates? We accept that persons should be entitled to receive adequate "reimbursement" for real financial losses or costs such as visits to health professionals. These are easily determined. However, we oppose in the strongest possible terms the idea of people being "compensated" (as defined in the Consultation document) for discomfort or other non-financial losses in the form of any payment or fee for services. We believe this would take the conception of such a child out of a gift paradigm and, by default, into an economic paradigm. We cannot justify in our minds what would amount to a purely utilitarian rationale that placed outcomes (e.g. the suggestion in the Consultation document that it might lead to a greater number of egg donors) before the preservation of the 'dignity' of human persons which we understand as requiring an absolute rejection of the commodification of human life. Compensation for non-financial losses would result in opening the door, even if only a crack, to the eventuality of people being 'paid' to be donors or surrogates. Ongoing commitment to the principle of altruism, and thus to the concepts of non-commodification of children and non-commercialisation of body parts, demands nothing less than a rejection of any financial payment for non-financial losses.

Furthermore, such a move would have a flow through effect. Above all it would prejudice the altruistic values that have long been part of the culture of donating blood, kidneys and other tissues for New Zealanders. In addition, once the prospect of financial 'gain' for non-financial losses enters into the equation, it introduces a risk for informed consent; as soon as money is on the table, informed consent is too easily compromised or manipulated.

Staff of The Nathaniel Centre

Euthanasia: A child’s choice?

Rev Dr Gerard Aynsley

It is difficult to imagine a more painful reality than that faced by parents of a terminally ill child. Is child euthanasia the answer? In Belgium politicians have voted overwhelmingly ‘yes’.

Chris Cleave, in his 2012 novel, ‘Gold’, takes the reader into the mind of seven-year-old Sophie who is receiving treatment for Leukaemia. The author gives a powerful portrayal of the sort of angst a child may experience when seriously ill and the ways the child will, quite naturally, be concerned for her parents. Sophie is forever attempting to protect her parents from knowing how sick she is, and, in doing so, unwittingly prevents her parents from being involved in her care. I was reminded of the character, Sophie, when reading in Saturday’s Otago Daily Times (15.02.14) that members of the Belgium Parliament had voted 86 to 44 in favour of lifting restrictions to their present Euthanasia law so that terminally ill children could request the assistance of a physician to end their life. The Belgium proposal takes into account that a child’s “legal age isn’t the same as mental age” and that a child can have “a capacity for discernment”. I concur that a child has the capacity to make important choices, but the vulnerability of the child and the possibility that, like Sophie, a child may inadequately understand a situation must be kept in mind.

It was as a member of the Otago Ethics Committee some years ago that I saw some of the practical ways in which a child’s capacity to choose could be honoured. As a committee we held strongly to the view that children should, where possible, be included in the consent process and in discussions about their own health. Inasmuch as it was possible our committee would insist that researchers involve the children in the decision-making and that they explore ways of conveying information that was accessible to the particular age of the child. We also encouraged researchers to have an agreement form for the child to complete additional to the legal consent signed by the child’s parent or guardian. While there was a deep respect for the child’s choosing capacity, forefront in our minds was the fact that children are vulnerable, and a sick child is particularly vulnerable. A child needs others to stand up for them; to ensure there are proper safeguards; to consider the more complex possibilities. The vulnerability of the child needed to be taken into account and the most important way this was addressed was by ensuring the child’s choosing didn’t occur in isolation.

Choosing doesn’t occur in a vacuum, but rather in a complex web involving the lives of others who are also making choices that intersect and overlap with our own. As human beings we make choices, not only with our own needs in mind, but also for the sake of an ‘other’: we choose to spend time with them; to help out; to forgive; to show kindness; to bear with the other in their difficulties. Children are indeed capable of making choices to do with their own wellness, but they especially need the choices of adults to overlap and intersect with their own choosing. The Belgium proposal may appear on the surface to show respect for children and their capacity to choose, but it fails to sufficiently take into account the child’s vulnerability and the child’s need for adults who are called upon to make good choices for their sake.

One of the things that makes a child particularly vulnerable when it comes to making choices is the simple fact that she or he has limited experience. This can impact on how they form an understanding of the situation requiring a decision. A child may not see the whole picture or may not understand fully the various options available to them. A child may be confused in their summing up of a situation. Think, for example, of the child who imagines he is responsible for his parents’ choice to separate. Similarly, a child who is seriously ill may see herself as the cause of her parent’s suffering and think that if she were no longer around her parent’s suffering would be lessened or alleviated. Sophie, in the novel, ‘Gold’, was looking at things in this way. The legal age is set for a very important reason. Children need the protection and care of adults. Children, whose minds are developing and whose experiences are limited need to be protected from the burden of thinking they have both the power and responsibility to make things better for their families.

In fact, all people living with a life-limiting illness need to be protected from this burden. It goes to the heart of why euthanasia is a bad idea for adults as well as children. The claim that an earlier death will somehow make everything alright is a spurious one that is not resolved by a simple appeal to ‘choice’ or the capacity to choose.

Rev Dr Gerard Aynsley is a parish priest in the diocese of Dunedin. He holds a PhD in philosophy from Monash University in Australia

The sacramentality of adoption: A Trinitarian love

The article by Timothy O’Malley examines the nature of adoption, challenges the stigma associated with it, and suggests that adoption can be viewed as a strongly sacramental icon – an act of self-giving love on the part of the mother that infuses the child’s existence from the very first moment.

This article is available online here: http://americamagazine.org/issue/trinitarian-love

Why euthanasia slippery slopes can’t be prevented

Margaret Somerville logically and articulately argues that when it comes to euthanasia, “logical and practical slippery slopes are unavoidable and inevitable.” The initial “conjunctive justification compromised of respect for individual autonomy and the relief of suffering” is gradually supplanted by an appeal to either justification on its own which opens the way for non-voluntary and involuntary euthanasia.

This article is available online here: http://www.mercatornet.com/careful/view/13676

“Going Dutch”: Euthanasia and the Beautiful Game

John Kleinsman

My accent is Kiwi but the name gives it away. I'm a first generation New Zealander of Dutch descent and it is something I'm proud of. I'm also a football fan – I love watching 'the beautiful game' and once enjoyed playing it!

The Dutch are known for many things including the quality and technique of their football. It was the Dutch who, in the 1970's, invented what is now known as 'total football', a tactical style in which players' positions are interchangeable as part of a general method of attack – difficult to defend against. It's very much a team oriented approach and around the world football coaches have learnt much from this Dutch innovation.

Ironically, while they have over the years continued to produce players of exquisite talent and ability who perform exceptionally as individuals, the Dutch football teams have also gathered a reputation for self-destructing at the highest level of competition and they now carry the tag of being the best team never to win the World Cup; three finals and three defeats! Commentators agree that this is largely the result of internal divisions brought on by the inability of their talented and strong (some would say stubborn) individuals to create a team culture; total football on the field is not compatible with an individualistic approach off it.

The Dutch are also well known for being the first country in the world to legalise euthanasia; something that evolved from turning a blind eye to euthanasia to openly tolerating its practice and eventually to legalising it in 2002. It has occurred to me that there is a commonality between this fact and their struggles on the football pitch.

I have always been intrigued by the fact that the debate about euthanasia (and physician assisted suicide) is prominent only in certain societies, namely affluent white western societies. Why is that? It's a question that is rarely explored. My own hunch is that it is a feature of those largely secular societies where certain assumptions prevail; where the dominant notion of personhood is individualistic and the dominant 'virtue' is the individual's right to make his or her own choices. This emphasis on autonomy and rights shapes us to see the world as belonging to those who are independent, strong and productive. It also shapes us to see moral issues and dilemmas in a certain and very narrow way.

The liberal case in favour of euthanasia is not without its own logic. The argument is made by proponents of change that legalising euthanasia will not adversely affect the freedom of those who do not want to die in this way. On the other hand, the ongoing prohibition of euthanasia unfairly prevents some (albeit a very small minority) from exercising their freedom of choice; the personal beliefs of one group are then effectively being forced onto others, or so the argument goes. In this way, those in favour of euthanasia frame the issue in terms of the protection of rights; specifically the right to choose. The current law in New Zealand is seen as bad law because it unfairly prevents people from making their own end-of-life decisions. Good law, it is stated, upholds individual choice above all.

At this point in the debate I suddenly find myself agreeing with those proposing a change in the euthanasia laws. And I say to them: 'You are right. This debate is about choice!' They look surprised and quizzical while I continue: 'What you don't realise is that it is the legalisation of euthanasia that will ultimately take away people's choice.'

A law change that allowed for people in certain circumstances to dispose of themselves (physician assisted suicide) or be legally 'disposed of' would inevitably start to reshape the way we looked at sickness, old age, disability and death. In particular there would exist the temptation for relatives, as well as over stretched and under resourced care institutions, to see those who are disabled and sick as a burden to be shed rather than as persons to be cared for. Furthermore, and perhaps even more seriously, legalising euthanasia has the real potential to change the way in which those who are disabled, sick and elderly see themselves. These people are already vulnerable because of disability, sickness or infirmity. In a world in which they feel undervalued and isolated they will more easily come to see themselves as a burden and will want to do the right thing if euthanasia is legalised. The so called 'right to die' all too easily becomes a 'duty to die'. On-going debates about the costs of caring for people in the last six months of life fuelled by greater pressure on health-care resources and growing numbers of elderly persons living in institutions will only further exacerbate this pressure.

In other words, the net result of legalising euthanasia would be that those who are most vulnerable will become subject to various forms of physical and psychological coercion. Upholding the choice of a few to be euthanised will effectively take away the choice of large numbers of others to live. What is initially presented as a matter of freedom and choice now comes to look more and more like the imposition of a burden. In the words of one who knows and for whom the desire to live is at times already tenuous in the face of the burden his chronic illness places on others: "If euthanasia were a legitimate option ... then life for the chronically seriously ill would become contingent upon maintaining a desire to continue in the face of being classified as a burden to others ... The mere existence of the [euthanasia] option will affect attitudes to our care, and hence our own willingness to continue."

Furthermore, it is both impossible and contrary to reason to limit euthanasia to a particular group of persons, such as adults or those with a physical terminal illness. Recent developments in Belgium, Holland's closest neighbours, which have extended euthanasia to children, are the most recent testament to this. In the words of one commentator: "The right approach to life and death cannot be restricted to adults. It stands to reason that if euthanasia is a virtuous and compassionate act and a right given by law, then restricting it to only the aged and excluding children is illogical." If euthanasia is permitted as a 'treatment' for pain and suffering then it has to be made accessible to all people.

That inevitably includes people incapable of making a competent choice? While the Belgian law regarding children stresses that the child must repeatedly request euthanasia and be proven to have the capacity to understand what they are asking for, it is, ultimately, just as illogical to restrict euthanasia to those who are competent. No other medical treatments are given or withheld on the basis of a person's competence.

The experiences of the Dutch are, once again, instructive in this regard. Euthanasia of neonates has long been tolerated under what is known as the Groningen Protocol. More recently a public referendum has been initiated in the Netherlands that would allow those over 70 to access euthanasia for no other reason than that they were 'fed up' with life. This would include people who felt isolated, who were demoralised or who felt themselves to be of no use and a burden. As one commentator notes: "Euthanasia in the Netherlands has gone from requiring terminal illness to no physical illness at all, from physical suffering to depression only, from conscious patients to unconscious, from those who can consent to those who cannot, and from being a measure of last resort to one of early intervention."

Thus, legalising voluntary euthanasia is tantamount to permitting all forms of euthanasia – voluntary and non-voluntary and, as international evidence shows, will invariably lead to cases where people are euthanised against their explicit wishes (involuntary euthanasia). It is, therefore, inevitable that choice will be undermined.

To reiterate; the choice to allow euthanasia to remain illegal is a choice in favour of the rights of people rather than the opposite as proponents claim. However, it is now readily apparent that we are talking about a particular kind of choice. It is a choice that recognises the needs of the most vulnerable. It is a choice to promote and uphold the common good. It is a choice that locates individual decisions within a community perspective. It is a choice to care. It is more of a 'total football' approach to life which recognises that strong minded individuals do not always bring back the winners medal.
It is evident to me that Maori and Pacific Island cultural perspectives have been largely absent from New Zealand discussions on attitudes to dying. It is their voices we need to bring a fresh perspective. The Western approach considers respect for human life almost exclusively at the level of respect for the individual while ignoring the effects such a law change would have on society and at the institutional level, in particular its effect on the institutions of law and medicine. It is an approach which too easily neglects the fact that, when all is said and done, we are all interconnected persons whose identity and well-being is tied up with being part of a caring and inclusive community.
'Going Dutch.' In the colloquial sense it's all about individuality; paying one's own way, going it alone, not wanting to be beholden or a burden, being independent. 'Going Dutch?' No thanks.

I will, of course, keep on barracking for the Dutch football team as they travel to Brazil for another go at that elusive World Cup just as I will continue to be vociferous and staunch in my opposition to euthanasia. Come to think of it, I am even grateful to the Dutch for demonstrating so clearly the dangers of euthanasia ... if only they would go back to a 'total football' philosophy.

John Kleinsman is the director of the New Zealand Catholic Bioethics Centre – The Nathaniel Centre

The dubious ethics of creating children with three genetic parents

Margaret Somerville discusses ethical issues concerning the creation of a child with three genetic parents. She describes such a procedure as altering the human germline, and discusses the ramifications of this in terms of international legal and ethical positions that have been held up to now.

This article is available online here: http://www.mercatornet.com/articles/view/the_dubious_ethics_of_creating_children_with_three_genetic_parents

Intensive care: because you’re worth it?

Consultant in Paediatric Palliative Medicine Richard Hain explores the question: "Are there children for whom intensive care and resuscitation are not appropriate?" Beginning with the notion that a "sense of moral discomfort is surely not a robust enough base on which to build a sound ethical approach," Hain argues that agreement about the need to withhold or withdraw treatment can potentially mask serious differences about the value of children with life-limiting conditions.

Available online at: http://www.thinkingfaith.org/articles/20121211_1.pdf

Responding to loss in pregnancy

Every one grieves the death of an infant. Parents who have tragically lost their baby to cot death or illness find that others grieve with them. Immediate family and extended family, friends and acquaintances all recognise the heartbreaking nature of what has occurred. There are funeral rites which aid the grieving process; there are photographs to reflect upon. Even the sad, sad task of packing up baby clothes is a means of coming to terms with the reality of the distressing loss. In contrast, the experience of those who suffer loss during pregnancy can be very different. In this paper I want to reflect on the grief occasioned by the loss of a baby to miscarriage, stillbirth or abortion and suggest ways in which we might respond with heightened awareness and compassion to them.

Some general comments on grief and loss

After the publication in 1970 of the ground-breaking work of Elisabeth Kübler-Ross, On Death and Dying, her five stages of grief entered into the lay-psyche.[1] We read that grieving people regularly go through a stage of denial. The painful truth is often too much to handle in the immediate after-math of learning of a present or potential loss. This can be a constructive coping strategy in the short-term and it requires that the support person respects the need to process the news at a rate that is manageable. Similarly, we need to appreciate that people often become angry at their circumstance, displacing it onto immediate others, the medical establishment or God. Anger is another means of dealing with pain, distancing the sufferer from the interior grief that is too much to handle. Bargaining and a period of depression may follow but, if support has been adequate and patients have been allowed to process their feelings and thoughts in the context of compassionate others, eventually there may occur the healing process of acceptance. Ultimately, our understanding of Kübler-Ross’ work was more nuanced and we came to realise that these stages were not linear, for people may well revisit a stage that they had previously encountered.

These observations have certainly been helpful insofar as they have enabled us to respect the range of emotions which grieving people may experience. More recently, however, the process of grief that Kübler-Ross articulated has been questioned. George Bonanno’s evidence-based research challenges the notion that there are differentiated stages of grief. Instead Bonanno identified three common patterns of grief reaction: people who manifested resilience, people who demonstrated a recovery pattern, and people who suffered chronic grief. [2] Those in the resilient category struggle with emotional pain that is often acute but they are able to meet the everyday demands of their lives, putting the grief aside when required. Those in the recovery pattern find that grief seriously impinges on their present quality of life but they are nevertheless moving towards their pre-grief state. The remainder experience prolonged grief that is enduring and extreme, frequently requiring the help of mental health professionals.

It is this latter group with which I am primarily concerned in this paper. Societal as well as personal factors contribute to the depth of suffering experienced by these women and, frequently, by their partners. It is my hope that a presentation of these factors will help us in our compassion and support for those whose loss, whether acknowledged or unacknowledged, conscious or unconscious, dominates their lives and frequently impacts the lives of those around them.

The grief of miscarriage and stillbirth

In Australia the loss of a baby before the first twenty weeks is called a miscarriage; after twenty weeks the loss is a stillbirth. The grief occasioned by a miscarriage for both the woman and her partner is often underestimated with both anxiety and depressionbeing possible consequences of the distress following miscarriage.[3] A stillbirth is even more devastating; the intensity of grief has been found to be greater when gestational age is longer.[4] Parents are seldom prepared for the possibility of the loss of their baby in antenatal classes, intended as they are to provide support for a healthy live birth. Baby magazines do not engage with it; friends do not know how to react. The woman and her partner are often left alone to deal with the pain of loss, unaware that there are many other like sufferers.

In fact pregnancy loss is quite common with twenty-five percent of women experiencing a loss of some kind during their pregnancy and one percent of couples suffering recurrent losses.[5] Nevertheless, the woman often encounters emotional isolation as she struggles to come to terms with her grief, often feeling that even her partner does not understand her experience. The agonising search for an answer to the question “Why?” can be compounded by feelings of failure and frustration, and sometimes by guilt and shame, particularly for those with repeated losses. Both miscarriage and stillbirth generate a unique set of complex emotions which insensitive responses from family, friends and professionals can exacerbate. For example, a well-meaning comment of “You’ll get pregnant again” or “It was only a miscarriage” or “It was probably for the best” will just increase the grieving mother’s disappointment and sense of isolation.

Parents need to find ways to manage their grief, grief that can seem to tear them apart. These ways vary according to the circumstances and unique needs of the mother or couple. Frequently women who have had a miscarriage need to recognise that they have a right to grieve even if their loss seems considerably less than that of others who have, for example, lost a child at birth or in infancy. Karen Edmiston poignantly conveys the reality of such grief: “When does life begin? Conception. When does life begin to be important, memorable, meaningful, sacred, worth grieving over? Conception.”[6]

Women grieving the loss of their baby need to accept that little, often unidentifiable, things can trigger a recurrence of grief. They need also to find ways of coping with their grief. Strategies for coping with loss to miscarriage can be many and varied. Some mothers use online resources, blogging or creating an online memorial; others will decorate the Christmas tree with the child’s memory in mind. The family may acknowledge their dead child in the “count” of their children.[7] There are many other means of acknowledging the reality of the deceased child’s life.[8] Appropriate professional intervention can also make a significant difference. There is evidence that supportive hospital care can aid both physical and emotional recovery following a miscarriage.[9]

In giving birth to a stillborn child the mother is confronted with extremely complex emotions. Life and death converge.[10] There has been a birth but there is silence; instead of welcoming their child into the world the mother and father must farewell their baby. One woman observed, “I am angry, unbelievably sad. I feel lonely, lost and beg to wake up from this nightmare. My whole being has been ripped to shreds.”[11] Many mothers understandably report feelings of emptiness that touch them both emotionally and somatically.[12] Subsequent pregnancies are likely to generate much anxiety with the fear that failure may attend this pregnancy also. Mothers who have miscarried often lament that there is no body to hold and ultimately to bury. Those who have a stillborn child do have that option and many claim it is a help in their grieving process.[13]  

Whether the loss in pregnancy is due to miscarriage or to stillbirth, enormous sensitivity and compassion is needed to convey a felt sense of support to the grieving mother and her partner. The grief of loss due to miscarriage and stillbirth generates a range of distressing emotions.[14] However, the grief associated with an induced abortion is even more distressing because it has often to be hidden due to fear of societal judgement. Abortion can generate a complicated grief that impinges upon lives with disturbing and long-term consequences.

The grief of abortion

A preliminary reflection

The evidence regarding the psychological or mental health risks associated with an abortion supports the positions of neither the pro-life nor the pro-choice movements.[15] A study of 500 women to the age of thirty revealed that the majority of respondents reported that they had made the “right decision” in having an abortion.[16] The researchers comment that these findings call into question “strong pro-life positions that depict unwanted pregnancy terminated by abortion as consistently having devastating consequences for women’s mental health.”[17] On the other hand the results do not support the pro-choice movement either insofar as the movement argues that abortion is without any deleterious mental health consequences.[18] Certainly there is no evidence to substantiate the notion that abortion reduces the mental health risks associated with an unwanted and continuing pregnancy.[19]

Instead, it is claimed that there is justification for holding a “middle-of-the-road position” wherein  mental health problems do arise for those women who experience abortion as a “stressful and traumatic life event.”[20] Coleman goes further in insisting that “abortion is associated with moderate to highly increased risks of psychological problems subsequent to the procedure.”[21] Moreover, for those women with a prior history of abortion there is evidence that mood disorders and substance abuse significantly increase.[22] It is with those for whom abortion and its sequelae are traumatic and enduring that I am concerned.

The complicated grief of abortion

A range of circumstances may trigger the perceived need for an abortion. The woman approaching menopause may feel she simply cannot “do babies” again. The woman may suffer a disability. There may be migrant and cross-cultural problems that militate against a woman being pregnant outside marriage. The major group, however, that presents for abortion is the 15-25 year age group.

The grief of abortion is complicated. The woman who has had an abortion is meant to be relieved that her “difficulty” has been resolved. She is not expected to grieve. Indeed, neither she nor her partner feel they have permission to grieve.[23] Grief may not surface until many years later. The impact of the abortion may only be revealed, for example, in the context of psychological help for difficulties in relating to her marriage partner. Or the repressed trauma of an abortion may trigger painful somatic memories, the meaning of which is only discovered with therapeutic support.[24] Karol Woytyla observed that abortion may cause “an anxiety neurosis with guilt feelings at its core, and sometimes even a profound psychotic reaction” and that sometimes decades later a depressed woman may “remember the terminated pregnancy with regret and feel a belated sense of guilt.”[25]

 In the immediate aftermath of an abortion it can be a shocking surprise to a woman when she finds herself grieving her lost child with no tangible means of remembering her baby. In this respect the grief of abortion can be similar to miscarriage. There are, however, additional factors that confound the grieving process.

Often significant others have exerted pressure upon her to have an abortion, with self-interest either consciously or unconsciously in mind: her partner, her parents, friends, the dearth of adequate counselling support at an abortion clinic.[26] Abortion is usually offered to a woman as a quick solution that can resolve the many social, economic and, for younger women, educational problems confronting her. Hence the choice to abort is typically a forced choice. These pressures and the ensuing shame and guilt create the circumstances for much more mental disturbance than that occasioned by miscarriage or stillbirth. The stress subsequent to abortion has been seen as so extreme that the notion of a “post-abortion syndrome” has been proposed.[27]

The literature presents a range of debilitating psychological problems that a woman may suffer subsequent to abortion: low self-esteem, guilt, depression, suicidal thoughts, broken relationships, nightmares, flashbacks, anger, drug and alcohol use, sexual promiscuity and dysfunction, phobias and compulsive disorders. She may also find an inability to express emotions and discover that events that remind her of her dead baby hinder her engagement with age-appropriate activities. So, for example, she may be unable to attend a friend’s baby shower, or rejoice in a friend’s pregnancy. Her interaction with children can become unhealthy, either fearing or abusing them.[28]

Abortion affects not just the woman. Men, too, can be affected by abortion. They can feel powerless and angry if the decision to abort was made independent of them. On the other hand, if they pressured the woman to abort, guilt and sorrow may surface months or years later. Families and siblings of the dead child are also affected. A child who has been told that “if the baby is not all right the doctor is going to send the baby back to God,” may worry that he or she also is not “all right.”[29] Such anxiety generates significant existential insecurity with behavioural consequences for the child.

Those who suffer the grief of abortion, whether the woman, her partner or others affected by the abortion, need understanding and compassion. They also need hope.[30] I turn now to consider the ways in which sufferers of loss in pregnancy can be supported.

Care for those suffering loss in pregnancy

Pope Benedict XVI called for an “attitude of merciful love” to those suffering the effects of abortion and divorce.[31] And, indeed, there is an increasing awareness of the need to support those suffering grief following a loss in pregnancy.

Women do ring up various agencies looking for support after an abortion. It is very important to receive them in a non-judgemental manner, respecting the person and conveying understanding and compassion.[32] In the case of an abortion, such a response does not negate the seriousness of what has occurred.[33] It does, however, demonstrate that the value and dignity of the person has primacy in the eyes of the support person. Empathic support will enable a woman to do the necessary work of grieving, which is a first and essential part of the journey towards healing.

Whether it is a miscarriage, stillbirth or abortion that is the issue, there is a particular type of listening that provides a healing space in which the person, woman or man, feels safe and hence able to open up to the painful depths within, as well as open out to the listening person. It is the empathic, reflective listening that occurs when the support person is fully present in spirit to the suffering individual. Such listening is fully engaged; the woman knows she has the full attention of the listener. Moments of silence are valued and not hurried over. Periods of crying are quietly accepted. The full range of emotions must be recognised as a normal part of the grieving process:

The dreadful despair must be accepted as such and must be regarded as appropriate to this particular life situation. In addition, the chaotic emotions, especially the anger, must be endured. This is made easier by an understanding that the emotional chaos represents the dismantling of the old patterns of relationship and the old habits and therefore also the creation of a new potential.[34]

In helping people recognise, acknowledge and accept their grief, the counselor is also helping to effect transformation of the personality. The way is being created for old habits of emoting and thinking to be replaced by new, more constructive ones. For this to happen it is essential that the grieving process is given expression.

For those suffering the grief of an abortion the work done by the Project Rachel Ministry is particularly helpful.[35] In the context of a retreat for those who have had an abortion, spiritual ministry reaches deep into the wounded spirit of those who have felt condemnatory judgement from themselves, the church or the community. Again, listening and acknowledgement of the woman’s pain must be given priority as instanced by the following observation:

I have found that time taken to listen to the story in some detail is all that’s needed to help make the connection. Many people may have listened to the story – although usually it is only a few – but when the person is listened to by the priest something happens to connect the person with God, forgiveness and their need for spiritual healing. While God’s healing is not dependent on a priest, it is clearly important for some to hear the priest acknowledge the pain they suffer for this spiritual healing to take place. This is especially true for those who have felt rejected by a priest or the church.[36]

Towards hope: an existential reflection

One of the consequences of an abortion, or indeed of any form of pregnancy loss, can be an identity crisis.[37]People who have been subjected to extreme suffering frequently find that their usual modes of self-experience and of relating to the world have been stripped away.[38] They experience agitation and restlessness. They speak of feeling “lost” and of being separated from others in ways that are distressing to them. Their suffering challenges their previous felt-sense of presence to themselves. It also challenges their relationship with God who often appears painfully absent. They have been stripped of their previous roles and personas. Their self-concepts have changed and they have no new concepts with which to replace them. They are no longer able to make sense of who they are. Emotionally, socially, cognitionally, somatically and spiritually they are in new and unfamiliar territory.  They are exposed to a mysterious and disturbing void at the core of their being and a profound existential self-question arises from that experience, the question “Who am I?” Learning to accept their emptiness with equanimity can be foundational for significant transformational change.

By attending to the experience of emptiness, and to the existential question that subsequently arises, people can be led to a vocational exploration, answering the question of “Who am I?” with the discovery of what God is calling them to do.[39] Indeed, as Pope Benedict XVI has observed, in affirming the dignity of the human person and the human person’s capacity to love, “[P]eople are able to respond to the loftiest vocation for which they are created: the vocation to love.”[40] The question for the person on the way towards healing will be the unique form in which that vocation to love will be expressed. It is encouraging for those involved in the work of “healing of souls” that they are also contributing to the salvation of humanity for, as Pope Benedict XVI observed, “without the healing of souls, without the healing of man from within there can be no salvation for humanity.”[41]

Conclusion

Loss of a child in pregnancy, whether due to miscarriage or stillbirth or abortion, is a cause of great grief and suffering. Everyone recognizes that stillbirth is extremely painful, but people often underestimate the extent of the grief also occasioned by miscarriage. Both circumstances require compassion and sensitivity on the part of others. However while miscarriage and stillbirth cause significant grief, they have not been associated with clinically recognised mental disorders to the same degree that abortion has. Whereas the death of a baby in miscarriage and stillbirth happen to a woman, in the case of abortion a woman chooses to have her baby die. However, the choice is a forced choice, a factor which significantly complicates the grieving process. Pressures exerted by her partner, her family, her culture and her psycho-social needs can all combine to create a perceived need to abort. Mental disorders, substance abuse and relational difficulties can then impact on women’s lives for years. Increasingly organizations such as those mentioned above are becoming available to assist women and their partners to acknowledge and work through their grief. As women and men do so, they are afforded the opportunity to find God’s grace in their suffering and to see that God’s love can transform even the darkest experience, giving their lives meaning and purpose.

Meredith Secomb has a PhD in theology from the Australian Catholic University (Melbourne) and has worked as a clinical psychologist in both the public and private sectors, the latter specialising in the interface of psychology and spirituality. This paper was originally delivered in Melbourne at the 2013 National Colloquium for Catholic Bioethicists which explored the topic “Issues in Mental Health and Drug Addiction.”

What to expect when no one's expecting: America's coming demographic disaster

By Jonathan Last. New York: Encounter Books, 2013.

Reviewed by Petrus Simons PhD

Introduction

The world’s population has increased from 3 billion in 1960 to 7 billion by the end of 2011, with 9 or 10 billion expected by 2050. Given that about 1 billion suffer hunger or malnutrition, many believe that the world is over-populated. In contrast, Jonathan Last argues that we should rather worry about a declining birth rate, which in due course will result in a decreasing world population. The populations of Russia, Italy, Japan and Latvia are already declining.

The statistic used is the total fertility rate, defined as the number of live births that women will have during their life, assuming they experience the age-specific fertility rates of a given period. At a rate of 2.1 a population will replace itself. At a lower rate, it will contract. In 1979 the world’s fertility rate was 6.0. It is now 2.52, close to replacement. New Zealand’s rate is around 2.0.

This review will summarise Last’s arguments and then discuss their strengths and weaknesses.

Reasons for falling fertility

Last is concerned with trends and cautions against possible biases such as racism or criticising women for not producing more babies. His reasons for the declining trend can be summed up as follows.

Religion and Secularisation: The waning of the Christian religion, which has always emphasised the blessing of children, has led not only to falling birth rates, but also to easier divorce, higher rates of divorce, declining numbers of marriages, greater acceptance of homo-sexuality and an increase in abortions.

Secularisation is associated with a belief that individuals are autonomous and should decide for themselves how they live. As a result the value of ‘community’ has been declining.

Medical: Better health care has led to a decline in infant mortality and, consequently, has eliminated the need to replace those dying in infancy. Progress in medical technology has also brought new methods of birth control. Sadly, it has also facilitated abortions. Since the US Supreme Court legalised abortion in 1973 (Roe vs Wade), there have been 49.5 million abortions. Currently, in Russia 13 abortions are performed for every 10 live-births. Last notes that “this might be the most grisly statistic the world has ever seen. It suggests a society that no longer has the will to live.” (p.137)

Modern culture: Women, particularly those who are more highly educated and are pursuing a career or trying to earn extra income, have less time to nurture families. Unemployment, lower incomes for many, rising costs of transport and housing, urbanisation and smaller houses, and high costs of child care (including baby car seats, prams etc) are all conspiring to reduce the birth rate. In addition, the availability of social welfare schemes, especially superannuation, has lessened the need to have children who can look after elderly parents.   

A historic shift: Historically, elites have had higher numbers of children than the poor. In Europe this began to change with the advent of the Industrial Revolution at the end of the 18^th century. Since then the rich have been reducing the number of their offspring more severely than the poor. This reversal has been repeated just about everywhere. The lower classes follow by having fewer babies as well, so that they too can climb the social ladder. In other words, “reproduction has become an impediment to material success.” (p.74) In the United States, more college graduates with higher mobility means that people are congregating together with those who share their interests and values. As a result, “changes in fertility have altered the fundamental dynamics of American politics.” (p. 130)

Problems

The shift from growing to eventually declining populations entails a variety of problems.

Youth bulges:In some countries births have fallen so suddenly that there exists a bulge of young people. Had the decline happened more gradually, there would have been a number of generations with above-replacement, albeit decreasing, levels of births. Iran is a recent example. It has a ‘surplus’ of young men, who compete for jobs and who might easily be recruited for revolutionary campaigns.

One child policy: In China, the one-child policy that was initiated in the 1980s could lead to shortages of labour as well as pension problems after 2050. Since the policy has encouraged abortions, especially of girls, there is a growing oversupply of young men.

Japan:Japan is probably the country with the most drastic fall in live births since it became the first country to legalise abortion under its “Eugenic Protection Law” after the Second World War. It has also witnessed a decline in marriage and a consequent fall in births. Marriages also end much more frequently in divorce. By 2100, if the present fertility rate continues, the population could fall from 127 million to 91 million.

Redundant infrastructure and economic costs:In Germany, empty houses and shops are making way for parks. Obstetric clinics are turned into nursing homes. In North Rhine-Westphalia the government has retrained prostitutes to become elder-care nurses. In Japan, a depopulated village was turned into a landfill.    

In general, Last identifies the following effects:

1. A sharp rise in the costs of health care.
2. Smaller groups of younger people to bear the costs of old age (pensions and health).
3. A slower pace of human progress due to a declining level of entrepreneurship and inventiveness. (Older people are more risk averse and lack the vigour to invent new things.)
4. Older societies are less prepared to engage in war or to accept casualties.

Second demographic transition

Not everybody is convinced that falling fertility is a problem.  Demographers Ron Lesthaeghe and Dirk J. van de Kaa believe that low fertility is the result of modernity itself, another stage in our evolution and, therefore, a good thing. They refer to current developments as the second demographic transition, as the first one occurred at the end of the 18^th century when the rate of mortality began to decline. Such a transition is complete when the fertility rate reaches the replacement rate. The US and Europe reached this point around 1960. The rest of the world is still in the process of this transition. With fewer children being born, they become very precious, with parents spending more time and effort on them.

What can be done?

Last does not subscribe to the theory that we should not worry about falling fertility. He believes that the trend can be reversed, although not by policies of providing financial incentives and propaganda, which seldom work. So, what does he suggest?

Last’s recommendations are based on three empirically based premises:

1. Countries do not return to replacement level once their total fertility rate has fallen below 1.5.
2. Any efforts to stoke fertility must be sustained over several generational cohorts i.e. a decades-long commitment to family growth.
3. People cannot be bribed into having babies.

Last favours policies that help people have the children they do want. He advocates that the US should reduce the social security tax for those who become parents. He also argues that the costs of sending children to university are far too high and that reform in this area is desirable. Telecommuting might enable families to live near existing social and family networks.

Finally he quotes from Pope Benedict XVI: “Children, our future, are perceived as a threat to the present, as if they were taking something away from our lives. Children are seen as a liability rather than as a source of hope.” (p.175) Importantly, he concludes, Government should welcome believers rather than being hostile to them.

Analysis and Conclusion:

Last provides an admirable review of a world-wide trend of falling fertility, with a comprehensive account of its causes and possible consequences. I believe he is right in emphasising that societies with shrinking populations are less dynamic, and, therefore, face a shrinking tax base, insufficient to meet the demands of both the elderly and the young. Some of these effects are already apparent in countries that have been experiencing declining populations.

It is sobering to note the decline of the Judeo-Christian religion in our modern world as a key factor. In this respect, his account of a reversal of the falling trend in Georgia, in response to a call by the Orthodox Patriarch, is encouraging.  

Last does not address the problem of an increasing number of men suffering from a low sperm count. Although it is possible to overcome this to an extent by IVF, it contributes nevertheless to falling fertility.  

His view that the trend towards falling populations will have dire consequences for the welfare state is much exaggerated. Higher expenditures on the elderly due to an ageing population will be offset by lower expenditures on the young. Since the trend is long-term, policies can easily be adjusted.

Last does not discuss whether the world is able to care adequately for a population of, say, around 9/10 billion, assuming that it would stabilise at this level. Would there be sufficient clean water, proper food and clear air for all?

I would argue that the current ideology of exponential economic growth based upon science and technology stands in the way. Our technical-economic system destroys and pollutes fertile land, warms the climate, produces food that is less and less nutritious, creates stressful jobs and makes many people unemployed. The baby-robots made in Japan to get women interested in real babies symbolise our technologised civilisation. Is our culture committing suicide?  

Yet, change is possible as shown by Georgia’s Patriarch Ilia II’s actions to reverse a fertility collapse. His “mass baptisms are now a staple of Georgian life.” (159) It is a country in which the Christian religion still holds an important place.    

Last has issued a warning that the trend of falling fertility is not a healthy one. His warning is addressed especially to the United States. This may explain why his style is rather colloquial. Had he generalised his story he could have dealt an even greater blow to the myth of the world becoming over-populated.   

Dr Petrus Simons is a retired economist with a PhD in philosophy. He is a contributor to the South African journal "Koers".

Maintaining a principled ethical approach in the face of a global fertility market

 A submission to the Advisory Committee on Assisted Reproductive Technology

Earlier this year the Advisory Committee on Assisted Reproductive Technology (ACART) released a discussion paper on the “Import and Export of Gametes and Embryos” in response to more New Zealanders looking overseas for fertility treatment. New Zealand requirements are often different from, and in many cases more ‘restrictive’ than, other countries. In the face of differing standards, there is increasing pressure from some to loosen New Zealand restrictions. 

Introduction

Robust ethical review requires critiquing the underlying and often unexamined assumptions and convictions that shape individual and societal thinking about a particular issue. We are particularly concerned that in a society such as ours, questions relating to the common good are too easily subsumed by a distorted focus on individual autonomy. When this occurs, we can too easily fail to take full account of the fact that medical technologies, such as human assisted reproductive technologies “create their own culture of practices, institutions and discourses, and these become a powerful force that inscribes individual bodies to its own specifications.”[1]

While we have commented on this issue on a previous occasion, it strikes us that the realities of the global fertility market have introduced a new dynamic into the debate.

A shift in ethical frameworks
A particular feature of contemporary ethical discussions on the use of assisted human reproductive technologies is the way in which the language and thinking of ‘supply and demand’ (the market) is increasingly coming to the fore. This language indicates a shift, in at least some quarters, towards viewing the creation of human life more and more as part of a framework of thinking that is typically characteristic of economic transactions. At the same time the use of such language confirms and further perpetuates such a shift in other people’s minds.  

We accept that, to some degree, the use of ‘market’ language is understandable (and even unavoidable) in the context of exploring genuine questions relating to the regulation of reproductive technologies in a commercial environment. Nevertheless, we find the uncritical use of such language of great concern. Importantly, it betrays a tendency to think more and more about new human life as a ‘commodity’ that is subject above all to the desires, demands and expectations of those paying for the service – the consumers, prospective parents.

This has considerable implications for ethical reflection because the frameworks of thinking we adopt shape the way we look at and think about an issue. In particular, the influence of a market-based paradigm reinforces a particular and impoverished understanding of human freedom. In the words of the philosopher Michael Sandel, human freedom is reduced to mean “the freedom of the consumer.”[2] Consequently, parenting is at risk of becoming reduced to little more than another extension of the consumer mentality that permeates our society.

At the same time, as human procreation becomes increasingly subject to commodification, there arises an increased sense of ‘entitlement’ to a child. From this flows a lower tolerance for regulatory interference of any kind, especially from the State. Thus, when the question of access to assisted human reproductive technologies arises there are many who ask: “What possible business is it of any ethics committee? Why should they have to apply to a bunch of interfering medicos for permission?”[3]

The increased sense of entitlement is typically verbalised as a ‘right’ to access whatever ‘means’ are available for bringing about a child. In addition, and perhaps more worryingly, it is also increasingly framed as the right to exert a kind of consumer freedom over our children. What we mean by this is that the so-called right to a child leads people to believe they have a right to a certain type of child and therefore the right to exert ever greater degrees of control over the ‘products’ of conception.

There exists an urgent need to draw on other frameworks in order to challenge the shift in ethical discourse that is happening in our society. At the same time we need to remain clear about, and committed to, the principles that have given shape to the current New Zealand regulatory framework governing the use of assisted human reproductive technologies. To the extent that we allow a market mentality to shape our thinking it is to be expected that the principles underpinning the HART Act will start to make less sense to some people.  

The threats to a principled approach to decision making
In the wake of an increased sense of entitlement, the need to protect the very narrow meaning of ‘consumer freedom’ that Sandel (and others) speak of emerges for many as the primary ethical issue. This shift in ethical focus has been further exacerbated, we believe, by the increased opportunities that now exist for prospective parents to access assisted human reproductive technologies overseas. Compared with other jurisdictions which lack the robustness of New Zealand’s regulatory system, many people are judging the HART regulatory framework to be unnecessarily and unfairly restrictive. At the same time, others who might be less inclined to see it as ‘restrictive’ are perhaps increasingly inclined to see it as espousing a once workable, but now unworkable, ideal.

Therefore, even while many of the ethical dilemmas surrounding the import and export of embryos and gametes remain largely the same as in the past, it is our view that the realities of the global fertility market pose a new and heightened challenge to responsible human procreation. Indeed, we would go so far as to suggest that what is at stake in the present debate about greater (overseas) access to human assisted reproductive technologies is ultimately nothing less than the continued viability of the current principled approach to decision making that defines the HART Act.

We understand that, already, increased numbers of New Zealanders want to travel overseas to source eggs and embryos, a situation exacerbated by the shortage of donated eggs in New Zealand. While the motivation for this may well be largely pragmatic, rather than because of a desire to circumvent the law in New Zealand, the reality is that the eggs or embryos will be, in many if not most cases, commercially sourced. Because this is in breach of what is allowed in New Zealand, we anticipate this will eventually result in increased pressure to allow commercially sourced gametes and embryos to be directly sourced from within our own country.

We have, in the past, indicated that we are sympathetic to the idea of allowing couples who have previously conceived embryos overseas to bring them into the country for the purposes of having another child that is genetically related. While our position on this remains the same, we recognise that this also has the potential to lead to increased pressure to loosen the restrictions on what is allowable in New Zealand, particularly if some of the imported embryos have been created under standards and principles that fall short of our own.

Furthermore, while there are no legal barriers to couples travelling to countries that allow for embryos to be created in ways that, for good reason, are unacceptable in New Zealand, those without the financial resources will have a case that the ethical standards in New Zealand exist only for those who lack the resources to go overseas.

On all these counts an argument can be made that the status quo, even if unwittingly, fosters a significant degree of ethical inconsistency and unfairness. Why, it will be asked, should other couples not be allowed to have the children they want when precedents exist and all that is required is a simple law change? There is, in other words, a certain inexorable logic that points towards the further liberalisation of HART law in New Zealand, including the current constraints on using imported material that does not meet current New Zealand standards.

This is why we believe that more and more people will, in the future, come to question the viability of the current New Zealand framework including the principles that underpin it.

Managing ethical inconsistency and unfairness
Those, like us, who are hesitant about further ‘opening up the market’ for embryos and gametes because of their commitment to the ethical principles upon which the current New Zealand laws are based, find themselves needing to justify a regulatory approach which allows for ever increasing degrees of ‘inconsistency’ and ‘unfairness’. We readily admit that maintenance of the status quo will involve living with a degree of ‘inconsistency’ and ‘unfairness’ for individuals/couples. How might this be justified?

The arguments in favour of greater liberalisation, as described above, ignore a vital tension. We would describe the source of this tension as originating in the ethical space that exists between the desires and rights of individuals and the welfare or ‘common good’ of the society in which we live. As noted above, one of the (often unnoticed) fundamental issues at stake is the robustness of the (economic) paradigm that is increasingly being used by many to make sense of the world in which we live. More specifically we would argue that the language and thinking associated with ‘transactions’ and ‘entitlement’ is at odds with, and has the potential to undermine, the traditional way in which peoples across many cultures and ages have thought of new human life – what we, as well as many secular philosophers and anthropologists, would describe as an approach centred on ‘gift’ and ‘givenness’.[4] Of great concern for us is the fact that the shift to view human procreation more and more in terms of the market represents a significant departure from the way in which society has long thought about parenting and the role of children.

The very fact that granting individuals increasingly unfettered reproductive freedom will impact on societal understandings surely demands that any changes to the current regulatory system be subject to a ‘societal impact risk assessment’. This is what we find lacking in many of the arguments being put forward in favour of leaving assisted reproductive choices more and more in the hands of individuals or couples. Not unsurprisingly, the shift to consider questions about the transmission of human life within a more ‘market-based’ paradigm makes ethical questions about the societal impact (or common good) seem more and more irrelevant.

Concluding comments
For us, the key ethical issue is not about protecting an increasingly impoverished notion of freedom centred on choice. It is more about protecting a notion of human flourishing that takes into account the effects of the accumulation of individual choices on the society in which we live, including the likely impact on the welfare of the children who are conceived and the institution of parenting. We must be wary of making changes to the current regulatory framework that are premised largely on the value and importance of individual choice. This is especially important when it can be established that such changes are being influenced by the incremental progression of a market-based paradigm into the domain of parenting and families.

We should, of course, limit individual choice only for good reason. One of the challenges we face as a society is that these reasons do not always come to the fore in contemporary debates, not because they are not important but because the particular framework we employ renders them invisible. Such reasons become apparent when we recognise the inadequacy of giving exaggerated emphasis to individual choice and embrace other frameworks of thinking.

Our position is well described by Michael Sandel when he notes:

When science moves faster than moral understanding as it does today, men and women struggle to articulate their unease. In liberal societies, they reach first for the language of autonomy, fairness, and individual rights. But this part of our moral vocabulary does not equip us to address the hardest questions posed by cloning, designer children, and genetic engineering. That is why the genomic revolution has induced a kind of moral vertigo.[5]

And as the New Zealand Bishops have previously stated in an early Submission on the HART Act:

An over emphasis on the sufficiency of individual informed consent, as has been exemplified by a number of commentators with respect to recent debates in the bioethical area, reflects a failure to acknowledge the wider impact of technological interventions.

Finally, we appeal to ACART, in its reflections on this issue, to continue to take full account of the fact that the questions raised by human assisted reproduction are complex and have the potential for transforming the most basic of human relationships. The context which has given rise to the current debate places in jeopardy key principles at the heart of the HART Act. In particular we see that two principles are at risk; (i) the rights of children who are born to access knowledge of their origins and have a relationship with gamete donors, and (ii) a longstanding commitment to the principle that transactions involving body parts not be commercialised.

The current debate calls for a strong stand in favour of upholding the principles that underpin the HART Act. These principles have been debated at length and represent long-held cultural, social, ethical and religious values that promote human flourishing. They are also consistent with general public policy in New Zealand.

This will, in turn, mean saying ‘no’ to certain demands being made by couples or individuals, demands that may well increase as New Zealanders take advantage of the opportunities for having children, not always ethical by our standards, that exist overseas. However, we argue that the current principled approach, along with its growing perception of inconsistencies, can be seen as justified by an ongoing commitment to the common good and, above all, to the dignity and well-being of children. In which case, we will need to accept that it will become increasingly difficult to align New Zealand ethical standards with those of other countries.

In the face of globally varying ethical standards and competing principles, we would argue that the cause of ethical consistency and the well-being of children, parents and society, is best served by New Zealand working with other countries to uphold and promote the key principles that define our current regulatory framework around the use of reproductive technologies. To quote from the Consultation document: “New Zealand should not support or be seen to support, policies and practices in other countries that would be regarded as unethical in this country.”

Staff of The Nathaniel Centre

“You know baby, if it wasn’t for these women you wouldn’t be here”

 Cynthia Piper

In 2011, 15,863 abortions were performed in New Zealand, of which 97.6% were authorised on the grounds of a “danger to the mental health” of the woman.¹There is no doubt that for many women an unintended pregnancy is a crisis situation causing severe anguish. The woman’s over-riding wish is for life to return to normal; a wish to be ‘unpregnant’. How a woman, her partner or spouse, family members, friends, employer, and school react to the news can influence the decision whether or not to continue with the pregnancy. Despite rhetoric that it is a woman’s choice, the people she turns to for help or advice may leave her feeling that she has no choice but to abort.

A woman in a crisis pregnancy experiences a conflicting mass of emotions; she is hormonal and very vulnerable. In this fragile state of mind she has to make what is likely to be one of the most important decisions of her life; one that will have life-long consequences. Rather than making a quick decision a woman needs time to consider all her options. She needs to be provided with balanced, full and factual information so she can make an authentic informed choice free from coercion, based on her individual circumstances and according to her conscience. All her options, keeping baby, adoption or abortion have long term consequences – there is no easy choice.

Lena (aged 18), reported that when she discovered she was pregnant she was so upset she even considered suicide. Her older sister had a baby outside of marriage at 18, and two years later her parents still had not met their grandchild. Fearing her parent’s reaction – ‘Dad will kill me, I’m his princess’ – recalling the experience of her older sister, losing her job, and believing she had sinned against God, Lena felt an abortion was the answer because then ‘no one will know.’²An abortion, it seemed, would solve all her problems. Fortunately, Lena contacted a lay counselling agency whose counsellors recognised that there were a number of issues that Lena needed to work through if she was going to make an informed decision free from coercion.

As with many pregnant women in this situation, Lena was surrounded by what Carolina Gnad calls a ‘web of influence’ that can drive a woman towards believing an abortion is her only choice.³In Lena’s case, that web included her cultural and religious background, a lack of support from her boyfriend, the potentially negative reaction of her parents, a belief that she had shamed her family (they were respected elders in their church community), the loss of her dreams and plans for the future and limited knowledge about abortion and the available support. These factors were compounded by attitudes towards abortion gained from the media, work colleagues, and friends. Knowing that an abortion can be lawfully obtained, and that therefore it must be ‘okay’, can over-ride a woman’s sense or belief that abortion is morally wrong.

Sometimes it is pride and/or sense of shame that encourages a mum or dad to suggest their daughter terminate a pregnancy, even when this runs counter to their own or their daughter’s beliefs. Comments such as ‘My mum said she was too young to be a grandmother’; ‘don’t expect us to look after your baby’; ‘you’ll never get a decent job now’; ‘look what you have done to your life’, are some of the parental reactions counsellors hear. It takes great courage to continue with a pregnancy in opposition to parental wishes and criticism. As parents, we need to learn to put our own pride and dreams or plans for our daughters on hold and take a lesson from the courage and resilience of our children. Conversely, there are a great many parents who are supportive of their children and welcome the new grandchild into the family. Sarah was initially very embarrassed and believed that she had lost face within her church community when her 16 year old daughter became pregnant. A simple ‘congratulations grandma’ from a colleague was all it took to restore her confidence. Parents and partners who accompany single, pregnant women also need support and encouragement.

When counsellors met with Lena it soon became evident that, despite what she said, abortion was not really an option as it went against her beliefs and values. It is widely known that “[w]omen are more likely to suffer emotional problems after an abortion” if they have gone against their own moral and religious values or maternal instincts, were pressured by others, had little support from their families or partners, or felt unsure about having an abortion.⁴Yet, in the state of mind she presented with, had Lena sought counselling at an abortion clinic, she would have been assessed as being eligible for an abortion and the outcome would, in all likelihood, have been very different. What prevented that from happening was the awareness she gained from those who accompanied her on her journey that there were many external, personal, religious, social and economic influences that were pushing her towards abortion and preventing her from making a fully informed choice.

After a week of counselling, Lena came up with a solution; maybe she could find somewhere to stay until she had the courage to tell her parents about the pregnancy. Such places are few in New Zealand, but at that time there was an opening at Bethany House. For Lena, that allowed her to tell her parents about the pregnancy from the ‘safety’ of distance. Within three months Lena had told her dad about the pregnancy and moved back home before giving birth. She was surprised to discover that her parents did not reject her, and they were surprised at the way their ‘little princess’ had managed on her own.

What was important in Lena’s situation was that at no time was she hurried into making one of the most important decisions in her life. Psychologist, J. William Worden has identified that “most women seeking abortions tend to do so in haste and, because of the stigma and shame associated with abortion, they may make the decision without the emotional support of family and friends.”⁵In New Zealand, the speed with which women are expected to come to a free, rational decision creates added pressure. At a 2008 workshop for staff at a Family Planning Clinic, medical professionals expressed concern and frustration at the time it took some women to make up their minds. They argued that the earlier a woman can come to a decision, the better.⁶This mindset places added pressure on a woman and may undermine her freedom. It should also be remembered that when a crisis involves moral, ethical, religious challenges, people tend to be less trusting of their own opinions and ability to make the right decision. They can become more reliant on the opinions of others, especially those closest to them, those in authority or those with specialist knowledge. The decision to abort is never independent of the woman’s circumstances and the influence of the people around her, especially her partner.⁷

Fear of relationship failure is one of the powerful drivers towards an abortion. The partner who says, ‘it’s your choice’, but then adds, ‘if you don’t get rid of it I’m off’, is not giving the woman a choice at all. Sadly, this scenario is all too common among those seeking pre or post-abortion counselling. Those working in pre and post-abortion counselling identify that partner relationship is the most common reason for women undergoing termination. In a Swedish study, women stated that their decision might have been different had they had support from their partner.⁸Australian research from 1995 showed that relationship problems contributed towards 45% of decisions regarding abortion.⁹

Some of the most vulnerable young women in a crisis pregnancy situation are those still at school. When there is no, or limited, support from parents, these young people need the help and support from school counsellors, teachers, or mentors whom they trust. The situation is not helped when teachers (including those at Catholic schools) tell students that they agree with abortion. Ruth (aged 15) had an abortion after her teacher told her “all the stink things about having a baby.”¹⁰Similarly, the comment made to a colleague that having a pregnant girl at a Catholic school is ‘not a good look’ demonstrates a lack of understanding of the concepts of compassion and the principles of Catholic Social Teaching. Young pregnant women must be allowed to continue their education in order to provide the best outcome for themselves and their children.

Both the pro-choice and pro-life lobbies use woman-centered strategies to influence the outcome of unintended pregnancies. When they are involved in the counselling processes there is a danger that their agenda ‘to the cause’ becomes most important rather than the best interests of the client. A pro-life woman-centred strategy focusses on an understanding that “women neither want nor benefit from abortion; that most women do not really ‘choose’ abortion but are pressured into it by others.”¹¹While this may be true, those working with women considering an abortion need to stay focused on thoroughly exploring her legitimate needs as defined by her real-life context.

The process of promoting free and informed consent should minimise coercion and increase awareness of the physical and psychological risks associated with abortion. The consequences of continuing with the pregnancy, adoption and abortion also need to be discussed. Promoting and providing practical assistance to pregnant women helps ensure that women such as Lena are provided with real alternatives to abortion. Women need someone to help them sort through the myriad complex issues they face. If, in the end, a woman decides to have an abortion, compassion and an avenue for healing and support are vitally important.

In 1994, Pope John Paul II wrote: “It is precisely the woman, in fact, who pays the highest price, not only for her motherhood, but even more for its destruction, for the suppression of the life of the child who has been conceived. The only honest stance… is that of radical solidarity with the woman.”¹²

When Lena’s baby was three months old one of the counsellors visited her to see if there was anything she needed and to find out how she was coping. Lena’s words to her baby summed it up: “You know baby, if it wasn’t for these women you wouldn’t be here.”

Cynthia Piper has worked as a volunteer for over twelve years with pregnant teens and with Project Rachel, the Catholic Church’s after-abortion healing and support service. She is a lecturer with The Catholic Institute.

Endnotes

1 97.6% = 15,478. Abortion Supervisory Committee, Report of the Abortion Supervisory Committee, Wellington: Ministry of Justice, 2102.

2 Case notes. Names have been changed to protect the identity of the informant.

3 C. Gnad, Broadening Perspectives Around Termination of Pregnancy, Christchurch: P.A.T.H.S. 2012.

4 Ministry of Health, Considering an Abortion? What are Your Options?, Ministry of Health, Wellington: 1998, p.12

5 J. William Worden, Grief Counselling and Grief Therapy: A Handbook for the Mental Health Practitioner, Third edition, New York: Routledge, 2003, p.136.

6 Much of this emphasis on speed is because in New Zealand a pregnancy under 12 weeks can take place in a licensed clinic, whereas those over 12 weeks are performed by a specialist operating in a licensed hospital. http://www.abortion.gen.nz/legal/index.html. Accessed 6 November 2013.7 Selena Ewing, “An evidence base for counselling, social policy and alternatives to abortion”, Common Ground: Seeking an Australian Consensus on Abortion and Sex Education, John Fleming and Nicholas Tonti-Filippini, eds., Strathfield: St Pauls, 2007, p. 223.

8 Ewing, 2007, p. 218.

9 Ewing, 2007, p. 225.

10 Case notes, September, 2010

11 Brigid McKenna, “Reframing the anti-abortion message: pro-life and/ or pro-woman?”, Common Ground: Seeking an Australian Consensus on Abortion and Sex Education, John Fleming & Nicholas Tonti-Filippini, eds., Strathfield: St Pauls, 2007, pp.182-83.

12 John Paul II, Crossing the Threshold of Hope, London:Jonathan Cape, p.207.

Editorial: Single mothers are saints

Catholic bioethicist Bernadette Tobin writes: “In order to understand the teachings of the Catholic Church in relation to questions about the beginning of life, we need to identify and appreciate the one idea that informs all of these teachings. This is the idea that the life of every human being is, in and of itself, valuable or sacred.”[1]

For Catholics, the unconditional respect due to human life begins when an ovum is fertilised. Embryos become children not by some addition to what they are, but simply by developing further as the kind of beings they already are. No matter how undeveloped or damaged the potentialities of a human being may be, that life is sacred. This view runs counter to that of many people for whom the embryo is nothing more than a ‘clump of cells’. ‘How can we possibly accord the same moral status to a group of cells as to a person?’ it is asked.

The claim that a four or eight-celled embryo is a human being clearly takes us beyond empirical observation. As Gerry Gleeson and Tobin explain: “The common understanding of person in our culture has been shaped by modern philosophy’s emphasis on self-consciousness as the mark of personhood. A much older understanding of person, however, located personhood in the dignity of a being’s rational nature, irrespective of whether that being is conscious at a particular phase in his or her life. On this traditional view there is nothing problematic about saying that an unborn child is a person, for they are truly our fellow human beings, sharing our rational human nature … the key to understanding what a human embryo is lies in the connection between a human embryo and an adult member of the human species.”[2] Therefore, to judge something solely at the ‘material’ level (it is only a clump of cells) is to ignore an important truth.

It is this view that underpins the Catholic position regarding abortion. But, to merely articulate such a position is not enough.    

Some time ago I found myself on the fringes of a group of Catholics discussing the impending birth of a baby to a teenage girl. I detected just the faintest whiff of scandal in the air – nothing said, but plenty implied. I quipped: “Isn’t that great.” Faces turned, eyes probing. “Isn’t it great that she is keeping the baby? Most girls and their families would have organised an abortion.”

These days, any single mother who decides to keep her baby is a heroine … even a saint. Ironically, for those who identify as Catholic, greater courage may be required if they find themselves fighting not only a prevailing negative cultural attitude but, sadly, the critical judgements of the very community that should provide unquestioning, unconditional support. These judgements are no less damaging for being non-verbal. Consider the story of Katrina who, at 19, found herself unexpectedly pregnant:

“To say this news was unexpected would be an understatement. I went into shock … Mark cried ... To us, this was a disaster. Everything we had planned, everything we were working towards was shattered ... We knew our parents would be severely disappointed and that mine might actually disown me. We were both from religious families and most of our friends were religious – WE were religious. We felt that all our friends were likely to judge or even not be our friends anymore. We didn’t know what to do. Keeping the baby would mean potential ostracism from our friends and Church community. Not having the baby would mean going through with a termination, but escaping all the shame and our lives trotting on as planned ...”[3]

As Catholics we need to honestly ask: ‘How many young single Catholic women and their partners and/or families would feel like Katrina did about her faith community – whether parish or school?’ John Paul II writes in Evangelium Vitae: “As well as the mother, there are often other people too who decide upon the death of the child in the womb.” (n. 59) Many Catholics have probably never considered that our parishes and/or schools may well fall under that category.

The rhetoric that characterises Catholic teaching about abortion is unequivocal.  But Donum Vitae also teaches that every child is a gift of God no matter the manner in which its conception is achieved (Part II,B,5). It is not enough to be committed to only half the message! Critically, what we believe needs to be translated into attitudes and actions that are consistent with the divine origins of the gift of life. Every new life is to be rejoiced over and celebrated. As the Scriptures note, we will ultimately be known by the fruits of our actions (Mt 7:16) rather than the purity of our teaching. On that score, I suggest, we still have a way to go.

John Kleinsman is director of The Nathaniel Centre

Perinatal Palliative Care and Support

Professor Dr Nicholas Tonti-Filippini and Dr Mary Walsh

The concept of perinatal palliative care for women who experience a diagnosis of a pregnancy of a life limiting abnormality is well developed in the literature but seemingly not so in practice in Australia and New Zealand. 

Introduction

Perinatal care palliative care is a system of interdisciplinary “care to prevent and relieve infant suffering and improve the conditions of the infant’s living and dying. It is a team approach to relieving physical, psychological, social, emotional, and spiritual suffering of the dying infant and the family”^[i] when a diagnosis of a life limiting condition is made in the child during pregnancy.

There is a significant dislocation between medical perceptions that prenatal testing^[ii] is for the purpose of providing the option of termination and the perspective of those women who opt for the tests in the false belief that the test results provide reassurance. It seems that women who do receive a positive screening result may be shocked and unprepared for its significance and the sequel of being offered invasive diagnostic tests^[iii].

As a matter of some urgency women need to be offered supportive decision-making counselling before they embark on a course of prenatal testing that may lead to invasive tests, risk of miscarriage and the predicament of being offered termination of pregnancy.  

Perinatal palliative care

In Australia, a perinatal death is one that occurs between 20 weeks gestation and a month after birth^[iv]. In 2008, there was one perinatal death for every 100 births. 73% were dead at birth and 27% after being born alive. 2,921 women experienced perinatal loss.^[v] It is not a huge number nationally but still significant.

In recent years an extensive literature has developed about the concept of ‘perinatal palliative care’. Perinatal palliative care staff assist families who have a diagnosis of a life limiting condition for their fetus or unborn child to plan for and cope with the remainder of their pregnancy and the time around delivery. The goal is to support families as they face the unimaginable and to help them down a path of healing.^[vi]

This is done in a multidisciplinary way by:

• Helping prospective parents create a birth plan that is consistent with their hopes, goals and values
• Exploring the possible pathways that lay ahead
• Bolstering the family's coping strategies
• Exploring medical decisions
• Considering memory making options
• Providing a safe environment for families to talk about what they are experiencing.^[vii]

The term ‘life limiting condition’ has been adopted by the Murdoch Children’s Research Institute^[viii], instead of ‘lethal abnormality’ still used in some publications.  Prognosis is often uncertain in circumstances in which the diagnosis may refer to a range of conditions of variable severity and when there may also be intercurrent illnesses.  Death may be expected at or before birth, but the child may survive against that expectation. 

Unfortunately, there is a misconception in our community that palliative care is basically the management of death. The National Health and Medical Research Council describes palliative and supportive care as including a multi-disciplinary range of professional services that are focussed on supporting a person and his or her family physically, socially, emotionally and spiritually; and on relieving painful or uncomfortable symptoms, while maintaining function including, when possible, lucidity. Palliative care may be engaged when there is no hope of curing the underlying condition, but it may also be an adjunct to curative intervention.  The NHMRC insists that palliative care should happen throughout a person’s illness, not just in the terminal phase.^[ix]  This is true also of severe perinatal conditions: multidisciplinary support is needed throughout the process: in preparation for testing and from diagnosis until birth, and then from birth and throughout the life of the child until death.

The above list reflects important aspects of perinatal palliative care in which the parents are given the option of continuing with the pregnancy, and care being provided, as appropriate, for the fetus or unborn child to minimise any distress caused by the condition, while assisting the family to cope with the diagnosis and prognosis and then providing the care necessary when the child is born. As an option, perinatal palliative care is much less certain than the alternative of termination of pregnancy, or early induction and feticide, where the aim is to end the life of the child.  What it offers, however, is the opportunity for the woman and her partner to feel that they have done the best to care for their child. For women who have recognised the identity of the fetus as a child and have begun to bond with him or her, this may be important. Offering perinatal palliative care is also an alternative to the powerlessness that women who terminate a pregnancy on medical grounds often report.^[x]

False reassurance and the need for counselling prior to testing

Prenatal testing identifies abnormalities in approximately 5% of pregnancies that are tested. Despite testing, a further 2-3% of abnormalities are not identified until after birth.^[xi] Approximately 15,000 Australian women receive a diagnosis of congenital abnormality during pregnancy each year.  Anecdotally, approximately 90% of women who receive a diagnosis of a life limiting condition in their fetus/unborn child will choose to have the pregnancy terminated.

In one United Kingdom (UK) study, most of the terminations occurred within 72 hours of the woman receiving the news of the abnormality.^[xii]

Despite this connection between prenatal testing results and termination of pregnancy, for many expectant couples, the link between prenatal testing and abortion, at least initially, does not exist.^[xiii] Even when birth defects and abortions are explicitly discussed, the pregnant woman and her partner often simply do not link this outcome to prenatal diagnosis.^[xiv]  There often appears to be dissonance between the practitioner's understanding of the purpose of prenatal diagnosis and the pregnant woman's perception of the procedure. While the practitioner may view the diagnostic tests as a way of preventing the birth of a ‘defective’ child, pregnant women seek them out for reassurance that their babies are well and healthy.^[xv]

Antenatal testing is important in the management of pregnancy, identifying matters that are relevant for the management of delivery and, in some circumstances, allowing for in utero procedures to treat problems that might not be so well managed if left until birth, and in some cases preventing still birth. The major ethical issue concerns prenatal tests for conditions for which there is no treatment and for which the current major medical justification is termination of pregnancy. Though the possibility of termination is the medical justification for the test, it appears that women who have the tests do so to seek reassurance, rather than with termination in mind. There is, therefore, a gap between the medical justification and the understanding of the women. This is most obvious in the timing of the tests. Tests done during the first trimester, especially invasive tests which have greater risks when done early, are done at that time for the medical reason that termination is easier the earlier that it occurs.  There is no other medical reason for doing the tests so early.

The chances of a serious abnormality at birth are relatively low, approximately 3%, but they may be higher where there are risk factors or a family history of genetic disease. Often, the desire for reassurance is based on false beliefs; a negative result of a test does not mean that the baby will be born healthy, and may only indicate a marginal difference in the probability that the child has serious abnormality.  Not only are there false negatives, the tests are only for a limited range of conditions and there remains a 2-3% chance of abnormality despite negative tests.  Thus, an average 3% risk that prompted the tests may still remain only slightly changed by a negative test result. Further, the invasive tests themselves have risks of morbidity and of miscarriage. Thus, if fully informed, the testing is not likely to be reassuring and may even add to anxiety.  The aim of eliminating some diseases by termination may justify a 1% risk of miscarriage in some medical minds but, for a woman, miscarriage is usually devastating and even more so if she is aware that she may have caused it simply because she wanted reassurance.^[xvi] The assessment of risk depends very much on the acceptance and expectation of termination and the difference between the medical justification and the women’s desire for reassurance is relevant and reflects a lack of knowledge on the part of the women in seeking the tests for the purposes of reassurance rather than for the possibility of termination.  

Therefore, women who opt for the tests for reassurance and without expectation of termination in the event of abnormality are choosing the tests without adequate information and therefore without informed consent. The difference between their expectations and understanding and the medical perception is thus of grave concern.

In the experience of providing shared care for women during pregnancy, on many occasions the receptionist has booked the prenatal tests ahead of the appointment with the obstetrician. It seems that the tests are regarded as so normal and routine that they do not even warrant a discussion with the obstetrician of the risks and the possible outcomes. In those circumstances there is thus no opportunity for a discussion with the obstetrician about the purposes of the tests, what may be expected from them, and what the sequel may be in the event of an indication of abnormality. 

The effects of offering perinatal palliative care

In a recent United Kingdom study^[xvii] women and their partners were offered perinatal palliative care, following a diagnosis of lethal foetal abnormality, as an alternative to termination of pregnancy. The article shows that perinatal palliative care is a significant alternative, because 40% opted for perinatal palliative care compared to the usual 90% who opt for abortion. The study included 20 pregnancies and of the eight parents who chose to continue the pregnancy and pursue perinatal palliative care, six of these eight babies were live born and lived for between one hour and three weeks.

The numbers are too small and the sampling not reliable enough to make it possible to draw general conclusions. But it does seem significant that 40%, when offered an option of perinatal palliative care, chose not to terminate compared to the 10% who would normally be expected not to do so. There is a need for more research into whether offering perinatal palliative care would affect women’s choices and what the comparative outcomes would be for those women and their families who chose to continue to birth and those who chose to terminate.

This study would seem to indicate how important it is for women to be well informed and given genuine options to continue with their pregnancies. Prenatal palliative care would seem to be insufficiently developed in Australia and New Zealand. Much needs to be done to make genetic counselling routinely available prior to women entering into the screening and diagnosis pathway so that they have the time and space to make well informed decisions in accordance with their own beliefs.

If they have had tests that provide a diagnosis of a life-limiting condition in the child, then the evidence suggests that many would choose to continue the pregnancy rather than choose termination of pregnancy.  Without being offered that option around 90% are currently reported as choosing termination.  Many who do make that choice report feeling powerless in the face of the advice that termination is medically required. 

Thus there are two important services to be made available – genetic counselling and non-directive counselling prior to embarking on prenatal screening and testing and, second, the offer of perinatal palliative care and support in the event that testing does indicate a life limiting condition. These are choices that tend not to be offered to women and their partners in Australia and New Zealand. Recently, Catholic Health Australia acknowledged the problem and advertised a website for perinatal palliative care, but at time of writing it was not functioning. There was no suggestion included that women should be offered genetic counselling before embarking on screening and testing.

Professor Nicholas Tonti-Filippini BA (Hons) MA (Monash) PhD (Melb) FHERDSA KCSG is Associate Dean and Head of Bioethics at the John Paul II Institute for Marriage and Family, Melbourne.

Dr Mary Walsh MBBS FRACGP is a general practitioner who undertakes shared obstetric care with the Mercy Hospital for Women in Heidelberg, Victoria.

Beneficiary birth control: Just enough of me – way too many of you

Richard McLeod

The idea of using birth control to prevent undesirable populations being born and burdening society has been around for a long time. It goes back to the founding godmother of Planned Parenthood, Margaret Sanger who wanted “More from the fit, less from the unfit,” or words to that effect. By the late twentieth century, however, the job was not quite finished. A new class of undesirables, the welfare dependent, was proliferating.

Enter Norplant, the long-acting contraceptive that would relieve welfare mums of the bother of taking a daily pill and give them a strong hint that, paraphrasing Lady Bracknell, “To have one child without visible means of support may be regarded as a misfortune, but having two looks like carelessness.” As for three… A Kansas legislator seems to have been the first in the United States to suggest that states could actually give mothers on welfare an incentive payment to get their implants. The idea is de facto policy in most western countries.

Now it’s New Zealand’s turn. The conservative National Party led government has announced a policy of granting free long-term contraception to women on a benefit and to their daughters. It is designed to complement its policy of penalising those beneficiaries who have further children: “We certainly have concerns about children being born to those on welfare and we see the access to contraception as being a barrier, particularly the cost around it,” says Minister of Social Development Paula Bennett, herself once a solo mum on a benefit. Bennett glibly portrays the initiative as a kind of gift for beneficiaries, “so they’ve got choices”. Many agree. Prime Minister John Key has endorsed it as “pragmatic and common sense”, while a prominent TV talk-show host called it “a sincere attempt to discourage pregnancy amongst the most vulnerable women”.

It’s all a ghastly problem, we’re led to believe, this “beneficiaries-having-babies” syndrome. Leading media are worried. The Dominion newspaper, published in the shadow of the national legislature, has pointed to evidence “that overwhelmingly shows that those born into welfare-dependent homes have far worse health, educational and social outcomes than those born into families with parents who work”. The Listener magazine, beloved of middle-class liberals, tells us that some 220,000 children in this country depend on welfare. Apparently, that’s far too many “far worse outcomes”.

The government’s solution is to contracept the whole class out of existence, by providing beneficiaries with free contraceptives on the one hand, while penalising them financially if they don’t use them effectively. It is difficult in all of this to see what the “choices” are that Bennett speaks of. Of course, it’s well-known that Maori and Pacific Island communities dominate New Zealand’s unemployment statistics, so it is no wonder that the Maori Associate Minister of Social Development, Tariana Turia, has reacted strongly. Perhaps she detects the insidious form of Kiwi-style eugenics the initiative espouses -- a baby born in upmarket Ponsonby is a valuable New Zealand citizen, a baby born in working-class Porirua is some beneficiary’s contraceptive failure.

It all has that “just enough of me – way too many of you” whiff to it, a sanctimony aptly attributed to the UNFPA in PJ O’Rourke’s 90’s bestseller, All the trouble in the World: “Going around the poor parts of the world shoving birth control pills down people’s throats… is to assume that those people don’t want babies as much as we do, that they won’t like those babies as well as we like ours, and that little brown and yellow babies are not as good as the adorable, pink, rich kind.” It seems they are just not producing enough Ernest Rutherfords or Jane Campions in Rotorua.

If eugenics isn’t alarming enough, there’s demography and the economy to consider. Although we are one of the few developed countries to have near-replacement level fertility (with a TFR of 2.07) we suffer a net migration loss of one New Zealander every 2 hours, 47 minutes, and some 50,000 Kiwis leave the country each year, many of them young, many to Australia. And there are barely 4.4 million of us, all up. We abort on average 16,000 children each year (that’s 160,000 per decade). And by the 2030s, one in four New Zealanders will be aged over 65 years (compared with almost one in ten in 2005) while our population growth will be slowing. Who’s going to be around then to support John Key and PC talk-show hosts and their generation?

It’s not the time to have cynical, eugenically-driven government contraception drives when our country is inexorably headed towards a crisis involving a scarcity of children and a burgeoning elderly population. New Zealanders instead need to wake up to the reality that people are the world’s greatest resource, and that we need more of them. Tariana Turia certainly sees it that way: "I've always supported the growing of our population, the growing of our hapu and iwi and so I'm certainly not one who's ever believed that we should be controlling people's fertility."

It’s a no-brainer. History shows that people of all socio-economic conditions build countries, societies, cultures, political systems and economies. Mr Key and Ms Bennett are hardly the ones to tell us they don’t, seeing they’re both successful products of the very welfare system they now seek to eugenically modify. Only last August our Prime Minister Mr Key told the country (in a speech on building a more effective welfare system), “I believe very strongly in the welfare state. When I was growing up, my mother was on the widow's benefit for a time and we lived in a state house. I'm really grateful for the opportunities the welfare state gave me.” Key is living proof that a country that cares about its needy children – rather than coercing their parents to stop having them - produces great success stories. No doubt many other successful Kiwis – and not a few All Blacks, Super 15 rugby players and Warriors - would agree.

It’s at times like this our Prime Minister would be well advised to borrow a little wisdom from the old Maori adage, He aha te mea nui? He tangata. He tangata. He tangata. “What is the most important thing? It is people, it is people, it is people.” As the low fertility countries of Europe head towards demographic and economic oblivion, the one thing our government should not do is tell any New Zealander to stop having kids.

Richard McLeod is an Immigration & Human Rights Lawyer based in Auckland.

This article was first published on MercatorNet.com on 11 June 2012 under a Creative Commons Licence.

The abortion debate – an unhelpful dichotomy

The Catholic tradition holds that the right to human life is inviolable. It is based on a notion of human dignity that is ‘intrinsic’ – that is to say, not dependent on, or subject to, any calculation of ‘value’ or values based on values ‘extrinsic’ (or external) to the life in question. These extrinsic factors include human perceptions about the ‘quality’ of this or that life.

In Catholic teaching this approach is applied consistently from the moment a unique human life begins. “A life is begun [at fertilisation] which is neither that of the father nor the mother. 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 granted a place in the human family and treated with the same respect as persons.”(New Zealand Catholic Bishops, Submission on the use of gametes and embryos in human reproductive research, 2007.)

While this stance is rejected by many, it is arguably the most philosophically coherent of all approaches. When we consider that all human embryos are biologically and ontologically the same kind of being, it is actually illogical to accord greater or lesser respect based on their perceived status as routinely occurs within the IVF industry. The highest status, for example, is reserved for ‘wanted’ embryos by couples anxious to conceive a child. Over time the same embryo can become ‘unwanted’ if a couple no longer desire to have more children. Then again, in some countries, an 'unwanted frozen embryo' may, if the parents agree, be granted a certain (although much reduced) status as a potential object for donation or research – wanted by others on the basis of its usefulness as ‘experimental laboratory material'. In this scenario dignity for human life is directly linked to subjective human preference, i.e. to extrinsic factors.

It is of grave concern that there are moves afoot by some members of Young Labour to persuade the Labour Party to make the decriminalisation of abortion an active part of its 2014 policy platform. This move is derived from the view that the present law denies women their rightful autonomy; abortion is subject to the judgements and favour of others when it should, quite simply, be a woman’s choice. It is further argued that this reflects a lack of trust towards women; a woman’s own judgement is discounted in favour of ‘state mandated control over women’s bodies’ – seen as an unwarranted assault on women’s freedom.

The most vocal proponents of abortion decriminalisation advocate that access to abortion should be subject to nothing more than a woman’s choice, with no necessary consideration of the rights of any other party, including the father or the unborn child. For these people, the very existence of any law is seen as too restrictive and therefore unacceptable. Thus, Alison McCulloch writes of the “real freedom to choose.”[1] McCulloch and others hold this view even while they acknowledge that New Zealand women already have access to safe and legal abortion services – a situation described by persons on both sides of the debate as virtually ‘abortion on demand’.

While not considered as inviolable, the rights of the unborn child are nevertheless acknowledged in the current abortion law which, in its longer title, speaks of providing “for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child.”[2] As noted above, the right to life of the unborn child is a fundamental tenet of those opposed to abortion. It has led to what may be described as a ‘competing rights narrative’ in which the right of the woman to choose has been pitted against the right to life of the newly conceived human being.   

I would not want to disregard arguments centred on the embryo and its right to life. However, closer consideration of the facts reveals that the existence of a robust process requiring critical discernment by the woman and some form of external evaluation, far from restricting a woman’s choice, is in fact a necessary component for protecting women’s choice. Why? For a variety of reasons, including relationship stress, family and financial pressures and a real or perceived lack of support, many women make the ‘choice’ to have an abortion under real duress and even coercion. This figure is said to be as high as 64% - almost two out of every three women. In another survey of women who sought help after abortion, 83% said they would have carried to term if they had had greater support. In other words, pitting the ‘right to choose’ against the ‘right to life’ is an unhelpful dichotomy.

True freedom for women demands a transparent robust process that includes a high degree of professional and compassionate scrutiny in which women are provided with real alternatives and the support needed to carry a baby to term. Decriminalisation will not achieve this – it will only further undermine the authentic choices of women.

Dr John Kleinsman is director of The Nathaniel Centre

Alarm over genetic control of embryos

Letter published in The Times 20 March 2013

Sir, We are writing in regard to the HFEA’s recent consultation on what it calls “mitochondrial replacement”, about which we have a number of serious ethical concerns. 

In the procedures being proposed, the chromosomes of unfertilised eggs or of newly conceived embryos are, in fact, replaced, and these are clearly examples, therefore, of germ-line genetic manipulation. The reconstructed egg or embryo will have an altered genetic composition that will be inheritable. It would be the first time such intentional genetic modifications of children and their descendants were expressly permitted and would open the door to further genetic alterations of human beings with unforeseeable consequences. 

Chromosomal replacement would cross the Rubicon into germ-line genetic interventions. Moreover, we are concerned that these proposals for research and possible treatment which rely on egg donation will greatly increase the possibilities for the exploitation of egg donors. 

Because of the implications for all of humanity, intentional germ-line interventions are prohibited in every national jurisdiction that has considered the issue. They are also banned under a number of international legal instruments, such as the Council of Europe’s Convention on Human Rights and Biomedicine which prohibits the genetic modification of spermatozoa or ova for procreation. 

We urge the British Government to consider its international responsibilities. This is because persons created through germ-line interventions, which may subsequently be revealed to be detrimental, will be able to travel and have their own children abroad. For the UK to isolate itself from its duties by allowing “mitochondrial replacement” to take place without consulting its international partners would create a very serious precedent. 

Prof David Albert Jones¹ Anscombe Bioethics Centre, Oxford, UK. 

Prof Emmanuel Agius Dean, Faculty of Theology, University of Malta, Spain. 

Rev Nicanor Pier Giorgio Austriaco, O.P. Associate Professor of Biology, Providence College, RI, USA. 

Prof Stéphane Bauzon State University Roma Tor Vergata, Italy. 

Prof Francoise Baylis Novel Tech Ethics, Faculty of Medicine, Dalhousie University, Halifax, Canada. 

Prof E. Christian Brugger Saint John Vianney Theological Seminary, Denver, CO, USA. 

Prof Donna Dickenson Professor Emeritus of Medical Ethics and Humanities, University of London, UK. 

Rev Prof Norman M Ford Catholic Theological College of the MCD University of Divinity, Brunswick, Australia. 

Prof Anne Barbeau Gardiner City University of New York, NY, USA. 

Prof Robert P. George Visiting Professor of Law, Harvard University and McCormick Professor of Jurisprudence, Princeton University, NJ, USA. 

Prof Jozef Glasa Institute of Clinical and Experimental Pharmacology and Institute of Health Care Ethics, Slovak Medical University in Bratislava, Slovak Republic. 

Prof Geoffrey Hunt Centre For Bioethics and Emerging Technologies, St. Mary’s University College, London, UK. 

Prof Christian Illies Chair of Philosophy, Bamberg University, Germany. 

Dr June Jones Senior Lecturer in Biomedical Ethics, University of Birmingham, UK. 

Prof John F. Kilner Franklin Forman Chair of Ethics, Professor of Bioethics and Contemporary Culture, Director of Bioethics Degree Programs, Trinity International University, Deerfield, IL, USA. 

Mr John Kleinsman Director, The Nathaniel Centre/The New Zealand Catholic Bioethics Centre, Wellington, New Zealand. 

Prof Regine Kollek Professor of Health Technology Assessment, Research Centre for Biotechnology, Society and the Environment, University of Hamburg, Germany. 

Rev Joseph W. Koterski Department of Philosophy, Fordham University, Bronx, NY, USA. 

Prof Mette Lebech Department of Philosophy, National University of Ireland, Maynooth. 

Prof Abby Lippman McGill University, Montreal, Canada. 

Prof Natalia López-Moratalla Professor of Biochemistry, University of Navarra, Pamplona, Spain. 

Dr Calum MacKellar Director, Scottish Council on Human Bioethics, Edinburgh, UK. 

Prof Nur Masalha St. Mary’s University College, London, UK. 

Dr Pia Matthews Lecturer in Healthcare Ethics, St. Mary’s University College, London, UK. 

Rev Kevin McGovern Director, Caroline Chisholm Centre for Health Ethics, East Melbourne, Australia. 

Dr John McLean 

Dr Emilio Mordini Centre for Science, Society and Citizenship, Rome, Italy. 

Prof Anselm Winfried Mueller Professor of Ethics at Keimyung University, Daegu, South Korea. 

Prof Dónal O’Mathna Senior Lecturer in Ethics, Decision Making & Evidence, School of Nursing and Human Sciences, Dublin City University, Ireland. 

Prof Craig Payne Professor of Humanities, Indian Hills College, Iowa, USA. 

Prof Hilary Rose Professor Emeritus of Physik, Gresham College, London, UK. 

PD Dr. phil. habil. Ingrid Schneider Centre for Biotechnology, Society and the Environment, Research Group Medicine, University of Hamburg, Germany. 

Dr Joseph Shaw Fellow, St. Benet’s Hall, Department of Philosophy, Oxford University, UK. 

Dr Jiri Simek Chair for Ethics and Philosophy in Helping Professions University of South Bohemia in Ceske Budejovice Faculty for Health and Social Studies, Czech Republic. 

Dr Robert Song Senior Lecturer in Christian Ethics, Department of Theology and Religion, Durham University, UK. 

Dr Trevor G. Stammers Programme Director in Bioethics and Medical Law, St. Mary’s University College, London, UK. 

Dr Agneta Mauléon Sutton Visiting Lecturer, Heythrop College, University of London, UK. 

Prof Rodney Taylor Fellow, Faculty of the History and Philosophy of Medicine, Worshipful Society of Apothecaries, Middlesex, UK. 

Prof Nicholas Tonti-Filippini Associate Dean and Head of Bioethics, John Paul II Institute for Marriage and Family, Lateran University, Rome, Italy. 

Dr Verena Tschudin Visiting Senior Fellow, University of Surrey, UK. 

Prof Günter Virt University of Vienna, Austria. 

Dr Helen Watt Anscombe Bioethics Centre, Oxford, UK. 

¹ All signatories of this letter do so as individuals and their views should not be assumed to be those of any institution or professional body to which they are affiliated. This proviso also holds of the Anscombe Bioethics Centre through whose office the letter has been co-ordinated.  

Potential and Actual Persons

Alberto Giubilini and Francesca Minerva's paper, After-birth Abortion: why should the baby live? is, as the title suggests, confronting. The authors suggest that the grounds for killing newborns should be no different than the grounds required for an abortion. They form their argument in the following way:

1. A fetus and a newly born baby are biologically no different.
2. While a fetus and newborn are potentially persons (a person is one who is "able to make aims and appreciate their own life") they are not actual persons.
3. Only actual persons have moral status.
4. Therefore, fetuses and newborns are not "subjects of a moral right to life". Only the rights and interests of actual persons should be given consideration.

It is, on many levels, an objectionable argument, one that has provoked responses from many different avenues. I will restrict my response to a discussion on the terms, 'potential' and 'actual' by situating them within the philosophical context in which they derive their meaning. But first, it may help to situate Giubilini and Minerva's argument within the context of differing ethical theories. This may help us to understand how they come to put forward an argument that most people will find abhorrent.

Ethical theory

There are three principal approaches to ethics:

• Utilitarian Ethics considers consequences and asks what the outcome of an action will be. Will it bring about the greatest good, the most happiness? From this standpoint a person will need to be proficient at weighing up what the best course of action will be by imagining future possibilities.
• A Kantian approach will take into account moral rules (laws) and hold that a person is bound to act in accordance with these rules. A person coming from this standpoint is first required to recognize that a rule needs to be applied and then consider how the rule should be applied.
• A third approach – Virtue Ethics – highlights the importance of being a person of virtue. A person who favours this standpoint will ask themselves what a virtuous person would do in this situation.

In short, the emphasis will be on the end result, or on the action itself, or on the person who performs the action. In practice, most ethicists who maintain one approach will also admit that the themes of the alternate approaches cannot be ignored. Thus, a Kantian ethicist will also explain how certain ends are significant and that virtue does have a place and a Virtue ethicist will explain that there needs to be an element of rule-following etc. Giubilini and Minerva put forward a rigid Utilitarian argument, one that lacks nuance. As such, virtue is trumped by adult interests and the occasion of the action itself is stripped of moral significance. When consequences and future possibilities are all that is considered in ethical decision-making, then terms like 'potential' and 'actual' and 'person' will lose much of their moral force.

Disconnecting the notion of 'potential' from the notion of 'actual'

The terms 'potential' and 'actual' have their origin in an ancient and complex philosophical theory about the nature of living beings. It is a theory that originated in the writings of Aristotle and was later adopted and developed by Thomas Aquinas. Aristotle recognised that every being capable of change (trees, cats, human beings etc.) must be composed of two distinct but mutually interrelated principles, what he calls potentiality and actuality.

All of nature, Aristotle realised, is in process – living beings change and there is something about them that enables that change to occur. Living beings advance – by their own power – toward higher levels of potential. A newborn, for example, has a more developed capacity for life than an 8-week-old fetus. Potency, as such, constantly unfolds and also does not cease once something actual comes into being. 'Potential' and 'actual' are not static or unrelated concepts. Rather, all living beings possess, at all stages of growth and change, potency and act.

When Aquinas and Aristotle argue that an entity has 'potency' they recognize that the capacity to become what it will be in the future is already present. The emphasis is not on a future possibility but on a present reality. A fetus, for example, already possesses the potential needed to become an adult human being. It is not as though it could become something else. What is 'potential' and what is 'actual' are necessarily associated. This is particularly important to the present discussion – there must be something about the nature of the dynamic, growing, changing fetus/newborn that makes possible some future actuality of being a person who makes decisions and forms aims.

Giubilini and Minerva accept that fetuses and newborns have potentiality. They do not doubt that a newborn infant is potentially capable of one day making decisions, forming aims and appreciating her own life. They even point out that a baby may potentially live a very happy, healthy and fulfilled life. However, despite the potential a newborn has to become a fulfilled adult, Giubilini and Minerva argue that this should have no bearing on our moral decisions. Only an actual person, already at the stage of making aims and forming decisions has a right to be valued and protected.

To argue in this way Giubilini and Minerva need to mark a sharp distinction between what is potential and what is actual. In doing so, they use the terms, 'potential' and 'actual' in a way that is inconsistent with Aristotle's logic. They ignore the causal link that exists in the transformation that occurs when a fetus becomes a newborn and then becomes an adult capable of making choices. Their description of human life, as such, is fragmented, as if the stages of change and growth were disconnected. They choose to ignore the continual process that is potency and act. As noted, a living being cannot have potential unless it is already an actual something, nor can it reach a point of actuality such that all potency ceases. Potentiality is forever unfolding as long as a living being is said to exist.

Giubilini and Minerva further misrepresent the notion of potential by implying that it is a capacity that lies dormant and inactive in a fetus or newborn infant. In Aristotle's logic potential is in process, so living beings constantly change and evolve toward what is actual. The terms 'potency' and 'act', as such, express a dynamic reality that can be lost when using the equivalent terms, 'potential' and 'actual'. This seems to be a mistake that Giubilini and Minerva make. Their argument can leave the reader with the impression that once actuality is attained, potentiality ceases, as if 'potency' and 'act' are independent, disconnected realities.

Disconnecting the notion of 'human being' from the notion of 'person'

Some of the confusion that arises in this debate occurs because of the narrow definition given to the notion of 'person'. Just as Giubilini and Minerva describe 'potential' and 'actual' as though they were independent and disconnected realities, so too, they discuss what a 'human being' and 'person' are as if they were disconnected entities. It is indeed significant to the moral status of human beings that, unlike other living beings, there comes a point where we are able to form aims and act in response to decisions we make, and to do so under our own volition. In the exercise of freedom, potency and act take on a new and remarkable form. When this occurs human beings are not restrained by mere biological necessity (the rhythms of potency and act as occur in nature), but are able to act in independence from this reality. However, this level of consciousness does not disassociate the human person from her biological nature – the person who can make decisions and act on them is still the same being who is subject to biological change and growth. A person is a human being. When this point is lost – as it is in Giubilini and Minerva's paper – a disembodied capacity to act (called 'person') is affirmed and credited with moral status while the physical, biologically evolving human being is denied moral status.

Conclusion

Giubilini and Minerva's argument is flawed on many levels. I highlight here how it is flawed because they disconnect the notion of 'potential' from the notion of what is 'actual' and make the same mistake in distinguishing between a person and a human being. I have focused on the discussion from a philosophical standpoint. Otago University Ethicist, Grant Gillett sums up well the senselessness of such a stance: "Human potential looks out at us from the eyes of a child. And the ability to recognize and acknowledge the moral demand of human potential fuels education and the healing professions, and it marks the difference between a self-serving society and one that celebrates the human spirit in all its guises." (See Otago Daily Times, 23 March, 2012).

Rev Dr Gerard Aynsley is a parish priest in the diocese of Dunedin. He recently completed his PhD in philosophy at Monash University in Australia.

After-birth abortion: why should the baby live? A disability perspective

Martin Sullivan

When I first heard reports of a couple of bioethicists promoting the idea of after-birth abortion I thought, “they’re at it again; coming up with more justifications for killing us; the b_******s!”  Of course not all bioethicists hold to this position (as evidenced by the number who have since expressed outrage at the notion of after-birth abortion) but I find it profoundly alienating and quite sad that the only time the discipline or bioethicists themselves seem to show any interest in disability and disabled people is when they are arguing over when its OK to kill us. 

As a disabled person who knows his history, I can never separate these kinds of arguments from the situation which occurred  in Nazi Germany when over 200,000 disabled people – ‘useless eaters’ ‘life unworthy of life’ - were murdered in the Aktion T4 euthanasia programmes^[i].  Justifications for after-birth abortion sound awfully like a reopening of that door, a rekindling of the Silent Holocaust; that is why my response is so personal, so visceral.  

Unfortunately, this after-birth abortion debate flows logically from the zeitgeist of consumer capitalism where the body is seen as a prime site of consumption and the neoliberal precepts of individual freedom and choice rule. In this environment ableism thrives.  Ableism promotes a particular kind of ‘able’ self and body as fully human. In light of that, any impairment or disability is seen as inherently negative and should be ameliorated, cured or eliminated^[ii].  While Giubilini & Minerva’s argument is not entirely ableist insofar as they hold that after-birth abortion should apply to any abled or disabled infant who qualifies for abortion as a fetus, it begins with and builds upon ableist assumptions about children with ‘severe abnormalities’ whose lives are consequently judged as not worth living.

They begin by accepting that while it is easy and common for many in our contemporary society to conclude that living with severe abnormalities is not in the best interest of the child, it is hard to find definitive arguments supporting the case that such life is not worth living.  At this point an article of faith transmogrifies into scientific certainty as they assert that the potential of a child with Down syndrome can never equal that of a “normal’ child”.  Somewhat conveniently, their paper overlooks the question: potential for what?  Next, Giubilini and Minerva, somewhat incredulously, note that, despite this lack of potential, people with disability “are often reported to be happy.”  But these two important pieces of evidence – no definitive support for the “unworthy lives” thesis and severely impaired people reporting that they in fact have happy lives – are overridden by Giubilini and Minerva appealing to the “unbearable burden” thesis as justification for after-birth abortion.

The “unbearable burden” thesis states that a child with severe impairments will impose “unbearable” emotional and financial burden on the family and the financial costs of social provision on society as a whole.  Now the argument about the permissibility of after-birth abortion of such infants is justified on the basis of empirically verifiable claims about an infant’s financial impact on the family and broader society.  This marks an adroit shift – a claim that rests on assertion is suddenly presented as having a degree of ‘logic’ and legitimacy it does not warrant.  Also, somewhat conveniently, the burden thesis overlooks those parents who report that while not necessarily without struggle, their lives have been enriched by the child they refused to abort.

This is very much a ‘final solution’ which is not only abhorrent to me, but one which I find deeply ableist and difficult not to take personally.  I would argue that notions of “lives not worth living”, “potential” and “unbearable burden” are so context dependent, so deeply embedded in the social milieu, that it would be far more humane to address those variables before adopting a final solution. Ultimately, the solution lies in how much tax we are prepared pay in order to provide a just social wage which covers education, health and housing as well as a high enough welfare safety net so people don’t bruise themselves when they fall into it.   

To be fair, Giubilini and Minerva do spend some time in philosophical reflection on when a human becomes a person and at what point after-birth abortion is no longer permissible.  For someone who sees dignity and value in all human life, Giubilini and Minerva may as well be philosophising about how many angels can fit on the head of pin for all the good it will do in justifying after-birth abortion to me.

But I guess this is what many philosophers and bioethicists do: they engage in logic games and in this particular one they reduce themselves to playing the role of instrumental technocrats. It is a dangerous game they have begun playing because it is all theory about vulnerable lives and this is far too serious an issue to play with.

Undeniably, the most chilling aspect of this paper is its advocacy of after-birth abortion for those infants not wanted. Not-wanted!  As someone who lives with the shadow of the Silent Holocaust, these logic games are the opening gambit in a deadly game taking place in straitened times; times where it is quite possible the “unbearable burden” thesis may gain traction.  Under these conditions, no matter how repugnant, the bioethicists’ argument that after-birth abortion is permissible in cases where the potential life is deemed not worth living, too much of a burden or too expensive, may sound like commonsense. I cannot help thinking that it would not be too long before the justifications for a euthanasia programme for those ‘useless eaters’ began to be heard again.

Martin Sullivan, PhD, is a Senior Lecturer in disability studies and social policy at Massey University.

‘After-birth abortion’ a new euphemism?

P J Cullinane

The recent claim of academics Giubilini and Minerva, made in the online Journal of Medical Ethics that the killing of new-born infants (referred to by the authors as "after-birth abortion") is permissible gives rise to many questions that should not be evaded.

Academic standards

A cluster of questions arises around standards of academic scholarship. The issue is not whether there should be academic freedom or the right to publish dissenting opinions. The issue is whether academic freedom now means that provided certain procedures are followed, 'anything goes' as to content. Do universities still insist on objective levels of achievement and an academic's ability to think clearly? Giubilini and Minerva claim that a child is not a person until he or she is capable of attributing a certain value to their own life, able to make plans for the future, and able to appreciate that they are actually alive. But the authors admit they do not "know when exactly" this occurs. The implication is that at some stage in the process of becoming aware, the baby might not yet be, or might already be, a person.

Ethically, the situation is no different from that in which the deer shooter knows that the moving object shrouded by the trees might be a person, or might be a deer. The very existence of such doubt forbids shooting it on the mere probability that it might not be a person. If a baby must first become aware in the ways Minerva and Giubilini require for it to become a person and if they don't know exactly when that occurs, then they may not condone its killing. This is basic stuff.

Power over others' lives

A further cluster of questions surrounds the implied claim that to some is given the power to decide who shall live and who shall not, for reasons which Giubilini and Minerva acknowledge need not have "anything to do with the foetus' health", as is the case with abortions. In fact, the reasons they give to justify the killing might simply be that the mother no longer has the time, money or energy to care for the baby. Others have described this claim as 'chilling', and some have observed that expecting doctors to be agents of death effectively changes their basic role of preserving life.

Giubilini and Minerva accept that adoption is an option, but say it could cause undue psychological distress to the mother. Are they not aware of all that has been happening in relation to post-abortion trauma and its long-term damage to women (and to some fathers as well)?

The real challenge

The one thing going for Giubilini and Minerva's argument is the implied and even explicit parallel with abortion. If it is acceptable to kill babies inside the womb – for other persons' reasons – then it is likewise acceptable to kill them outside the womb – for other persons' reasons. In this way they effectively, even if unintentionally, challenge a hypocritical society over how glibly it accepts abortion. They argue that killing a new-born should be permissible "in all cases where abortion is, including cases where the new-born is not disabled".

The challenge to re-examine what we are allowing in the matter of abortion is all the more timely because some of the reasons previously used to support more liberal abortion have been proved false. It is reported that in the USA

"In the years leading up to the legalisation of abortion its advocates assured everyone that legalised abortion would reduce child abuse, strengthen family-life, and improve society. But all the evidence shows that after three decades of legal abortion, all these problems have gotten worse". (Janet Morana, Address to the Pontifical Council for the Family, Vatican City, 26 March 2010)

This is hardly surprising because abortion perceived as a solution to social problems requires a certain blunting of sensitivity and of conscience due to accepting the violence involved in the dismembering of babies in the abortion process.

This brings us to the questions that need to be asked about the role of law, its present formulation in New Zealand, and the responsibilities of our law-makers. The practical interpretation of New Zealand's current laws is consistent with the USA's watershed Court decision (Roe vs Wade, 1973) which allowed abortion at any time for any reason. But the legal situation in USA has not stood still. Individual States, with acceptance by the Courts, have made many amendments corresponding to experience and to a greater recognition of human rights. For example, parental involvement laws that require parents to either be informed of, or consent to, the abortion of a minor-aged daughter before it can be performed; informed consent laws that require that women seeking abortion be given accurate information about the development of the child, the alternatives to abortion, and the risks of the procedure; foetal homicide laws that proscribe the killing of a child other than by abortion – so-called partial birth abortion; ultrasound laws that require abortionists in some States to provide the patient with an opportunity to see her unborn child by ultrasound; and an Unborn Victims of Violence Act which protects the unborn from acts of violence other than abortion.

These restrictive modifications have come about because of the increasing opposition of feminist groups who have recognised the potentially life-long harmful consequences of abortion for women. In other words, socially and politically, there has been a strong and still growing movement away from permitting abortions to stricter limits on them. It is only lack of courage among NZ politicians that leaves our laws lagging behind these developments.

It might give heart to our law-makers to learn that far from being a denominational or even religious issue, the increasing alarm and opposition to abortion is being found across a broad section of the community, and especially among young people. They may also take heart from the sciences. The biological sciences have long-since taught that the fertilised ovum is already 'a microscopic human being' even before it is implanted, and that once implanted it requires only time and nurture to develop, grow and prepare for birth – in utero it already is a separate unique human being. The medical sciences are frequently having to deal with post-abortion trauma, which in some cases does not manifest itself until years later. These are matters our elected representatives are not entitled to ignore, because looking after the well-being of all citizens, especially the more vulnerable, is part of their core business.

A consistent ethic

If persons are defined in terms of what they are capable of doing, rather than what they are, and if problems of 'time, money or energy' are sufficient reasons for killing those who are more dependent on others, then the threat to life is at both ends of our lifetime.

The threat exists also for those in between birth and death in as much as social and economic planning too easily reduces human wellbeing to just one or other aspect of well-being – e.g. one's ability to contribute to the economy. Planning based on reductionism of any kind tends in the direction of a privileged position for the strong, and a kind of Darwinian attrition of the rest. Only by recognising the sacredness of human life and the innate dignity of every person, premised on their being human, can we arrive at a consistent respect for them at every point on the spectrum between conception and natural death. There is opportunity here for parliamentarians who are interested in finding a consistent, cohesive and coherent basis for all social and economic planning.

Bishop Peter Cullinane is Emeritus Bishop of Palmerston North Diocese and a former New Zealand Catholic Bishops' Conference deputy for The Nathaniel Centre.

Footnote

¹ Giubilini, A., and F. Minerva. "After-Birth Abortion: Why Should the Baby Live?" JME Online First (2012). http://jme.bmj.com/content/early/2012/03/01/medethics-2011-100411.full.pdf+html.

Richard Stith on the moral status of the human embryo and fetus

Finally, in a very readable article, Richard Stith provides a philosophical framework for making sense of the different understandings people have regarding the moral status of the human embryo/fetus. The widespread vision of the embryo and fetus as "under construction" is the key to understanding why good people may find pro-life arguments to be non-rational or absurd. The construction versus development approach may also help to clarify mutual misunderstandings regarding the moral acceptability of euthanasia.

Audrey Echevarria on the ever increasing practice of 'outsourcing pregnancy'

In another thought provoking piece, triggered by Nicole Kidman and Keith Urban's reference to their child's mother as a "gestational carrier", we reprint an article by Audrey Echevarria on the ever increasing practice of 'outsourcing pregnancy'. The commercial surrogacy that lies at the heart of the growing business known as 'Reproductive Tourism' is fostering a view that children are dispensable commodities.

Book Review - The ethics of abortion: Women's rights

John Flynn LC provides a broad overview of the key arguments offered by Christopher Kaczor in his book, The ethics of abortion: Women's rights, human life and the question of justice. While religion provides cogent arguments against abortion, the case as to why it is ethically unjustifiable can also be made on philosophical grounds.

Submission to ACART on extending the storage period of gametes and embryos

Preamble:

The Human Assisted Reproductive Technology Act 2004 (the HART Act) sets a maximum storage period of 10 years for sperm, eggs and embryos unless the Ethics Committee on Assisted Reproductive Technology (ECART) approves extending the storage period. Parliament recently amended the HART Act to clarify that the 10-year period begins from 2004 or later, depending on when the gametes or embryos were first stored. This applies even where gametes and embryos were stored before 2004.

The amendment also clarifies the powers of ECART and the Advisory Committee on Assisted Reproductive Technology (ACART). When deciding applications for extending the storage period of gametes and embryos beyond 10 years, or beyond an approved extended storage period, ECART must use guidelines issued by ACART.

In February 2010 ACART released its proposed guidelines on extending the storage period of gametes and embryos and invited interested parties to respond.

Introductory comments:

In order to avoid a statement of an explicitly philosophical nature, Catholic teaching refrains from defining the embryo as a person. However, as science demonstrates, there is undoubtedly a personal presence at the moment of the first appearance of a human life and a continuity in development from that point on. We hold that such continuity does not allow for positing either a change in nature or a gradation in moral value for the entire span of that individual human life. On this basis the question arises: "How can a human individual not be a human person?" It would never be made human if it were not human already.

Therefore, we reason that the embryo is to be respected and treated as a person from the moment of conception. It follows from this that the rights accorded to a person must be recognised from that same moment. Chief among those rights is the inviolable right of every human being to life, that is, the right not to be killed.

Because it interrupts the natural continuity in development, the cryopreservation of embryos represents an affront to their innate human dignity. Furthermore, it also exposes them to serious risks of physical harm and even loss of life given that a high percentage do not survive the process of freezing and thawing.

In addition, the storing of embryos means that their future (their right to life) becomes subject to decisions made by others; firstly those responsible for bringing about the human life, the commissioning parents in conjunction with the fertility clinics; secondly the state, when regulations (such as those governing the length of time embryos may be stored) mean that an embryo's right to life can also become dependant on various forms of legal concession. It is ethically inconsistent that a fundamental right becomes contingent on concessions, legal or otherwise, conferred by others.

Such regulations, even when they are well intentioned, can easily add to the injustice associated with storing embryos because they may well constitute a further obstacle to the embryo being able to continue on its rightful path of human development. The shape of the regulations may also present a direct obstacle to parents who are genuinely committed to implanting their stored embryos, as well as confusing the question of who is ultimately responsible for their welfare.

Taking into account all of the above, the question of further extending the storage period of embryos poses a unique moral dilemma from our perspective. On the one hand it can only be interpreted as the continuation of a serious injustice because it involves an ongoing risk to their viability and obstructs their right to develop. On the other hand, we recognise that in certain circumstances extending the storage period may be what is required to ensure that particular embryos are given a chance to live the life that is already rightfully theirs.

We accept that by seeking to extend the period that embryos may be stored, the proposed guidelines are, at least in part, designed to make additional provision for embryos to be implanted and to continue the path of their development. To this extent, and while it is regrettable that there are so many embryos in storage, we appreciate that robust guidelines have the potential to impact positively on what will still remain, at best, an unjust situation.

Obviously, the moral issues that characterise the storage of gametes differ because of the differing moral status of gametes when compared to embryos.

Responsibility for making applications to ECART for extending the storage of gametes and embryos:

In light of their moral status, we are concerned about the question of who is morally responsible for particular embryos. In the first instance we believe that it is the commissioning parents who are responsible. It is therefore most appropriate that they should be able to initiate and empower the application process and be perceived as doing such.

We believe that the current wording of the guidelines, insofar as it focuses largely on the role of fertility clinics and researchers, fails to adequately highlight the primary moral responsibility of the commissioning parents. In line with this we believe that all applications relating to the storage of embryos and gametes for fertility reasons need to be in the name of the commissioning party rather than the clinic.

That said, we understand that from a pragmatic point of view it is best that the application process be managed by a clinic because of their access to key information as well as in the interests of consistency. In other words, our criticism is not so much about the process being suggested as it is about the presentation of the process and its implications for people's understanding of what is at stake.

In the case of gametes being held for research purposes, we are happy that researchers take responsibility for any application for extending the storage of gametes knowing that the consent of the donors is integral to this process. Our stance on this reflects the fact that the reasons for such an application are ultimately for the benefit of the researcher rather than the donor. This makes such an application different in essence from any application to extend the storage of embryos as well as different from applications to continue storing gametes for fertility reasons.

Reasons ECART may approve extending the storage of gametes and embryos:

We note positively that the guidelines anticipate couples with 'surplus' embryos created from their own gametes seeking an extension period for the purposes of finding and donating their embryos to a suitable couple.

In line with our introductory comments we agree that the reasons for extending the storage of gametes and embryos must be limited to those individuals seeking fertility preservation in cases where the initial reasons for storage relate to an underlying medical need. We understand, and approve of the fact, that this will rule out those seeking fertility preservation for 'insurance' or 'lifestyle banking' reasons. To act otherwise would only lead to the untenable situation where we would have even more embryos being created and stored for reasons of personal convenience, exacerbating further what is already a problematical state of affairs.

We also approve of the fact that the guidelines rule out extending storage in cases where treatment is prohibited or precluded at the time of an application for extending storage. Again, to act otherwise would only lead to greater numbers of stored embryos unlikely to be implanted.

Informed Consent Requirements:

We wish to make the observation that the provisions around gaining consent from gamete donors for extending the storage of embryos unintentionally create a situation where commissioning couples (whom we argued earlier should have primary moral responsibility for embryos in storage) may be prevented from exercising their rightful parental responsibility.

We foresee situations where couples desiring a child, perhaps wanting a full sibling for other children, and with a keen sense of accountability for the embryos in their care, find themselves unable to carry through their parental commitment because of an inability to make contact with, or otherwise gain consent from, those who originally provided the gametes. Even while we uphold the importance of consent as a key principle in ethical decision making, such a situation strikes us as patently unjust, both from the perspective of the embryo and the commissioning parents. It creates an impossible hurdle to life for the embryo while also creating (abandoning) a particular class of embryo for whom no-one is able to be responsible. It also frustrates the would-be parents whose desire to have a child, which was the source of the original consent sought, has remained singularly constant.

On the other hand, we recognise that giving birth to children who may not be able to ever contact their biological parent or parents (or whose biological parents may not want contact) is also patently unjust and something that would impose a burden on any child that came to be born.

This is a good illustration of the way reproductive technologies have the ability to fracture the inherent relational integrity that should exist between parents and children. It also illustrates some of the unintended and undesirable consequences associated with separating the genetic, gestational and social dimensions of parenting, something that characterises many assisted reproductive procedures. More particularly, it highlights for us the contradictions and inconsistencies inherent in allowing heterologous IVF (i.e. relying on sperm and/or ova donation), something that we have previously stated we are strongly opposed to.

While hoping that honest reflection on the consequences of using heterologous IVF may discourage its use, we acknowledge that the practice has already been embraced by some in our society. Without wanting to further encourage its use in any way, and mindful of the situation we have described above, we suggest that ACART advocate that provision for extended storage of embryos be included as a standard part of the original consent sought from gamete donors.

Dr Lisa Bridle on mothers of children with Down syndrome

Our main feature is a wonderfully inspiring piece written by disability advocate and mother Dr Lisa Bridle. Lisa, reflecting on the birth of her son Sean as well as the stories of other mothers of children with Down syndrome, raises a number of key questions about the increasingly routine practice of prenatal screening and diagnostic testing. The mothers whose stories are recounted want the public to know that having a child with a disability is not a tragedy and that disability does not come to dominate their lives. The able-bodied must not have the final word on the 'problems' of disability.

Response to ACART [1] Draft Guidelines on the Use of Donated Eggs in Conjunction with Donated Sperm

Staff of The Nathaniel Centre
Issue 27, April 2009

Background

In August 2007 staff of The Nathaniel Centre responded to an ACART Consultation Document on various aspects of artificial reproductive technologies that included a question as to whether an embryo should be allowed to be created for reproductive purposes using a donated egg and donated sperm. While this particular procedure has been classified as an assisted reproductive procedure since 2005, there have never been any guidelines enabling the procedure to be approved by the Ethics Committee on Assisted Reproductive Technology (ECART).

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Dignitas Personae: The Dignity of a Person

Issue 27, April 2009

Synopsis of the Instruction on Certain Bioethical Questions

The Instruction is written in three parts: the first recalling key anthropological, theological and ethical assumptions and issues; the second addressing new problems relating to human procreation; the third examining new procedures involving the manipulation of embryos and the human genetic legacy. It is preceded by a short introduction and finishes with a short conclusion.

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Vatican Updates Catholic Teaching on the Dignity of Human Life

John Kleinsman and Michael McCabe
Issue 27, April 2009

A long-awaited new Instruction, titled Dignitas Personae - The Dignity of a Person, was released by the Congregation for the Doctrine of the Faith in December 2008. The specific aim of the new Instruction is to update Catholic teaching on human procreation and research involving embryos and human gametes in light of new developments in biomedical technologies. Its stated purpose is twofold: to contribute to the formation of conscience, and to encourage ethical research that is respectful of the dignity of every human being from the first moment of existence. After a first part in which fundamental principles and assumptions of an anthropological, ethical and theological nature are recalled, Parts II and III deal systematically with specific applications relating to assisted human reproduction and research involving stem cells and human genetics.

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Submission on the Use of Preimplantation Genetic Diagnosis - Saviour Siblings

Staff of The Nathaniel Centre - July 2008
Issue 26, November 2008

A Summary of Key Points from Submission to Advisory Committee on Assisted Reproductive Technology [ACART] on Guidelines for Preimplantation Genetic Diagnosis (PGD) with Human Leukocyte Antigen (HLA) Tissue Typing (Saviour Siblings)

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