Law Commission Recommendations
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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:
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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.
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Models B and C would retain a specific statutory regime for abortion, although both would be significantly simpler than the current regime.
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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law that would be required under all of the three models: the current grounds for abortion in the Crimes Act would be repealed and the requirement for abortions to be authorised by two certifying consultants would be repealed.
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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.
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The Commission considers that the current law and guidance surrounding informed consent for health procedures would be sufficient for the purposes of regulating abortions.
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The Commission has suggested that counselling should not be mandatory for women seeking abortion, although it should remain available to women who want it.
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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.
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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.)
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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.
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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.
Monsignor Vincent Joseph Hunt
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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 14th 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 20th 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
Please do not make a hole in the dike
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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.
New Zealand Abortion Law to be “modernised so it is treated as a health issue” [Synopsis]
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On the 8th August, a new Abortion Legislation Bill passed its first reading in Parliament and was referred to a specially constituted Select Committee. The legislative process now includes an opportunity for the public of New Zealand to give feedback on the proposed new abortion regime by 19th September. In this article New Zealand Abortion Law to be “modernised so it is treated as a health issue”, the Nathaniel Centre offers material to stimulate compassionate thought and dialogue about abortion.
The full article is available by subscription to The Nathaniel Report
Potential and Actual Persons
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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:
- A fetus and a newly born baby are biologically no different.
- 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.
- Only actual persons have moral status.
- 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.