Regulations of Reproduction Flashcards
Why is Roe v Wade 1973 such an important judgement?
For the first time reproductive choice was recognized as a fundamental right, entitled to the same protection as guarantees of religious freedom and free speech… The decision not only secured the legality of abortion in the US but also gave strength to an emerging reproductive rights movement that transcended abroad.
*Was reversed in 2022 US SC in Dobbs v Jackson
What is reproductive liberty?
Reproductive liberty, which can also be referred to as reproductive autonomy or reproductive rights, refers to the freedom of individual to make decisions regarding their reproductive lives without coercion or interference. It encompasses a range of rights and freedoms related to reproduction such as access to contraception, access to abortion services, freedom from coerced sterilization, pregnancy and childbirth choices (such as location of birth etc) and parental rights. Reproductive liberty is grounded in principles of bodily autonomy, privacy, equality.
What is the legal status of a unborn child?
There is none.
The law accord legal personality to a child only when it is fully proceeded in a living state from its mother.
What is the Born Alive Rule set out in R v Sims (1601)?
The presumption that all unborn children are dead until they are born alive.
What is the special attribution of a foetus recognised at common law and what case did it come from?
AG Reference UK HOL
Recognised the born alive rule and that a foetus is not a legal person till birth. YET, said the foetus is a unique organism. There are distinct entitles (mother and foetus) but there is only one legal person.
It is not one person but not two either.
What did the COA in Harrild v DOP say about the born alive rule in NZ (2003)?
Accepted born alive rule still applies in NZ
Court held that we do not applied same rationale as was in 1600s but the rule is there to prevent the problems if fetal rights could over take maternal rights - rule is a legal fiction and there for reasons no anticipated when it was first articulated.
Court in this case said that the fetus whilst in utero is part of the mother - injury to fetus is personal injury to the mother therefore she has cover under ACC and cannot take claim for damages.
Where has the born Alive rule been codified in NZ law?
Crimes Act section 159.
159 Killing of a child
(1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not.
(2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
What is the Crimes Act exception to the born alive rule?
Section 182 - cannot escape criminal liability for killing an unborn child just because born dead if causation is established.
What was the law on abortion in NZ prior to the 2020 reform (Contraception Sterilisation & Abortion Act 1977)?
Abortion was a criminal offence unless you came within a defence under the Crimes Act.
From moment of implantation a fetus has a status entitling it to preservation and protection BUT this protected status was not absolute:
If under 20 weeks lawful if serious danger to life or physical / mental health (above normal risks of pregnancy), incest, subnormal women, fetus seriously ‘handicapped’.
Rape was not a specific ground but could be taken into consideration - this was because women could lie about rape to get abortion.
After 20 weeks only legal if needed to save a life, prevent permanent injury to physical or mental.
Two doctors had to agree that grounds were met.
*In practise clinicians applied the law very liberally hence why this is surprising as it was perceived that abortions were legal.
What led to the abortion law reform in 2020?
UN reports that suggested we decriminalise it.
Labour election pledge to remove abortion from crimes Act (Jacinda Ardern said she would instead make abortion a medical matter).
How can the born alive rule be used to reject a Pro Life argument?
Claims that a foetus has a right to live can be rejected by the born alive rule that says an unborn child is not a legal person.
How long did the 2020 reform take to go through parliament and why is that important?
Only took 7 moths - this is quick and some people use this as an argument to support there views against the Act.
What was the key effect of the Abortion Legislation Act 2020?
Made abortion no longer a crime and instead it regulated it under general health law (made it a medical matter).
What is abortion?
Section 2 - “Intentionally causing the termination of a women’s pregnancy by any mean including by using a drug or combination of drugs or by using an instrument.”
What did the 2020 Act do to the scope of people who can perform abortions?
extended the scope - helped with access to abortion issues.
What is the “gestational test” of the 2020 Act?
The Act distinguishes between pregnant women pre and post 20 week gestation
A pregnant woman can seek termination of her pregnancy for up to 20 weeks of pregnancy without being required to satisfy any statutory test.
After 20 weeks, abortion is permitted only if a health practitioner has deemed it “clinically appropriate in the circumstances” and has consulted with at least one other health practitioner.
E.g.,
Under 20 weeks = no legal restrictions
After 20 weeks = statutory test applies
What does “Clinically appropriate in circumstances” mean?
Term is vague.
Section 11(2) provides some guidance:
(a) Must consult at least 1 other qualified health practitioner. Consult does not mean approve/agreement just means listen to what they say and consider their responses.
(b) The health practitioner must have regard to all relevant legal, professional and ethical standards, the woman’s health and wellbeing, and the gestational age of the foetus.
These mandatory considerations and the need to consult another practitioner do not apply in medical emergencies.
What is the potential issues with the gestational test?
Inconsistent with NZBORA section 21- freedom from discrimination on the basis of pregnancy.
The 20 week limit.
Why is the 20 week limit on the statutory test important or problematic?
Important - provides some limits to the preservation of reproductive liberty (limit is not an absolute limit). It provides a hybrid between Pro Life and Pro Choice. Late abortions are traumatic so generally will be done with good reason - The later the limit the less discouraging of abortions.
Problematic - social reasons that some people don’t become aware of pregnancy until after 20 weeks - especially those who have less access to test etc.
Problematic - The Commissioners advise was that the the test should only apply at 22 weeks. BUT thought that this was ignored and lowered because babies can be born alive at 23 weeks (with ICU support) - greater moral status the older the foetus gets.
Problematic - abnormalities of babies only picked up in 18 week scan so doesn’t leave much time to make such a huge decision.
What is Section 14 of the Abortion legislation Act 2020?
Duty of conscientious objector to declare objection at earliest possible time and refer consumer to closest provider.
What is section 15 of the Abortion Legislation Act 2020?
Employers must accomodate for conscientious objectors.
Under the old regime a employer could not ask and decline employment on the basis of conscientious objector to abortion - conscientious objector being prioritised over access was inconsistent with Human Rights Act 1990 s 8.
Section 15 now reflects the balancing of interests - generally cannot refuse to employ or terminate employment on basis of conscientious objector unless accommodating it would unreasonably disrupt access to abortion (e.g., would have to look at alternatives etc).
What does section 21 of the ALA 2020 do?
Expressly opposes the performance of abortion being sought solely because of a preference for the foetus to be of a particular sex
What is problematic about section 21 (abortion for sole purpose of sex selection)?
Inconsistent with people who support Pro Choice.
Can result in unsafe methods being used.
The best way to combat sex selection is to improve women’s rights.
What was NZ Health Practitioners Alliance v Attorney General about?
Challenge to the conscientious objectors provisions - claims for a declarations of inconsistency between the 2020 Act and NZBORA.
Claimed that s 15 of 2020 Act was eroding the right to conscientious objection.
Specifically that the Duty to indirectly refer is in breach of NZBORA section 13 freedom of thought, conscious and religion and section 15 manifestation of religion and belief.
What was the decision in NZ Health Practitioners Alliance v Attorney General?
Held that neither ss 14 and 15 engages and interferes with NZBORA rights and if wrong any such limit can be demonstrably justified in a free and democratic society under section 5 NZBORA.
Why do we want the law regulating assisted reproduction?
Assisted reproduction techniques raise complex ethical questions and laws can provide guidelines to ensure that assisted reproductive techniques are used ethically and responsibly.
Regulation:
Promotes safe, high quality laboratory practices.
Ensures safe and ethical conduction of research - the scope of science in this area is huge e.g., cloning and gene editing.
Protects the interest of various stakeholders (future children).
Maximises outcomes for complex family formation e.g., legal rights and obligation in relation to surrogacy is risky unless everyone is aware of what is involved.
To avoid preemptive conflicts.
Regulating assisted reproduction encourages innovation but in a way that is safe and ethical.
