Abortion: Law Commission told gestation period is 'grey area and somewhat arbitrary'

Law Commissioner Belinda Clark at the select committee.
Law Commissioner Belinda Clark at the select committee. Photo credit: Newshub / Zane Small

The Law Commission was advised by DHBs, abortion clinics and medical practitioners that the gestation period in abortions is a "grey area and somewhat arbitrary".

Law Commissioner Belinda Clark presented to a select committee on the Abortion Legislation Bill on Tuesday and was asked about the recommendations provided to the Government on changing the law.   

The Law Commission's report Alternative Approaches to Abortion Law gave three options on what a healthy approach to abortion could look like.

  • there's no test, the woman decides with her health practitioner
  • there's a test and the woman would need to prove the abortion is appropriate
  • there's only a test for later-term abortions - beyond 22 weeks

Clark said the final option - which is closest to the Government's legislation - was determined through advice from DHBs, abortion clinics and medical practitioners.

"That was our best attempt to reflect the medical consensus at the moment. But it has been described as a grey area," she told the committee.

ACT leader David Seymour asked Clark what difference there was between 22 weeks suggested by the commission, and the 20-week limit proposed in the Government's legislation.

"It's a grey area and somewhat arbitrary," Clark said, referring to the advice the commission was provided. She said a "whole lot of factors" would need to be considered.

The Law Commission is an independent Crown body that reports to Parliament on how laws can be improved in specific areas it is asked to investigate.

In February 2018, Justice Minister Andrew Little told the commission the Government was considering how best to ensure New Zealand's abortion laws were consistent with treating abortion as a "health issue".

Clark said the Law Commission received 3419 submissions on abortion law from the public.

She said the organisation’s research found that the number of abortions has been steadily declining over the past decade.

And jurisdictions overseas have found liberalising abortion law doesn't affect the overall number of abortions, but they occur much earlier in the pregnancy.

Clark also said medical advice was to not have a test for pregnant women and to leave the decision between a patient and their GP - the first option.

The Government went with none of the recommendations made by the Law Commission. It chose a more conservative version of the final option.

The legislation passed its first reading in Parliament last month.

The legislation, which would make changes to the Crimes Act, proposes removing any statutory test from doctors for a woman who is not more than 20 weeks pregnant.

Abortion is currently an offence under the Crimes Act, and women have to use a loophole to make it legal.

Women have to undergo a test by two medical practitioners who decide if the pregnancy would put the women in physical or mental danger, and allow her to proceed with the abortion.

If the law passes, a woman who is more than 20 weeks pregnant would require just one doctor to believe the abortion is appropriate.