Right to Life wins ruling in court

A Christchurch group taking a landmark legal bid to overturn the way abortions are done in New Zealand has won the latest round of its battle in the High Court in Wellington.

After failing in its political fight to change abortion laws, Right to Life New Zealand launched a judicial review in the High Court, claiming that the Abortion Supervisory Committee was failing to safeguard the human rights of unborn children. The committee oversees the more than 15,000 abortions performed each year.

Abortions are only legal in New Zealand under conditions that include when pregnancy would endanger the mother's life, her physical or mental health, or if there is a risk of the foetus being handicapped.

In two years of court wranglings since filing its claim, Right to Life's legal bid has had mixed fortunes. It has successfully defeated the committee's bid to dismiss the claim but also had ruled inadmissable the accounts of six women who blamed abortions for their mental problems.

In the High Court in Wellington this month, Justice Simon France rejected the committee's bid to rule out expert medical evidence, produced by Right to Life, about the viability of foetuses being removed for medical treatment and returned to the womb.

The judge said Right to Life's claim included questioning the definition of when the law deemed someone to be alive and thus had human rights under the New Zealand Bill of Rights.

New Zealand adheres to the common law "born alive" principle, where a child has no rights until it is born alive.

"Right to Life sees the `born alive' rule to be a potential impediment to its case and wants to be in a position to contest that rule if either committee or the court see it as relevant," he said.

"The recent text, Medical Law in New Zealand, notes that generally New Zealand adheres to the born alive rule, although there have been inroads. It suggests there is scope for future challenges to its continuing relevance."

The two statements at the heart of the latest court hearing were from paediatricians about the state of medical science, which Right to Life claims makes the born alive rule an invalid and historical concept.

"One of the arguments it would wish to make in support is the current state of foetal diagnosis and surgery whereby it is now possible to partially remove the foetus from the uterus so as to operate and then return the foetus back.

"The argument is that birth is not a sensible criteria," the judge said.

The committee said the state of foetal surgery is irrelevant to the way it carries out its functions and allowing it into the hearing would unnecessarily broaden its scope and cause it to obtain its own evidence on the issue. Justice France ruled that the statements were admissable but that did not mean it was relevant and he allowed them to form part of the judicial review so that Right to Life could run its case the way it wishes.

In the earlier hearing in which the committee sought to strike out Right to Life's judicial review, Justice Wild allowed the bid to continue but noted that many of Right to Life's propositions "would be difficult to sustain but were not to be so untenable as to be regarded as hopeless and meriting a strike-out".