An unborn child has the right to life under the law, the Court of Appeal was told today, as an anti-abortion group challenged a High Court ruling that found foetuses did not have full rights.
Right to Life and the Abortion Supervisory Committee (ASC) appeared in the Court of Appeal in Wellington, marking the latest step in a five-year civil dispute.
With more than 98 percent of all abortions being carried out on mental health grounds, Right to Life in 2005 sought clarification of the ASC's powers, the lawfulness of abortions being carried out, and the rights of the unborn child.
Justice Forrest Miller in 2008 found the law was being interpreted more liberally than Parliament intended and there was "reason to doubt the lawfulness of many abortions".
Both groups appealed, and today Right to Life counsel Ian Bassett told the court an unborn child had rights under the Contraception, Sterilisation and Abortion (CSA) Act.
The Act's title stood as a declaration, stating it provided "the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child", he said.
Mr Bassett said they were identified as the bearer of rights, which meant the ASC's functions could be interpreted to promote the preservation of life.
He also referenced common law, international conventions and the Bill of Rights, which he said was broad enough to refer to foetuses.
But the ASC said if Parliament wanted the Bill to extend to foetuses it would have been spelt out in the legislation.
Right to Life also challenged the ruling that abortion counsellors should not be independent of licensed institutions.
Counsel Peter McKenzie, QC, said under the Act, the ASC must provide "adequate" counselling services, which included that a conflict of interest be avoided.
Counsel for the ASC Cheryl Gwyn yesterday said it had no authority to review certifying consultants' decisions.
She said Justice Miller focused "exclusively" on the question of whether consultants were obeying the law, which was not part of the review before the courts and had no proof to conclude some abortions were illegal.
Also, if his ruling was upheld, the ASC had no resources to embark on a review, Ms Gwyn said.
Mr McKenzie argued under the law the ASC must "supervise" the way the Act was operating and the procedures being carried out.
It had more resources than one would expect, and the power to inquire and obtain reports, he said.
Justice Robert Chambers noted if the ASC had the power to discipline, it would parallel the role of the Health and Disability Commissioner, and there would be protections for consultants in the Act.
He asked whether a consultant have a hearing and face a charge.
"The court would clearly intervene," Mr McKenzie said. The court reserved its decision and indicated it would try to rule by Christmas.
