Here in New Zealand, the anti-abortion organisation “Right to Life” has announced that it is going to take the government to the International Criminal Court, for pregnancy screening practices that identify Down syndrome children. They claim that about 90% of those children will be aborted, though the current figure is apparently 75%. The projected higher figure is based on government estimates. This, the organisation claims, amounts to either Genocide (Article 6) or a Crime against Humanity (Article 7), under the Rome Statute of the International Criminal Court, to which New Zealand is a signatory.
Genocide is defined in the Statute as specified acts (including measures to prevent births) with the intent to destroy whole or part of a national, ethnical, religious or racial group. Crimes against humanity are acts committed as part of a widespread or systemic attack, against any civilian population, with knowledge of the attack. From my preliminary look at definitions and categories, I don’t see a good case under either Article, but I’ll return to that question later.
The changes to the screening test for Down syndrome that have lead to the heightened debate, were introduced specifically to improve the safety of screening; bringing New Zealand up to an international standard. The screening test itself remains optional. It accompanies an explicit and official attitude that knowing a child is going to have Down syndrome allows the parent to make informed decisions prior to birth. Obviously, a potential consequence of that informed choice may be the decision to abort the child; but it has been made very clear by the government that the aim is not to reduce the number of Down syndrome children born in New Zealand.
Abortion is legal in New Zealand, but there are restrictions. One of the approved reasons for an abortion, is fetal abnormality.
Right to Life are cynical about the professed government aims re the introduction of better screening for Down syndrome. The organisation has cited economic concerns as one of the driving forces behind the government’s actions.
There are clearly some very heated intertwined issues here: Emotional, ethical and legal amongst them. One of the many complicating factors is the question of abortion. A woman’s right to control her body is pitted against the unborn child’s right to life. At which point a human being acquires rights – and what rights they acquire against another – is necessarily at issue here, and often tied into differing and conflicting religious, scientific and legal opinions. As long as the question of aborting disabled children is intimately tied to the very question of abortion, it will be excessively hard to make headway in the debate. Which is part of why the fact that the Right to Life organisation is spear-heading this campaign, is not in the best interests of the debate: If abortion is always wrong then abortion of Down syndrome children is always wrong. We need to tease the question of abortion, apart from the question of identifying unborn disabled children: “In a country that recognises a woman’s right to abort a child, is it acceptable that she have made available to her the knowledge that the unborn child has certain disabling conditions?” And then we get to the question of which conditions, and why.
If the unborn child’s life would be short and horrific, expected to only survive perhaps a few hours after birth, then we would surely (if we accept abortion as a legitimate option) allow for the testing and identification of such a condition. But what about Down syndrome?
And what about autism?
We do not as yet have a test that will identify autism in an unborn child (and it should be noted that the existing Down syndrome tests are also not 100% reliable; there will still be Down syndrome children being born, even if every woman chose to do the screening, and every woman chose to abort, which is not what is currently happening anyway). Yet despite the absence of such in utero tests for autism, it is an oft-debated issue: Should we try to design such a test, if it is possible? If such a test existed, should it be made available to everyone or no one or a select group of at-risk parents (perhaps those already with an autistic child who intimately understand the reality of their decision)?
If this New Zealand Down syndrome “case” makes it to the International Court (which from what I understand, is legally questionable, though I will make further enquiries), it would potentially be a test case for the rest of us in the special needs community. In the meantime, there’s plenty of food for thought there, and I would – as ever – love to hear what you think.
- TV3 News story on the proposed court case (June 22nd 2011).
- New Zealand Herald story about the new Down syndrome tests (Feb 9th 2010).
- Right to Life’s press release (June 13th 2011).
- New Zealand Down Syndrome Association’s view on prenatal testing, pdf (2011)
- Rome Statute pdf (including full wording of Articles 6 and 7)
- 60 Minutes story New Zealand (June 12th 2011), re the Down Syndrome screening and abortion concerns.
- New Zealand Abortion law.
- Right to Life New Zealand’s website; About page.
(I would like to do this story more detail and more justice – particularly considering my own academic background in both law and ethics – but I’m currently in poor shape due to a virus (someone pass me a vaccine!) and the accompanying fever and asthma complications. I’ll return to it when my health has improved.)