Abortion of the Disabled; An International Crime? The New Zealand Down Syndrome Question

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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.


(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.)

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17 Responses to Abortion of the Disabled; An International Crime? The New Zealand Down Syndrome Question

  1. nostromo says:

    Hmm that’s quite a creative approach Right to Life they are taking, but I don’t think it will wash. Genocide would have to be a co-ordinated approach against a group not a bunch of individual decisions.
    Personally I hate the idea of abortion.

    • Yes, it would have to be quite a creative argument – with mass evidence of pushing the parents towards the decision of abortion I would think – before they would get traction.

      And yes, I think it’s safe to say that everyone hates the idea of abortion (as an independent consideration of whether it’s ever acceptable). I just hope to never find myself in the situation where I have to make a decision about whether to abort a child or not. I am lucky to have never been in such a situation; I honestly do not not know what I would do if I was, it depends on an incredible array of factors.

  2. Sharon says:

    I find it hard to imagine any in utero test to being able to detect ASD. From what we know so far, there are hundreds of possible genes responsible. Furthermore, it seems safe to assume based on the broad spectrum of ASD presentations that there is no one Autism, but many manifestations of the same diagnosis. Whereas Downs is easily identifiable as a single chromosonal disorder.
    If the Right To Lifers dont want to abort foetuses, then simple, don’t. Leave the rest of the population alone.

    • Hi Sharon.

      I can imagine that there could be in-utero tests for the known causes of autism; say a family has Fragile X or some other known condition that frequently leads to autism, and there is developed some way to test for that pre-known possibility manifesting as autism, because of the family history. Or maybe there was a rubella infection during pregnancy that meant a possibility of autism, and some test that could be used to identify if the child had been affected (?). I don’t think it’s beyond the realm of possibility anyway. I do think you’re right that it is extremely unlikely that there will ever be a definitive all-encompassing in utero test to identify an autistic child. But again, I don’t think it’s an impossibility.

  3. Bill says:

    I am endowed with Asperger’s.

    As a hyper-moral person who bases all moral decisions not on emotions or impulses or peer pressure or religion, but on logic, commonly expressed as “do unto others as you would have them do unto you”, I cannot rationalize abortion for any reason other than saving the life of the mother, and in that event every effort would have to be made to delay the partum until there is a possibility of survival for the child.

    I could make a logical argument that it is OK to abort a Down’s Syndrome child because the child is technically not human, since we define our uniqueness from our primate cousins by having our unique chromosomes in a specific set of pairs. This is a slippery slope; if we define a “perfect” set of genes, and accept eliminating those who do not meet this criterion, we would be accepting eugenics. Abortion is an emotional issue fraught with logical traps.

    Imagine two surgeries, with a common scrub room. In one surgery is a mother about to have a late term abortion; in another the birth is being induced early so that a life-saving surgery can be performed on the baby.
    Just as the operations are about to commence, an emergency causes both surgeons to return to the scrub room for a consult; fortunately they confirm a third surgeon is available to deal with the emergency, and they can return to their tasks. Each enters the wrong surgery, nobody recognizes the error because of the masks and caps obscuring their faces, and a surgeon plunges scissors into the brain of the child destined for life-saving surgery. In the other operating room, they are placing an unwanted child in an incubator.

    Is someone guilty of murder? Manslaughter? Ooops? Someone sues for wrongful birth?

    Is it ever moral to terminate a viable child?

    Most societies and religions abhor incest, and with good logical reason; harmful recessive genes are more likely to be expressed. But in reality few people actually carry harmful recessive genes, and even if carriers mated, there would only be a one in four chance of a bad outcome; so why would we kill 100% of the offspring to prevent such a rare outcome? Are we so primitive we do it because the parents sinned? Should we abort bastards because their parents sinned?

    With technological advances, younger and younger pre-term babies can be saved. If we peg legal abortion to age of viability, does that create another legal problem? Many Western societies have principles that laws shall apply equally to everyone. Can we define our outcomes on ever-changing technologies, instead of our individual intrinsic rights?

    Abortion, and the tendency of the intelligentsia to limit procreation, is inevitably destined to have an insidious outcome in a Darwinian sense; rather than a eugenic ideal, we will evolve into a collective of less intelligent beings. If we also abort children with autism spectrum genes, evidence would suggest we would have fewer mathematicians and engineers. In Europe, the drop in birth rate is destroying entire cultures.

    In some countries, abortion is heavily promoted, subsidized and utilized among certain lower socioeconomic classes and races; is this moral? Do the ends justify the means?

    With abortion, can the end ever justify the means?

    • Hi Bill,

      I have lots of issues with your issues! (Not surprisingly in such an area of debate). From the very start, you and I part ways, when you said: “on logic, commonly expressed as “do unto others as you would have them do unto you”, I cannot rationalize abortion for any reason other than saving the life of the mother.” I suggest to you that “do unto others…” is not “logic”; it is a dubious and often unhelpful ethical principle which ultimately justifies a lot of harm to others for no reason other than “I’d be OK if someone did that to me” and “yes if I spoke out against xyz I would expect people to harm me” etc. Which is why people usually turn to a system of rights. Even if we accept the “do unto others’ or “rights” approach, nothing is yet solved, since the point at which a human gains right – and what rights, against whom – remains undetermined. Even if you can argue (and I think it is a weak argument) that an unborn child which would not survive independently outside of its mother, has rights, there are competing rights there; does a human being have rights that another human being sustain them (etc).

      I applaud you for trying to confront this issue, though the conclusions you are drawn towards are not the same I’ve reached.

    • Sharon says:

      Bill a quick question if I may? Do you think your thoughts on abortion are shaped by your gender in any way? Given you will, as a man, never have to face the dilemma of an unwanted pregnancy.

      As a former social worker I supported many women who lived in violent and chaotic, drug addled situations. They often became pregnant and their children then also lived in those volatile situations, until they were removed from their parents and placed into a string of foster homes, which often led to fractured sense of self and more trauma. Personally I dont think I could undergo an abortion, but watching the wretched lives of children born into families who were incapable of providing stability, security or safety with often tragic consequences, I cant buy into the idea of life at any cost.

  4. 794985 says:

    If someone wants to abort them, let them, I’m sorry but I don’t have the patience for retarded kids. Also, I won’t be PC about it. I will say retard because its a condition, not a slur.

    • Not having the “patience for retarded kids”, is a tad over the top, wouldn’t you say? The fact is you can’t always fore-tell if a child will be retarded, so “not having the patience” for an inevitable and innocent sector of society (children born with hardships no fault of their own) is a rather unhelpful and particularly cruel attitude. I can only think you perhaps didn’t express yourself as well as you meant to; you’re surely not saying you think we should lose our patience and generally not bother with children who don’t come out “perfect”?

      And being PC is irrelevant here. Retarded has a correct meaning, it’s absolutely fine to use it in the way you have – children born with such problems are retarded. People only take offence when it is used as an attack, such as “you’re so retarded” said as if “retarded ” was synonymous with stupidity and lack-of-worth. I have written a post about this topic if you want to understand where the lines get drawn, and why: https://autismandoughtisms.wordpress.com/2011/06/02/the-r-word-i-get-it-now/

  5. Hi A & O, Mike Sullivan here from savingdowns. I was wondering if you are still planning to write in more detail about this issue? I would be interested in your views.

    The comments that genocide has to be against a group is correct. The situation is that the primary intent of gentic screening in New Zealand is to identify unborn children with Down syndrome, Spina Bifida and other conditions so that births to those biological groups of human beings can be prevented. The consequence is that a substantial part of the group is being systematically destroyed. The screening programme facilitates a biological genocidal act against the group, with abortion being the means of perpetrating those acts. Births of around 75% of those with Down syndrome and 90% of Spina Bifida are being prevented in New Zealand.

    It is clear if you look at the crimes against humanity towards those with Down syndrome and Spina Bifida as the opening act of the Nazi genocide in 1939 that both of these groups are protected under the Genocide convention, as that convention sought to protect the three groups persucuted in the holucast (the disabled, the gypsys and the jews: in that order). The prosecutions at Nuremberg are very revelaing in this regard.

    If a gentic marker is found for autism, would you be concerned over routine antenatal screening to enable selective abortion for autism? The door is open.

    • Hi Mike,

      The legal argument suggested by the group, is not sound. I read through the Acts myself and reached the opinion that they were extremely unlikely to get anywhere with this case. I ran the situation past a friend of mine who is a scholar in international law, who was of the same opinion. (From memory, the one potentially successful approach turned on proving the aim of the government was extermination, and that would be exceptionally hard to prove under the way doctors and the government currently respond to the situation, since the primary response is support and giving the couple time, not encouraging an abortion. It is the couple’s individual choice to abort or keep the child.) I’m not sure if it’s worth returning to the discussion on the legal question because of that clear weakness, but yes I may be attempted to return to the question on the ethical issue at some point.

      As to your other points, no I would not at all be worried if there was an antenatal screening test for autism; it would be a fantastic advance in science that I would welcome. The point of such screening – just like all screening done – is to provide information to the parents so they can make an informed choice. That choice includes finding out everything they can in advance about caring for such a child so they are well prepared (mentally and emotionally) for the challenge. If they choose to abort that is their right. They are not obligated to carry any baby to term, healthy or otherwise.

      The strongest argument against screening is an argument against abortion full stop. I support a woman’s right not to have a child if she doesn’t want to have a child, regardless of the reason. Some people simply don’t want women to have that choice. The group behind this initiative in my post, is a group which is fundamentally anti abortion.

      Thanks for your comment.

  6. The “clear weakness” has been well covered off, using the Government’s own evidence and the specific provisions in the Treaty of Rome relating to intent. No doubt the ICC will examine the evidence presented.

    As to “not encouraging abortions” that is simply not the case in New Zealand. Many women are encouraged to end their pregnancies when they receive a diagnosis of Down syndrome, Spina Bifid or other so-called disabilities. The statistics speak for themselves.

    The issue is one of discrimination – targeting a biological identifiable differnce to stop a birth. No other group of people are targeted for selective abortion in New Zealand, just the “disabled”. It is discrimination. Their is no right to discriminate against people with disabilities, even if the discrimination is informed before the person chooses to discriminate.

    You may well welcome genetic testing for autism, but it will devistate your community. Screening doesn’t operate in a vacumn, it operates in a culture that seeks perfection and the avoidance of people such as those with autism.

    • You have a very different attitude towards disability and a different definition of disability than I, and that is where our disagreements are partially based, so we are not going to agree in that area. You also clearly think quite differently about abortion than I do, seen in the way you talk about rights and humanity. I see abortion as a right of a woman over her own body and future, you do not appear to hold a woman in the same regard. I also think your general argument is over-stated, and your view of what is happening in New Zealand is coloured too much by your fears, rather than supported by the reality of what happens when a child is identified as disabled in the womb.

      Genetic testing would not devastate my community by any stretch of the imagination. This is not genocide, or infanticide or a crime against humanity. This is about information, choice, and a woman’s right over her own body. The idea that you’d want to deny a family that information, that choice, and those most basic rights, is concerning to say the least.

      This has no bearing on what happens once a disabled child exists in the world. Once someone exists, they have access to all the rights anyone else does (and sometimes even more). That is a different topic altogether.

      Issues of abortion and disability are emotional ones, that’s understood, so I understand the intensity of your feeling on the matter. (Understand too, that I feel intensely in the other direction.) As far as the legal question goes though, emotion doesn’t “win the day”, facts and legal definitions are required. And it seems more-than unlikely that the facts and various Acts support the outcome you’d like to see occur, at least at this point in time.

      • Indeed we can agree to disagree. There is no fear here, just awareness of what is actually happening at the coalface. No doubt history will take it’s course. It’s funny though, I discuss this issue with a lot of people and they say the would rather have a child with Down syndrome than one with autism. All in the name of choice eh? We have an interesting future indeed.

      • Indeed.

        And yes, what you say about preferring a Down syndrome child over an autistic one, matches what I’ve heard and seen too. Our children are particularly challenging, but I love my son nonetheless. He is my world. Both my children are.

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