*New Zealand Sex Selection & Abortion*

New Zealand allows abortions only in specified circumstances, which do not expressly include sex selection. Sex selection in reproductive technology is generally prohibited, subject to an exception relating to genetic disorders and disease.

Abortion

New Zealand does not allow abortion on demand. Instead, the Crimes Act prohibits abortions except in limited circumstances. These circumstances, in the case of a pregnancy of not more than twenty weeks gestation, are:

• that the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman or girl;
• that there is a substantial risk that the child, if born, would be so physically or mentally abnormal as to be seriously handicapped;
• that the pregnancy is the result of sexual intercourse between:
  1. a parent and child;
  2. a brother and sister, whether of the whole blood or of the half blood; or,
  3. a grandparent and grandchild;
• that the pregnancy is the result of sexual intercourse that constitutes an offence against [the] Act; or,
• that the woman or girl is severely subnormal.[1]

In order for a woman to obtain an abortion, she must obtain the approval of two physicians acting as certifying consultants, who agree that the procedure would not violate the provisions of the Crimes Act, 1961. The Crimes Act, 1961 does not provide that an abortion can be approved for the purpose of sex selection. It is possible that two certifying consultants could approve an abortion on the grounds that forcing a woman to bear a child of an unwanted sex would pose a serious danger to her mental health, but there are no reported cases in which such a decision has been made.
Despite New Zealand’s apparent prohibition on abortions for the purpose of sex selection, the impending sale of test kits in the country that reveal the gender of a fetus has raised concern in the Royal Australian and New Zealand College of Obstetricians and Gynecologists that they will lead to an increase in women seeking abortions for impermissible reasons.[2]

Reproductive Technology

New Zealand has a separate statute dealing with reproductive technology. The Human Assisted Reproductive Technology Act provides as follows:
No person may, for reproductive purposes:

1. select an in vitro human embryo for implantation into a human being on the basis of the sex of the embryo; or
2. perform any procedure, or provide, prescribe, or administer any thing in order to ensure, or in order to increase the probability, that a human embryo will be of a particular sex.

Every person commits an offence who contravenes this section and is liable on summary conviction to imprisonment for a term not exceeding 1 year or a fine not exceeding $100,000, or both.
It is a defence to a charge of an offence against this section if the defendant proves that the act to which the charge relates was performed to prevent or treat a genetic disorder or disease.[3]
Thus, the selection of in vitrohuman embryos for implantation on the basis of sex, and the use of procedures to increase the probability that an embryo is of a certain sex are generally prohibited, but the law does contain an exception that allows these steps to be taken to prevent genetic disorders or disease.[4] Persons who violate this prohibition are liable to a fine of up to NZ$100,000.[5]

Conclusion

New Zealand does not appear to permit abortions to be approved for the purpose of sex selection or allow sex selection reproductive technologies, except in limited circumstances designed to avoid genetic disorders and disease

For more information on New Zealand see:

• Global Legal Monitor: New Zealand
• Guide to Law Online: New Zealand

Prepared by Stephen F. Clarke, Senior Foreign Law Specialist

June 2009

1. Crimes Act, 1961, No. 43, s. 187A, as amended, available at http://www.legislation.co.nz/act/public/1961/0043/latest/DLM329364.html?search=ts_act_abortion_noresel (external link). [Back to Text]
2. New Foetal Gender Test Kit Sparks Row, Financial Times Ltd. & New Zealand Press Ass’n, June 8, 2009, available at Lexis-Nexis, Newsfile. [Back to Text]
3. New Zealand, Human Assisted Reproductive Technology Act, 2004, 2004 N.Z. Stat. No. 92, § 11, available at http://www.legislation.co.nz/act/public/2004/0092/latest/DLM319314.html?search=ts_act_ reproductive+technology_noresel (external link). [Back to Text]
4. Id. [Back to Text]
5. Id. At current exchange rates, NZ$100,000 is equivalent to about US$64,071. [Back to Text]

Last Updated: 08/02/2012