Editorial: In search of a consistent ethic of life
I was recently asked to participate in a series of talks designed to stimulate reflection on our responsibility to be stewards of all creation. The topic of my talk was euthanasia.
A friend thought it interesting and even unusual that I should be invited to offer a talk on euthanasia as part of a series focussed on the environment. The question she posed: ‘What has a human moral issue like euthanasia got to do with environmental ethics?’ I find her reaction interesting and instructive.
Her reaction draws attention to a key assumption that shapes contemporary thinking; an assumption that has its origins in the intellectual movement we know as the Enlightenment, a movement that prioritised human reason above all else. The Enlightenment came about as a direct result of scientific insights into the marvellous secrets of nature. But, at the same time, it led us to see the world in a more objectified way. It also led to us seeing ourselves more and more as rational beings separate from, rather than deeply connected with, the rest of God’s creation. In particular, it has fostered a degree of disdain for the natural rhythms of life.
My friend’s question would not have made sense in pre-Enlightenment times because the question itself is an expression of the shift in human thinking that followed the Enlightenment period. While she is actively concerned about the environment and while she recognises that the current crisis is very much a result of human irresponsibility fuelled by a sense of ‘hubris’ based on an inflated sense of our entitlement and power, nevertheless, the separation that exists in her mind between human and environmental ethics buys into and perpetuates the idea that, because of our ability to reason, we humans are essentially separate from the rest of creation.
A recent example of this disconnection was highlighted in a news report about a new law banning the practice of “inducing” cows. Narelle Henderson writes:
“Each year, farmers buy bulls whose job it is to get their cows pregnant. Nine months later, calves are born, and the cows are given about a month to recover, before the two-month mating window opens up again. Now, occasionally a cow or two gets pregnant a little late. That puts it out of sync with the rest of the herd, and makes things difficult for the farmer. They are left with the choice of killing the calf and rebooting the cow's cycle, or killing the cow. Aborting the calf is cheaper and easier” (see http://www.stuff.co.nz/dominion-post/news/politics/10602636/Greens-induced-law-is-kinder-to-cattle).
This practice is undoubtedly appalling. Those who have fought to bring about the law change are to be commended. At the same time, many of the people directly responsible for this campaign continue to advocate for more liberal laws surrounding ‘human induction’. For example, one of the key campaigners against the induction of cows who is on record as describing it as “inhumane and cruel” is also on record as stating that “it’s incredible that abortion is still such a contentious and divisive issue.” Henderson puts it well: “perhaps it is contentious for the same reason calf inductions were; that there is something special (particularly in humans) about this thing called life; that we therefore all (not just doctors and vets) have a duty of care towards it; and that there is hardly any justification for breaching that duty of care. I mean, cows are precious, but surely people are too.”
It’s a classic case of an inconsistent ethic of life.
It is the anthropocentric notion that we are separate (as opposed to ‘distinct’) that has provided the powerful ethical justification for the destructive behaviour that we humans have wreaked upon the environment; it is this notion that has driven our desire to ‘control’ nature and provided the excuse for removing so many of the traditional limits that shaped the interaction between humans and the environment, limits still evident in the rituals, behaviours and cultural and religious beliefs of certain cultures, including our own Maori people.
These days people are, thankfully, increasingly more inclined to act to limit human autonomy in the name of giving due respect to other living things. Yet, paradoxically, people also seem increasingly inclined to leave the ‘moral’ questions about human well-being to people’s individual choice. When it comes to matters of human ‘ecology’ it seems that a different philosophy applies – human autonomy before all else. Ethically speaking, this paradox demands our continued commitment to the destructive idea that humankind is separate (as opposed to distinct) from the rest of creation.
Human reason calls us to be consistent in our ethical reflections. To the extent that we are prepared to see ourselves as deeply connected with all of creation, then questions related to abortion and euthanasia must also be seen as deeply ecological issues – as matters of ‘human ecology’.
We must pay closer attention to the inconsistencies that pervade our deliberations on ethical matters rather than addressing issues relating to the environment and issues relating to human well-being as if they exist in separate ethical silos.
Dr John Kleinsman is director of The Nathaniel Centre.
We have categorized our bioethical articles into 6 categories, select the area which is of interest to see further subcategories and a list of the categories articles.
What is Bioethics?
Bioethics at the Beginning of Life
Bioethics and Health Care
Bioethics at the End of Life
Bioethics and the Environment
See all the articles
Going to pot? The Social Setting and Implications of Cannabis Law Reform Lynne Bower and Deborah Stevens, New Zealand Centre for Science and Citizenship
In 2020, the people of New Zealand will be asked to take a stand on the legalisation of cannabis for recreational purposes. Changing the legal status of cannabis, and the laws around growth, supply and consumption is a complex issue. It requires careful consideration of what legalisation means in our current socio-political-economic climate. The debate around cannabis law reform has increasingly been framed in terms of seeing cannabis use as a ‘health issue’ rather than primarily a ‘justice issue’. Essentially, this approach involves moving away from a criminalisation method of deterring drug use through penalisation, toward a method “to protect the health of, and minimise harm from, drug use to individuals”.1
Rather than framing cannabis use as either a justice or a health issue, this article deems cannabis use to be a social issue that has broad societal implications.
The current legal context regarding cannabis use in New Zealand
Currently in New Zealand, unauthorised possession of any amount of cannabis for any purpose is illegal. The exception to this is a statutory defence for the terminally ill, and people receiving palliation, to possess and use cannabis if it is deemed to improve their situation. This exception came into effect with the passing of the Misuse of Drugs (Medicinal Cannabis) Amendment Bill, on December 18th 2018.2,3
However, the Misuse of Drugs Amendment Bill 20194 – which has progressed to ‘second reading’ stage in Parliament at the time of writing – proposes that those caught in possession of and/or using a small amount of any controlled drug, including cannabis, should not be prosecuted unless it is in the public interest to do so. Police will be given the discretion to make this call.5 Removing the criminal penalties for possession and use effectively decriminalises cannabis possession and use in certain proscribed circumstances without actually making them legal. We should note that there is already a practice of ‘diversion’ in New Zealand that is used to keep people out of the criminal justice system. Where cannabis is found in small amounts and it is the first infraction for the person concerned, consequences other than prosecution, such as fines and health referrals, are used. However, diversion schemes have not been applied consistently across New Zealand.6
The Minister of Health, David Clark, has stated that the Misuse of Drugs Amendment Bill 2019 is in line with the changes the government want to make towards a health-based response to drug use.7 However, not all people agree that making cannabis use a health issue is the correct way forward. The effective decriminalisation of cannabis possession and use has been criticised from several perspectives. Janell Dymus-Kurei, the kaiwhakahaere of Hapai Te Hauora (Māori Public Health), has a health workforce who believe that drug issues should remain justice issues.8
Police Association President, Chris Cahill, has stated that “if there is a wish to decriminalise drug use, then that needs to be debated publicly, rather than slipped in under a discretion, which we believe this [Bill] does.”9 We agree. If it is deemed that decriminalisation would achieve positive social goals, specific details around this need to be publicly debated including: how much cannabis counts as ‘a small amount’?; how are repeat offences to be treated?; how will it be ensured that appropriate/ helpful and culturally responsive consequences to cannabis possession and use are put in place and carried through?; and do we need to decriminalise the growth, supply, possession and use of cannabis for decriminalisation to be completely effective?
Chris Macklin from the Law Society finds the notion of ‘police discretion’ problematic. Macklin notes that although there has been work done to help police identify and address unconscious bias as they exercise their powers, unconscious bias still remains a risk when police are asked to implement ‘discretion’.10 The drug foundation’s Māori advocacy advisor, Jack MacDonald, concurs, stating that “police discretion is usually applied unevenly … and sometimes in an outright discriminatory and racist way, so discretion for Māori is something we need to keep a close eye on”.11
It is one thing to decriminalise the possession and use of a drug, and another to legalise it. Legalisation condones and regulates the sale, use and supply of drugs in a way that decriminalisation does not.
Legalisation of cannabis will be voted on in a referendum in 2020. The government has indicated that the referendum question will be based on draft legislation (still being developed) that will enable people over the age of 20 to purchase cannabis from licensed premises. It will proscribe where cannabis can be consumed, and whether and under what regulations cannabis may be grown for personal use.12 Without knowing the referendum wording, Chris Fowlie, spokesperson for the pro-cannabis group ‘Norml NZ’, manager of The Hempstore, and CEO of the medicinal cannabis startup PharmaCann New Zealand, states that “We are ready to campaign for a Yes vote, but we have concerns about the details, and we will work to ensure the legislation is the best it can be”.13
At this point it is important to ask ourselves: What is the purpose of the law? One of the most significant roles that the law should fulfil is to convey what it is, as a people, we value. For values to be meaningful and worthwhile, they must be oriented toward the preservation and sustenance of people and place, guiding and enforcing responsible action. Anything other would be pathological, as it would be mandating societal demise.
It is arguable that, in our current market-driven society, the law is becoming more and more an instrument of corporate economic and political ‘systems’ in the service of profit and uncoupled from nurturing people and place. Questions concerning meaningful and worthwhile values have been replaced by cost/benefit analyses and financial management questions. If those who propose, write and implement New Zealand law are to uphold the integrity of the law, any changes to the law must only be made after contemplation on the kind of world we want to live in and the kind of people we want to become, rather than in light of a partial (political and economic) cost-benefit analysis.
It is possible to understand the desperation of people advocating to change the law around cannabis possession and use, as significant harms come from the current and largely punitive approach. A drug conviction has serious repercussions for a person’s future possibilities; it narrows life opportunities, making it more difficult to get employment, to travel and to move into more life-affirming and sustainable social spaces. Further, if imprisoned, individuals are exposed to more ‘hardened’ criminals and little is done to address the impetus for drug use. Such negative repercussions have been noted by the Law Commission, who state that individuals who receive criminal convictions as a result of their possession or use often experience levels of harm quite disproportionate to their offending.14 Extending beyond the individuals involved, the harms from a punitive approach to drug use also become woven into families and communities, becoming entrenched with each generation, all of which further alienates those concerned. Statistics show that many of those convicted on charges relating to cannabis possession and use are young people from already marginalised groups.15
These statistics also show that the level of cannabis use in New Zealand is climbing. During 2016/17, 12% of adults in NZ used cannabis. This figure is up from the 8% it was in 2011/12.16 Ministry of Justice figures show that around 1,800 people are convicted for cannabis every year.17 New Zealand is now estimated to have the highest use of cannabis in the world, which is why many argue that criminalising cannabis is not actually effective in deterring people.18 In 2011, the Law Commission also concluded that the criminal justice approach to preventing and reducing harm from drug use was not fit for purpose.19 Empirical evidence supports this. For example, drug checking at festivals in the year 2017-2018, (currently undertaken by volunteers), identified 44 different psychoactive substances. Twenty of these were identified for the first time.20 The Ministry of Health’s 2016 Drug Harm Index (DHI) estimated that the total harm and intervention costs of illicit drug use in NZ to be $1.8b. Note here how harm is being measured fiscally, and not in terms of the impact on the lives of individuals and communities.
Reframing cannabis as a health issue
If a punitive deterrent model is not working, as shown by the upward trends in drug consumption, it makes sense to take a different approach. The New Zealand Drug Foundation contends that it is time to move the conversation on from ‘should we reform?’ to ‘how should we reform?’,21 and recommends removing the criminal penalties for “possession, use and social supply” of low-level drugs including cannabis. Their suggestion is that people found with a small amount of drugs on them should be given a health referral and offered support, not a conviction.22
However, there is a problem with reframing cannabis use as a health issue. In our current society, health issues are viewed as medical issues, and the medical model typically views problems that manifest in a person as problems internal to that individual. The individualising of the problem of cannabis use ‘flattens’ the complexity of a person’s situation. In reality, our situations are always shaped by historically informed socio-political-economic forces, and the practices, institutions and relationships these forces configure. The practices and institutions we inherit structure the possibilities that are open to us, as well as the possibilities that are closed off. We come to understand ourselves and what we can do as we live and move within these socio-political-economic configurations. Thus, when considering someone caught up in cannabis use, the proper question is not ‘What is wrong with this person?’, but rather, ‘What has happened to this person that has put them on a trajectory of cannabis use?’ A medical approach focused on the individual will not achieve this.
To consider this latter question, we need to look at the shape of contemporary New Zealand society, which has been formed on the basis of an individualistic, competitive, market-driven ideology. This ideology – known as neoliberalism – has constructed a way of thinking and living that views people as ‘consumers’ of everything, from healthcare to electricity to information. Neo-liberalism has been extremely useful for governments and corporate elites concerned with making profit out of human activity. However, it has consistently concealed our vulnerable, interconnected human existence – the ways in which the vicissitudes and distresses of life confront us through our dealings in the world – and the way in which socio-political-economic structures and institutions can enhance or diminish our ability to live well together.23
A society structured on a competitive market model oriented towards rampant consumption will always generate ‘winners’ – those who happen to be ‘successful’ in finding well-paid work that allows them to play the consumer game – and the ‘losers’ – those who aren’t. This results in inequality and the social marginalisation of large groups of people, and introduces significant stressors into people’s lives.
In this competitive ideological climate, one’s place in the world can be threatened or overwhelmed by a fraught situation such as: losing a job through no fault of one’s own, but due to the slings and arrows of financial markets; working excessive hours to keep a family warm, fed and clothed; or being left unable to participate in the ‘consumer’ world at an acceptable level. In such situations, it is possible to see how rendering oneself numb to one’s reality through the use of mind-altering substances such as cannabis, might be less an ‘individual choice’, and more a way of dealing with an unkind world. Similarly, when our young people find themselves in an environment in which they are consigned to grinding poverty, amidst family members who are hurting, along with a pervasive sense of helplessness, all contributing to a precarious future, smoking a joint to get through each day might present itself as a ‘better’ reality.
It is also highly plausible that a number of people who appear to be ‘successful’ in the individualistic, competitive neo-liberal game we have constructed are suffering just as much as those on the margins, albeit from different pressures. In many situations, being ‘successful’ requires putting work goals ahead of family life, taking work home in order to meet deadlines, or trying to outshine one’s colleagues in order to keep one’s job. In such situations, rendering oneself comfortably numb through one’s drug of choice may be seen as the best way of coping.
If we are serious about the well-being of our people, then we should think twice about a regime that will ultimately create more ‘market-opportunities’ for ‘consumer choice’ by bringing cannabis into the profit-driven realm. Rather, we need to think about how we can better address our growing social inequalities, and ask ourselves whether it is more ‘choice’ people need, or more kindness.
The concept of ‘consumer choice’ that permeates every aspect of contemporary life is a necessary tool in the arsenal of neoliberal ideology. The prospect of cannabis law reform does not escape from the neoliberal gaze. Typically, the question of “what kind of world do we want to inhabit, as a people?” does not arise. Instead, the discussion is shaped in terms of “how can we best make money from cannabis activity?”
The economy and cannabis law reform
Shamubeel Equab’s economic assessment, undertaken on behalf of the NZ Drug Foundation,24 suggests that there would be no net benefit to the New Zealand economy if cannabis is simply decriminalised. In order to tap into the increased tax revenue – which, ironically, it is stated is necessary for drug education programmes and the establishment of health services to deal with drug use – cannabis needs to be legalised. Research commissioned by Helius, a medicinal cannabis company, estimates that the recreational market in New Zealand could be worth $700m.25 The focus is on profit and the market-economy, not individual and community well-being.
The potential loss of revenue to the New Zealand government through not legalising cannabis has caught the attention of a number of commentators. It has been argued by Matthew Beck, from the University of Otago, that the current annual cost of cannabis prohibition to New Zealand is about $400m, which is the estimated amount being circulated on the black market.26 To actualise the benefits of legislation, the price of cannabis would need to reflect the black market price, or else people would continue to use the black market.27 However, Beck suggests that “consumers are likely to prefer legal cannabis as the quality, consistency and range of products will be improved.”28 Beck contends that “consumers” will pay a premium to avoid purchasing cannabis from criminals. Beck also proposes that legalising cannabis would also provide considerable potential benefits to New Zealand from cannabis tourism.29
When profit maximisation becomes the focus, benefits to the economy are frequently over-stated, and the potential threats to individuals and communities are overlooked or played down. If adequate consideration and discussion of the deeper issues associated with commodifying cannabis does not occur, we may end up with a law and policies that further compromise individual and societal well-being.
Whilst still accepting the commodification of cannabis, Chris Wilkins of Massey University has suggested that a not-for-profit model is needed for the sale of recreational cannabis.30 This would allow regulated cannabis products to be sold by organisations structured in a similar way to how ‘Pokie’ trusts operate, which return about $260m to community groups annually.31 Wilkins proposes that, in addition to government levies, money from cannabis sales would be distributed to drug treatment and to community groups.
Like Beck, Wilkins also recommends a price in line with current black market pricing, and thinks that people would move to the legalised outlets as they would be ensured “product innovation, different types of products, accurate labelling, and they will be safely cultivated under agricultural standards in terms of pesticides and fertilisers and other contaminants.”32 Wilkins also suggests no internet sales and that local government authorities should determine the number of retail outlets in their area.
However, the fact that we already have a system in place that utilises the actions of a particular group of people – those that gamble using pokie machines – does not mean that this practice is a good one and should be emulated. Money from pokie machines is collected from a very vulnerable group of people – people who are already living an unsustainable existence, basing their hopes and aspirations on the promise of a fast influx of cash, which, they are led to believe will solve all their problems. In reality, most of the time these people lose more than they gain and return to their homes and families to face life’s struggles with less finances than they began with.
Exploiting people’s vulnerability, a vulnerability which is all too often a product of systemic injustices, whether in the form of gambling or cannabis use, simply adds another layer of injustice that further distorts societal well-being.
As we are going to be asked to deliberate on the legalisation of cannabis growth, supply and use in NZ, there are many questions to consider. These include:
- Do we need to legalise the growth, possession, use and supply of cannabis, or can we achieve our social goals by way of decriminalisation of these practices? Is there another way forward?
- To what extent is the push for legalisation in our current political and economic climate driven by financial considerations rather than social ones?
- If we take the legalisation route, will there be restrictions or prohibitions in regard to cannabis use around particular situations, for example: in relation to driving or operating machinery; being pregnant; in the workplace; in the sporting arena? How will these restrictions/prohibitions be enforced?
- If we are to legalise cannabis, how is it to be monitored and regulated for strength and safety of use?
- What is an acceptable age in relation to growing, possessing, using and selling cannabis?
- If we legalise cannabis will this lead to a logical progression of legalising all drugs?
- In what places can cannabis be consumed as a ‘recreational’ practice?
- At what point does ‘recreational use’ move into an addiction?
- Would the production and sale of cannabis be prohibited by individuals and taken over by corporations or other entities?
- If New Zealand follows other jurisdictions that have legalised cannabis for recreational use, a range of products containing CBD and/or psychoactive THC33 could be put on the market. These include edibles, beverages, cosmetics, non-prescription health supplement and so forth. Are we happy to sanction this?
The rhetoric around cannabis decriminalisation and legalisation is framed in terms of moving cannabis use from a ‘justice issue’ to a ‘health issue’. It is our view that an informed response to cannabis use in New Zealand has to go beyond the idea of a law change and the framing of cannabis use as an individual health issue. We also need to reflect on the purpose of the law, and the overall societal message we want to convey with regards to cannabis use. Laws informed primarily by politico-economic cost-benefit analysis are a travesty of justice.
We must also seriously consider the world we have come to inhabit, challenging the thinking around our current socio-political-economic structures and institutions that privileges financial outcomes over a richer understanding of well-being. A trajectory of cannabis use can be a consequence of the situations people find themselves in and the possibilities (or lack of) that present themselves to them. Our current socio-political-economic situation, based as it is on a market-driven competitive individualism, marginalises certain people and causes huge stresses in people’s lives. Using cannabis (and other drugs) will, for many people, be a way of dealing with these stressors, if only for a while. In a caring society, it is more appropriate to address the underlying socio-political-economic factors and the inherent stressors, instead of framing the issue of cannabis use as a health issue internal to an individual whilst, ironically, setting up legal structures and social institutions that condone and supply that ‘issue’.
The NZ Drug Foundation, who advocate for a strictly regulated cannabis market,34 have acknowledged that to address drug use we need to make sure we address other social factors such as, housing, work, economic development and education, especially keeping young people in school and keeping them safe.35 Te Rau Ora’s chief executive Maria Baker also argues that tinkering with Aotearoa’s drug laws is not good enough for tangata whenua. Instead a complete overhaul is needed. This overhaul involves a shift away from an individualised way of thinking to one that embraces the larger social context that a person is embedded within.36
What we do right now – or fail to do – in relation to taking action to transform our socio-political-economic structures, will determine what kind of world we inhabit, what kind of people we become, and what kind of message we leave behind for others. The debate about decriminalising or legalising cannabis is about so much more than the proper regulation of its use for individuals within a health framework.
1 Eaqueb, S. (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model. p. 13. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf Last accessed 28 June 2019.
2 Misuse of Drugs (Medicinal Cannabis) Amendment Act, Dec 2018, NZ Ministry of Health. https://www.health.govt.nz/our-work/regulationhealth-and-disability-system/medicines-control/medicinal-cannabis/ misuse-drugs-medicinal-cannabis-amendment-act.
3 The Misuse of Drugs (Medicinal Cannabis) Amendment Bill also declassified non-psychoactive cannabis-derived products including cannabidiol (CBD) products, and allows medicinal cannabis products to be manufactured in New Zealand.
4 This Bill can be located at http://www.legislation.govt.nz/bill/ government/2019/0119/latest/LMS167550.html. Last accessed July 10th 2019.
5 http://www.legislation.govt.nz/bill/government/2019/0119/latest/whole. html.
14 Eaqueb, S (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model, p.8. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf. Last accessed 28 June 2019.
15 https://www.drugfoundation.org.nz/assets/uploads/2019-uploads// STON-2018.pdf.
16 New Zealand Drug Foundation (2019). State of the Nation 2018: A stocktake of how New Zealand is dealing with drug issues, p. 3. Available at https://www.drugfoundation.org.nz/policy-and-advocacy/state-of-thenation-2018/ Last accessed 29 June 2019.
17 Ibid., p. 6.
18 Kiwis World’s Top Cannabis Smokers. NZ Herald June 2012 https://www. nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10815874; United Nations Office on Drugs and Crime, 2014, World Drug Report, UNODC: Vienna; United Nations Office on Drugs and Crime - World Drug Report 2012http://www.unodc.org/unodc/en/data-and-analysis/WDR-2012.html.
19 Eaqueb, S (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model, p. 31. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf Last accessed 28 June 2019.
20 Drug Foundation State of the Nation, 2018, pg 10).
22 These New Zealand Drug Foundation recommendations are in line with the moves made in the current Misuse of Drugs Amendment Bill discussed above.
23 Bowyer L, Gillett G (2015) Suicide: The lonely path. Advances in Medical Ethics 2:3. doi:10.12715/ame.2015.2.3. 24 Eaqueb, S (2019). Estimating the impact of drug policy options: Moving from a criminal to a health-based model. Available at https://www. drugfoundation.org.nz/assets/uploads/Cost-benefit-analysis-drug-lawreform.pdf. Last accessed 28 June 2019.
26 Matthew Beck. Bachelor of Law (Honours Dissertation), University of Otago, 2016. Available at https://www.otago.ac.nz/law/otago638164.pdf Last accessed June 30 2019.
28 Ibid., p. 61.
30 Anthony, J. (2018). Cannabis legalisation in New Zealand could bring in up to $240m in tax revenue, economist says https://www.stuff.co.nz/business/ industries/109443403/cannabis-legalisation-in-new-zealand-could-bring-inup-to-240m-in-tax-revenue-economist-says Last accessed June 27th 2019.
33 Stevens D. & Bowyer, L. (2019). ‘A Cannabis Starter Kit’, The Nathaniel Report, issue 57.
34 https://www.drugfoundation.org.nz/assets/uploads/2019-uploads// STON-2018.pdf.
35 Briefing to the Incoming Parliament 2017. New Zealand Drug Foundation. https://www.drugfoundation.org.nz/policy-and-advocacy/briefing-tothe-incoming-parliament/.
Living with Freedom [SYNOPSIS ONLY]
In this article, Gerard Aynsley offers an incisive analysis of our understandings of freedom within the context of euthanasia. In tracing two streams of thought from the Enlightenment and the Christian faith tradition, he argues that these two approaches need not be polemical; both are intertwined with thinking about what it means to be a person.
The full article is available by subscription to The Nathaniel Report
We Need Better Arguments to Debate Big Ethical Issues [SYNOPSIS ONLY]
In this article, Dan Fleming convincingly posits that we can contribute to euthanasia debates with better arguments. He explores different ethical and philosophical frameworks that are employed in the physician-assisted suicide and euthanasia debate: deontology, consequentialism, and virtue ethics. He also contests the assumption that only those with a religious worldview oppose euthanasia legislation.
The full article is available by subscription to The Nathaniel Report
By Grey Coyle
Fairness is something we quite easily recognise when we see it, but often have great difficulty describing and even more difficulty defining. Children seem to have an intrinsic sense of what is fair and what is not fair but often lack the skill to decide how they would make something fair. Similarly, adults can spot something they believe to be unfair, but analysing why something is fair or unfair from differing perspectives can be difficult.
Fairness and unfairness often concern the allocation of resources within a country, a community or to an individual person. The fair allocation of healthcare resources is a particularly contentious issue. The many questions we might pose about fairness are underpinned by genuinely held and interrelated pragmatic, moral, social and political beliefs. If these beliefs and values were to be developed into conversations about what allocations are fair they would generate many differing opinions.
Within the Christian faith tradition, the evangelist Matthew highlights insights Jesus had about fairness in the parable of the workers in the vineyard (20:1-7). This parable provides a fascinating theological challenge to our understandings of fairness.
Perfect fairness may well be unattainable, but there is increasingly disagreement about what constitutes acceptable levels of fairness in today's political and social landscape. For example, while many social commentators imply there is a high level of unfairness about homeless families living in cars, whatever the aetiological factors of their distress, the spectre of children suffering without a home is not regarded as particularly unjust or unfair by others.
In the story the vineyard owner hires labourers for the day, promising to pay them a denarius. At the third hour, the owner approaches another group who are waiting in the market place because no one has hired them, and also offers them work, saying that they would receive whatever was right; more workers are hired at the sixth and ninth hours and again at the eleventh hour. When evening comes, the vineyard owner gives each worker a denarius. Those who had worked all day protest that they are paid the same as those who had worked only one hour. But the owner responds: "Friend, I am doing you no wrong. Did you not agree with me for a denarius? Take what belongs to you and go. I choose to give to this last worker as I give to you. Am I not allowed to do what I choose with what belongs to me? Or do you begrudge my generosity? So the last will be first, and the first last."
At first glance, it seems easy to spot the gross unfairness in the relative rates of pay for hours worked. It is understandable that the workers who have worked the whole day under trying conditions might feel aggrieved that those who have worked only an hour will be remunerated the same. However, in paying them all the same, the owner introduces a quotient of mercy and grace in the wages rather than a quotient of injustice. In this way Jesus' account of divine fairness demonstrates keeping his word and being true to His covenants as well as having a heart for the poor and downtrodden. Perhaps God is also showing his love by creating an opportunity for those who worked the longest hours for their one denarius to experience the grace of accepting the condition of others less well off than themselves.
Various secular justice theories also attempt to explore fairness and how it impacts on our lives. New Zealand has a particular and somewhat unique history in this regard. Analysis of our social and political past shows New Zealanders have traditionally had a strong sense of a fair society.
Specifically, the social reform of the 30's was based on a 'fair go for all'. Robin Gauld1 describes The Social Security Act (1938) as the political and legislative foundation for social welfare in New Zealand. This legislation placed New Zealand's concern for the least well off firmly on a fairness platform which shaped for some time our perception of how subsequent governments acted. However, since the neoliberal economic reforms of the 1980's, and in particular the Global Financial Crisis, the fall-back position on fairness more commonly expressed now is "well I accept something may be unfair, but we have limited resources and who says the world is fair anyway?" It seems, in other words, that fairness has become an unreachable and unnecessary goal; the altruistic goals of 1930's have given way to the individualistic view "what is in my best interests?"
Perfect fairness may well be unattainable, but there is increasingly disagreement about what constitutes acceptable levels of fairness in today's political and social landscape. For example, while many social commentators imply there is a high level of unfairness about homeless families living in cars, whatever the aetiological factors of their distress, the spectre of children suffering without a home is not regarded as particularly unjust or unfair by others.
Justice inevitably involves the moral authority of laws. Homer described justice as personal vengeance. Plato saw justice as both the right of the stronger and the effective harmony of the whole of society. St. Thomas Aquinas believed justice to be divine, directing humankind to do what we feel we ought to do under divine direction. Aristotle, meanwhile, described the formal criterion of justice in terms of treating equals equally and treating unequals unequally and in proportion to that inequality, a definition which still wins wide acceptance today. Aristotle's approach means that where inequality exists such inequality should be addressed by taking from the advantaged and giving to the disadvantaged.
Common to all these positions is an understanding that justice is a positive thing which is applied to decisions, procedures, laws, actions and events2. Lamont3 identifies the main foundational theories of justice as being: strict egalitarianism; resourcedbased principles; welfare-based principles; libertarian principles; and feminist principles. Strict egalitarianism is based on the Aristotelian principle of substantive equality, that all people should have the same level of goods and services. This is justified because it is equality of goods and services that gives practical effect to the respect owed to all equally. However, the principle of strict equality raises the problem of an index of fairness. How do we know which level of goods and services should be fairly distributed?
This question is the basis of the categorical imperative of Immanuel Kant which asserts that people are always to be treated not as a means to an end, but as ends in themselves4. Meanwhile Jeremy Bentham, recognised as the founder of utilitarianism, proposed maximising pleasure and minimising pain as a key guiding moral principle for all in society. In determining whether an action is right, however, Bentham argued that it is not just individual happiness or self-interest that counts but delivering the greatest happiness to the greatest number of people. John Stuart Mill, also a utilitarian, warned, however, that the greatest happiness must not involve coercion because this would breach the harm principle, whether the coercion was in the best interests of the person, or not.
Under the Catholic principle of ‘participation’ all people have a right and a duty to participate in society, seeking the wellbeing of all, especially the poor and vulnerable. The notion of the ‘common good’ asserts unfettered rights for all but not at the expense of others, but nor are individual rights to be subordinated to the needs of the group.
Across the wide range of substantial ethical theories and principles of justice as fairness, no one theory commands universal acceptance5. However, in New Zealand a “Fair go” and “Do to others as you would have them do to you” (Luke 6:31) are maxims which would arguably find general acceptance in our part of the world.
While perfect equality may be unattainable, Wilkinson and Pickett6 have demonstrated that very high levels of unfair allocation of resources (particularly income) are directly linked to social pathology for both the most disadvantaged and the most advantaged. In other words, inequality is correlated with negative morbidity and mortality rates, obesity, teenage birth rates, mental illness, homicide, low trust, low social capital, hostility, and racism. Wilkinson and Pickett’s theory links individual’s relative positions in society to deep-seated social problems associated with poverty, poor formal education, relative deprivation and low social status. They also make the claim that communities with high income inequality lack cohesion, exhibit poor social relationships and are bedevilled by mistrust. From this it follows that, in circumstances where the aetiologies ultimately lie in the underlying inequality, ever higher levels of access to social services will make no difference to poor social outcomes. It should be noted that there have been criticisms of Wilkinson and Picketts’ analysis, based on a competing claim that income inequality has no impact on levels of life satisfaction. This illustrates how perceptions of fairness of income inequality is underpinned by particular values and morals.
The moral question I pose is how much fairness or equality is too much to aim for? How much is not enough? Hamilton7 suggests that there must be minimal granting of special privileges to favoured individuals while ensuring those who require assistance are not abandoned. Balancing the scales of fairness appeals to the principles of justice in this dilemma.
John Rawls in A Theory of Justice8 and Amartya Sen in The Idea of Justice9 together present a contemporary far reaching example of what is essential for an understanding of justice as fairness. While theirs is not the only description of justice as fairness, and despite their many critics, Rawls and Sen have provided a substantial framework for determining fairness.
Rawls’ definition of fairness contends that, in liberal democratic societies, fairness should ensure each person has an equal right to the most extensive liberty compatible with a similar liberty of others. Where social and economic distributions are to be unequal, they should be arranged so that distributions are of the greatest benefit for the least advantaged. Rawls and Sen also believe that if fairness is to be achieved, decisions about distributions of goods and services should be made in a manner that is open and accountable and without secrecy.
The Rawls principle leads us to consider whether allocations of resources would be considered fair by the most advantaged people in society if, at an instant, they became the most disadvantaged and required the distribution for themselves. In so doing we are urged to avoid bias, remove vested interests and set aside our personal priorities and prejudices. This approach is not dissimilar to Luke’s maxim “do unto others as you would have them do unto you”, which Blackburn10 contends is the basis of almost every ethical tradition.
Sen, meanwhile, appeals to an arrangement-focused view of fairness where justice systems are universally applied without favour and where decision makers behave without corruption. Sen, an economist, also requires fairness to have regard for the economic efficiency of decisions and believes people should be involved in discussions on how economic efficiency is measured. He further proposes that justice as fairness must take account of peoples’ capability to access enjoyment of the things they have reason to value. This means that, institutional rules, while important, must be assessed in the broader context of the lives of the people involved.
Rawls and Sen thus propose a picture of fairness which has regard for the less fortunate, appeals to consistency, calculates economic efficiency and promotes people’s capacity to enjoy the things they have good reason to value. Sen also contends that people who are making distributive decisions should do so in ways which are open and accountable.
The ideals of Catholic Social Teaching11 strongly align with the fairness principles described by Rawls and Sen. Their understanding of fairness is much like the Catholic notion of the ‘intrinsic dignity of the person’, the idea that every human person is worthy of respect as a member of the human family. This notion grants each person inalienable rights; political, legal, social, and economic. Under the Catholic principle of ‘participation’ all people have a right and a duty to participate in society, seeking the wellbeing of all, especially the poor and vulnerable. The notion of the ‘common good’ asserts unfettered rights for all but not at the expense of others, but nor are individual rights to be subordinated to the needs of the group. The Catholic tradition also highlights the physical needs of the poor and vulnerable as a primary priority – the ‘preferential option for the poor’.
There is no one moral description of justice as fairness to which we universally agree, although the maxim ‘do unto others…” does underpin many moral and ethical traditions.
Still, the question arises: ‘how do we know if we are being fair?’ Is it possible to condense Rawls and Sen’s theory of justice as fairness into a framework of thinking to guide us? I propose here four questions distilled from the theories of Rawls and Sen. Imagine a situation (such as the plight of homeless people living in cars) where a decision needs to be made about fairness towards an individual person.
- Would the most advantaged person in society accept the decision about fairness, if at an instant, they found themselves to be the most disadvantaged person and required the decision to be made in favour of themselves?
- Has the decision about fairness been made in a manner which is open and accountable to all?
- Is this decision about fairness based on economic efficiency and on procedural fairness in defining what is meant by efficiency?
- Is this decision about fairness based on information available to decision makers about the capability of the person to do the things he/she has good reason to value in their lives?
Using these questions to analyse fairness in the widest context, we are guided to:
- consider the needs of the least advantaged before the needs of the most advantaged
- avoid making biased decisions by removing the influence of vested interests, personal priorities and the prejudices of the chosen decision makers
- be open about the decision-making process and accountable for decisions
- ensure decision makers engage in some form of rational analysis to determine the best use of resources and ensure there is a general agreement about the process for doing this
- be aware of the consequences for people affected by decisions and the capacity of those affected to do the things they have good reason to value.
Fairness is a moveable target which reflects different sets of religious, philosophical and political beliefs. There is no one moral description of justice as fairness to which we universally agree, although the maxim ‘do unto others…” does underpin many moral and ethical traditions.
I have proposed in this article a set of questions which can be used to decide if we are acting fairly based on the justice as fairness principles espoused by Rawls and Sen. I have noted that these principles align with Catholic moral teaching. I have discussed various secular approaches to justice and fairness while arguing that these don’t fully encompass the Christian perspective.
Fairness is a complex business and many authors have tried to provide moral, ethical and legal lessons to guide us. Jesus has provided a lesson on fairness in the parable of the workers in the vineyard. His demonstration of love, mercy and grace for all the actors in the story is a most powerful demonstration of justice as fairness.
Dr Greg Coyle completed a doctoral thesis in 2011 examining how government funded public health agencies distribute health resources to citizens. He is employed by The New Zealand Salvation Army as Principal Advisor to the Social Programme.
1 Gauld, R. (2004). Health Care Rationing Policy in New Zealand: Development and Lessons. Social Policy and Society, 3(03), 235-242. Accessed on 18 July 2013.
2 Romano, C. (2009). Amartya Sen shakes Up Justice Theory The Chronicle Review, September 14, http://chronicle.com/article/Amartya-Sen-Up-Justice/48332/ Accessed on 21.09.2011.
3 Lamont, J (2007). Distributive Justice. Stanford Encyclopedia of Philosophy. Retrieved from https://plato.stanford.edu/entries/justice-distributive/ Accessed on 12.09.2009.
4 Russell, B. (1946) History of Western Philosophy, London: Routledge.
5 Gillon, R (2006) PHARMAC and the Funding of High Cost Medicines. Information from PHARMAC’s 2006 High Cost Medicines Review. http://www.pharmac.govt.nz/2009/06/08/Information Accessed on 13/5/2007.
6 Wilkinson, R., & Pickett, K. (2007). The problems of relative deprivation: Why some societies do better than others. Social Science and Medicine, 651965-1978. Doi: 10.1016/j.socscimed.2007.05.041
7 Hamilton, C. (2003). Growth Fetish. Crows Nest, NSW: Allen & Unwin. p124.
8 Rawls, J. (1971). A Theory of Justice. Oxford: Oxford University Press.
9 Sen, A. (2009). The Idea of Justice. Cambridge, Massachusetts: Harvard University Press.
10 Blackburn, S. (2001). Ethics: A Very Short Introduction. Oxford: Oxford University Press. p.101. ISBN 978-0-19-280442-6.
11 Pontifical Council for Justice and Peace. Compendium of the Social Doctrine of the Church. (2004). London: Burns & Oates. Chapter Four.
HDC Consultation on research involving adult participants who are unable to give informed consent.
By The Nathaniel Centre
We note and endorse the idea that “The right to make an informed choice and give informed consent before receiving health or disability services, including participating in research, is the cornerstone of New Zealand’s Code of Health and Disability Services Consumers’ Rights (the Code)”, (HDC Consultation Document, p. 1). In a similar vein, we have previously written about the critical importance of informed consent, advocating that all people have a right not to be experimented on without their knowledge or consent, whatever the nature of the research.i
It is broadly accepted that the history of ‘informed consent’ in human research goes back to the Nuremberg Code of 1947. This Code was developed after the Nuremberg trials at the end of the Second World War which exposed the unethical nature of research carried out by many Nazi researchers. The lesson learnt from this and other well-known instances of unethical research, such as Tuskegee and Willowbrook, is that justifying research on the basis of its potential benefits or outcomes alone, and without reference to the inalienable rights and dignity of human participants, all too easily leads to human exploitation and harm. Upholding informed consent is one of the key ways in which the rights and dignity of research participants can be protected.
In New Zealand, current thinking and practices around ethical review and the centrality of informed consent have been informed by our own instances of unethical research, including the removal and retention of organs from deceased babies without parental consent and the ‘unfortunate experiment’ on patients with cervical cancer carried out at National Women’s Hospital.
The current Code of Health and Disability Services Consumers’ Rights allows research on a person who is unable to give consent totake place only if participation in the research is in the person’s best interests. It thus reflects a strong commitment to the principle of informed consent. It also reflects a commitment to ensuring that the interests of the person must not be subsumed to those of society. In other words, it embodies a rejection of the main premise underpinning utilitarianism, the idea that ‘the greatest good for the greatest number’ is a sufficient measure of what is ethically acceptable.
If there are to be changes to the parameters which currently proscribe non-consensual research on adults, it is critical that our society’s commitment to the notion that the best interests of the person must ultimately always outweigh those of society (Consultation Document, p. 44, n.3) be upheld and not eroded in any way.
We have previously argued that there can be legitimate exceptions to the requirement that informed consent be obtained from research participants in certain exceptional circumstances. Thus, in 2015 we wrote that the “only exceptions to this are in circumstances where (i) the research is strictly observational or (ii) participants are, for various reasons, unable to give consent, in which case consent must be sought from someone legally entitled to provide consent for them.” In the same article we alsostated: “In exceptional circumstances, limited disclosure may be justified or consent might be obtained retrospectively, for example because of the need to avoid a biased response. It is also possible to seek a waiver of consent where the risk is low and where there are strong reasons why it would not be practical or possible to obtain consent.” We then added: “… in these situations, the ethical rider is that such research must always be held up to close scrutiny by an appropriately accredited and independent review body.”ii
We note that current practice in New Zealand, by allowing consent to be waived in circumstances when it is deemed to be in the person’s best interests, already constitutes an exception to the principle of informed consent, albeit a very narrow one. This debate, therefore, is about the scope of such exceptions in New Zealand and, more specifically, whether they might now be broadened to include some situations where research on a person unable to give consent is justified on grounds other than being in their personal best interests.
Our overall position is that we are not in principle opposed to broadening the parameters which regulate non-consensual research on adult participants.
Our response to the two fundamental questions posed in the Consultation document (“Are New Zealand’s current laws regarding non-consensual research [involving adult participants] appropriate and, if not, how should they be amended?”(Consultation document, p.2)) reflects our belief that it is, in theory, both possible and ethical, in certain proscribed circumstances with adequate scrutiny and safeguards, to broaden the circumstances in which consent for adult participants in research might be waived.
We add the qualifier “in theory” because we believe that any moves to broaden the parameters around non-consensual research would only be acceptable within a system of robust, accredited and independent ethical overview. Given the experience of two of the writers of this submission who have previously served as members of a HDEC Ethics Committee for a combined period of 11 years, our concern is that some of the more recent restructures of New Zealand’s HDEC ethical review system have contributed to a less comprehensive and less robust system than was previously the case – fewer committees and fewer members as well as a significantly narrower set of criteria for determining when research requires HDEC review.
Any moves, therefore, to change the current law must, in our mind, first be considered against the current effectiveness of ethical review committees in New Zealand. In which case, a decision in principle to broaden the criteria for non-consensual research might be considered unworkable or unsafe in the current context of ethical review. The decision might, therefore, be made not to proceed with any changes for pragmatic reasons even while it was otherwise considered ethically acceptable in theory.
In the event it was deemed practically acceptable to broaden the parameters, it is our firm belief that, because of the inherent risks in non-consensual research, such applications should require an additional layer of scrutiny to what is already currently available by a group under the auspices of the Health and Disability Commissioner’s Office that includes representatives of, or people able to speak on behalf of or advocate for, the group of persons on whom the research will be carried out.
When reflecting on why it might be ethically acceptable to allow non-consensual research on a person when it is not in their best interests and when it will introduce an element of risk, the obvious answer is that there will be benefits for others, whether persons in similar circumstances or, perhaps, society in general. Herein lies the greatest danger in broadening the parameters of non-consensual research because any such move inevitably opens the door to the sorts of utilitarian arguments and premises that have characterised unethical trials such as Tuskegee and Willowbrook.
This danger reinforces for us the need to de-lineate three other parameters when evaluating non-consensual protocols: (i) ‘the interests of the person must always be assumed to outweigh those of society’; (ii), in situations where this is not clear for a specific person, the ‘precautionary principle’ must be automatically invoked which dictates that the person not be included and (iii), any expression of dissent (“whether by showing signs of resistance or otherwise” – Mental Capacity Act 2005 (England and Wales) as quoted in Consultation Document, p. 43) from a potential participant incapable of giving consent should be regarded as sufficient reason for them not to be included (see also Declaration of Helsinki, as quoted in Consultation Document, p. 58).
In addition, as we highlighted in our submission to the National Ethics Advisory Committee (NEAC) on “Cross-sectoral Ethics Arrangements for Health and Disability Research” (February 2015), we see that it is a significant weakness of the current system of ethical review in New Zealand that there is no mechanism for checking that a particular study is carried out according to the agreed protocol. We believe that such follow up should be mandatory for all non-consensual research projects, something that will require a specific mechanism to be created and funded. This requirement, we note, is stipulated in Paragraph 24 of the Declaration of Helsinki under the heading of Research Ethics Committees: “The committee must have the right to monitor ongoing studies.”
Whereas some might see such requirements as creating unnecessary barriers for researchers, we see that they will ensure that non-consensual research proceeds only when it is absolutely required, and that non-consensual research is undertaken with a strong focus on ethical practice.
An Adjusted Framework for Non-consensual Research on Adult Participants:
Our suggestion is that an adjusted New Zealand Code follow and reflect the relevant sections of the Declaration of Helsinki which address the question of non-consensual research:iii
28. For a potential research subject who is incapable of giving informed consent, the physician must seek informed consent from the legally authorised representative. These individuals must not be included in a research study that has no likelihood of benefit for them unless it is intended to promote the health of the group represented by the potential subject, the research cannot instead be performed with persons capable of providing informed consent, and the research entails only minimal risk and minimal burden.
29. When a potential research subject who is deemed incapable of giving informed consent is able to give assent to decisions about participation in research, the physician must seek that assent in addition to the consent of the legally authorised representative. The potential subject’s dissent should be respected.
30. Research involving subjects who are physically or mentally incapable of giving consent, for example, unconscious patients, may be done only if the physical or mental condition that prevents giving informed consent is a necessary characteristic of the research group. In such circumstances the physician must seek informed consent from the legally authorised representative. If no such representative is available and if the research cannot be delayed, the study may proceed without informed consent provided that the specific reasons for involving subjects with a condition that renders them unable to give informed consent have been stated in the research protocol and the study has been approved by a research ethics committee. Consent to remain in the research must be obtained as soon as possible from the subject or a legally authorised representative. (Our emphasis added).
In summary, we argue that the key points of an adjusted Code which would broaden the parameters within which non-consensual research could be carried out in New Zealand are:
The research cannot otherwise be carried out using participants capable of providing informed consent and …
The research will directly promote the health of the group represented by the potential subject and …
The research entails only minimal risk and minimal burden and …
The potential subjects’ dissent, however it is expressed is respected absolutely and …
The research may be done only if the physical or mental condition that prevents giving informed consent is a necessary characteristic of the research group and …
Informed consent is sought from a legally authorised representative and …
The research is given a full review by the appropriate accredited HDEC Committee and …
The research is subject to an additional layer of scrutiny by a group that is overseen by the Office of the Health and Disability Commissioner, a group which includes representatives of, or people able to speak on behalf of or advocate for, the group of persons on whom the research will be carried out and …
There is ongoing, independent, effective and active monitoring of the research project while it is being carried out and …
The participants’ confidentiality is absolutely respected and …
In cases where a participant regains consciousness after having been included in a trial, they are given the option of having their data withdrawn where that is possible and …
Any data that is retained after a study is only able to be used for further research in an aggregated or totally anonymous form unless separate independent ethical consent is sought.
We are in principle open to the parameters of non-consensual research being broadened within New Zealand in line with the World Medical Association Declaration of Helsinki that we have outlined above. What we are proposing would involve moving from the “best interests framework” that characterises current practice in New Zealand to one that takes account of and permits a degree of minimal risk and minimal burden to participants.
The key questions in moving to an approach that tolerates a degree of risk are ‘Who decides?’ and ‘How will assessments about “minimal risk” and “minimal burden” be made?’ For this reason, we have argued that there must first be a degree of confidence in the current system of ethical review in New Zealand. That is, a determination must be made that the HDEC review committees are adequately resourced and adequately trained to foresee and prevent the sort of excesses that have characterised research on vulnerable persons throughout the 20th Century in numerous places around the world including New Zealand.
While broadening the parameters of non-consensual research carries inherent attitudinal risks because it can dispose society to the dangerous excesses of utilitarian thinking and make certain actions which undermine the inherent dignity of persons seem morally acceptable, we think this risk can be safely managed by the introduction of an additional layer of ethical scrutiny that is carried out under the auspices of the Office of the Health and Disability Commissioner.
Sue Buckley (PhD) has been involved in social and health research over the last 16 years in both government and university contexts.
Associate Professor John France (PhD, DSc, FAACB) is a reproductive scientist (now retired). He is a former member of the Auckland Health and Disability Ethics Committee and former member and Deputy Chair of the Northern Regional Health and Disability Ethics Committee.
John Kleinsman (PhD) is director of The Nathaniel Centre and a former member and Deputy Chair of the Central Region Health and Disability Ethics Committee. He is a current member of two Institutional Research Ethics Committees.
i Kleinsman, J, and S. Buckley. "Facebook Study: A Little Bit Unethical but Worth It?" Bioethical Inquiry 12, no. 2 (2015): 179 - 82.
iii Declaration of Helsinki. 64th WMA General Assembly, Fortaleza, Brazil, October 2013. https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/
Fairness [SYNOPSIS ONLY]
By Greg Coyle
In this article, Greg Coyle reflects on the question of ‘fairness’. New Zealand, a society that once prided itself on offering ‘a fair go for all’, is more divided than ever in its approach to fairness. After discussing several approaches to justice as fairness, the article offers a framework for a better understanding of what is ‘fair’ for New Zealand families today.
The full article is available by subscription to The Nathaniel Report
The History of Eugenics
By Petrus Simons
In the history of ideas, Darwin’s theory of evolution, followed by the development of genetic science, raised interest not only in breeding better performing plants and animals, but also in improving human populations – (eugenics). Proposals to apply eugenics were advocated and implemented in the United States, Canada, Scandinavia, Germany and many other countries. This article provides a thumbnail sketch of the history of eugenics and poses the question whether the idea is dead yet?
What is eugenics?
In 1883 Francis Galton (1822-1911), one of Darwin’s cousins, defined eugenics as: ‘the science of improving the inherited stock of a population, not only by judicious and selective matings, but by all other influences’1.
Eugenics aims at improving whole populations, either positively by breeding those deemed desirable or, negatively, by eliminating those considered undesirable. Proponents may differ as to the criteria that define these categories and the methods to be employed.
The origins of eugenics
Philosophically, positivism (a philosophical system recognizing only that which can be scientifically verified or which is capable of logical or mathematical proof) became an important part of the cultural milieu during the second half of the 19th century. Its focus shifted to facts and science as a means of mastering nature to the detriment of metaphysics. It helped Charles Darwin (1809-1882) to publish his theory of evolution in 1859. He believed that in the competition for food etc. the strongest would survive through natural selection. The traits so favoured would be inherited by subsequent generations. In 1871 Darwin applied his theory to human beings in ‘The Descent of Man’, a work in which he states clearly a key tenet of eugenics: in D. Galton’s words: “successful, clever people will tend to produce good, clever children and, by and large, stupid parents will tend to produce bad stupid children. And if the latter outnumber the former it will be a poor outlook for society”.2
Darwin’s theory stimulated agriculturalists to improve the breeding of plants and animals by the artificial selection of traits they deemed favourable. In due course, they would also draw on the new science of genetics, initiated by Gregor Johann Mendel (1822-1884) through his systematic breeding and cross-breeding of round and wrinkled peas. Mendel’s seminal paper of 1866, however, was ignored and forgotten until it was rediscovered around 1900.
Meanwhile in England, Francis Galton researched the genealogies of important or gifted people, concluding that the human stock could be improved by letting gifted people breed profusely. Statistician Karl Pearson (1857-1936), and at a later stage agriculturalist and statistician R.A. Fisher (1890-1962), both eugenicists, believed that biometric statistics should provide data to test eugenic theories.
Herbert Spencer (1820-1903) believed that societies could be improved by a better adaptation of people to their environment, something he termed survival of the fittest. Evolution would, mechanically, get rid of paupers, as long as they were not supported by public charity, because that would only encourage the poor to continue propagating, thereby impeding social progress.
In line with this, eugenicists in England and (especially) in the United States advocated applying negative eugenics by eliminating all those considered to be defective, degenerate, feeble-minded (including intellectually disabled as well as epileptics) or unfit. Put otherwise, they thought that efforts should be made to breed a superior, pure and white ‘Nordic race’.
Charles Davenport (1866-1944), a zoologist, was one of the key figures in the US eugenic movement. Black sums up his views: “Enforcing Mendelian laws along racial lines, allowing the superior to thrive and the unfit to disappear, would create a new superior race”.3
Davenport managed to obtain significant financial support from the Carnegie Institute for the establishment of a “Station for Experimental Evolution” at Cold Spring Harbor in 1904. Attempting to show that eugenics was indeed a proper science, Davenport teamed up with the American Breeders Association (ABA), established in 1903 by the Association of Agricultural Colleges and Experimental Stations, to foster co-operation between animal breeders and seed experts. At Davenport’s insistence the ABA added a Eugenics Committee, which should “devise methods of recording the values of the blood of individuals, families, people, and races”.4
This research involved the accumulation of detailed genealogical records of families from all over the world (to be called pedigrees) and the task for doing this was entrusted to the Eugenics Record Office (ERO). The ERO was financed by Mary Harriman, the widow of a railway magnate. The ERO also sought to identify the most defective and undesirable Americans.5 It led to frantic efforts across the US to identify the latter.
As a result, eugenic ideas came to be accepted and propagated by many. This likely encouraged Davenport and his co-worker Harry H. Laughlin to set up, in 1913, the Eugenic Research Association, which was charged with preparing “legislative and administrative action, and public propagation for the causes of eugenics, raceology and Nordic race supremacy”.6
The same movement, not surprisingly, also permeated the birth control movement through one of its ardent advocates, Margaret Sanger (1879-1966), who also came to be a proponent of negative eugenics, including mass sterilisation of “defectives” and “draconian immigration restrictions”.7
Laws enabling forced compulsory sterilisation came into effect from 1907 on, eventually being passed in 33 states. Many remained in force until the 1980s.
Davenport’s ideas spread around the world. Indeed, “the Carnegie Institution and the Rockefeller Foundation generously funded German race biology”.8 Adolf Hitler keenly followed what was being written and practised in the United States.
It should be noted that internationally recognised German geneticists favoured eugenics many years before the period of Nazi rule, advancing economic arguments in favour of euthanising all those seen as costly to maintain including invalids, those suffering hereditary diseases, criminals and alcoholics.
The Nazi regime introduced eugenics as “a way of loving neighbour and caring for future generations”.9 The first German law, following legislation in the United States, Switzerland and Scandinavia was promulgated on 14 July 1933:
Whoever is affected by a hereditary disease may be sterilised by means of a surgical intervention, if, on the basis of a medical diagnosis, there is a strong probability that their descendants might suffer grave hereditary bodily or mental diseases.10
A few months later, a second law was passed prohibiting a marriage if one of the couple suffered from a contagious or hereditary disease, was mentally ill, or incompetent to marry, or was under state supervision.
Meanwhile, in December 1935, Heinrich Himmler, head of the SS, initiated a ‘positive’ form of eugenics, to improve the human race. Parents with the right ‘Aryan’ physical and mental characteristics were selected and sent to special institutions. Their offspring received a special education. It is estimated that 92,000 children were so educated.
In October 1939 Hitler authorised the T4 programme, the name deriving from 4 Tiergartenstrasze, the address in Berlin of the organisation charged with euthanising all mentally incurably ill people. This programme ran until August 1942 when Hitler halted it because of growing opposition. At the Nuremberg trials it was estimated that about 60,000 people, aged from 6 to 93, were killed under this programme. Sometimes, old senile people, those impotent and even individuals regarded as a-social were killed. After 1942 the programme continued in the form of starving to death 120,000 people considered to be mentally ill.11
Guillebaud12 notes that the most troubling aspects of the Nazi policies of eugenics and horrendous medical experiments on concentration camp inmates were the underlying beliefs used to justify them. Thus, Hitler wrote in “Mein Kampf” that “to preserve the race, it is necessary to sacrifice the individual”. In 1934 Rudolf Hess affirmed that “national-socialism is nothing but applied biology”. Various German eugenicists of the time employed the phrase “lives not worth living”. The term “racial hygiene” sums up all the ambiguities of these ideas at that time.13
In 1942 the German Institute in Paris published “State and Health” which alludes to an economic need to manage living capital and “the biological body of the German nation” by means of a:
synthesis of biology and economics. As economists and merchants are responsible for material values, it is a must for doctors to co-operate with them to achieve a humane rational economy, since the health of the populace is a prerequisite of economic profit.14 (My translation).
Eugenics in the light of technicism
Eugenics came about because of developments in scientific knowledge, especially biology and genetics. It is thus an example of technicism, broadly understood as the use of technology to resolve issues deemed to interfere with progress, including the existence of persons/groups of people regarded as ‘defective and seen as hindering ‘progress’. Hence, Edwin Black’s choice of the title “War Against the Weak” for his book on the history of eugenics. Because there will always be groups believed to be ‘weak’ and ‘non-productive’, and because technicism has become such a key ideology of our times, eugenics remains a real threat.
In the current age, commentators such as Connelly have identified the advent of modern genetics as ushering in a new era of eugenics they describe as “the privatisation of population control”:
Parents increasingly experience ‘genetic counselling’… as social pressure to have perfect children…In everyday conversation, people ascribe a whole range of behaviors to good or bad genes, faithfully reciting a eugenic catechism without the faintest idea of where it comes from or where it can lead.15
If anything, the advent of powerful means resulting from modern genetics enhances the dangers for all who are considered ‘sub-optimal’. Thus, neo-reactionaries, such as Nick Land, who seek to optimise humankind and its genetic material in order to accelerate the tempo of economic change, express the view that “under digital capitalism the selection of the fittest will be enhanced”.16
In contrast, from a Christian point of view, the strong should use science and technology to better serve the weak rather than eliminate them.
Dr Petrus Simons is a retired economist with a PhD in Philosophy.
- Galton, D. (2001). In our own image; eugenics and the genetic modification of people. Little, Brown and Company, London, 259.
- Ibid., 87.
- Black, E. (2003). War against the weak; eugenics and America’s campaign to create a master race. Four Walls Eight Windows, New York, 36.
- Ibid., 38-39.
- Ibid., 52.
- Ibid., 90.
- Ibid., 127.
- Ibid., 258.
- Guillebaud, J-C. (2001). Le principe d’humanité. Seuil, Paris, 252.
- Ibid., 258
- Ibid., 259.
- Ibid., 261.
- Ibid., 261-262.
- Ibid., 262.
- Connelly, M. (2008). Fatal misconception; the struggle to control world population. The Belknap Press Harvard University Press, Cambridge, Massachusetts, London, 382.
- Balzer, J. (2017). Unterwegs zum <neuen Menschen>. Die Zeit, Hamburg, No. 25, 47.
Editorial - The Many Faces of Human Dignity
‘Dignity’ is one of those rich terms we encounter often but its precise meaning can be difficult to pin down. Consequently, we find people using the term to justify very different and even opposing behaviours.
As an example, people with differing views about assisted suicide claim equally to be promoting human dignity. The only way of making sense of this is to conclude that many employ the term in a very shallow and broad way. If, for instance, it means nothing more than treating people ‘well’, or treating people with ‘respect’ according to the particular way each of us happens to define that notion, then the concept of dignity provides very little in the way of consistent ethical guidance.
For those wanting to grapple with a deeper and more precise meaning of human dignity, the distinctions between ‘intrinsic’ and ‘extrinsic’ dignity provide a useful way of unpacking the significance of the term as well as the differing moral duties that ensue depending on which understanding one is committed to.
An extrinsic approach ties dignity to the circumstances one finds oneself in, or to the way persons see themselves or are seen by others. According to this understanding dignity can be conferred or taken away, something akin to the clothes people wear; able to be removed, changeable according to fashion and existing in differing states of ‘finery’ conveying a socially constructed ‘judgement’ about the worthiness or non-worthiness of the lives of certain persons or groups of persons. Extrinsic dignity is essentially variable, shaped by the particular stories about human meaning and flourishing that exist at any point in time and thus susceptible to the vagaries of the social matrix of family, culture, society and religious and institutional traditions.
Critically, the understanding of human dignity in a cultural milieu such as ours, with its (over) emphasis on individuality, independence and productivity, takes on a strongly ‘functionalist’ flavour – to be dignified is to be strong, fit, self-reliant, healthy and productive. Conversely, where this approach dominates, it follows that one of the greatest ‘sins’ against human dignity is for a person to become a ‘burden’ to others or society. The increasing hold of the functionalist mind-set within New Zealand society is evidenced by the growing social isolation being experienced by large numbers of elderly in New Zealand – a continuation of the practice, throughout history, of societies marginalising those it perceives as socially unacceptable or unworthy.
By contrast, the United Nations Universal Declaration on Human Rights1 notes that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” This gives rise to two insights: (i) the claim that dignity is “inherent” or intrinsic and (ii) the critical role this concept plays in upholding human freedom, justice and peace.
What exactly do we mean by saying that dignity is intrinsic? The philosopher Immanuel Kant speaks of the formula of the end in itself: “Act so as to treat people always as ends in themselves, never as mere means.” We ought, in other words, to treat each and every person as having a value that is all their own; we must treat everybody as being valuable in and of themselves no matter what.
According to this approach, human dignity is a quality that inheres in each and every person by virtue of the simple fact that they have a human nature. It demands a scrupulous respect for all human life, whatever the situation or context, and it rails against the instrumental or functional view which reduces the person to being an instrument for various socially determined interests – invariably the interests of the powerful, healthy and well-resourced.
Considering the second insight that arises from the Declaration on Human Rights, John Dickson gets to the very heart of things when he argues that society needs a solid intellectual ground for caring for those who are no longer productive or functional. “Ancient Greece and Rome … had little by way of philosophical reasoning that could guarantee the inherent worth of those lacking rational capacity or social utility. So infanticide was common and social welfare for the aged and dying was virtually non-existent. Christianity changed all of that. It inherited from Judaism a theology of human dignity and a program of social welfare [grounded in the belief] that Christ had died for all, even for the lowly and neglected.”
It is my contention that only the concept of intrinsic human dignity inherited from Judaism and Christianity and enshrined in the United Nations Declaration of Human Rights is ultimately capable of bearing the weight of an inclusive, free, just and caring society. This should make us all extremely alert to the dangers posed by the growing acceptance of an extrinsic understanding of human dignity.
In the light of this threat it is urgent that we seek to defend an intrinsic approach to dignity in the broad court of societal opinion. To that end, this issue offers a number of key ‘witnesses’ who present some of the many faces of such a dignity.
Dr John Kleinsman is director of The Nathaniel Centre
 See http://www.un.org/en/universal-declaration-human-rights/, accessed 31 October 2016.
Losing and Finding Dad in Dementia
By Julie Guirgis
Dementia can be spiteful and cruel – when I reflect on who my Dad was before, it helps me separate him from the illness.
Article available online at: http://www.eurekastreet.com.au/article.aspx?aeid=49521#.WDSZmeZ961t
The Dignity and Power of Education [Synopsis Only]
By Anne Tuohy
When the role of education is degraded, the intrinsic value of society and its members can likewise be diminished.
The full article is available by subscription to The Nathaniel Report
Dignity in a Digital World
By Colin MacLeod
I love digital technology! I love being able to read e-mails from a smart-watch, connected to my phone via bluetooth while watching a movie because the same phone is pushing video and sound from the internet to my TV through a dongle in its USB port. As a teacher I love the accessibility of information, the ability to collaborate and create, and the simple, practical ease of retrieving files and storing work electronically. What’s not to love about technology?
But it’s not really about the technology. The best and worst of human behaviour is played out in the electronic realm. People can be friended or un-friended with a click of an icon on a screen. We can post words of comfort and support or vitriolic rhetoric to persons whose faces we will never see. We can donate money immediately to those in need on the other side of the world and not know our neighbours’ names. We can share photos which celebrate humanity with millions and find images no family would ever want in their albums. We can maintain relationships with ease across the whole world, and be utterly alone while doing so. And all the while a new ‘normal’ and relentless ‘change’ unfold to tell us who we are and who we are not, impacting on human dignity in positive and negative ways.
There is a dignity in parenting that seems lost at the sight of a parent pushing a pram with a child inside chattering and pointing, while continuously gazing at a phone. There is dignity in the profound beauty of the human form, and the desire within us to connect with one another, that is utterly broken by addiction to pornography and associated fear of real human contact. Dignity is found in defining our identity, as we grow up through challenges, failures and successes, but it can easily be actively crushed by children who bully someone into becoming suicidal through social media. The dignity of family itself is undermined when a home no longer has a family table because all meals are eaten by individuals in their own spaces with their heads in their own devices. And, at a global level, even the dignity of our planet is at risk through the mountains of scrap dumped by yesterday’s devices and tomorrow’s BYOD.
I read an article some 30 years ago which reflected on the possibility of machines becoming sentient. While I’ve forgotten most of the content, one idea from the reading has always remained and challenged me. “What happens when a machine can choose its favourite colour? Not because of programming, but because of personal choice. Will it then have a soul?”
It challenges me because, in the 80s, the question felt more of a mental exercise in theology, or science fiction, than an actual possibility but, as the years have progressed, the concept looms likely. From Apple to Zuckerberg we are surrounded (and perhaps swamped) by machines and electronic information. Always more, better, smarter. Literally exponential growth as reflected in Moore’s Law.
So far, none of this technology comes close to sentience, despite predictions. Technology does not care about us. It does not reflect on its purpose. It does not love us back and it neither respects nor understands human dignity. Technology cannot choose to serve humanity - it is created by human beings and marketed in ways and forms designed to impact on our lives and generate profits. Unfortunately, it seems that the latter is the driving force of the digital age, and economic forces rarely place human dignity ahead of profit – the rise in job-loss through technology replacing people is an obvious example of this.
Rather, we are the ones made in the image of God. It is our decisions that are changing the world, not technology. We create, choose and use intentionally. My mother-in-law was incensed to get a letter from an aid agency saying they’d prefer her to set up an automatic payment for her $12 per year donation because it would save money on postage and processing. Reasonable enough, I thought. “Do they mean to say that even our giving now has to be thoughtless!” was her reply, in a long, hand-written letter to the organisation. (The extra $2 was always intended to pay for the processing of her $10 donation.) Making thoughtful choices goes to the core of what it means to be human.
A student once asked me what Jesus would do with technology. Would he have time to blog or catch up with Facebook friends? Would he be instagramming? Maybe, but I doubt it would be an obsession for him - he’d still be busy reaching out to real hands, eating physical food, speaking actual words.
You see, we don’t actually live in a digital world, it doesn’t exist. We live in this world, making choices within a myriad of blessings, distractions and challenges. We have dignity because we are made in the image of God, called into relationship with God and each other. And technology is just one of those blessings, distractions and challenges. It’s up to us.
At least until the first machine chooses its favourite colour.
Colin MacLeod is a husband, father and member of Mercy Parish, Dunedin. He recently took on the role of Director of the National Centre for Religious Studies after two decades as DRS at Kavanagh College.
Art, Dignity and the Human Spirit
By Rachel Kleinsman
In the words of John Ruskin, art is an “expression of the vitality, inventiveness, heart, thought and spirit of humanity”. Art has the potential to offer insight into the human condition and exists as a cultural repository for the expression of our spirit and spirituality. It provides a means of connecting us with the oneness of the human experience.
The rich and varied tapestry of art history reveals a number of approaches to the expression and validation of human dignity. The Cambridge dictionary’s definition of dignity as: “the importance and value that a person has” offers a basic, albeit interesting starting point from which to consider that which characterises the relationship between dignity and art.
The great Abstract Expressionist Mark Rothko proposes a useful framework for navigating this relationship. In 1958, Rothko gave a lecture to New York’s Pratt Institute during which he identified a number of ingredients as collectively comprising the “recipe of a work of art”. One of these proposed criteria was that in art “there must be a clear preoccupation with death – intimations of mortality”.
Depictions of the dead have long been considered a fitting way of honouring the lives of individuals and affirming the enduring dignity of humanity after death. Renaissance art, in particular, facilitates an intriguing dialogue. Piero della Francesco, for example, painted the diptych portrait of Federico da Montefeltro and Battista Sforza after Battista’s death, her corpse serving as a life-model for the portrait (a point which seems evident in her pallor). In this vein, the Victorian tradition of post-mortem photography is also of note, combining photographs of deceased loved-ones with such memento as locks of hair and flowers. Similarly, John Everett Millais’ magnificent Ophelia painting of the body of this Shakespearean tragic heroine being carried down the river compels the viewer to confront the wrenching tragedy of her suicide and lost love, and the deepest questions of our human experience.
In exploring the relationship between art and human dignity, there is a certain tension which goes to the heart of the philosophical debate: What is art and what, if any, purpose should it serve? Is expression in and of itself the end goal, or is the artist obligated to contribute to a more complex framework of social responsibility?
On the one hand, the idea that art is valuable in its very own essence – l’art pour l’art – is compelling. The Kantian invocation that we should “act so as to treat people always as ends in themselves, never as mere means”, might lead one to think that art should serve no purpose other than to honour the individual through representation. However, historically, art has been an incredibly vital socio-political tool, one of protest and revolution, which has sought to affirm the dignity of underprivileged individuals. Eugene Delacroix’s Liberty Leading the People was a vital revolutionary voice in France and Gustave Courbet’s Stone Breakers, a protest against poverty and cry for the rights of the peasant class. Centuries later, Judy Chicago’s Dinner Party gave a voice to the previously-silenced cultural accomplishments of women. In terms of our own national identity, Ralph Hotere’s oeuvre comprises a politically-complex colonial protest defending the dignity and rights of Māori. There is no doubt that art’s role in ‘dignifying’ those of lesser privilege is significant.
In light of the above, it’s clear that artists have a role to play in crafting a broader social narrative which both affords and shapes human dignity – their role is not merely a documentary one. But there is a potentially problematic aspect to this representation also. The photographs taken by psychiatrist Hugh Welch Diamond of patients at the Surrey County Lunatic Asylum in the 19th century are one such example. These extant records of mentally-ill patients are valuable in that they capture something essential of their lives and spirits while affording a real sense of dignity and individuality. However, because they were taken with the intention of contributing to the physiognomy argument, they were ultimately damaging to both perceptions of these individuals and mental illness on the whole. A further example is the problematic nature of colonial depictions of kaumātua by Gottfried Lindauer and Charles Goldie; resplendent in their beauty and historic significance, the portrayal of Māori as a dying race through an overtly colonial lens is well-documented.
The essence of the relationship between human dignity and art is one of dualistic tension. It is incorrect to reduce art’s role in the expression of humanity to a purely utilitarian function. On the other hand, in order to be effective and afford respect to individuals it must “treat people always as ends in themselves”. The greatness of art through the centuries has the power to move us, to facilitate a spiritual connection and emotional response. Most importantly, it resonates with another criterion of note which Rothko laid forth in his consideration of art and life: that religious and divinely-eternal notion of hope, the ability of art to uphold human dignity through its power, properly used, to “make the tragic concept more endurable”.
Rachel Kleinsman is a freelance art researcher and writer based in Wellington. She has a Bachelor of Arts (Art History and Modern Languages, Victoria University of Wellington) and a Master of Arts (Art Business, Sotheby’s Institute of Art).
Culture, Human Dignity and Economic Rationalisation
By Gerard Burns
Cultural understandings of human dignity are culturally generated expressions of the perceived worth of human life at different ages and stages – they witness to the way persons are valued, honoured, esteemed and respected. While every culture has its own ideas and practices surrounding human dignity, the way that this dignity/worth is recognized varies from culture to culture and also undergoes change. The practices by which worth is recognized (or denied) reveal the culture’s values and beliefs about human life. This anthropological approach, starting as it does from observation differs from the philosophical approach of official Catholic teaching which brings a trans-cultural and meta-physical dimension to the discussion.
A simple definition of culture is to see it as the sum of the ideas, customs and social behaviour of a particular people or society. It includes morals, codes, traditions, dress, language and religion. Two simple examples from my own early years (Pakeha Irish-Catholic and middle-class, growing up in NZ in the 1960s) around the teaching of 'good manners' are illustrative.
The first example is the instruction: 'Don't eat with your mouth open because it’s impolite'. Here 'impolite' seems to mean it is insulting and ungraceful to show how you chew food. Perhaps implied is that eating is a semi-private or personal activity? Practically speaking, this instruction helps avoid food falling out of your mouth when eating. That would be wasteful of the food, inelegant in terms of tidiness and potentially mess-making on clothes, tables or floors. The values of respect for others and for oneself are to the fore.
A second example: We were told by our Catholic school teachers that when the priest or any adult came into the class, we were to stand up. This was a way of recognizing the presence of an important person. Standing up recognized the adult’s superior status and 'dignity'. Wrapped in this are certain cultural and hierarchical values, namely the value of the adult over the child. In the Catholic world the priest had a theologically superior status of a 'holy' man. If the priest was not ‘holy’ by behaviour then he was holy because he dealt with 'holy' things. Respect and dignity were ascribed not simply because of the priest’s personal qualities, but because of his role.
Hierarchies appear in all cultures and societies. In some Pacific cultures, one way of recognizing you are in the presence of 'more important' people (for example, chiefs) is to keep one's head below the level of the chiefly person. So you will see people bending over as they pass the chief to symbolically recognize their relative status. In Anglo-Saxon tradition the curtsy or bow before a royal personage served a similar role.
Value or worth can be intrinsic (such as simply by being born into a royal line), or gained through achievement (such as in battle or through academic qualification). In many traditional societies one's worth grows as one ages. The older person is seen as a source of wisdom and an asset even if requiring more assistance from family and neighbours. The honouring of kaumatua in the Māori world exemplifies this.
Are there universal values/practices which go beyond cultural variations? Anthropologists have looked for common practices in human behaviour but have not seen a common ethic. Such an ethic needs reflection on the commonalities and on the philosophical question of what is good for human beings. Hans Kung's work on a global ethic is part of that search.
One significant factor flowing from particular cultures but influencing world culture is what Pope Francis (among others) has outlined in ‘Laudato Si’: the 'technocratic paradigm' (LS.106) that has brought damage to the earth and its people. This worldview combines the influences of modern technology and industrial capitalism to shape social and economic practice.
Max Weber analysed this paradigm to some extent in his book the “Protestant Ethic and the Spirit of Capitalism’ (1930). In ascribing the foundations of modern society to Puritanism he underestimated other factors. Nevertheless, it is true that the mind-set behind the economic and technological development in Europe and North America was significantly influenced by the religiously-inspired exploration of the mind of God by Copernicus, Mendel, Newton and others.
Gradually this exploration sought to distance itself more from religious belief (secularisation) and the idea of ethical constraints on new technology lessened. The classical economics of Adam Smith and David Ricardo, along with utilitarian philosophies, has gradually brought theories of marginal utility and the model of 'homo economicus' to the fore.
This model saw ‘rational behaviour’ as that of a ‘man’ carefully calculating what will bring increased profitability to himself. It is a model based on individualism and self-interest. Smith proposed that if every actor worked on this self-interested basis then all of society would benefit as if moved by an 'invisible hand'.
In practice, this approach, especially its more recent form of neoliberalism (Reagonomics, Rogernomics, the ‘Washington Consensus’) has been largely discredited by the Global Financial Crisis. However it is still the basis for much contemporary macroeconomic practice (for example, stock markets, etc). The pragmatism of this paradigm increasingly influences views about who and what is useful to society.
One consequence of this is a cultural shift in the perception of ‘worth’. Where in many traditional societies to be old was to be valuable, in fast-moving, mobile and pressured technological societies, what is valued is the capacity to handle the latest technology. This favours the young and quick-adapters.
However, with the favouring of the young and the quick, comes a devaluing of the old and the sick. Hence a push for euthanasia for 'humane' reasons, and individuals not wanting to be a burden on society or their families. The economic aspect of culture can shape more general values. The defence of human dignity in a Catholic sense relies on a philosophy (shaped by the doctrines of incarnation and redemption) that explains the broad basis for what is good for individuals and our societies.
Gerard Burns is a priest of the Archdiocese of Wellington, currently Vicar-General and working in Māori pastoral care. He has lived and worked in South America and has a Master in International Relations from Victoria University.
Dignity and the Environment
By Jonathan Boston
The concept of dignity is often thought to be restricted to humanity. Only human beings, some believe, possess true or genuine dignity. Theologically, this is because human beings are distinctive, indeed unique, within the created order. Only human beings bear the special mark of their Maker; only they are bearers of God's image or likeness (Gen 1:27). Hence, amongst all God's creatures, only human beings enjoy a deep, transcendent and intrinsic worth: they alone are sacred; they alone possess inherent and inalienable rights; they alone are ends in themselves rather than means; and they alone share an abiding dignity in equal measure. All other species, it is argued, are different. They lack any God-given dignity. So, too, does the non-living or physical environment – whether here on Earth or elsewhere in the universe.
But is this argument theologically and morally justified? Is not the whole creation, in all its extraordinary diversity, richness, vastness and beauty, endowed with dignity by God?
There are, of course, robust theological reasons for claiming that human beings enjoy a unique, particular or special dignity – indeed, an 'infinite dignity'.1 As bearers of God's image, humanity can claim a distinctive and elevated moral status in relation to the rest of creation. A person is more precious than other creatures. Accordingly, we need stronger justifications for harming a human being than we do for harming non-human species.
But an equally strong theological case can be made that every part of creation – every aspect of the entire universe, no matter how little or large – possesses a certain God-given dignity; it thus has some inherent or intrinsic value. That is to say, all non-human species and physical objects are of value in themselves and for their own sake; they are not merely of instrumental or extrinsic value. To quote Saint John Paul II:
Respect for life and for the dignity of the human person also extends to the rest of creation which is called to join man in praising God (Ps 148:96).2
Likewise, Pope Francis in Laudato Si, speaks of the 'intrinsic dignity of the world',3 and appeals to every person to respect and care for all God's creatures and humanity's 'common home'.
The theological basis for the proposition that the non-human world enjoys an inherent dignity lies, fundamentally, in the claim that God is ultimately the creator of everything that exists and that God values, and rejoices in, every aspect of the creation. Every part of it has worth; every part deserves respect. For everything that God has made, according to Genesis, is 'good'.
That does not mean, of course, that everything is of equal value, let alone infinitely precious. Nor does it imply that any form of human interference with the natural or physical environment is unjustified. But it strongly suggests the need for wise, responsible and sustainable management of the environment.
When people degrade and defile what God has made or cause irreversible damage, they violate their distinctive calling to exercise stewardship and guardianship. Moreover, in bringing destruction, rather than healing, they threaten their own dignity. In part, this simply reflects the fact that everything is interconnected and interdependent. Despoiling the environment destroys the ecosystem services and resources on which humanity depends. It thus reduces the capacity of human beings to meet their needs and ultimately robs them of their dignity. Human flourishing in a devastated wasteland is a contradiction in terms, as is living well in an ecological desert.
Taking the intrinsic dignity of the environment seriously requires urgent and systematic reform. Currently, human greed, poor planning, inadequate regulation and irresponsible economic policies are contributing to enormous ecological damage. Globally, we are exceeding critical planetary boundaries and time is running out to rectify the problem.4 We are already in the early stages of a mass extinction event, one in which a substantial proportion of all this planet's species will be destroyed. We are also rapidly warming the Earth through the unregulated burning of fossil fuels and massive deforestation. Not only will this bring dramatic changes to the planet's climate, but it will also contribute to severe, widespread and, in many cases, irreversible damage to critical biophysical systems.
Nationally, our water quality is deteriorating, our carbon footprint is growing, our land-use management and marine governance are weak, and many native species face extinction. Since human settlement about 800 years ago, we have lost 85% of our indigenous forests, over 90% of our wetlands, and more than 50 bird species. We have significantly polluted more than half of our rivers and many of our lakes, and we are losing soil at about 10 times the average global rate. Hence, claims that New Zealand is 'clean and green' lack substance.
In summary, humanity is currently suffering a chronic 'nature deficit disorder'. Our ecological footprints are far too large. We are borrowing from the future and leaving our children and grandchildren a dreadful legacy – a huge, unsustainable ecological debt and colossal, irreparable damage. As Pope Francis puts it:
We have come to see ourselves as ... [nature's] lords and masters, entitled to plunder her at will. The violence present in our hearts, wounded by sin, is also reflected in the symptoms of sickness evident in the soil, in the water, in the air and in all forms of life. This is why the earth herself, burdened and laid waste, is among the most abandoned and maltreated of our poor; she "groans in travail" (Rom 8:22).5
God calls us to show kindness to His good creation, to treasure its diversity, to care tenderly for its creatures, to tread gently upon the land, and to be good stewards of its resources. Indeed, we are summoned to love what God has made, just as God loves and cares for it. In so doing we both protect its intrinsic dignity and honour our calling as creatures who bear God's image.
Jonathan Boston is Professor of Public Policy at Victoria University of Wellington.
1. Pope John Paul II, Angelus in Osnabrück (Germany) with the disabled, 16 November 1980: Insegnamenti 3/2 (1980), 1232.
2. Pope John Paul II, 'Peace with God the Creator, Peace with All of Creation', For the celebration of the World Day of Peace, 1 January 1990.
3. Pope Francis, Encyclical Letter: Laudato Si' – On Care For Our Common Home, Rome, 2015, p.86.
4. See, for instance, Johan Rockström, et al., "A Safe Operating Space for Humanity', Nature, 461, 24 September 2009, 472-475; John Rockström, et al., "Planetary Boundaries: Exploring the Safe Operating Space for Humanity", Ecology and Society, 14, 2.
5. Pope Francis, Encyclical Letter: Laudato Si' – On Care For Our Common Home, Rome, 2015, p.3.
Immanuel Kant on Dignity
By William Michael
“Dignity” in talk of “the dignity of human beings” ascribes to humans a kind of worth that is supposed to be of the highest significance for how humans are treated and which all humans share in equally. We are maybe so used to this idea that we don’t find it puzzling. But how can it be true? And if it were, how would we know? Kant’s philosophy provides answers to these questions.
For Kant, our moral lives are an aspect of our ordinary lives that should astonish. In this mood he wrote (Critique of Practical Reason):
Two things fill the mind with ever new and increasing admiration and reverence, the more frequently and persistently one's meditation deals with them: the starry sky above me and the moral law within me.
We’ll soon get to “the moral law within,” in the form of the Categorical Imperative, but for now let it stand for the whole of the moral, which it almost does for Kant.
Kant was deeply moved by humans acting purely for the sake of (moral) duty. His idea of the moral is very pure and for him acting for the sake of duty has nothing to do with psychology, even “nice” psychology like empathy, let alone anything neurotic, or the motive of gain or advantage. Doing one’s duty is a pure matter of willing (here meaning choosing) the good because it is good.
To find the meaning and reality of moral acts, Kant did philosophy. His philosophy teaches that moral acts disclose something real about the beings that can act morally: namely, that they are free, reasonable and rational beings. The thought is that only free, reasonable and rational beings would be able to act purely for the sake of duty.
The concepts “free” and “reasonable and rational” are difficult, and understanding Kant’s conception of “free, reasonable and rational beings” is difficult too. However, we have already come across a clue as to what he meant. The purity he finds in the motivation behind moral actions can be thought of as freedom from psychological determination. To be free in this sense is to be, as it were, master in one’s own house. At the same time, to be free in a related sense is to be determined only by that which is in agreement with, not foreign or alien to, one’s true nature. That nature is reasonable and rational, and so to be free is to act for reasons and from reason.
This is why for Kant morality is practical reason. (Practical reason – what I have reason to do – not theoretical reason: what I have reason to believe. Practical reason not sentiment or tradition, to name two key contrasts. It is notable that Kant did not oppose reason to religion. He was a committed Lutheran throughout his adult life.)
Kant’s idea that morality is practical reason is a general idea in need of specific content. “Be reasonable and rational” is not awfully useful guidance. We need some meaningful rule or law – “the moral law within” perhaps. The specific content Kant gives morality is found in the Categorical Imperative (CI). Here I’ll consider the CI to better understand “dignity”. The CI reads (in its second version in Groundwork for the Metaphysics of Morals):
Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.
If we think about the meaning of “dignity” using the CI, it suggests that we understand that always treating persons as ends and never simply as means is a fitting way to treat beings that have the kind of “inner worth” (Kant’s words) called “dignity”. Seeing this connection we gain a richer, deeper and more useful notion of dignity. We could keep thinking: The CI suggests that my own dignity is important, and not for selfish motives but as a result of the “humanity” in me. And so on…
We can now see how Kant’s philosophy answers the questions opening this essay. If there are free, reasonable and rational beings, then they possess a special kind of worth unlike anything else in the world. The word “dignity” – why not? – is used to express this worth.
How can all humans share in dignity equally? There is no guarantee that any human will act from their nature as a free, reasonable and rational being, but since they are such a being, they could, and in that, each of us is the same. Indeed, given the many ways humans are different – in upbringing, IQ and EQ, talents, tastes, looks, status etc – then perhaps there is no other cogent interpretation of the thought, so important to the modern world, that we are all equal.
Finally, I know all this how? It is disclosed to me in my experience of acts done purely for the sake of duty. Knowing Kant’s philosophy, I understand this.
William Michael studied philosophy and law at Otago and Auckland universities in the 90s … and, for better or worse, has never really stopped thinking about such stuff.
Editorial: The Zika virus and contraception: Has Pope Francis changed the rules?
Growth in the numbers of people affected by the Zika virus, spread predominantly by mosquitos, has been described as an “explosive pandemic”. While relatively harmless for most people, the virus is now strongly suspected (though not yet definitively proven) of being linked to a serious fetal malformation known as microcephaly. In light of that, various government health ministries in the most severely affected areas are warning women to avoid getting pregnant.
While returning from his recent visit to Mexico, Pope Francis was asked by a journalist about the dilemma this situation poses for couples and, more specifically, whether “abortion” and “avoiding pregnancy” (in the context clearly a reference to contraception) might be a legitimate moral response.
Pope Francis’ immediate reply was to reiterate in the strongest possible terms that abortion could never be a morally legitimate means: “It is a crime, an absolute evil.” In saying this he would have been aware of the intense debate in many South American countries about using abortion as a way of dealing with fetal microcephaly.
Unpacking the Pope’s endorsement of the moral legitimacy of “avoiding pregnancy” is less straightforward. It is clear from the language and examples offered by the pope that he was thinking specifically about the use of artificial contraception rather than the “regulation of births” – the right of couples to space births – which is an accepted part of Catholic teaching on marriage and sexuality (see Catholic Catechism n. 2368). His analogous reference to the situation in the Congo, a 1960’s debate about giving oral contraceptives to religious sisters in grave danger of being raped, points to this. However, any doubts about the precise meaning of his words were dispelled just days later by official Vatican spokesperson, Fr Federico Lombardi, who clarified that “the Holy Father was indeed speaking of ‘condoms and contraceptives’ when on the flight back from Mexico.”
Further explaining the pope’s response, Lombardi added: “The contraceptive or condom, in particular cases of emergency or gravity, could be the object of discernment in a serious case of conscience. This is what the Pope said.”
Pope’s Francis’ brief comments have raised questions about Catholic teaching on the use of artificial contraception. Some have gone so far as to suggest that it potentially heralds a reversal of the long-standing Catholic position. I am not in a position to read or know Pope Francis’ mind but, as a moral theologian, I wish to offer three points as part of my own reflection on this debate.
1) The Pope’s response reminds us that whatever one’s beliefs about the use of artificial contraception (and we should recall that the backdrop to the question was a debate about the Zika virus and abortion involving a broad audience rather than a specifically Catholic one), the use of contraceptives is morally different from abortion in terms of its gravity – different because abortion involves the destruction of an already formed human life. At the same time, and in line with Lombardi’s reference to a “serious case of conscience”, this insight does not undermine the seriousness associated with the use of contraception.
2) Many have pointed out that Pope Francis’ reference to the use of oral contraception by religious sisters in the Congo reflects a very different moral situation to that of married couples. The situations differ because permission in the Congo case is neither a dispensation from the Church’s teaching nor an exception to it. Why? Because Catholic teaching on contraception speaks only to intercourse freely entered into by married couples.
Why then would the Pope appeal to this case? It illustrates that he has in mind a truly extreme situation. In doing so he is simply appealing to a fundamental tenet of Catholic moral teaching – the exceptional case does not nullify the ongoing validity of a particular law or teaching outside of the extreme situation. Evidence of this tenet appears in multiple places in Catholic moral teaching which address the different types of conundrums generated by extreme situations, including Aquinas’ discussion of ‘epikeia’, the ‘principle of the lesser evil’, and the role of conscience in helping perplexed persons find moral certainty in the face of a conflict of duties.
In other words, the possibility of couples making contraception an “object of discernment” in an emergency situation does not “reverse” Catholic teaching on the methods of regulating births. The Pope’s comments about the Zika virus need to be understood alongside his previous comments about the ongoing validity and prophetic nature of Humanae Vitae’s teaching on contraception rather than in opposition to them. As he noted in 2014: “Church teaching on contraception does not need to change but it must be applied with mercy.”
3) The reference to ‘mercy’, a defining theme in the pontificate of Francis, leads to the third point. Laws and teachings must always be applied with mercy if we are to avoid an extreme form of rigid moral legalism that stifles human flourishing. By his ‘spontaneous’ teaching on the Zika virus the Pope, with the instincts of a good pastor has, once again, reminded us that at the heart of Christian teaching lies the all-important idea of mercy.
Dr John Kleinsman is the director of The Nathaniel Centre
The Right to Freedom of Conscience
A recent post from Terry Bellamak, new president of the Abortion Law Rights Association of New Zealand (ALRANZ), questions why health professionals such as doctors and nurses should be legally able to use the claim of freedom of conscience in refusing to provide contraceptive or abortion advice or services. (http://wp.me/x1XY6w-z1, 14 Sep 2015). Bellamak likens this to the case of Kim Davis, county clerk of Rowan County in Kentucky, who was recently gaoled for refusing to issue licences for same-sex marriages. She fails to see why these two apparently similar cases should have such different outcomes; imprisonment in one case and privileged protection in the other.
There seem to be a number of flaws in Bellamak’s argument. I will examine three of these. The first is that a legal challenge on these grounds has already been laid and dismissed. The second is that the role of health professionals differs significantly from that of a county clerk. Finally, many historical examples show us the great evils that can arise when the grounds of freedom of conscience are overridden.
In 2009 the Medical Council of New Zealand sent out a draft statement entitled ‘Beliefs and Medical Practice’, touching especially on the area of reproductive health service provision. A group of health professionals known as the New Zealand Health Professionals Alliance Incorporated (NZHPA) applied to the High Court for a juridical review of this statement on the grounds that it contravened S174 of the Health Professionals Competence Act 2003.
Justice MacKenzie found in favour of the NZHPA, ruling that where a practitioner held a conscience objection in these areas he or she was not required to formally refer their patient onto another practitioner who would either provide or facilitate the service – it was required only that they inform their client that such a service could be obtained from another health provider or a family planning clinic. The Medical Council of New Zealand decided not to appeal this ruling and withdrew its statement. When commenting on this decision, the NZPHA stated that its members should not be compelled to do things that they believed to be ethically wrong, clinically inappropriate or against a patient’s best interests.
This last statement leads to consideration of the status and role of health professionals. In her argument Bellamak refers to health professionals as ‘providers of a service’. This is redolent of a mind-set common in the United States where the doctor/patient relationship is viewed as being more like that of a salesperson/customer or petrol pump attendant/car-driver. The nexus is a financial and individual contract. Underlying this vision is a significant philosophical shift, marked by a move from a sense of the common good (the well-being of the entire society) to individual rights and involving the deconstruction of social bonds to the lowest common denominator of financial contract and obligation.
Bellamak glides over this critical distinction by reducing all conscience objections to ‘moral’ grounds, thereby insinuating a basis of religious belief, whereas the more neutral term ‘ethical’ can cover religious, personal or social considerations. An excellent example of this is seen in the debates over euthanasia in the British House of Lords and in Canada in the course of which a number of health professionals, avowedly agnostic or even atheistic, objected to euthanasia solely on the grounds of deleterious social and medical consequences. Closer to home, a further example is the 1977 longitudinal study of 1265 children born in Christchurch conducted by Professor David Fergusson who pointed to later psychological difficulties faced by women who had undergone abortions in their youth. It is data such as this which can and should inform health professionals who wish to embrace a wider vison of the role and responsibility of their profession rather than adopt the individualised and contractual stance referred to above.
The stance I am advocating for is not novel. We see it in the famous speech by Edmund Burke to the electors of Bristol in November 1774. Burke, after acknowledging that an MP must have the highest regard for the views of his constituents, looking out for their interest with the greatest of diligence, then notes: “But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive… from the law or constitution. They are a trust from Providence, for the abuse of which he is deeply answerable.” He then goes on to speak of the role of Parliament in terms which could be aptly applied to the medical profession; “… Parliament is a deliberative assembly of one nation, with one interest, that of the whole, where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole.” (The Founders’ Constitution, volume 1, chapter 13, document 7.)
The importance of this stance is well borne out in history. Sometimes laws are passed which seem to meet the needs of the time and the approval of the populace. Such were the racial purity laws enacted by the Nazi government in Germany in the 1930’s, one result of which was the Shoah, the slaughter of six million Jews in slave and concentration camps. What is most frightening about these laws is that they were endorsed as scientific and sound by the leading professors of biology in German universities; theories of eugenics were embraced at every level of society. In passing, it is interesting to note that Margaret Sanger, one of the heroes of the women’s reproductive rights movement, was a leading member of the American Eugenics Society, frequently berating the Catholic Church for opposing eugenic legislation and ideology. One presumes that ALRANZ has completely stepped away from such advocacy on the basis of an ethical judgment, reinforced by scientific findings.
In summarising this reflection I would argue that the model of professional care embraced by the president of ALRANZ is strongly influenced by individualistic and commercial elements that reduce health professionals to mere service providers and too easily overlook the common good of the wider society. Such an understanding also ignores the lesson of history that suppression of the rights of individual conscience can so easily walk hand in hand with oppressive policies born of the social and political bias of a particular age … Stand up Archibald Baxter, Franz Jagerstatter, Mahatma Ghandi, Martin Luther King, Nelson Mandela and innumerable others.
In the words of Dietrich Bonhoeffer: “Conscience comes from a depth which lies beyond a person’s own will and reason and it makes itself heard as the call of human existence to unity with itself.”
Rev Dr Neil Vaney is a Marist priest who taught in the field of moral theology at Good Shepherd College in Auckland and is presently vicar-provincial for the Order, living and working in Wellington.
When scepticism goes viral
This article by Michael Rozier uses the example of the anti-vaccination movement in the United States to raise questions about the role that scientists themselves might have played in the rejection by some sections of society of well-established scientific facts. He suggests that a debate that includes values and morals alongside science might do better at changing minds than simply ‘throwing more science at the problem’.
Available online at: http://americamagazine.org/issue/vaccine-wars
The abolition of Capital Punishment in New Zealand
Staff of The Nathaniel Centre
Capital Punishment and euthanasia have the manifest similarity that both concern the deliberate and state-sanctioned ending of life, which is why both also, quite rightly, are controversial issues. While the euthanasia debate is still current and appears in the media on a regular basis, Capital Punishment was finally abolished in New Zealand in 1961. The question this article raises is what we might learn from the way in which Capital Punishment was abolished that might enlighten the current euthanasia debate.
Much of the following history is drawn from a comprehensive study by Pauline Engel published in 1977, which tells the story of the abolition of Capital Punishment in New Zealand.
Abolition of Capital Punishment
There had been little questioning of Capital Punishment in New Zealand before the 1920s, and it was not until the election of the first Labour government in 1935 that the issue became political. The Labour Party was officially opposed to the death penalty and while the Labour Government did not immediately introduce legislation to abolish the death penalty it commuted all death sentences while in office.[a]
However, criticisms soon arose concerning judges sentencing people to hang while knowing it would not be carried out, leading to the government being accused of 'circumventing' the law. Then in 1940, a particularly brutal crime led to four men being sentenced to flogging. While the humanitarian elements in the Party found it unthinkable that such a sentence should be carried out, the Attorney-General was reluctant to remit the sentences without bringing forward legislation which he felt would have to cover both corporal and Capital Punishment. That an appeal against the severity of the sentence failed at the time is described by Engel as an indication of the adversity of the climate for abolition at this stage. However, with the caucus overwhelmingly in favour of a law change, a Bill was eventually introduced for the erasure of both flogging and hanging from the penal code.
Engel notes 'the reaction of the newspapers was almost universally unfavourable' and that 'almost every provincial daily pontificated in its editorial columns on the government's action in removing Capital Punishment and corporal punishment from the Statute Book, and scarcely any were complimentary'. Nevertheless, the Bill was passed entirely along Party lines, with no Government members speaking in favour of Capital Punishment and no Opposition members speaking in favour of abolition. Engel describes the debate as 'neither lengthy nor distinguished for anything save the incredible bathos of speakers on both sides of the House'. While most arguments against abolition focused on the deterrent value of Capital Punishment, one of the arguments against was that it could mean 'the menfolk might have to take the law into their own hands'.
Reintroduction of Capital Punishment
When the National Government came to power in 1949, there was immediately pressure to repeal. Engel suggests that the restoration of the death penalty by this Government in 1950 was not simply a matter of a more conservative, authoritarian government favouring Capital Punishment, but a more complex interweaving of social and political factors. There had been relatively few murders during Labour's first six years in office, but the murder rate had increased in the post-war years, culminating in the 'notorious Mt Victoria murder which appalled the Wellington community in 1948'. Grand juries throughout the country had been calling for the reinstatement of the death penalty and popular sentiment was in favour of it; it was widely held that the increase in murders was a direct consequence of abolition.
Although the Minister of Justice had called for a 'comprehensive report which would include statistics, philosophical and religious arguments for both sides of the case', Clifton Webb, the Attorney-General, made it clear that Capital Punishment would be reinstated without waiting for the contents of the report. In the debate on the Bill to reinstate Capital Punishment, Webb focused on the deterrence argument while H.G.R. Mason, the former Minister of Justice, concentrated on the moral aspects, rejecting the argument that hanging was necessary for the protection of women and suggesting that the move back to a retributive justice was a 'spiritual and moral relapse'. The Bill passed with members voting on Party lines, except for J. R. Hanan, the lone National Government member to speak against the Bill.
Nevertheless, when within a few months the Executive was faced with its first death sentence, it appeared anxious to find a reason for a reprieve. Fortunately for the government, the reports on the case suggested the prisoner's mental development was at a level to suggest he was not fully responsible. However, public reaction and the media suggested that 'if ever there was a case for hanging this is it', and the government was roundly accused of having 'cold feet'. When the next death sentence was imposed, 'the Executive could not risk a second retreat', even though it was clear that this case actually presented a weaker argument for execution. Commenting on this second case, one newspaper argued that while the prisoner was 'obviously a man of subnormal mentality', this was no reason that 'such an individual should survive as a burden on society'.
Over the next five years there were another seven executions as well as a number of reprieves, and Engel suggests it was often difficult to understand why, when murder cases were compared, some were not reprieved. In one case of a young man described as a 'bodgie'[b], tried and later executed for murder, the decision of the Executive to execute was considered to be influenced by reports that the 'bodgie lifestyle was an idle, violent and promiscuous one' and that it was necessary to make an example of this young man. Organised opposition to the death penalty over this time led to the development of a National Committee in 1956, partly as a consequence of one particular case where the prisoner's 'childish qualities and his socially deprived background' highlighted the inconsistencies around the reprieval decision-making process . Around the same time, a "Truth" article appeared, describing an execution in detail, ostensibly for the purpose of promoting the deterrent aspects of hanging, but having an ulterior motive of conveying to the public 'the sordid reality of hanging and to indicate the effect it had on many of those responsible for carrying it out'. The final paragraph of the article stated:
'Criticism of the method is not an argument against Capital Punishment. Murderers may deserve to die. It may be that the prospect of death does deter would-be murderers. What happens to them does not matter; what can happen to the people who have to hang them does.'
Effects of hanging on those involved
It was commonly claimed that the older prison officers who had been involved in and experienced hangings saw their participation as part of their duty; a duty which, while unpleasant, did not affect them deeply. One of these described himself and his generation of officers as having 'lived through the depression, seen active service overseas for some years during the last war, and been in German prison of war camps', experiences that 'toughened the spirit as well as the flesh'. In particular, Engel notes that 'they did not become emotionally involved in the execution process because they did not feel responsible for the decision which had been made to hang that particular person, although their professional position obliged them to carry out that decision. They did not feel that they were "inhumane" or "hardened", any more than a nurse or doctor who had become inured to much unpleasantness which would make the average lay person squeamish.'
However, while these officers were reportedly able to carry out their duty without too many after-effects, even if it took the experiences of a depression, war service and prison of war camps to achieve this, Engels notes that for the 'lay' officials the story was quite different; for at least some people, including sheriffs, prison psychologists, chaplains, and the prison Superintendent, the hangings had serious psychosomatic effects.
The first two sheriffs had breakdowns, due at least partly to their participating in executions; the prison doctor threatened to resign rather than participate in further executions; the prison psychologist wrote that his own feeling was one of 'complete revulsion' and that as he left the execution yard, felt that the hanged man was 'the only actor in the drama who came out of it clean'. The prison chaplain was infected 'with a peculiar horror so that he felt an almost irresistible urge to get as far away from the prison as possible at the time of a hanging – something he was rarely able to achieve'. The Superintendent of Mount Eden Prison had officiated in eight executions and although he was described 'as rough as guts, as tough as they come', resorted to drinking to get through the hangings and eventually suffered a major psychological breakdown.
From the mid-fifties, there was an increase in activity from the abolitionist movement and a referendum was proposed. This was opposed by some abolitionists on the grounds that the issue was too 'volatile' and too complex for a straight yes or no answer. J.R. Hanan and E.P. Aderman, the known abolitionists in government, and J.R. Marshall, a strong supporter of Capital Punishment, all supported a referendum, both sides thinking the public supported them. The two Wellington daily newspapers opposed a referendum, the Evening Post stating the question was 'not a subject for a decision by mass vote' and it would be 'wrong, clumsy and unsuitable' because many would wish to qualify their answers. The Dominion suggested that to conduct a referendum on any issue subject to emotion was bad policy: 'Impassioned appeals by abolitionists could stir up a fever far beyond the merits of their arguments. Similarly, a particularly fiendish or callous crime just before the poll could cause a public revulsion much stronger than the merits of the case for retention'. These sentiments, along with letters to local papers and submissions to Government led to the Prime Minister calling off a referendum. It would, if re-elected, legislate to provide the death penalty for 'the worst cases of murder' only.
Engel argues that a referendum would have without doubt supported Capital Punishment. 'Public opinion polls, except in Scandinavian countries, were consistently in favour of the death penalty' and in 1969 a United Kingdom survey reported that 'a substantial majority of men and women favoured the return of the death penalty for certain types of murder'. She suggests that New Zealand voters in 1957 would not have 'proved themselves more enlightened than their European and North American counterparts'.
After Labour won the 1957 election, the Attorney-General announced that it would follow its former policy of commuting the death sentence to life imprisonment. The Crimes Bill, introduced by the National government at the end of its term in 1957 and that dealt with Capital Punishment was shelved. When Labour then lost the 1960 election, the National Government that came in had abolitionist J.R. Hanan as Minister of Justice and Dr J L Robson, who also opposed to the death penalty, as Secretary for Justice. Hanan requested that Robson proceed with a ministerial report setting out the case for the complete abolition of the death penalty.
The report attacked the deterrence theory; suggested the death penalty ignored the principle of all punishment which was the reform of the offender; discussed the risk of an error in justice which could cause the execution of an innocent man; and stressed the 'great strain the process of execution imposed on officials, and detailed breakdowns in health which had occurred as a result'. The moral arguments against the death penalty were rounded off by John Bright's dictum that 'the best means of cultivating respect for human life were to refrain from taking it in the name of the law'.
When it was initially introduced, the Crimes Bill included a compromise clause which stipulated different degrees of murder. The intention behind this was that the death penalty would apply only for deliberate and premeditated murder, for homicide in the course of another crime or in flight from the law, where there was a previous conviction for murder, or a second murder. Hanan, however, argued that there was no 'compromise clause' that could be drafted that did not have serious flaws and indicated that another Member (Aderman) would be moving an amendment for total abolition of the death penalty which he would support. This amendment was subsequently passed with the support of the Opposition and ten Government members crossing the floor.
Engel notes that the reason for the Government Members crossing the floor was often attributed to the fact that they wanted to see the end of 'hanging by politics'. However, she suggests that this was not the real reason; Hanan and Aderman were long-term abolitionists whose motives needed no explanation. She suggests the others voted for a variety of reasons, including that the death penalty was not a deterrent to murder; that it was seen as 'the natural instinct of outrage, anger and the desire for revenge' (Muldoon); that it did not make sense when murder in 'the heat of the moment' received the death penalty or life imprisonment but when 'through inattention, carelessness or drink' someone kills in a motorcar, the event is not treated very seriously (Macintyre); the possibility of execution of an innocent person (Pickering); and that murder was usually the result of a 'twisted mind' that did not qualify for the death penalty (Talboys).
Steiner claims that in its 1961 report, the Justice Department recommended abolition primarily on the basis that the state could not legitimately take life as it could not be shown that its actions had a deterrent effect on the murder statistics. The report emphasised the comments of the (1958) Massachusetts Commission on Capital Punishment:
"The only moral ground on which the State could conceivably possess the right to destroy human life would be if this were indispensable for the protection or preservation of other lives. This places the burden of proof on those who believe that Capital Punishment exercises a deterrent effect on the potential criminal. Unless they can establish that the death penalty does in fact protect other lives at the expense of one, there is no moral justification for the State to take life."
In the years following the 1961 abolition of the death penalty there was little public enthusiasm for its reinstatement. Steiner mentions two National Party conference motions, one in 1961 to reinstate the death penalty, and another in 1976 to reintroduce flogging, which were both easily defeated. However, Steiner also notes that a number of opinion polls over the period 2004-2007, which may not be particularly reliable, appear to indicate that a significant number of New Zealanders would support reinstatement of the death penalty for some crimes. He notes that 'The continued sensationalisation of crime by the media has a lot to do with these findings. People are bombarded by images of the raw emotion from the victims and their families and informed of every sickening detail of the crime. The harsh reality of Capital Punishment is a million miles away from public consciousness, and it is easy to see why retributivist support for its practice lingers.'
Staff of The Nathaniel Centre
[a] There were a number of reasons for legislation not being introduced: the Labour Government had a full legislative programme, there were relatively few murders between 1936 –40 and, as it transpired later, the Prime Minister, Peter Fraser, was actually opposed to abolition.
[b] 'Bodgie' - a youth, especially of the 1950s, analogous to the British Teddy boy; often viewed as delinquent, 'bodgies' adopted particular clothing styles and frequented 'milk bars'.
 Engel, Pauline F. "The Abolition of Capital Punishment in New Zealand 1935 – 1961". Department of Justice, Wellington, 1977, p. 19.
 Ibid., p.23
 Ibid., p.21
 Ibid., p.22
 Ibid., p.27
 Ibid., p.39
 Ibid., p.56
 Ibid., p.56
 Ibid., p.56
 Yska, Redmer "All Shook Up. The Flash Bodgie and the Rise of the New Zealand Teenager in the Fifties". Penguin Books, Auckland, 1993, p.192.
 Engel, op.cit., p.58
 Ibid., p.59
 Ibid., p.60
 Ibid., p.60
 Ibid., p.60
 Ibid., p.61
 Ibid., p.61
 Steiner, op.cit., p.33
 Engel, op.cit., p. 72
 Ibid., p.73
 Ibid., p.74
 Ibid., p.74
 Ibid., p.80
 Ibid., p.81
 Ibid., p.99
 Steiner, op.cit., p.25
 Ibid., p.49
Editorial: Euthanasia, democracy and public policy – lessons from the abolition of capital punishment
When capital punishment was finally abolished in 1961 (see article in this issue), the abolitionist cause represented a minority view in New Zealand; fewer than one-third of people supported it. As Leon Gotz proclaimed: “In demanding the punishment for these vile crimes should be the forfeiture of the offender’s lives, I am expressing the opinion of the majority of New Zealand.”1
Robert Muldoon was one of ten National MPs to cross the floor and support abolition. At the time he acknowledged: “Abolishing capital punishment was contrary to popular opinion and the majority of people in New Zealand are not ready to accept it. However, Parliament should give a lead to public opinion.”2
Controversial issues such as capital punishment, and in our time euthanasia and assisted suicide (EAS), give us pause to reflect on the nature of democracy and, specifically, the role of MPs in shaping public policy. Gotz and Muldoon represent two very different approaches to understanding the nature of parliamentary leadership: (i) following closely the opinion of the public and voting according to popular opinion (taking the lead from one’s constituents) and (ii) voting according to one’s carefully formed and well researched views, taking account of but not being swayed by the opinion of the majority while being willing to vote against public opinion if one’s conscience dictates.
Put simply, the latter approach is premised on a belief that the formation of public policy should not be reduced to measuring public opinion. To paraphrase Muldoon: there are times when MPs should give a lead to public opinion. In a democracy such as ours, where 64 out of the 120 seats are electorate seats, this second approach to leadership is potentially costly at election time and will, therefore, demand of our MPs a high level of personal integrity and courage.
Reflection on the issues and challenges that MPs faced when dealing with the issue of capital punishment generates valuable insights for the current debate about EAS.
- Proponents of EAS repeatedly appeal to public opinion as a reason for changing the law. Their assumption is that majority public opinion is enough to determine public policy. In 1956, the Prime Minister Rt Hon Sydney Holland proposed that the issue of capital punishment be submitted to a referendum as a solution to the continued politicisation of the issue: “let us trust the people … Let us take it out of the hurly-burly of politics”. In response, Labour argued strenuously that capital punishment should be left to parliamentary responsibility; the issue was too complex and required dispassionate consideration. Many argued a referendum was inappropriate because emotions could be stirred up by a particularly brutal or nasty crime just before a referendum creating a serious bias. In a similar way, presentation of the high-profile, difficult cases can generate emotions that obscure people’s ability to take full account of the broader questions relating to the legalising of EAS.
- As was the case with capital punishment, media presentation of the issues surrounding EAS shows a distinct bias towards legalisation. Just as particular crimes became a focus for those arguing against abolition, so the media stories surrounding EAS have mostly focused on the single, emotive cases. For a more balanced and robust discussion to happen, there needs to be a deeper and more balanced exploration of the likely effects on society as a whole. The Justice Department report on capital punishment finally argued a ‘moral’ case against the death penalty; that on balance respect for human life was best protected when the law forbade it. The same argument can be made about EAS.
- The reinstatement of the death penalty in 1950 meant that the effects on those involved in the hangings began to be noticed; for many the impact was significant, taking an emotional and physical toll. These side effects were not necessarily immediate. Likewise, when considering the case for EAS, we must take into account the impact on those who would have to facilitate it, including the negative effects it would have on the medical profession and the doctor-patient relationship.
- Many MPs were persuaded by the fact that if the justice system was subsequently discovered to have wrongly convicted someone, there could be no going back. In New Zealand we now know that at least one innocent person would have been hanged if capital punishment had not been abolished - Arthur Allan Thomas who was convicted of murder in 1971 but received a Royal Pardon in 1979. With EAS there is a high possibility that a diagnosis and/or prognosis will be wrong. The argument that one innocent life lost is sufficient to justify the abolition of capital punishment is even more relevant to the euthanasia debate because of the risk of large numbers of lives being prematurely ended.
We hope that the Health Select Committee investigation into EAS enables the sort of robust debate and parliamentary leadership that was exemplified by the MPs who dealt with capital punishment.
Dr John Kleinsman is the director of The Nathaniel Centre and Sue Buckley is a researcher at The Nathaniel Centre.
Euthanasia polls: What do they really tell us?
In recent years, various polls seeking the views of the New Zealand public on euthanasia and assisted suicide have consistently reported that 60-70% of people support their legalisation,1 leading Horizon researchers, for example, to conclude that “Supporters of end of life choice … form a strong majority”2 in New Zealand and the Voluntary Euthanasia Society (VES) to state with confidence that “most New Zealanders support aid-in-dying legislation.” 3
The terminology and questions used in such polls are, however, rarely analysed and the results of these polls are rarely dissected or challenged. All of which means that the conclusions we draw from them need to be treated with caution. As Marcoux et al noted in 2007: “… the use of the argument that public opinion is in favour of euthanasia to support changing laws must be critically examined. There are methodological problems in the wording of survey questions that can bias responses, and the validity of responses may be compromised by pervasive misunderstandings of what euthanasia means.” 4
This article will seek to shed some light on the strengths and limitations of a number of polls carried out in New Zealand and around the world with a view to offering a more nuanced analysis.
A number of overseas polls have shown that people’s willingness to support the legalisation of assisted suicide and/or euthanasia depends on the language employed in the questions – specifically whether ‘softer’ or euphemistic descriptions such as ‘medically-assisted dying’ are used rather than those containing alternative technically correct terms such as ‘suicide’.
For example, a 2005 poll carried out by the Pew Research Center for the People and the Press reported: “The survey found that 44 percent of respondents favored making it legal for doctors to ‘assist terminally ill patients in committing suicide’ when the question was worded this way. But support for the practice rose slightly, to 51 percent, when people were asked if they favor making it legal for doctors to ‘give terminally ill patients the means to end their lives.’”5 A 2005 Australian study which investigated cancer patients’ views on euthanasia and physician-assisted suicide likewise concluded that “professed support can depend upon the individual’s own definition, the language used in questions and the specificity of questions.” 6
Similarly, a 2013 Gallup poll found “70% of Americans in favor of allowing doctors to hasten a terminally ill patient's death when the matter is described as allowing doctors to ‘end the patient's life by some painless means.’ At the same time, far fewer – 51% – support it when the process is described as doctors helping a patient ‘commit suicide’.”7
A lack of consistency in the terminology used, as well as a propensity by of many pollsters to use softer language, characterises many New Zealand polls.
The 2005 Australian study referred to above also demonstrates that many poll respondents who profess support for assisted suicide and/or euthanasia do not understand the distinctions between these and withholding or withdrawing treatment. “Researchers need to be circumspect about framing and interpreting questions about support of ‘euthanasia’, as the term can mean different things to different people, and response may depend upon the specifics of the question asked.”8 In this study, interestingly, “79% of patients said they supported the idea of euthanasia, and 70% agreed ‘a doctor should be able to assist a patient to die’, [yet] 80% did not agree that ‘doctors should be able to kill their patients’.” 9
When terms such as ‘medical aid in dying are used’ the confusion is even greater. A 2013 Canadian survey by Ipsos Marketing, for example, specifically set out to assess what was understood by the people who supported ‘medical aid in dying’. This survey showed one third of Quebecers interpreted the phrase as being a patient’s request for lethal injection by a medical professional, while nearly 30% understood that it meant relieving symptoms through palliative care. Finally, nearly 40% of those surveyed associated it with a discontinuation of intensive medical treatment, or with assisted suicide. The researchers then concluded: “It is therefore essential to clarify applicable terms and tangibly convey the true definition of euthanasia, and avoid using even vaguer expressions such as ‘medical aid in dying’.” 10
Real World Scenarios
A further challenge when interpreting public opinion polls arises from the fact that the nature of the question or questions asked means that the views of respondents are often based solely on hypothetical scenarios.
Emanuel et al11 illustrate this clearly in their 2000 investigation into the attitudes of terminally ill cancer patients. While 60.2% of the participants supported euthanasia in a “hypothetical” situation, only 10.6% indicated that they would seriously consider euthanasia or physician assisted suicide for themselves. This result accords with an earlier study in which it was noted that people’s responses change according to the amount of detail they are given about personal circumstances – the proportion of the general public who agreed with euthanasia for unremitting pain was 66% but this dropped to 49.2%, 36.2% and 29.3% respectively for the categories “functional debility”, “burden on family” and “view life as meaningless”.12
Similarly, in a 2014 Comres/CARE poll carried out in the UK, 73% of those polled indicated support in principle for a Bill designed to enable mentally ill competent adults in the UK who are terminally ill and with a clear and settled intention the right to be provided with assistance to commit suicide by self-administering drugs.13 However, when those who supported assisted suicide in principle were offered a series of practical considerations (such as people feeling pressured so as not to be a burden and the steady rise of numbers in jurisdictions where it is legal), a large proportion, 42% of them changed their minds on the basis of at least one of the arguments. When these figures were added back into the original sample, aggregating all who opposed as a result of the arguments presented while incorporating all who still supported assisted suicide in spite of the arguments, the final result was 43% in favour, 43% opposed and 14% don’t know.
Meanwhile in New Zealand, close scrutiny of the 2012 Horizon Poll already referred to (which shows that 62.9% would support “mentally competent adults in New Zealand to receive medical assistance in ending their life if they are suffering from a terminal illness or an irreversible physical or mental condition that in their view renders their life unbearable”) reveals that people’s support is heavily premised on the need for, and belief in the effectiveness of, strict controls. As the researchers note: “The need for strict controls, like those measured in the survey, is demonstrated by support for them exceeding support for end of life choice overall.”14 As far as this poll goes, therefore, the more adequate and honest conclusion to draw is that 62.9% of New Zealanders believe in receiving medical assistance to end their life on the assumption that harms to others can be prevented by strong and effective safeguards. In the face of international evidence that safeguards are problematic and ineffective15, it is less than honest to use this poll to claim, as the Voluntary Euthanasia Society of New Zealand do, that most New Zealanders would in reality support euthanasia or assisted suicide legislation.
The 2012 Horizon Poll demonstrates that the willingness of New Zealanders to support euthanasia or assisted suicide in New Zealand is premised on an assumption that strict and effective controls can be put in place. Overseas research challenges this assumption; moreover, when polls include additional information about the complexities and risks, the numbers of people prepared to support a law change drops significantly. Overseas research also shows that people often fail to understand the terminology being used as well as the ethical distinctions between euthanasia and/or assisted suicide and withdrawing or withholding treatment.
Because most of the New Zealand polls relied on and quoted by proponents of change have failed to provide the level of nuanced questioning and information that would be required to confidently say their results are reliable, it is incorrect to say that “most New Zealanders support aid-in-dying legislation”16 or to assume that this reflects people’s informed views on euthanasia.
As our Prime Minister Hon John Key, who has previously declared his personal sympathy for a law change, noted recently: “Striking the right legislative balance with both clear definitions and adequately strong protections is an extremely difficult task, and that no bill has yet passed on this issue is testament to that.” 17 A true indication of New Zealanders’ support for euthanasia or assisted suicide will only be possible if and when polls take proper account of people’s understandings of the definitions and complexities associated with the practice of euthanasia and/or assisted suicide.
Dr John Kleinsman is the director of The Nathaniel Centre
 See “Legalisation of Euthanasia in New Zealand: Surveys in New Zealand” at http://policyprojects.ac.nz/jasonrenwick/surveys-in-new-zealand/
 See, for example, Horizon Research, "New Zealanders' views on End of Life Choices," (Auckland, New Zealand2012). at http://www.horizonpoll.co.nz/attachments/docs/horizon-research-end-of-life-choices-survey--1.pdf, accessed 1 May 2015.
 See http://www.ves.org.nz/, accessed 1 May 2015.
 Marcoux, Isabelle, Brian L Mishara and Claire Durand (2007) “Confusion between euthanasia and other-end-of-life decisions: Influences on public opinion poll results” Canadian Journal of Public Health 98: 238.
 See: “The Right-to-Die Debate and the Tenth Anniversary of Oregon’s Death with Dignity Act” at http://www.pewforum.org/2007/10/09/the-right-to-die-debate-and-the-tenth-anniversary-of-oregons-death-with-dignity-act/, accessed 17 August 2015.
 Parkinson L et al. Cancer patients’ attitudes towards euthanasia and physician-assisted suicide: the influence of question wording and patients’ own definitions on responses. J. Bioethical Inquiry 2005, 2: p. 88.
 Gallup, "U.S. Support for Euthanasia Hinges on How It's Described," (Washington2013). at http://www.gallup.com/poll/162815/support-euthanasia-hinges-described.aspx
 Ibid., p. 82.
 Ibid., p. 88.
 Ipsos Marketing, "Survey among the Canadian population about end of life issues," (Canada: Ipsos Marketing, 2013), p. 5.
 Emanuel EL, Fairclough DL & Emanuel L. “Attitudes and desires related to euthanasia and physician assisted suicide among terminally ill patients and their caregivers.” JAMA 2000 284:2460–2468.
 Emanuel EJ, Fairclough DL, Daniels ER, Clarridge BR. "Euthanasia and physician-assisted suicide: attitudes and experiences of oncology patients, oncologists, and the public." The Lancet 347(1996).
 ComRes, "Care - Assisted Suicide Poll," (United Kingdom2014). at http://www.comres.co.uk/wp-content/themes/comres/poll/Care_Assisted_Suicide_Poll_July_2014_(with_summary_table).pdf
 Ibid., p. 4, emphasis added.
 See, for example, Golden M, and Zoanni T. "Killing us softly: the dangers of legalizing assisted suicide," Disability and Health Journal 3, no. 1 (2010); Dr David Jeffrey quoted in Health and Sport Committee, "Stage 1 Report on Assisted Suicide (Scotland) Bill," The Scottish Parliament, http://www.scottish.parliament.uk/S4_HealthandSportCommittee/Reports/her15-06w.pdf at para. 175;Barron H. Lerner and Arthur L. Caplan, “Euthanasia in Belgium and the Netherlands. On a Slippery Slope?” JAMA Intern Med. Published online August 10, 2015.
 See http://www.ves.org.nz/, accessed 1 May 2015.
 Email sent to writer on behalf of the Prime Minister,
Creating Welcoming Churches: a disability resource for faith communities
Rev. Vicki Terrell
Whether someone comes to church as a casual visitor or is part of the regular congregation, the environment needs to be welcoming. “Creating Welcoming Churches a disability resource for faith communities” (CWC) is a practical guide on how to make church environments more accessible to all people including people living with disability. It was launched in Auckland and Wellington late last year, 2014. The book was made possible through funding from the Joint Special Project Fund of the Association of Presbyterian Women and Methodist Women’s Fellowship in 2013.
CWC was produced by the Disability, Spirituality and Faith Network Aotearoa New Zealand which has strong links both in the church and the disability communities. Most people within the network have (lived) experience of disability. We are passionately committed to making the church a place where all people are affirmed as having gifts to share because we are all made in the image of God.
CWC came from the desire to have a practical book about access to help churches become more welcoming to disabled people. Originally it started with someone asking whether the“Holy, Wholly Accessible” document, produced for the Anglican Diocese of Wellington in 1998, could be reproduced for other churches.
While agreeing in principle that this was good idea, the project grew as we realised that there had been other books published since 1998and the thinking around disability had changed rapidly in the last 15 years. The challenge thenbecame what would make this book new as well as useful for faith communities.
The rise of the social model of disability (as opposed to the medical model) and the United Nations Convention on the Rights of People with Disabilities, have helped people to understand thatmany barriers faced by disabled people are in the environment and in theattitudes of others. These barriers hinder the full and effective participation of people with disability in society on an equal basis with others.
For many in the group, much of the traditional theology linking disability with healing was problematic. Some people in the group wanted the book to reflect current thinking in the disability sector that communities need to be inclusive environments where all people are welcomed and valued for who they are. In the introduction to CWC the writer interweaves current thinking on disability and inclusion with theological reflection.
The theology of accessibility underpins the entire book. The two basic tenets are
- All people are made in the image of God
- People who follow Christ are called to serve and be served as members of Christ’s body.
The challenge becomes how does the church welcome and enable each member to fulfil their ministry.
The “Information, attitude, action” section has lots of practical suggestions for making buildings, liturgy and community events accessible. While assisting disabled people, many of the suggestions help other people, particularly children and immigrants, to participate more fullyin ministry.
There is advice on interacting with people with disabilities, their equipment and service animals. Much of this information was gathered from people active in the church who have a lived experience of disability. Becoming totally accessible is hard and the book may have errors and shortcomings and we invite critical comments so we can incorporate new learnings in further editions.
Real (life) experiences are highlighted in the book through quotes from disabled people about their experiences in a particular church. There are also stories of churches being welcoming to disabled people. Some are about physical changes which have been made and others reflect on the presence of disabled people in their congregations.
The book has been well received by churches because it addresses theology and practical issues in a clear and concise way alongside personal stories. Many people have commented on the clear layout and how easy it is to follow. There are alreadysigns that some people are thinking differently because of the book. It gently challenges some of the patronising attitudes and encourages a respectful engagement with disabled people as people made in the image of God.
I have been pleasantly surprised by the enthusiasm of the disability sector for this book. It has sparked interesting conversations and people working on disability/accessibility areas outside the church have asked for copies. The time spent in careful consideration of the changes in disability thinking and the emphasis on inclusion has paid off because it has credibility in the disability community. There is a real gap in practical resources for community groups who want to become more accessible to all including disabled people. The usefulness of this book goes beyond the church and it maybe a gift to other community groups who are trying to become more accessible to all people particularly disabled people.
Rev Vicki Terrell is an Anglican priest in the Diocese of Auckland and the writer and researcher for Creating Welcoming Churches. Her commitment comes from the two main strands in her life: Christian faith and lifelong impairment.
Copies cost $15 including postage.
The Trans-Pacific Partnership and issues of social justice
That a marvelous order predominates in the world of living beings and in the forces of nature, is the plain lesson which the progress of modern research and the discoveries of technology teach us. And it is part of the greatness of man that he can appreciate that order and devise the means for harnessing those forces for his own benefit... Yet there is a disunity among individuals and among nations which is in striking contrast to this perfect order in the universe.1
– Pope John XXIII
In theory, patent law 'harnesses the forces' of knowledge and innovation by creating an incentive to invent and by providing for both the protection and dissemination of information, for the benefit of society. Indeed, translating an invention into a patentable product can be a long, complicated and expensive process. Imitating or replicating the product of invention, on the other hand, is relatively cheap and easy, and undermines this innovation process. Therefore, by imposing temporary restrictions on access to and use of information and ideas, patenting gives people an incentive to innovate and to publish their invention. The assumption is that because this stimulates research and development and enriches the public domain with knowledge and technology, it is to the benefit of all.
In reality, however, a property-based understanding of justice and an emphasis on patentability rather than practicality creates 'disunity among individuals and among nations'. Goods and services, including medicine and health care, become transactional resources, and socio-economic development becomes a disturbing reproduction of inequality, as resources are available only to those (individuals and/or nations) who can afford them. Our existing international agreements perpetuate these problems. The proposed Trans-Pacific Partnership Agreement (TPPA), as leaked, will exacerbate them even further.2
So what exactly is the problem with a property-based conception of justice? According to John Locke, "The great and chief end...of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property."3 Preceding Locke, Galileo foresaw the importance of this preservation of property specifically in the context of innovation: "It does not suit me that the invention, which is my property and as created by me with great effort and cost, should become the common property of just anyone..."4. Therefore, the concept of exclusive property is central to our sense of society and individual freedom, indeed even justice.
However individual rights are never absolute, and to claim that a patent confers upon the owner an absolute and unfettered right to use its intellectual property (IP) as it wishes, "is no more correct than the proposition that use of one's personal property, such as a baseball bat, cannot give rise to tort liability"5. Herein lies the central problem. A property-based conception of justice legitimises inequalities, on the basis of a welfare maximisation calculus that does not account for different circumstances, nor issues of accessibility and redistribution. Rather, this calculus assesses feasibility in terms of a net increase to welfare and to the quality of health care; indiscriminate as to whom this increase benefits or disadvantages and, as a result, it is the underprivileged that continually miss out.
To qualify for protection as a patent, an invention must be new, non-obvious and useful. The modern emphasis on technological advancement has, however, encouraged legislators, IP offices and the courts to interpret this so as to maximise eligibility for patenting and, therefore, further foster innovation. Thus, these rights become both easier to obtain and more readily sought, and their quality and value diminishes. It leads to premature patenting of whole gene sequences and genetic substances, for example, in exchange for information that is limited and incomplete. Ultimately, this overcompensates patent-holders and undermines technological and social development, which is the supposed rationale for patenting.
The emphasis on patentability, and patent protection as the ends, also creates inefficient races between potential patent-holders, particularly in profitable areas, leading to unnecessary duplication of research, and wasted resources. More significantly, this reflects the fact that profitability is the stimulus for innovation, such that medicines for rare diseases, and for those among lower socio-economic groups are not developed. This creates classes in terms of the availability of medicine and health care, and increases inequalities. Patents become a tool for large corporations to advance their economic growth and establish market dominance, rather than an incentive for socially valuable research.
This represents an inequitable bargain between society and patent-holders, one that is inevitably in favour of powerful stakeholders and their private economic interests. The principles of social justice, on the other hand, dictate that we should treat property and IP not as the foundation of society and justice, but as a tool for achieving a sustainable society of justice and equality. In practical terms this means accounting for different needs and circumstances through flexibility, and restricting the power and control of patent-holders, whereby their rights are confined within fixed parameters and better balanced with their duties.
The existing Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an international agreement on minimum IP standards, attempts to reach a compromise between developed and developing countries, providing for the flexibility and fixed parameters envisioned above, at least on paper. The problem is, it assumes free and informed consent on the part of all its members as if they all have equal negotiating power, and as if the interests of all members are communicated by effective and representative democracies. It also assumes that members will be able to use these measures for flexibility freely, and without fear of tariffs and trade sanctions. Moreover, it assumes that future trade agreements will not further undermine these measures.
In reality, however, these [measures] are given the absolute minimum consideration by the community of people who interprets them. Developed countries and multinational corporations are putting strong pressure on developing countries wanting to use TRIPS' flexibility and, above all, are negotiating bilateral and regional free-trade agreements to impose more severe and contingent IP standards than those outlined in TRIPS.6
The Doha Declaration, in response, offers a more equitable and truly flexible approach to TRIPS and international IP law, with a domestic needs perspective. But this is only another step in the right direction. And now, the proposed TPPA threatens to negate these steps towards a more fair and sustainable approach. It does not do so by imposing stricter standards on those developing countries considered above (they are not party to the TPPA), although it will have the effect of putting pressure on them, but rather by undercutting TRIPS and its value for these countries, and by increasing the power of those (countries and corporations) whose interests subordinate these countries.
The first (leaked) draft of the TPPA omitted any mention of the Doha Declaration, and the second (leaked) draft makes only brief and heavily qualified reference to it, which does not inspire confidence. This is particularly concerning in light of the proposed expansion of the scope of patenting. Such expansion, as proposed largely by the United States and Japan, could prevent parties from denying protection if "the product [does] not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features"7. This is cause for more concern in terms of the quality and value of patents. More fundamentally, however, a wider scope for patent protection does not by any means create any further opportunities for developing countries to enjoy the benefits of IP and innovation. Instead it again favours those who already have the wealth and resources to expand, reinforcing the existing inequalities.
The good news is that, according to the leaked documents, New Zealand opposes proposals (such as that above) for significant expansion of patent protection8. The bad news is that our representatives, and those of the other parties, continue to discuss the TPPA behind a shroud of secrecy that thwarts public discussion and participation. Further bad news is that these negotiations, like those concerning TRIPS, are characterised by a typical disparity in bargaining power that ultimately serves the interests of the more powerful (countries and corporations). To the extent that this subordinates the interests of developing countries and stifles their economic growth, our involvement only supports such injustice.
A number of commentators have highlighted the fact that the TPPA poses potentially serious consequences for New Zealand, in terms of pricing and availability of medicine and health care, and bargaining power for purchasing pharmaceuticals. While this is a real concern, we should indeed be equally (if not more) concerned about the significant threat to global health care and equality, or at least the steps already made towards equality. The clear emphasis on property, patentability and profit ignores those whose needs are not voiced by purchasing power and instead serves those whose interests are largely private and economic.
By individualizing creation, by disembedding it from the social milieu from which all knowledge is drawn, intellectual property rights deny the importance of the public realm, and by doing so reward only a small group of rights holders rather than the carriers of social knowledge, and, more importantly, ignoring the social welfare benefits of those excluded from use, not by ignorance or lack of interest, but by their poverty.9
While it might be argued that we need more empirical evidence to prove the positive correlation between patent protection and innovation, we need no further evidence, as Pope Francis reminds us, for the fact that "each meaningful economic decision made in one part of the world has repercussions everywhere else; consequently, no government can act without regard for shared responsibility"10. We must understand the ramifications of the TPPA not just for New Zealand but also and above all for developing countries that are not party to this agreement. We must encourage our government to act with transparency and integrity, and with regard for the significant global concerns for which we share responsibility.
Daniel Kleinsman LLB, completed his Law Degree at Victoria University of Wellington in 2014. He has experience in the area of intellectual property law.
John XXIII, Pacem in Terris, http://w2.vatican.va/content/john-xxiii/en/encyclicals/documents/hf_j-xxiii_enc_11041963_pacem.html. Accessed 20 March 2015.
WikiLeaks, https://wikileaks.org/tpp-ip2/, accessed 20 March 2015.
 John Locke, Second Treatise of Civil Government: The Ends of Political Society and Government (1690), Chapter IX.
 Cited by R Hewitt Pate, Competition and Intellectual Property in the US: Licensing Freedom and the Limits of Antitrust, p 60.
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).
Louise Bernier, Justice in Genetics: Intellectual Property and Human Rights from a Cosmopolitan Liberal Perspective (Edward Elgar, 2010), p 139.
Wikileaks, https://wikileaks.org/tpp-ip2/, Article QQ.E.1: Patents / Patentable Subject Matter
Ibid., (see also Paper submitted by NZ on IP Proposal: http://www.citizen.org/documents/NZleakedIPpaper-1.pdf).
Louise Bernier, Justice in Genetics: Intellectual Property and Human Rights from a Cosmopolitan Liberal Perspective (Edward Elgar, 2010), p 111.
Francis, Evangelii Gaudium: http://w2.vatican.va/content/francesco/en/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium.html. Accessed 20 March 2015
Facebook in ethics face-off
Sue Buckley and John Kleinsman
The publication of a research paper that investigated the "emotional contagion" of 700,000 randomly selected Facebook users received extensive publicity recently because of the methods used by the researchers.
Two groups of Facebook users had their news feeds manipulated with a view to assessing its impact on their emotions. In one group, exposure to friends' positive emotional content in their News Feeds was reduced; in another group exposure to friends' negative emotional content was reduced. The effect on the participants was then measured by examining the emotionality of their status updates.
In explaining their project, the researchers stated that they used word-counting software, which meant that original posts were not viewed by them. As such, they considered that it was consistent with Facebook's Data Use Policy to which all users agree. They further claimed that the Data Use Policy precluded the need to seek additional consent from the study group. In addition, it was later claimed that as the experiment was conducted by Facebook for internal purposes, there was no obligation to "conform to the provisions of the Common Rule" which protect human research subjects.
However, there has been widespread questioning and criticism on the grounds that the researchers failed to obtain adequate informed consent from the unknowing participants. In response, one of the research authors appealed to the need for the research to take place: "We felt that it was important to investigate the common worry that seeing friends post positive content leads to people feeling negative or left out. At the same time, we were concerned that exposure to friends' negativity might lead people to avoid visiting Facebook." He also stated: "... our goal was never to upset anyone. I can understand why some people have concerns about it, and my coauthors and I are very sorry for the way the paper described the research and any anxiety it caused."1 However, he conveniently fails to address the issue of informed consent.
So, if the intention of research is never to upset anyone, if there is little reason to expect that it might be harmful and if there is a good reason for undertaking it, why is it important to gain informed consent? In answering this question it must be remembered that the Facebook researchers were not just observing behaviour but were specifically aiming to manipulate the emotions of the participants by an intentional intervention. As one commentator noted: "The study harmed participants, because it changed their mood".2
It is a well-established principle within research ethics that any research involving an intervention requires fully informed consent and should be overseen by an ethics committee independent from both the researchers and the organisation or company instigating the research. This means that participants should (1) know they are being experimented on; (2) be given clear information about the research; and (3) be informed of both the risks and benefits. The only exception to this would be in circumstances where, for various reasons, participants are unable to give consent, in which case consent must be sought from someone legally entitled to provide consent for them.
The history of 'informed consent' in research goes back to the Nuremberg Code of 1947, developed after the Nuremberg trials at the end of the Second World War. These trials exposed research by Nazi doctors on Jews which included the murder and torture of the participants, all done without consent. Since that Code was developed there have been numerous and serious instances of unethical research where consent was not obtained, including the 'Unfortunate Experiment' at National Women's Hospital in Auckland where the conventional treatment for carcinoma in situ (CIS) was withheld from some women without their knowledge. It is worth noting that the researcher, Dr Herbert Green, had no intention of harming anyone and felt it was important to test his theory that women were being over-treated.
Even if Dr Herbert Green's theory had been right, the fact remains that his research would still have been unethical because informed consent was not obtained. Participants in research always have a right to know the risks they are exposed to and, even more fundamentally, a right to know that they are involved in interventional research. There was also a lack of independent oversight of Green's research.
Research can never be judged to be ethical on the basis of its intended outcome alone. Neither does a good outcome justify an unethical research process. Good research is always ethical from its inception. No interventional research should ever be undertaken without informed consent. The Facebook research clearly went beyond benign, anonymous, observational monitoring, which meant it required informed consent. Neither was it subject to any sort of independent scrutiny. Even if it is true that the risks for the Facebook experiment were low, there is an important principle at stake here, which must be upheld.
In the same way that stealing is stealing no matter what amounts are involved, so we all have a right not to be experimented on without our knowledge whatever the nature of the research.
Sue Buckley is a researcher for The Nathaniel Centre and John Kleinsman is director of The Nathaniel Centre
1. Kramer, Adam D.I. Facebook post, June 30th 2014. https://www.facebook.com/akramer/posts/10152987150867796
2. James Grimmelmann, professor of law at the University of Maryland, quoted in the Guardian, 30 June, 2014. http://www.theguardian.com/technology/2014/jun/30/facebook-emotion-study-breached-ethical-guidelines-researchers-say
Election 2014: A statement by the Catholic Bishops of New Zealand
A statement by the Catholic Bishops of New Zealand
“The goal of economics and politics is to serve humanity, beginning with the poorest and most vulnerable wherever they may be, even in their mothers’ wombs.”
Election year debates are an opportunity for taking our faith into the public arena; for discussing and debating our deepest hopes and values for a better society; for challenging complacency in the face of injustice; for deepening our understanding of issues that affect our neighbours and for forming our consciences. Our deepest and most important values are reflected in the way we participate in elections.
Elections do not begin with the tick we make on a ballot paper, but with the way we engage with the political process.
Even people stirred in different ways by the world’s injustices sometimes see elections as a purely cynical exercise, and feel their participation is insignificant to the final outcome. Some commentators dismiss these attitudes as apathy; but they may also be seen as a sign of disengagement and a loss of faith in political leaders and the political process. This election year we urge all New Zealanders to see election year debates not as marketing exercises, but as an urgent opportunity to argue for and build a society based on the good of each and the good of all.
In many parts of the world, voting is not a free or fair process, or it is not safe to express a political opinion or to participate in political debates. We should rejoice in our right to participate in a fair election process and in free political discussion.
The Catholic Church does not tell people who to vote for. Your bishops will not tell you how to vote.
Catholic teaching advises us on how to think about who to vote for. This takes a bit more work, and a lot more thinking and talking.
No political party or political platform represents the totality of the Church’s teaching, which values human life from conception to natural death; strongly defends and champions the needs of the poor and vulnerable; promotes development which is good for people; demands that we care for the outcast and stranger; and calls us to protect the natural gifts of the environment.
Pope Francis has renewed with vigour and his own personal example the Church’s mission to the poor, with a call for an end to an economy of exclusion, in which people are not just exploited, but discarded and cast aside. In New Zealand disparities between rich and poor have become entrenched in a society that once regarded itself as egalitarian. Struggling families with empty cupboards sometimes live only a few streets away from others for whom the provision of food and other basics is no problem. It is particularly concerning when people live in ignorance, and even indifference, to how their neighbours are faring.
Protecting the most vulnerable members of society is the responsibility of every one of us.
Sometimes there is a tension between issues in an election year. We may feel that we have to choose between important issues – for example, prioritising a politician’s or a party’s position on euthanasia or poverty. Catholic teaching does not trade off the wellbeing of vulnerable groups of people against one another. We seek political outcomes that protect the lives and wellbeing of all vulnerable people.
We have a special responsibility to engage with the political party that we intend to support in an election, and to speak up for the poor and the vulnerable through the whole political cycle. This means challenging all politicians and political parties, especially the one for whom you decide to vote.
Sometimes election year concerns are presented as a list of issues detached from the lives of the real people affected by them. The issues are someone’s reality. We are all challenged as voters to place first in heart and conscience those whose lives are potentially affected by decisions we make as voters. Our fellow New Zealanders matter, and in a world of complex relationships and interdependence, our obligations also extend beyond our own shores.
People living in poverty: It is a matter of shame that many people live in situations of material deprivation in a country like New Zealand which has the resources for all its citizens to live in dignity. We also have a responsibility to reach out to our neighbours in the rest of the world who do not have what they need to survive.
People living with pain, illness or approaching the end of their lives: Each person is precious and valuable at every stage of his or her life. Everyone should receive the healthcare they need, including palliative care at the end of their lives. A life unnaturally cut short through euthanasia or assisted suicide is not death with dignity.
Unborn children: Every child is welcome, no matter the circumstances into which he or she is born.
Abortion is not the answer to poverty, disability, or disruption of lifestyle. Deprivation of life is never a solution.
Refugees, asylum seekers and migrants: Rejection of some groups of new New Zealanders because of their ethnic origins is unacceptable, whether in our own parishes and communities, or as political rhetoric. Millions of people around the world are fleeing violence and conflict. They are simply people seeking help and sanctuary. They have the same right to safety and security as we all have. In a global world, our responsibilities do not end at our own shores.
People in prison: Too many offenders experience New Zealand’s justice system only as punitive and dehumanising, rather than as an opportunity for repentance and restoration. Too many people are in prisons because of unmet mental health needs. No crime is without a victim, and victims of crime deserve the care and support of the community.
People without a vote: Decisions made in the New Zealand election and New Zealand political process affect many others, including those who do not have the ability to take part. Even though they cannot vote, the opinions and experiences of children and young people under the age of 18 are just as important as the views of older people. Prisoners cannot vote, and their needs should be taken into account. Future generations of New Zealanders are also important, as their well-being will depend upon the decisions we make today about the use of the earth’s resources.
Election years are times of significant political choices. Question, discuss, debate, pray, be involved, and speak out for the poor and vulnerable among us as you decide how to cast your vote.
• John Dew, Archbishop of Wellington
• Patrick Dunn, Bishop of Auckland
• Denis Browne, Bishop of Hamilton
• Barry Jones, Bishop of Christchurch
• Colin Campbell, Bishop of Dunedin
• Charles Drennan, Bishop of Palmerston North
• Peter Cullinane, Emeritus Bishop of Palmerston North
Letter to a first time voter
Congratulations on reaching 18. As far as the law is concerned, your mother and I are no longer your legal guardians, you can purchase alcohol, fireworks and buy a Lotto ticket and obtain your own credit card. You can now also vote for the first time. It strikes me that many young people are selective about which new rights they claim and show little interest in the right to vote. I find that sad, particularly when it is a consequence of apathy.
Your great grandfather Daniel and grandfather Owen put their lives at great risk to protect the right to political self-determination. They, along with many other New Zealanders, went overseas to fight for the democracy we have long enjoyed. The right to vote is at the heart of that democracy. Some of them were, like you, just 18 years of age.
When he was your age, your Opa Gerhardus lived under a violent totalitarian regime that denied him many basic human rights including the right to vote, play sport, freedom of association, free speech, listen to a radio and access education – talk to him sometime about what that was like. Then, having come to New Zealand as an immigrant in 1955, he was denied the right to vote until 1978 when he was 52. His first vote was also my first vote!
Reflecting on history helps us recall the importance and privilege of exercising our democratic responsibilities. Your right to vote has been earned for you by your forbears and it bears the stain of blood spilled. When you vote you honour them and their commitment.
The issues we face today are many and can seem overwhelming: global warming, refugees, immigration, child poverty, family violence, growing inequality, support for beneficiaries, euthanasia, abortion, health-funding, racism, education, housing and prison reform, just to name some of the ‘neon-light’ issues. I hear you ask: “How can I possibly deal to all of these issues?”
It’s hard to summon the energy needed when we have not stood in the shoes of those who experience disadvantages. But it is even harder for them. By comparison, you have had a privileged up-bringing and they need your help. As Edmund Burke said: “For evil to succeed, it only needs good people to do nothing.”
Continue to learn and think about those whose experience of life is different from yours, especially those who struggle for the basic things that you might not think twice about. In Catholic Social Teaching we refer to this as taking a ‘preferential option for the poor’, something grounded in the biblical tradition and exemplified in the life of Jesus. Study the party policies and reflect on how they either help or hinder those most disadvantaged. Cast your vote always with them in mind rather than your own well-being.
You enjoy the outdoors and feel strongly about the environment. You also care about other big life issues, including euthanasia and abortion. It gets confusing when, within parties, there are inconsistencies and even contradictions in their policies. Politics is complex and messy. Firstly, resist the temptation to see things as ‘black and white’. Secondly, within our current voting system, you get two votes; one for the party and one for the electorate. An approach I recommend is to cast your electoral vote for the candidate who will best represent your views on the issues on which there should be no compromise – often described in parliament as ‘conscience votes’ – and to give your party vote to the party you think has the better policies regarding the bigger-picture social issues which can allow, or even require, a bit of give and take.
Even then, it is likely you will find yourself having to make compromises by voting for a politician or party at odds with certain beliefs you hold dearly. In which case, remember that it is possible to influence MP’s thinking after the election through information and political lobbying. Not being able to vote for the ideal doesn’t necessarily mean compromising your beliefs or commitment to greater justice. In other words, see your ‘right’ to vote as being more like a ticket that gives you life-long entry to the stadium of political engagement rather than a one-off happening every three years – i.e., be an active voter.
Lastly, believe that your involvement in the political process, insignificant as it seems, can make a real difference. Pope Francis writes that we are “small, yet strong in the love of God”. I like that. He has also said that we are each called to watch over the world in which we live. As Catholics we stand for certain things, and we also need to stand-up for certain things. Voting and getting involved in political advocacy is an important way for you to live out your call to follow Jesus.
Grace, having turned 18, you are now being invited to play your part in making our country and the world a better and more just place … and I know you are ready to do that.
Your loving Dad
Dr John Kleinsman is the director of The Nathaniel Centre
Promoting good discussion on public issues
For the last four years I have been building and directing New Zealand’s first Centre for Theology and Public Issues. Based in the Department of Theology and Religion at the University of Otago in Dunedin, the centre is one of several ‘public theology’ institutions around the world, with a remit to contribute to thinking on current issues from a Christian theological perspective. As well as seeking and responding to opportunities to do this through the media, the Centre also undertakes research and teaching, and runs a busy programme of public lectures, forums and conferences.
The discipline of public theology is premised on a conviction that the resources of the Christian faith – primarily Scripture but also the teachings of the Church and the writings of individual theologians and thinkers – contain a wealth of insights, visions, teachings and narratives that, with careful exegesis and due regard to changing contexts, can enable fresh light and wisdom to be shed on the many challenges we face globally, nationally and locally.
The idea that theology might have anything interesting or worthwhile to say about public issues will strike many people as odd, particularly in a proudly ‘secular’ country like New Zealand. No one objects to people having religious beliefs – that’s a basic human right – but the idea that public thinking or government policy might be influenced by opinions based on a religious world-view is, for many people, deeply troubling. A draft document released by the New Zealand Human Rights Commission in July 2010 summed up this view quite neatly when it stated that ‘matters of religion and belief are deemed to be a matter for the private, rather than the public, sphere’. This document also made it clear that this demarcation between the public sphere, in which religion has no place, and the private sphere, the proper place for ‘matters of religion and belief’, is what essentially defines New Zealand as ‘secular’.[i]
One can readily understand the rationale for such a position, since religious people do often like to impose their views on others, even when they’re in the minority. And the language and line of reasoning they adopt can sometimes be incomprehensible, or simply unacceptable, to those not sharing their beliefs. No-one would argue that discourse in the ‘public square’ shouldn’t employ vocabulary, principles and reasoning which are intelligible to any reasonable person and based on public canons of validity. But this narrow understanding of ‘secularism’ also means that the genuinely-held differences people might have on moral issues remain hidden, as well as discriminating against those who want to offer religiously – or ideologically –rooted opinions in a non-dogmatic way. Hence a more ‘inclusive’ interpretation of the term ‘secular’ has been advocated by both religious and non-religious intellectuals and commentators in recent years, one which recognises that the quality of public debate can be enhanced when all voices are granted a hearing, provided none is privileged over the others.
Public theology is acutely aware of the marginal position that religion has in today’s world, and the implications this has for the way it needs to offer its perspective in the public square. Yet it also wants to stress the value of that perspective because of the fresh and constructive nature of the insights it can bring to sometimes rather stale and circular public debates. For example, asserting that, despite the radically different contexts in which they emerged, Scriptural insights into the nature of humanity, the ‘gifted-ness’ of Creation, the importance and nature of ‘justice’ and the purpose and meaning of markets, have much to teach us in the 21st century.
Public theology is also concerned about the language it uses to make its contribution, recognising that it will need to find a way to talk about concepts like ‘the sanctity of life’ or humankind having been ‘created in the image of God’ in ways that will be readily understood without devaluing their deep and unique (and theological) content.
One notable way in which our Centre at Otago contributes to ‘public issues’ is by creating the space for informed, respectful and balanced conversation. Given that debates in Parliament often generate more heat than light, and that our (now all commercially-driven) television channels give low priority to serious ‘current affairs’ programmes, universities seem increasingly to be filling the gap by generating reflection on public issues. In one sense this is to be expected, given their statutory obligation to be ‘critic and conscience of society’.[ii] Nevertheless, at Otago we have found a high degree of interest in the public forums our Centre has organised, often in collaboration with other similar centres based at the university. TV producers (and the advertisers whose revenue they need) are probably right in thinking that serious discussion of public affairs is only a minority interest, but there is certainly an appetite for it, and not just in Dunedin.
The main limitations on our Centre’s work in this field are time and resources: there is certainly no shortage of ‘public issues’ crying out for serious, intelligent analysis. Some observers query how issues like the partial sale of state-owned assets, or the global financial crisis, or MMP (all topics we have covered in public forums in the past eighteen months) can be ‘theological’, but of course they are in the sense that theology has much to say and deep questions to ask. Questions about: the nature of our society and the values underpinning it; how and in whose interests markets operate; how we elect our representatives; how natural resources are owned and distributed; and how serious we are about pursuing the common good. Among the more ‘obviously theological’ issues we have tackled in recent years are care of the planet, our treatment of children and older people, and the nature of our secular society. We have also explored wider issues such as the global food shortage, the situation in the Middle East and lessons from the Breivik trial in Norway. Interestingly, these ‘international’ forums have been among our most popular and valued.
The paucity of quality public debate in our country has huge implications for the shaping of public opinion – and public policy – on bioethical issues. One topical example is the debate about legalising euthanasia and assisted suicide., While our television, radio and newspapers will devote considerable air-time and column inches to reporting, often in a quite sensational way, notable cases of one individual helping another to die, relatively little time or space by comparison will be allocated to exploring the issues surrounding these cases. And while readers may often be left with the impression that the punishment meted out to a person responsible for hastening their friend or relative’s death was harsh or unjust, and that therefore the law needs changing, little effort may have been made to provide commentary or expert opinion to help them to think in a critical or balanced way about the deeper issues. Given that a private member’s bill to legalise certain end-of-life options is currently in the mix, it is not overstating things to say that we face the very real prospect of significant changes in the law relating to euthanasia and assisted suicide being passed with only minimal public consideration of the profoundly important issues and implications at stake.
Last year our Centre sought to avoid this scenario by staging what has so far been its most influential public forum. Titled ‘Euthanasia and Assisted Suicide: A discussion we need to have', the panel featured Nathaniel Centre director, John Kleinsman; medical-ethicist and neurosurgeon Professor Grant Gillett; Labour List MP Maryan Street, the proposer of the putative ‘End of Life Choice Bill’; and Professor Sean Davison, the South African-based academic who was sentenced to a period of home detention in 2011 for assisting the death of his mother in October 2006. We were fortunate to secure the attendance of Professor Davison in the short period between the completion of his sentence and his return to South Africa, and undoubtedly his presence contributed to the profile our event secured (which included coverage on TV3’s ‘Campbell Live’ and Radio New Zealand National’s ‘Morning Report’). The fact that some 300 people turned out for two-hours of discussion and debate, including a 20-minute presentation by theology student Thomas Noakes-Duncan on how the debate on euthanasia and assisted suicide has been conducted in New Zealand in recent years, shows our preparedness to properly inform ourselves and engage in meaningful debate about serious issues.
Indeed, one striking feature of this event was the quality of the questions and comments from the floor, particularly from students in the medical faculty. (For a podcast of this event see the Centre’s website - www.otago.ac.nz/ctpi/resources/podcasts
Feedback from this event suggests that it has helped in a modest way to stimulate serious thinking on a highly important topic. Indeed, I would say that even making it known that we held such an event is important in terms of reminding people that issues like euthanasia and assisted suicide need much more than the ‘sound-bite’ treatment they sadly often only attract. Democracy, we need to remind ourselves, involves far more than the casting of a vote once every three years, and as both Amartya Sen and Michael Sandel have argued in recent works, it is public reasoning, more than elections, which defines what it is essentially about.[iii]
I hope that our Centre can continue to promote more ‘public reasoning’ around the challenges we face, including those we might categorise as quite literally ‘issues of life and death’.
Andrew Bradstock is Howard Paterson Professor of Theology and Public Issues at the University of Otago and Director of the University’s Centre for Theology and Public Issues.
[i] NZ Human Rights Commission – Accessible HTML Document, ‘The right to freedom of religion and belief - Te tika kia watea ki te whai whakapono, ki te whai haahi - Draft for discussion’. <http://www.hrc.co.nz/hrc_new/hrc/cms/files/documents/25-May-2010_14-47-52_Right_to_freedom_of_religion.html> [accessed 16 July 2010].
[ii] Under Section 162 (v) of the Education Act (1989) a university is required to ‘accept a role as critic and conscience of society’.
[iii]Amartya Sen, The Idea of Justice (London: Penguin, 2010) 321-37; Michael Sandel, Justice: What’s the right thing to do? (New York: Farrar, Straus and Giroux, 2009).
O blessed fault; an evolutionary reflection on original sin
Not long after the appearance of The Catechism of the Catholic Church (1992) scholars made nuanced calls on its contents. Some sections were seen as a happy synthesis of tradition and new insights; others were regarded more as summaries of tradition. The coverage of original sin came very much into the latter category. It was as if the writers looked at all the developing insights in this area, saw them as too difficult to locate in a new synthesis so simply summarised what had come out of the Council of Trent.
The last sixty years, however, have produced so much knowledge that can no longer be ignored that a new synthesis is needed. This is not simply to vindicate the traditional sense of Catholic belief but even more to make it a strong and useful instrument for catechists and apologists in explaining the state of contemporary society. A brief list of such advances would include the findings from the mapping of the human genome, the similarities and differences between humans and the great apes emerging from primatology; our new vision of the role of climate changes in world history and how these link to the numerous hominids now extinct (and how homo sapiens very likely came near to extinction about 70,000 years ago); finally, but far from least, the crucial document “The Interpretation of the Bible in the Church” (1994) from the Pontifical Biblical Commission. This document marks a definitive acceptance not merely of the very diverse literary genres of the Bible but also how these must be read in the light of the author’s intention and cultural situation. Many scholars would now accept that the same criteria should also be applied to historical documents such as the decrees of the Council of Trent.
This essay is a modest attempt to begin such a study of original sin
A. Beginning From Intimate Relationships
My project begins with a study of the work of two very different writers, Harville Hendrix and Rene Girard. Both deal with anthropology, Hendrix in the field of marriage relationships and Girard in social and cultural anthropology. The former is a popular writer working out of personal narratives, the latter a more academic and controversial figure whose theories embrace literary criticism as well as social and political theory.
Perhaps Hendrix’s central work is Getting the Love You Want: a Guide for Couples (Simon and Schuster, London, 2005). His central theme is stated very succinctly in his preface:
We are born in relationship, we are wounded in relationship, and we can be healed in relationship. Indeed, we cannot be fully healed outside of a relationship. (xix)
After the break-up of his first marriage, Hendrix, a committed Christian, wanted to uncover the dynamics of this failure. His theory arose out of interviews with hundreds of couples. The imago therapy which has arisen from this research has restored and reinvigorated many failing marriages.
The first and more theoretical part of his work examines why couples fall in love. Using modern knowledge of the different sections of the brain he explains how many of our key childhood reactions such as separation, abandonment and betrayal are stored in the primitive areas of the brain, not accessible by conscious effort. The sense of total oneness that we felt with our mothers also remains a profound yearning despite the many knocks it endured as we matured into separate identities. Inevitably we are subject to hurtful and repressive pressures which we strive to contain, so fragmenting our personality into disconnected parts: a lost self, shaped out of society’s demands, a false self – the face we show to the world – and the disowned self, negative parts of our false self which others have found objectionable so we have disowned them.
According to Hendrix’ s research lovers, when choosing a life partner, unconsciously seek someone carrying both negative and positive characteristics of their caregivers, especially the former. This is a reparative instinct, an attempt to reconnect with our lost selves by linking up with a partner bearing similar defects. Unconsciously we create an image (imago) of the perfect partner to bring us back to wholeness. This helps to account for the rosy glow of romance when we see our beloved as the one who meets our needs perfectly and renews our energies.
As the deeper intimacy of marriage develops, however, love seems to cool and anxieties grow. First we notice that our partners have the same negative characteristics as our parents, so stir up old wounds. Suppressed feelings well up, old childhood hurts are rekindled, and our words and behaviour become increasingly defensive. We try harder and harder to get our needs met, resorting to dishonest questions, nagging, even verbal or physical violence.
Reflecting theologically on this theory it is not difficult to see how it engages deeply with the Christian vision of humans (male and female) being together the image of God. Just as the persons of the Trinity reside totally in one another, somewhat similarly we do not have any identity apart from relationship.. God calls us to spiritual and emotional wholeness, but that cannot take place without becoming whole in relationship with others. It is the turning inwards in self-possession and protection that is the basis of egotistic self-diminishment or sin.
B. The Role of Violence; the Work of Rene Girard
Girard’s initial field of research was cultural and social anthropology. Fascinated by the similar structures of violence that he encountered in widely diverse societies, he began to search for the roots of such behaviours. This led him back to the Bible and to rediscover his Catholicism. His work can be classified under three headings: mimesis, the scapegoating mechanism, and the role of religion and violence in societies and how this has been transformed by Jesus Christ’s death and resurrection.
Girard’s first insight focuses on how all infants learn by imitation, not merely of behaviours but also of affects or feelings. We discover love by being loved. This makes of learning a triangular process: the thing learned, the learner and the teacher. This seems to be hardwired in the human brain even before understanding, e.g. the way infants learn speech and language. This Girard labelled mimesis. It leads humans to imitate a desired figure and their qualities; such desires then shape the reactions of others, giving rise to rivalry because of competition for the loved one’s response. This process is holistic, spreading to every area of life. Here we see many points of contact with the work of Hendrix.
When entire societies become wracked by issues of such anger and hatred for which there are no obvious solutions, many resort to a type of ‘magical thinking’ seeking someone or some group to carry the blame. Often these figures are outsiders, marked by a diverse culture or refusal to integrate, such as the ‘witches’ executed in Salem in 1692, or the millions of Jews wiped out in the shoah. Such common action against a perceived enemy (scapegoating) often unites and strengthens a society e. g. Londoners during the blitz. When, as always happens, this sense of solidarity weakens and frictions begin to re-emerge, then societies may turn to ritual re-enactments to re-awaken feelings of union and deliverance, as in the apprentices’ marches in Northern Ireland. In our time scapegoating has become ever more subtle e. g. depicting all Islamic discontents as the fruit of terrorists and extremists.
Girard has also noted how often the state has co-opted religion to shore up its own authority. This often happens in time of war. Sometimes authority will condone violence to avoid what it sees as an even greater evil e.g. when Caiaphas proclaims that Jesus must die for the sake of the entire Jewish people (Jn 18.14). Because it is the winners who are the usual chroniclers of history, victorious states use such techniques to justify their violent acts. Girard, however, stresses that the Bible, especially the New Testament gospels, portray history from the viewpoint of the victim. Though Jesus is the scapegoat par excellence his free acceptance of death, refusal to retaliate, and subsequent resurrection, unveil the hidden nature of political violence, so undermining the power of the state.
Girard notes that dominant powers have become much more subtle, for instance in promoting liberation from stifling institutions such as the Church or the traditional family in the name of freedom. In the name of such freedom the state itself has become more oppressive e.g. the USA condoning the use of torture and the wholesale monitoring of social media
In conclusion, we can see that Girard, like Hendrix, sees relationship and its failures as the fundamental dynamic in shaping a human sense of completion and fulfilment. Moreover, he goes further in elucidating the mechanisms by which these dynamics shape society, morphing into political structures. In this way they shape family and clan relationships, national and international life – our way of existing in the world.
In the Garden of Eden story both Adam and Eve try to shift the blame for their refusal to trust in God onto another, in Eve’s case, onto her mate; on his part, onto a scheming third party. Cain goes even further in denying any responsibility for his own brother’s life. Here we see original sin at its fountainhead: blame and distance from the other. The work of both Hendrix and Girard shows how this same trend continues writ large in our own society.
C. Original Sin Seen through the Lens of the Hendrix and Girard Paradigms
Midwives point out how babies come into the world wet, hungry and angry. For this is the most traumatic journey they face till they meet death. In many ways the perils of birth are but a prelude to the fragility of life. What highlights such fragility is that humans have achieved their seeming domination over nature and other animal species by their mutual cooperation – yet other humans are also their most deadly foes. We stand in utter need and dread of one another.
It was St Augustine in his battle against the Pelagian heresy who linked original sin closely with sexuality. Reflecting on his own life and inability to use reason to control his sexual passions led him to see the vast bulk of humanity as a massa damnata, carrying not just the consequences of Adam’s sin but its guilt as well. This interpretation had a huge impact on medieval theology, right through to the Council of Trent. Here we seem to have a clear case of the need to draw upon the insight of the Biblical Commission in its 1994 document. Fifth century Western anthropology was marked by great pessimism, especially about the human body, which clearly coloured Augustine’s reading of scripture. Today popular culture has swung to the other extreme but we still need to acknowledge how much Augustine’s view of original sin was the fruit of his own life experience, reinforced by the dominant mood of his age.
In the light of what we now know of our biology and evolution, might it not be more helpful to see original sin in terms of our innate relationality? The more consistent temptation is surely our inclination to renege on such relationality, acting out of the belief that we can completely control our life and destiny by our own efforts. Conversely, assenting to our essential relationality means accepting that we came into being, are sustained, and will eventually perish in ways beyond our control; we are utterly contingent. We have been summoned from nothing; we receive all while meriting nothing.
The Adam and Eve story is clearly symbolic. We know there was there was much suffering and death, many proto-humans before the first homo sapiens came to a moment of moral choice. Scripture scholars point out that the Garden of Eden story is but one of a sequence of incidents (Cain and Abel, the great flood, the tower of Babel) pointing to growing resistance to God’s gift of life. Each one of these calamities results from a failure to trust, a desire to dominate and control others.
As Girard points out, blaming and scapegoating mechanisms also evolve, becoming more subtle over the ages. A clear instance appears in the development of attitudes in physical science. Early astronomers such as Galileo and Kepler saw their work as a deeper penetration of God’s knowledge, and elements of religious awe permeate their reflections. Such attitudes increasingly give way to motivations of power and control over nature, Francis Bacon being a clear example of such a stance. As we in modern nations have moved from an organic to a more organised society we have also seen an even deeper concentration on production, the assimilation of nature into human desires, and material gain as dominant themes. Accompanying this is a drive towards individualism, the prevailing of personal desires even against wider environmental health and conservation. As A. J. Conyers notes: “In modernity, the new version of original sin is that we are born into a human family. Salvation consists in the struggle to escape it.” (The Listening Heart, Baylor University Press, Texas, 2009, 104). Under the onslaught of deconstructionism all narratives of religion, patriotism and human solidarity have come under suspicion. What has taken their place is the domination of the market, around which so much work, recreation and aspirations for the good life now centre. The sole value now universally recognised is the value of exchange, seen concretely in commodifiable options, with arbitrary free choice the greatest good. All other value systems and beliefs are cast into the realm of personal choice and foible.
Religion itself is now subject to commodification. The dominant God of western culture is a therapeutic deity, all notions of truth or virtue becoming decidedly uncool. While decline in friendship and lasting marriages continues, there is still immense desire for healing and new life. Nowhere is this more evident than in the USA where the number of professional caregivers has risen a hundredfold since 1950. (Ross Douthat, Bad Religion, Free Press, NY, 2012, 240).
Contrary to this is a vision of every human being as an icon of God, one tiny facet of God’s unlimited beauty and goodness. Each of us is the result of God’s totally free creativity and playfulness in creation. Our endless variety is a masterpiece of creation, parallel to the way in which each gene is constructed from only four chemical bases repeated and connected in a myriad of combinations, modified and reshaped constantly over the course of evolution. It is in accepting and loving the other purely as other, not as an extension of our personal needs and fears, that freedom from original sin lies. This is precisely what we see in the life of Jesus Christ the sinless one. But with the coming of Christ, and through his power continually transmitted by the Holy Spirit there is a new creation in grace that is far greater than any putative original innocence. Whereas original sin is a turning away from relationality and creaturehood, assimilation in Christ becomes a celebration of relationality, a joyous acceptance of being a frail but deeply loved creature.
This insight could have many applications in moral fields. I point to just one bioethical issue – euthanasia. Two of the justifications for physician assisted suicide are freedom of choice and the growing cost of maintaining life for a rapidly ageing population. Based on the work of Hendrix and Girard, we might see elements of avoidance of responsibility and the domination of economic goods over human needs, hidden beneath such justifications. More positively, we might point to the time of dying as a privileged moment in which thanks for the gift of life and the healing of family rifts would be points of growth and new hope for families that still live on.
Dr Neil Vaney is a Marist priest who has specialised in moral theology. His doctoral research is in the areas of environmental ethics and the theology of nature. He is presently a resource person for pastoral and spirituality ministry in Hawkes Bay. He will be joining the leadership team of the Society of Mary in Wellington in 2014.
Editorial: The Church (and bioethics) in the (post) modern world
It is 50 years since the Second Vatican Council opened in Rome. For Catholics, the Council marked a significant transition in self-awareness – from a Church which saw itself as largely set ‘apart’ from the world to one which is deeply connected with – literally ‘in’ – the world.
Nowhere is this better exemplified than in the Council document “The Church in the Modern World” which sets out how the Church should conceive its activity in the world, scrutinising and interpreting “the signs of the times” in the light of the Gospel.1 It admonishes Catholics who would shirk their “earthly responsibilities” in favour of seeking “a city to come”; rather, authentic faith means they are more obliged than ever to measure up to their secular duties and activities (n. 43).
Importantly, the document acknowledges that the Church has profited richly from the experience of past ages, the progress of the sciences, and the treasures hidden in human culture (n. 44). While the implications of this would have astounded many Catholics of the 1960’s, they are hardly radical today. Yet, they remain incredibly challenging in the post-modern world in which we live: Christians do not have the monopoly on the truth but are joined with all of humanity in searching for it (n. 16); the presence and grace of the Holy Spirit are not confined to the Church, but work in an unseen way in the hearts of all (n. 22).
In addition, the document offers a sober reminder that we are all weak beings who often do things we should not and fail to do what we should (n. 10): “It does not escape the Church how great a distance lies between the message she offers and the human failings of those to whom the Gospel is entrusted” (n. 43). Recent events in the Catholic Church have forcibly reminded us again of this fact – the scandals of sexual abuse mean we should dare to witness to our faith only with a real sense of humility grounded in an awareness that the weaknesses of human nature run through the Church and all its members. If prior to the Council it was the Church that presented itself as a perfect society and was in certain ways hostile to the world, now, at least partly because of the current scandals, it is the world that has become more hostile to an imperfect Church – a situation that is both understandable and regrettable.
Consequently, many Catholics wishing to bring a faith-based perspective to the social and political realms are experiencing a new antagonism; when we speak, we can no longer expect that what we offer will always be welcomed or seen as credible. This state of affairs is surely one of the signs of our time that we are obliged to scrutinise, interpret and respond to. The question arises: ‘How can we best articulate our faith-based perspective in the post-modern world in which we live?’
There are great insights to be gleaned from “The Church in the Modern World”: we must strive to understand the world in which we live (n. 4); we must promote “a living exchange between the Church and the diverse cultures of people” (n. 44); we need to acknowledge that the Church requires the special help of those who are versed in the different institutions and specialties (n. 44); we must extend respect and love to those who think or act differently than we do in social, political and even religious matters and strive deeply to understand “with such courtesy and love” that we enter into real dialogue with others (nn. 21, 28).
Further, taking to heart the document’s claim that nothing genuinely human should fail to raise an echo in the hearts of Christians (n. 1), we need to show that the power of the Catholic moral/ethical tradition lies in the way our teachings are themselves signs – signs pointing to the truth about human existence and allowing that truth to be more deeply penetrated and better understood for human advantage (n. 44). As the document itself notes, faith throws a new light on everything, ultimately directing the mind to solutions which are ‘fully human’ (n. 11). There is, in other words, an intrinsic link between faith and human flourishing (n. 43).
For those engaged in Catholic bioethics there is a clear onus to first listen so as to understand and learn from others while facilitating the conditions for honest and sincere dialogue. Then, within that dialogue, we must convincingly articulate the wisdom of the Catholic tradition in terms of its relevance for constructing a world more genuinely human, all the while using language intelligible to the current generation (n. 4) and remaining faithful to the “befriending Spirit” (n. 3) that animates and guides us all.
50 years on, I find much wisdom and hope in a document that was promulgated before I could even read.
John Kleinsman is director of The Nathaniel Centre
1. "Pastoral Constitution on the Church in the Modern World." In Vatican Council II: The Conciliar and Post Conciliar Documents, edited by A Flannery. Collegeville, Indiana: The Liturgical Press, 1965, n. 4.
The hidden ideology of technicism
We have come to rely heavily on science and technology. As a result we find ourselves heavily dependent on technical things such as aeroplanes, cars, roads, cell phones, computers, chemical fertilisers and pesticides, power stations, domestic appliances and more. Technology shapes our lives to a major extent. We enjoy its benefits daily.
Such benefits notwithstanding, technology also presents us with significant challenges, many of which raise questions of a bioethical nature. This article seeks to stimulate critical reflection on the meaning of modern technology and our responsibility for its on-going development.
The evolution of technology
Technology can be defined as the activity by which people give form to nature for human ends by means of tools (Schuurman, 1980: 5).
In the past such activity was largely the domain of artisans who used relatively basic tools and worked with materials found in nature. Today it has become much more complicated; we rely largely on scientists and engineers who use already existing technical objects to design the tools and processes to make things. Furthermore, many contemporary materials, such as plastics, are not found in nature.
Many people seem to operate out of an unquestioned belief that technology evolves naturally for the benefit of humankind. According to this view the world is itself an evolving piece of machinery and technology develops as if it were part of nature. As an example of this thinking, the Expo 2000 World Fair held in Hannover (Germany) portrayed the course of technology as an ever widening river meandering through history and bringing forth, naturally, developments such as modern nuclear technology in our age. Thus, nuclear energy has arrived at the precise time when oil runs out, the Internet has come about so that we can cope with the complexities of the modern world and genetic technology will enable us to cure diseases that have so far proved to be incurable. (Assheuer, T. 2011: 44).
The fundamental belief that underpins this understanding of technology is the notion that technological developments are inevitably beneficial for humans. It is not that those who think along these lines don't accept that new technologies may cause unforeseen problems and accidents. However, in line with their unshaken trust in the benevolence of technology, they hold that the challenges created by technological developments are the means that will, in turn, inspire the development of further new and improved technologies.
While there is a core of truth in this stance, inasmuch as new technologies build on preceding ones and yield many benefits, the most basic problem with this view of the world is that it minimises human responsibility for technological developments. This may be seen most starkly in the light of nuclear accidents.
Nuclear power was made possible once scientists had figured out how atoms could be split. By aiming neutrons at Uranium 235 a chain reaction is triggered which releases huge amounts of energy. However, ever since the first nuclear power stations were built in the 1950s, no-one has managed to solve the problems associated with the accumulation of dangerous radioactive wastes or the fall-out of radioactive pollution as has occurred from time to time. The explosions of the Fukushima nuclear reactors are the most recent example of this.
In March this year the tsunami that followed the 9.1 earthquake in Japan crippled the nuclear reactors of a power plant in Fukushima, resulting in the release of radioactive materials. As a result, agricultural land close to the plant has been contaminated for hundreds of years, whilst radioactive water has been spilled into the ocean. Other major mishaps include the 1979 incident in Harrisburg (USA) and the 1986 massive explosion which destroyed reactors at Tchernobyl (Ukraine), causing many deaths and widespread cancer as well as taking a large swath of fertile land out of production.
Assheuer (2011:44) is of the opinion that the recent explosions of the Fukushima nuclear reactors have begun to shake human belief in the notion that technological development is naturally friendly to human well being. While renewed caution in regard to the use of nuclear power is understandable and timely, the key question is whether such caution ultimately challenges the dominance of the metaphor that shapes people's attitudes to technology – namely the idea that the world is an evolving piece of machinery.
The link between science and technology
Scientists, to use yet another metaphor, might well be described as people who use microscopes to focus in on the smallest of details, isolating from the broader context the thing they want to analyse in depth. This process is known as 'abstraction'. The scientists' aim is to present a precise logical account of how things work. Then, armed with such precise knowledge, they find themselves in a position to develop and make new things. This approach typically involves four abstractions, as pointed out by Schuurman (2003: 96-102). Scientists:
- Seek knowledge that is universally valid, abstracting (ignoring) from what is concrete.
- Analyse functions, generally focussing on one function, rather than things in their entirety.
- Ask what sort of law applies to the phenomena under investigation. How do they make sense?
- Abstract from their private interests in the interests of truth.
For example, rather than giving thought to the fact that real cows function in many different ways, scientists might focus on the question of how they digest their food, or how they process grass into milk. Equally, scientists may focus in on the question of how humans learn to speak (lingual function) or how we act economically (economic function).
As a way of illustrating the process of 'abstraction' Schuurman (2003: 98) uses the example of giving four apples to four children. From a theoretical perspective the solution seems easy. In practice, however, because children prefer particular apples, the outcome can be much more complicated. In reality everything is unique, multi-functional, connected to everything else and in a state of change.
The process of analysis and abstraction is enormously powerful. It has led to the development of many of the technical wonders of our age. However, because the world consists of concrete things, plants, animals and humans, rather than abstractions, we must all continuously exercise great care and responsibility in the application of new technologies.
As abstractions are projected into the development of increasingly complex modern technology, the technical objects we use become highly functional and uniform and are typically fabricated in large numbers. Laptops and mobile phones are essentially the same everywhere. In the field of agriculture, where cows are bred to become efficient milking machines, we also find ourselves moving towards more uniform monocultures, a trend which potentially threatens the biodiversity which is so essential for life.
While scientific technology has been seen as the key to controlling and exploiting the world since the 17th Century, we now need to seriously question the ideology of technological progress.
The responsible use of science and technology in a multi-faceted and complex world of interconnected concrete realities requires that we apply our discoveries with a critical attitude. It is a matter of technology being at the service of humankind rather than vice-versa.
Unfortunately, such prudence tends to be lacking. In a world in which technical innovations are often developed by business corporations with significant financial interests, science and technology are too often deployed as instruments to achieve material benefits regardless of the long term human and environmental consequences.
Schuurman uses the label 'technicism' to describe the use of scientific technology to control and subdue the earth for human purposes:
Technicism is the pretension of humans, as self-declared lords and masters using the scientific-technical method of control, to bend all of reality to their will in order to solve all problems, old and new, and to guarantee increasing material prosperity and progress (Schuurman, 2003: 69).
I would argue that technicism exists as one of the hidden ideologies of our time. As an ideology it acknowledges no limits. We are currently experiencing the influence of technicism in all areas of life, including human inter-relationships. The use of telephones and/or computers in rural areas in certain countries for diagnosing medical conditions is a ready example of this.
If it is true, as I believe it is, that many of our problems today have been brought about by the hidden ideology of technicism, then we must seek a more responsible way of developing and using technology.
Technicism can be avoided if we abandon the metaphor of the earth as a machine and replace it by the Biblical metaphor of a garden-city (Schuurman, 2003: 165-168).
A garden is a peaceful, beautiful place, full of variety, in which plants, paths, animals and humans all have their rightful place. In the Bible, the narrative begins in the book of Genesis with a garden and it ends in the final chapter of the Book of Revelation with a city in a garden setting. The biblical view is clear; there is a rightful place for science and technology within the world in which we live.
The reference in Revelation 22 to the river of life-giving water flowing through the new Jerusalem with the tree of life growing on either side whose leaves serve as a medicine for the nations, provides a powerful reminder of the interconnection between the health of the environment and human well-being. Among other things this should inspire us to clean up polluted rivers and waterways, such as the Manawatu and to take all possible steps to minimise the future risks of oil pollution from ships such as the Rena.
There are already many examples that point towards the possibility of a basic renewal of our technological culture. The garden-city metaphor challenges us to use biological science and methods in agriculture in a way that does justice to nature. For example, farmers who have changed from milking twice a day to once a day have discovered that the costs saved make up for the somewhat smaller volume of milk produced. In addition there are encouraging developments in sustainable ways of generating and using energy.
While this path is certainly not easy, it is, nevertheless, full of promise.
New scientific technological developments should be carefully evaluated before they are put into practice. Too often we try to do this only after problems have become apparent.
If we continue without questioning the concept of the world as a huge machine we may seriously endanger life and the planet's ability to feed and house humankind. When king Midas was granted his wish that everything he touched would become gold he died. Similarly, our sophisticated technology has the potential to stifle life on our planet.
The challenge we face is to think and behave as if our society and the earth we inhabit is a garden that is progressing to a peaceful garden-city.
Petrus Simons is a retired economist, with a PhD in philosophy.
Assheuer, T.H. 2011. Tausend Sonnen; die nuklearen Katastrophen von Tschernobyl und Fukushima haben das Vertrauen in eine menschenfreundliche Evolution der Technik zerstört. Die Zeit (Hamburg) no. 17, 20 April, p.44.
Schuurman, E. 1980. Technology and the future; a philosophical challenge. Wedge, Toronto, trans. H.D. Morton.
Schuurman, E. 2003. Faith and hope in technology. Clements, Toronto, trans. J.Vriend.
Preventing births of the poor: Birth control proposals and welfare reform
More children from the fit, less from the unfit – that is the chief issue of birth control.
U.S. eugenics and birth control advocate Margaret Sanger, 1919
The Pharaoh of old, haunted by the presence and increase of the Children of Israel, submitted them to every kind of oppression and ordered that every male child born of the Hebrew women was to be killed. Today not a few of the powerful of the earth act in the same way.
Pope John Paul II, Evangelium Vitae #16, 1995
The idea that poverty and other social problems can be solved by controlling who is and who is not permitted to have children has been a long favoured idea of the eugenics movement. It has been explicitly or implicitly part of global debates on population control as a means of poverty reduction, as well as a significant aspect of United States and European welfare debates. In contrast, the Catholic Church has been a powerful advocate for the rights of the poorest families not to be subjected to coercive birth control.
These debates are unfamiliar in the New Zealand social welfare context. It is therefore shocking to hear community voices advocating not only for beneficiaries to be required to take contraception, but even explicitly using the language of eugenics. “I was raised on a farm,” argued one well-respected social worker recently in support of greater birth control of beneficiaries. “And on a farm, you do not permit the unfit to breed”.
On 22 February, the New Zealand government appointed Welfare Working Group recommended that long-lasting reversible contraception be made ‘available’ to parents receiving benefits. The recommendation also states that further measures should be considered if this alone does not reduce numbers of children born into beneficiary families. Since contraception already widely available in New Zealand, there is a concern that availability may translate in practice into contraceptive use being a requirement of benefit eligibility.
This concern is shared by diverse groups including churches, beneficiary groups, women’s groups and disability groups.
The Welfare Working Group was appointed by the Minister of Social Development in 2010 to consider whether reform of the welfare system would address perceived problems of welfare dependency. At the same time various churches and community groups joined together in an Alternative Welfare Working Group which saw benefit receipt as a symptom, rather than the cause of poverty, and looked for wider measure to address the economic hardship and exclusion of people on benefits.
As a relatively isolated country with a small population, many New Zealand Catholics, as well as our wider society, are somewhat removed from international population control debates and have an impression that Catholic teaching on sexuality and birth control is primarily a private and personal matter. Therefore, the Welfare Working Group’s focus on birth control as a solution to poverty represents a significant shift in our social welfare debates, one that demands consideration of the Catholic Church’s teaching against population control as an imposition placed on the poor.
Historical background: birth control in welfare and international development debates
Debates around sterilization and contraception as requirements of welfare programmes for poor and vulnerable citizens have long been explicit in United States social security policy, as well as in wider debates about population control as a solution to global poverty.
The eugenics movement of the early 20th century was at the forefront of debates around the shaping of populations. It was based on assumptions that society could – and should – be reshaped by promoting more births among ‘desirable’ groups, and reducing births amongst ‘less desirable’ groups. People with psychiatric illnesses, and physical and intellectual disabilities were among those targeted for population reduction. There was also a strongly racist element, with Caucasian people seen as most desirable, while many other racial groups were seen as less desirable or even undesirable.
Despite the discrediting of eugenic theory in Hitler’s extreme application of these ideas in Nazi Germany, involuntary sterilisations of psychiatric patients continued in certain European countries and the United States past the end of World War II. Proposals for compulsory sterilization of sole mothers on welfare benefits were readily evident in the United States during the 1950s and were explicitly justified using racist and eugenic arguments at that time. These days the language of birth control has become more subtle. Nevertheless, the 1950s U.S. stereotypes of ‘welfare queens’ who continue to have additional children in order to maintain their eligibility for benefits continue to the present day. As already noted, these stereotypes have now found their way into New Zealand political rhetoric about beneficiaries.
In more recent times these ideas have been fostered by a population movement that sees reduction in fertility as the key solution to poverty and an answer to overuse of the world’s resources. This agenda has been promoted on the world stage by a number of groups and at various gatherings including the United Nations sponsored Population and Development conferences in Budapest (1974), Mexico (1984) and Cairo (1994).
Pope Pius XI’s injunction against sterilisation for eugenic reasons in 1930, Pope Paul’s encyclical Humanae Vitae were all written against a backdrop of movements and world conferences aiming to reduce poverty by preventing births of the poor rather than by addressing the behavior of the rich.
Within the global population control movement, methods of contraception were sought that could be widely distributed with minimal medical oversight. Matthew Connelly details a flagrant disregard for women’s safety as contraceptives were trialled on the women of the third world despite significant evidence of negative outcomes such as perforated wombs and pelvic inflammation. Adoption of coercive population control programmes reached their extreme in the emergency period of Indira Gandhi’s government in India (1975-77) during which time 1774 people were officially recorded as having died from botched sterilisations, with many thousands more affected.
From the early 1990s, a number of U.S. states introduced family caps, which reduced assistance to welfare recipients with additional children, alongside financial incentives and, in some cases, requirements to use Norplant, a long-acting reversible contraceptive. In response to this, Catholic groups, including the United States Catholic Bishops Conference and Catholic Charities USA, were concerned that moving people off welfare would not move them out of poverty. Among their concerns was that the intended reduction in births to beneficiaries would not necessarily mean a reduction in pregnancies, but could mean an increase in abortions.
Supporters of United States style welfare reform in New Zealand have pointed to an overall decline in United States abortion numbers since the welfare changes. However, some studies taking a closer look at specific target groups have shown a different picture. Joyce et al (2004) cite an experimental evaluation of New Jersey’s family cap policy as showing an overall increase of abortions by 12 percent among welfare recipients, and by 32 percent for black welfare recipients.
In their own research, Joyce et al observed a fall in birth rates and an increase in abortion rates among poor women in states both with and without family caps. While they found that a link between family caps and abortion rates was inconclusive, they reported an overall increase in abortions among poor women – the target groups for welfare reform – contrary to the general decline in United States abortion rates.
Meanwhile, in response to the persistent argument that the birth rates of the poor need to be controlled, the Catholic Church has consistently argued that over-consumption by wealthy nations is more of a strain on the world’s limited resources than family sizes of the poor. Despite falling fertility rates in developed countries, the wealthiest 20 percent of the world’s population consumes 80 percent of its resources. Catholic social teaching recognises the human dignity of every person, regardless of the situations into which they are born, and also calls for the structural causes of poverty, such as unequal distribution of resources, to be addressed.
Present social welfare reform debates in New Zealand
New Zealand has been substantially influenced by United States views on welfare policy, and since the early 1990s has frequently looked to the United States welfare policies. The current move to frame the New Zealand government’s public policy welfare discussion in terms of ‘welfare dependency’ is a particular reflection of United States welfare debates. A direct consequence of this is that it places the onus for poverty on the behavior and lack of motivation of the poor rather than structural causes.
Similar debates and welfare reforms are currently underway in many countries including Great Britain, Australia and Europe, following the 2008-2009 global financial crisis. It needs to be noted that, both locally and globally, the language of ‘unsustainability’ of welfare systems is taking place against a backdrop of financial institution bailouts costing millions – or billions – of dollars. Looked at like this, the use of such language appears as part of a strategy for (unfairly) shifting the burden of paying for the economic crisis to the poor.
Underlying the welfare reforms aimed at women raising children alone are certain assumptions about sexual promiscuity and irresponsibility. Most New Zealanders would generally agree that a stable married family is the best environment for raising children. However, there is also a realization that there are a wide range of circumstances in which women find themselves raising children alone.
Among the many circumstances that lead to sole mother households are the death of a husband or partner; women pregnant as a result of rape or sexual abuse; women who have escaped domestic violence; women who have been abandoned by husbands and partners; and women who have found themselves pregnant and alone but have chosen not to have abortions. It is nothing less than offensive to imply that sexual irresponsibility has caused the poverty of many of these women and their children.
Even in circumstances where a range of informal and changing sexual relationships mean that children are growing up in fatherless households, it needs to be asked whether encouraging contraceptive use is going to increase committed partnerships. It seems more likely to increase the attitude that women alone are sexually available for men who do not wish to make long-term commitments.
However, allowing the debate to focus on sole mothers overlooks the significant fact that the Welfare Working Group recommendation is not restricted to sole parents, meaning that married couples who find themselves on a benefit resulting from unemployment, natural disaster (such as the Christchurch earthquakes), illness or disability would also be discouraged from giving birth to children. For disabled couples, who may always require some benefit support, this is equivalent to a permanent discouragement of children.
The Welfare Working Group recommendation about reducing numbers of children born to beneficiary families is not the only recommendation which offends Catholic concepts of human dignity and protection of the vulnerable. Also of concern are proposals which would redefine most sick and disabled people as ‘jobseekers’ and force them into a labour market at a time when it cannot currently accommodate those already seeking work. Proposals such as reductions in hardship assistance and restructuring base benefit levels will potentially cut incomes of New Zealand’s poorest citizens.
The argument about the Welfare Working Group’s contraceptive proposals are most critical because they reveal underlying attitudes towards the poor which imply that some people are of more value as human beings than other people. The unstated assumption is that bringing fewer poor children into the world can and will resolve complex social problems. Among other things this absolves other New Zealanders from facing up to the inequalities resulting from historical injustice and structural poverty.
In contrast to perceptions of poor children as burdens on the state, parents in developing countries often choose large families for precisely the opposite reason – because they see them as their most precious resources and their social security in old age. New Zealand society depends no less on the next generation for our old age provision. New Zealand’s superannuation entitlements for current decision makers and voters also depend on the earnings of the children who are being born – or being prevented from being born – today.
It is important to see the Welfare Working Group’s birth control recommendation as being more than a matter of personal choice or personal morality. Proposals to reduce poverty by discouraging or preventing births to the poor have deep eugenic roots, based on the idea that some people have greater value than other human beings. There should be no place for this sort of thinking in New Zealand’s social welfare system.
Lisa Beech is Research and Advocacy Coordinator for Caritas Aotearoa New Zealand
Editorial: Bioethics and the Paradox of the Human Condition
Issue 33, April 2011
Humankind and the world we are a part of are defined by paradox; we constantly experience life in ways that highlight the contradictory nature of our existence .
The recent earthquakes in Christchurch and Japan serve to remind us of the fragility of human life in the face of the brutal and amoral forces of 'Mother Nature'. Photographic images of the devastating aftermath are permanently etched into our minds as we watched, appalled, the breaking news. We are confronted by our utter powerlessness.
At the same time, as a result of the damage suffered by the Fukushima Dai-ichi nuclear plant, we have become conscious again of the immense destruction that we humans are able to cause. We are simultaneously confronted by our power to destroy the planet.
We are at once powerless and powerful. We are called to be stewards of the planet we live on even while we recognise that it is part of our human nature to overcome obstacles and to modify the world and ourselves. We also experience paradox at a more personal level. On the same day a family grieves the loss of a husband, father, grandfather and great-grandfather a young woman goes into labour and a new child is born; death and grief coexist and are intermingled with life and love. Paradox is also something each of us encounters within; we draw on our strengths while gradually becoming aware that they also define our weaknesses. And, through our weaknesses, we discover new strengths.
Because it lies at the heart of human existence, the question of paradox is particularly relevant for the discipline of bioethics.
Understandably, we struggle to make sense of the paradoxical nature of human existence which calls us to hold together contradictory realities. How do we reconcile the cognitive dissonance that characterises paradox and seems to defy rational logic? We do it in different ways.
All too often, in the face of the existential anxiety that flows from the awareness of our mortality and powerlessness, we draw on technology to try and exert ever greater control over the world in which we live. Rather than opting for a simpler lifestyle and reducing our carbon footprint in response to the environmental crisis, we look for solutions that won't interfere with our consumerist lifestyles. Rather than live and struggle with the challenges raised by disability we start to use prenatal testing to deny certain persons the right to life. Rather than caring for people with terminal illnesses in ways that invite us deeper into the mystery of suffering we start to argue for the legalisation of euthanasia to make a pre-emptive strike against death at the time of our choosing. Rather than acknowledging and reflecting on our responsibility to the common good we argue even more loudly for the right of the individual to choose.
What these responses have in common is that they attempt to cope with paradox by seeking to dissolve it. But this approach comes at a heavy price; it demands a degree of disconnection from our own bodies, other people, our environment, our universe and ultimately God. As Daniel O'Leary notes in an article titled " They shall be comforted" (The Tablet , 5 March 2011) , this disconnection results in a state of alienation that causes psychic damage. It is at odds with what we know deep within – that we are part of a loving unity that holds all things together, including those things that we experience as contradictory realities. It is also at odds with the findings of quantum physicists who have recently come to understand that the universe is interconnected in much more subtler ways than was previously thought.
Therefore, instead of dissolving or denying paradox, bioethics faces the challenge of holding in tension what is paradoxical. In our bioethical arguments this calls for us to protect and promote the inherent connectedness that exists between all things. It also calls for us to be wary of those ethical approaches which, in the way they seek to resolve dilemmas, rely on a fragmented description of reality that ignores or attempts to deny what is paradoxical.
The paradoxical nature of our existence offers a useful point of reference for critiquing the different human responses to the many dilemmas thrown up in the world of bioethics. More specifically it gives rise to a key question: To what extent do our reflections and thinking take adequate account of the reality of human paradox?
While the notion of paradox might present a philosophical conundrum for some, it is straightforwardly logical to those who are contemplatives. In the words of the prayer attributed to St Francis: For it is in giving that we receive; it is in pardoning that we are pardoned; and it is in dying that we are born to eternal life.
The Nathaniel Centre
Address of His Holiness Pope Benedict XVI
Issue 30, April 2010
Address of His Holiness Pope Benedict XVI to the Assembly of the Pontifical Academy for Life about the issues that revolve around the theme of bioethics.
Editorial: Nathaniel (Hebrew: "Gift of God")
Issue 30, April 2010
Nathaniel Liam McCabe Knoef was born on December 12, 1998 and died on February 2, 1999. He lived for seven and a half weeks. At his farewell Mass I offered the following reflection on his short life:
...Nathaniel you have shown us with Martine and Stephen that Christ is not separate from the rhythm of life and death but is present – so totally present that all suffering and disappointment can be redemptive. What does that mean?
Reflections of a Pastor
Monsignor John Carde MBE
Issue 29, November 2009
As I write there is uproar about funding being withdrawn from severely handicapped children. We admire the efforts of parents who care for their handicapped child – what courage they show over the long haul.
Families – Why the Families Commission Chose Function over Form
Issue 28, August 2009
In July 2004, the New Zealand Families Commission came into existence and I, along with five others, was appointed as a Commissioner. The interview process was demanding and exhaustive and amongst many questions we were asked our views on marriage and "family form". Interestingly, each of us was a partner in long standing marriages, and all of us were committed to our various faiths. A reasonable inference to be drawn therefore is that we all believed in marriage as an institution and that we all had Christian values. This is ironic given that the Families Commission is strongly criticised by some because it has never defined families as "married father and mother and the children". In fact, it has never defined family form at all. Why not?
Address of His Holiness Pope Benedict XVI to the New Zealand Envoy
Issue 28, August 2009
"It is From God That Men and Women Receive Their Essential Dignity"
The following is the address Pope Benedict XVI gave in writing to Robert Carey Moore-Jones, the new New Zealand ambassador to the Holy See.
Let Justice Flow Like a River
The Historical and Doctrinal Roots of Catholic Social Teaching
Rev Dr Neil Vaney
Issue 28, August 2009
Catholic Social Teaching (CST) is always hard pressed to respond to the innovations of technology or the rapidly changing economic climate. Current examples of this occur in the debate over the experimental use of cells from human zygotes, and the responsibility for the collapse of huge financial institutions in the United States of America over the last two years. The technical nature of such discussions causes non-experts to lose sight that at the base of such disputes are values - such as the dignity and call of each human being by God - that go back to the earliest biblical passages. The aim of this essay is to show how the massive corpus of CST of roughly the last one hundred and twenty years is firmly rooted in the earliest biblical writings which were then elaborated upon in patristic and medieval teaching.
Living Persons and Natural Bodies
Rev Dr Gerald Gleeson
Issue 27, April 2009
While preparing this lecture I was struck by the following headline: "Natural and healthy pushing ethical and green off the shelf". The story reported that:
The most frequently used word on new products in the last year was 'natural'... Natural appeared on nearly one in four products...a 9 per cent increase on the previous year (The Sydney Morning Herald, 5th Feb 2009, p. 24)
As a Catholic ethicist, I was struck by this story because an understanding of what is 'natural' has long been at the heart of our Catholic ethical tradition, which is rightly known as a Natural Law tradition. In this lecture I will explore a common objection to Catholic moral teachings, and to the recently developed "Theology of the Body", namely, that Church teachings exaggerate what is supposedly "natural", at the expense of what is good for us as persons.
Speaking to a Secular Age
Issue 26, November 2008
Battles in the public square are won with words - but which ones?
Recently, Professor Margaret Somerville gave an opening address at the 2008 Catholic Media Convention, "Proclaim it from the Rooftops", held in Toronto, Canada. Following are some of the themes and issues she raised in her speech.
Editorial - Hope and Bioethics: The Power of Narrative
Issue 26, November 2008
Hope is the virtue that enables us to look to the future with real confidence. It is not to be reduced to wishful thinking. We can all pass the time daydreaming, imagining a future that has nothing to do with reality. Wishful thinking has no bounds: it admits of no limitation; it is not criticized by what is actually possible...Hope is grounded in life...Hope is not limitless; it is limited by real possibility. Hope needs help if it is going to go beyond the expression of desire...Without help; hope remains an orphan – abandoned in the nursery of the mind..."
--Dennis McBride, CSSR.
In 1984, while a member of the Chaplaincy team at Wellington Hospital, I recall meeting a remarkable priest, Father Gerard Bourke, CSSR. When I met him he was a patient in the Orthopaedic Ward and was in traction. Early each morning I would take him communion and he would ask me to give him an intention for his prayers each day. Over the weeks I gradually got to learn something of his remarkable story.
Among other things, he had been a Chaplain in the Second World War and was imprisoned for some time in the infamous Changi Prison, Singapore. He built a little Church in the prison camp and dedicated it to Our Lady of Perpetual Succour after the previous Church had been destroyed by bombing. Father Gerard accompanied work parties into Singapore city and ministered for a time in several of the other prison camps before that was disallowed by his Japanese captors.
He spoke vividly about the pain and destruction caused by war and hatred and how the lives of many Allied Soldiers and civilians ended so brutally. In all of this suffering he continued to minister to the many. On one occasion he told me, "this time in Changi Prison was the lowest ebb of my life – spiritually, emotionally and psychologically..."
As a newly ordained priest and newly appointed hospital chaplain who was struggling to make sense of the pain and suffering that I was encountering on a daily basis, his words felt like the voice of an angel. Perhaps that was why my reply was a little inelegant, resonating as it did with my own experience of helplessness. "Well then", I asked, "how did you survive? How did you remain a priest in the face of such suffering?"
He did not seem to mind the question, and with a gentleness born of great pain, he said, "every time I could not stand the suffering and bloodshed anymore, and every time I wanted to go AWOL, the Lord would send someone into my tent who needed help. This soldier would inevitably pour out all his troubles and suffering to me. I was always so moved by these stories that I knew I had to stay because I could make a difference to these soldier's lives. In truth, these soldiers made a difference in my life, because they gave me hope...so much so I am still a priest!"
Embedded within the suffering of each of us are deeper layers of meaning. This meaning, when we embrace it, can be a rich and powerful source of hope to both the sufferer and caregiver alike. This is the irony of hope - it can only be discovered with the help of others and by taking the risk of love and compassion.
Thomas Aquinas links hope with love and describes hope as the virtue that causes and increases love and uplifts the human spirit. "Hope causes, or increases, love; sometimes by virtue of the emotion of pleasure, which it arouses; and sometimes by virtue of the emotion of desire, which it intensifies; for without some hope there is no strong desire." [Summa Theologiae I-I, 27, 4.] "Hope adds to desire a certain drive, a buoyancy of spirit about winning the arduous good." [Summa Theologiae I-I, 25, 1.]
In his 2007 Encyclical Letter, "On Christian Hope", ["Spe Salvi"], Pope Benedict XVI speaks similarly when he says that, hope enables a person to face "the present, even if it is arduous." [n.1] He describes hope as a distinguishing mark of Christians because it is based on the "fact that they have a future." Even though they do not know the details of what awaits them, "they know in general terms that their life will not end in emptiness." [n.2] Even so, discovering hope remains somewhat elusive and challenging, not only for those without a faith or belief in the transcendent, but also for those with the gift of faith.
Cultures and professions can communicate hope in the way they engage the gifts of individuals and communities. Environments can reflect hope in the way in which they assist in uniting the world of the sufferer with the world of beauty and transcendence. However, while good structures enhance the future, they are not of themselves enough for the presence of hope. Hope requires others. The other – be that an individual, a community, and ultimately God – provides the "scaffolding" for hope to occur and for it to be maintained at a communal and personal level.
The late Cardinal Joseph Bernardin once described the Church as a "community of hope" and also referred to the healthcare profession as a "witness to hope." Human life cannot be lived in isolation and hope is diminished when people are reduced to commodities in healthcare or deprived of the witness of the community. That is why the need for hope can perhaps be seen most clearly at the beginning and end of life, and why the interdisciplinary field of bioethics has the responsibility to be a carrier of the community's hope. As Pope John Paul II reminded us, bioethics represents a "meeting place" where many different voices can be creatively and respectfully present.
Perhaps more than anything our very presence at this meeting place will remind those of us who minister in the field of bioethics of our own need for hope; hope in the professions, hope in society, and hope in the future? To paraphrase Father Gerard Bourke, even amidst dwindling and limited possibilities, and even against the backdrop of deep existential suffering, it is possible to discover a meeting place whereby hope is reborn. Often that meeting place will be a simple conversation with our neighbour in which personal stories are shared.
Rev Michael McCabe, PhD
The Nathaniel Centre
Using the Internet to Research Bioethics: A Resource
Staff of The Nathaniel Centre
Issue 25, August 2008
In order to understand adequately the issues in bioethics from a Catholic perspective we must combine the insights of history and science with the insights of our Catholic moral tradition. This approach reflects the multidisciplinary nature of bioethics and also assists in discovering the rich complexity of the issues.
If we are to bring a Catholic perspective to the public debate on key bioethical issues in a way that enables meaningful dialogue with others, it is also important to be familiar with the questions and perspectives of other people who think differently from ourselves.
The Wisdom of Enough
Issue 25, August 2008
In Old Testament Hebrew there is no word for charity. The word used instead was Tzedekah – or Tsedaqah – meaning Justice. Now there's a concept that is not always comfortable to live with. If we were to see our personal or corporate giving as justice, rather than charity, then perhaps we can let go of our notions of generosity and come to the same conclusion as St Augustine who said, "He who possesses a surplus possesses the goods of another."
Giving and Receiving: An Alternative Framework for Discerning the Good. Revisiting the Question of Physician-Assisted Suicide
Issue 24, April 2008
... a person does anything and everything he or she does only because that thing at least 'appears' to be good. Even when I choose something that I know is bad for myself, I nevertheless choose it under some aspect of good, i.e. as some kind of good. (McGee, 1999, http://www.aquinasonline.com/Topics/natlaw.html)
Guest Editorial: The Stories We Live By
Dr Ron Hamel
Issue 24, April 2008
Every day, people within our health care organizations make a myriad of decisions. Some of these may be clinical or patient/family related. Others may have to do with strategic planning, business development, finance, human resources or the common interactions between and among employees. Each of these decisions – to greater or lesser degrees – express the moral character of the individuals making the decisions and, in some cases, express the moral character of the organization.
Editorial: Principles and Process: Lessons from Winter
Issue 22, August 2007
"The principles of partnership, participation and protection of resources contained in the Treaty of Waitangi cannot be ignored in any debate which brings us so close to the heart of human existence and our relationship to the whole of nature..."
--New Zealand Catholic Bishops' Conference Submission to the Royal Commission on Genetic Modification – 2000
In the opening address of his November 1986 tour of New Zealand Pope John Paul II described culture as "the first voice of the sacred." As shared systems of meaning and as rich templates for the celebration of life and death, birth and ritual, worship and service, cultures become the wellspring or soil into which the Gospel is received. Ideally such a process is mutually enriching and beneficial.
The increased use of Māori phrases is a reality in everyday conversation, in media reports, in cultural events and in sacred liturgy. This was clearly evidenced throughout Aotearoa in the use of "Te Reo - the Māori language" in the annual Māori Language Week recently, leading several commentators to remark that New Zealanders are becoming "more comfortable" with our bicultural heritage.
Such heritage and cultural sensitivity are increasingly in evidence in clinical practice in our nation's healthcare. For example, the ethical principles of partnership, protection and participation, which originate from New Zealand's Treaty of Waitangi, play a central role in the use of innovative treatment and in all healthcare research.
While "language weeks" help to raise awareness of possibility, and remind us of their necessity the effect of these events can remain cosmetic and superficial. Similarly ethical principles, which provide a necessary framework for healthcare delivery and for ethical practice in healthcare, require application if the culture of medicine is to be renewed and enhanced. Medicine is a science as well as an art. The ethical and cultural principles of participation, protection and partnership provide a rich backdrop for the healer's art when they are integrated into best practice.
Those coming to terms with a terminal or chronic illness may be overwhelmed by feelings of abandonment and hopelessness. In these circumstances particularly, communication and the giving of bad news requires great sensitivity. When truth-telling is done with sensitivity it becomes a model of partnership in practice. The truth can be harsh and shattering for patient and family alike. Nevertheless the telling of it need not be brutal!
Similarly the care of those living with chronic illness or diminished decision-making capacity, when done with sensitivity and compassion, becomes a form of protection in practice. The need for such protection is especially apparent when the elderly and terminally ill are admitted to an emergency department. Protection in practice not only includes thorough diagnosis, but also, and equally, adequate referral. Even given the pressures on the healthcare system in New Zealand, a two-three day stay in an overcrowded emergency department does not equate with the protection afforded by an in-patient hospice or designated palliative care bed.
In healthcare the ethical and cultural principles of partnership, protection and participation must be expressed in practice at the interface between the patient and healthcare system. This will only happen if adequate attention is given to them at all levels, from public consultation to allocation of resources and personnel.
Rev Michael McCabe, PhD
The Nathaniel Centre
Conscience and the Second Vatican Council
Issue 21, April 2007
Conscience features often in the documents of the Second Vatican Council. The Council declared that:
- All are bound to seek, embrace and live the truth faithfully;
- Conscience is experienced as an inner sanctuary or tribunal, rather than something external, yet it mediates a universal and objective moral law which is given rather than invented;
Issue 21, April 2007
Deep within our conscience we discover a law which we have not laid upon ourselves but which we must obey. Its voice, ever calling us to love and to do what is good and to avoid evil, sounds in our heart at the right moment. . . . For we have in our heart a law inscribed by God . . . Conscience is our most secret core and our sanctuary. There we are alone with God whose voice echoes in our depths. (Gaudium et Spes n. 16)
The Eloquent Voice of Conscience: Notes from a Conference
Issue 21, April 2007
"A voice was raised and the desert receded."
In February 2007 the Pontifical Academia Pro Vita Congress was held at the Synod Hall in Vatican City Rome. The Congress theme was "The Christian Conscience in Support of the Right to Life". A variety of international theologians presented papers on the centrality of conscience and, in particular, its vital role for bioethical issues.
A Letter to ACART from Father James B Lyons
Fr J B Lyons
Issue 21, April 2007
Can human gametes and embryos be used for research in New Zealand? I believe that is the question you are considering. While I have no doubt you are aware of the enormous responsibility given you in this task, and that you seek only the best and truest outcomes, I wish, as an ordinary New Zealander, to stress my concern that what you are considering has, as yet, unforeseen consequences for all life.
Editorial: Bioethics and Theology in Conversation
Issue 21, April 2007
Every academic discipline has its own language, jargon and way of understanding reality. It can take the novice and undergraduate some considerable time and more than a little concentration before he or she becomes even remotely familiar with the various contours of a particular field. Once that familiarity has been achieved it can then be a relatively short step before the scholar or student finds him or herself enclosed in a comfortable academic bubble split-off from the lived reality of people's lives and concerns. Such an unwitting split is an ever-present danger in academic, scientific or theological study and discourse.
Impact and Challenge: 25 Years of Bioethics
Issue 20, November 2006
Where There Is No Vision, The People Wander (Proverbs 29:18)
Let me begin by expressing my immense gratitude to Archbishop John Dew and to Father Michael McCabe for inviting me to deliver the Catholic Foundation Lecture on the occasion of its Silver Jubilee. I am truly humbled and honored, especially given those who have preceded me in giving this lecture. I would also like to thank all of you for being here this evening.
The title of this evening's lecture is Impact and Challenge: 25 Years of Bioethics. However, I have also sub-titled this reflection using a text from Proverbs: Where There Is No Vision, The People Wander (Pv 29:18), because I believe that much of what I will be speaking about this evening has to do with vision an inadequate vision in much of bioethics and a corrective vision that can be offered by elements of the Catholic faith and theological tradition. By the way, I should mention that the text from Proverbs is sometimes translated more ominously as: Where there is no vision, the people perish. I will leave it to you to choose the translation you prefer!
What I wish to do this evening is to reflect with you on some of the major contributions of bioethics toward enhancing dimensions of human life, as well as some of the more trenchant challenges it poses to all of society, but particularly to the community of faith. For better or worse, I do this out of my own social location, namely as an American theologian and bioethicist, for I can only speak of the bioethics that I know and experience. My genuine hope is that something I have to say will resonate with your experience of bioethics in New Zealand either your experience of American bioethics (what you read or hear about), or of New Zealand bioethics, or both.
Before proceeding with the main portion of the lecture, let me say a word about what bioethics is. I would describe bioethics as a multidisciplinary field of study that examines various ethical dimensions of developments in medicine and the life sciences at the individual, organizational, and societal levels. The ethical dimensions I am referring to are threefold. First is the question "What should we do?" This is the domain of conduct or action and is concerned with whether we should proceed with or employ x, y, or z technology. Much of bioethics is concerned with this dimension of ethics. It is generally the most interesting. Second is the question "Who should we be?" This is the domain of character. What kind of individuals, organizations, or societies are we becoming in and through our decisions, practices, and policies? This is less of a concern to bioethics, unfortunately. And, third is the question "How do or should we see?" — This has to do with the beliefs, values, attitudes, intentions, and motives that we bring to any issue. — These shape our vision and vision affects what we see. Vision is critical, but most often neglected. It is that dimension of ethics and bioethics that I will be focusing on this evening.
In 1981, when the Foundation was first established, bioethics was still something of a fledgling field of study, approximately 13 years of age, depending on when one dates the birth of bioethics. As young as it was, bioethics had already addressed a wide range of issues prompted by relatively rapid advances in medicine and the life sciences. Among these issues were abortion, new reproductive technologies (e.g., in vitro fertilization and embryo transfer), genetic engineering (e.g., gene therapy, recombinant DNA research), genetic counseling and screening, prenatal diagnosis, research on human subjects (including the mentally ill, prisoners, children and embryos), organ transplantation and the definition of death, allocation of scarce medical resources (e.g., dialysis machines) psychosurgery and behavior control e.g., electronic stimulation of the brain (ESB) and electroconvulsive therapy (ECT), the right to refuse life-sustaining treatment as well as the right to execute advance directives, euthanasia, and, finally, the health professional-patient relationship (e.g., the right to self-determination, informed consent, confidentiality, and truth-telling). This is an impressive array of issues for a field that was so young and unformed. With regard to many of these issues, bioethics succeeded in forging a social consensus, often enshrined in laws or guidelines. These in turn, together with the on-going discussions, altered thinking and practice in health care delivery and research, most often, but certainly not always, for the better.
Twenty-five years after the inception of the Catholic Foundation, the field of bioethics has reached some degree of maturity. It is a flourishing area of study worldwide with its own practitioners, its own journals and extensive body of literature, institutes and centers around the world (such as The Nathaniel Centre), degree programs, courses in educational institutions, national and international conferences. It has a presence in and to many governments (in the form of Commissions and the like, such as the Toi te Taiao — The New Zealand Bioethics Council) as well as in a vast number of health care institutions and research organizations around the world (in the form of ethics committees or ethics consultants). It is a very frequent topic of media attention. Bioethics has truly become a powerful presence and force in many societies.
In addition to its expansive growth and to its continued work on many of the issues noted above, bioethics in the past twenty-five years has had to grapple with major advances in science and medicine. Perhaps most significant, because of their implications for the future, have been the completion of the Human Genome Project, stem cell research, and cloning. Other issues also stand out—the AIDS epidemic, physician assisted suicide (PAS) and euthanasia, terminal sedation, futile treatment, artificial nutrition and hydration, especially for patients in a permanent vegetative state, xenotransplantation, genetic modification of food, and the threat of pandemics. Indeed, bioethics touches almost every dimension of human life and, in some way, the lives of almost every person on this planet. It is difficult to imagine any other field of study that is so pervasive in scope and that deals with such fundamental dimensions of human life and, hence, that is so potentially influential. What are instances of that influence? What has been the impact of bioethics?
The Impact of Bioethics: A Few Examples
There can be little doubt that bioethics in its nearly 40 years of existence has had a significant impact on social beliefs, practices and policies around the world. In very many instances, this has been a positive impact. In other instances, however, its influence raises serious concerns and challenges. I wish to begin with what I see as a few of the positive impacts of bioethics (though even these have their shadow side).
First, bioethics has had a significant impact on the way in which health professionals and patients relate, at least theoretically and, to a considerable degree, actually. The change is often characterized as a shift from paternalism, where the physician is the primary decision maker, to patient autonomy, where the patient is the primary decision-maker. Patient autonomy recognizes the individual's right to make decisions about his or her health and life in accord with that person's beliefs and values. It places the patient at the center of health care and research decisions, bringing some greater balance to the relationship. Ideally, patient autonomy fosters a more collaborative relationship where health professionals and patient work together for the patient's healing and health. At times, however, it can foster an adversarial relationship where the patient pits his or her will against the physician's.
Several other considerations follow from this emphasis on patient autonomy. If the patient is the prime decision maker, then he or she needs to be adequately informed about his or her medical condition (and, hence, truthfulness is necessary) as well as the potential benefits and burdens of various treatment alternatives. In addition, the patient's consent is required, a consent that must not only be informed, but also be free of undue influence and coercion. Patient autonomy or self-determination requires that patients take more responsibility for their health and their health care. This is a positive good, an important development.
While secular bioethics frames this in the language of liberalism, the fundamental concepts are not foreign to our religious beliefs. We might approach this from the perspective of respect for inherent human dignity and what is required to respect that dignity in the professional patient relationship. Or we might approach it from the perspective of stewardship. Human life and the human body are entrusted to us for our use, our care, and development. One's health is the responsibility of the individual. In the words of the Australian Code of Ethical Standards (1.2): The primary responsibility for safeguarding and maintaining one's health so far as that is reasonable belongs to each person in his or her own right. It follows that each person is primarily responsible for making decisions concerning his or her own health.
I believe that recognizing the responsibility of the patient for his or her health and the centrality of the patient in health care decision making, together with the accompanying notions of informed consent and truth-telling, is one of the most significant and positive contributions and impacts of bioethics.
A second positive impact of bioethics has been its transformation of the way in which people die, particularly in those countries with high tech medicine. To a large degree, bioethics was born in response to rapidly developing medical technologies that were capable of prolonging life ventilators, dialysis machines, organ transplants as well as cardiopulmonary resuscitation and new drugs and surgeries. While in some instances, these new developments saved lives, in other instances they merely prolonged the dying process, sometimes to the point of subjecting dying patients to something close to torture. Too often medical technology at the end of life was doing something to patients instead of doing something for them.
Gradually it came to be realized that dying patients or those who represent them ought to be the ones making decisions about what life-sustaining treatments should be employed and for how long. At least in the American context, it was the combination of respect for patient autonomy or self-determination, together with the Catholic principle of ordinary and extraordinary means that lead to the moral and legal recognition of a dying patient's right to refuse life-sustaining treatment. The right was often tested in the courts and almost each time the courts affirmed and re-affirmed it. While there are still abuses of life-sustaining technology and some disputes about what is morally and legally permissible (e.g., the Terri Schiavo case), there generally is a more tempered use of measures at the end of life. Together with the hospice movement and the spread of palliative care, dying has become more humane. Bioethics has contributed to significant advances in end-of-life care.
The shadow side of this contribution, however, is that the right to refuse treatment has become for some the right to demand specific treatments (e.g., "I want everything done") or, conversely, the right to end one's life (PAS) or to have one's life ended (euthanasia).
A third impact of bioethics in the past 25 years in particular is that it has popularized advances in medicine and biotechnology. What I mean by that is that it has brought these issues into people's homes and schools and churches and places of employment. What might have remained unknown or little known now becomes the subject matter of news reports and table conversations. Bioethics over the years has succeeded in bringing the issues to light and in generating conversation and debate about them. People are generally better informed about these issues that are vital to their own lives and, often, they are engaged in debates about policies, laws or practices. This too is a positive impact.
There are many other areas that we could point to where bioethics has had a significant impact—protection of human subjects in research and organ transplantation, for example. But at this point, I wish to turn to a different kind of impact, those that are less positive, those that pose challenges for individuals and societies and, in a particular way, those that pose challenges for the church, the community of faith, and for theological bioethics going forward. These challenges all in one way or another have something to do with how we see, with our vision. How we see very much determines what we do. The concern is not that the people have no vision (to return to the sub-title of this reflection), but rather that the vision they do have is faulty or inadequate. Such visions lead to practices that are harmful or destructive of individuals and societies. I believe that the future of our societies will depend greatly on how successfully we address these challenges.
Twenty-Five Years of Bioethics: Some Challenges
There are very many challenges which bioethics poses to our societies and to our communities of faith. I wish to highlight only a very few, none of which is particularly new to you, but which I increasingly find to be troublesome as I scan the horizon of issues with which bioethics is engaged. I will consider four: attitudes toward human life, an overemphasis on autonomy, an inability to accept finitude and limits, and a marginalization of religion and theology.
Attitudes toward Human Life
The first is societal attitudes toward human life. Here I fear two extremes. On the one hand, are those who have diminished respect for human life, at least at some stages (usually the beginning and the end). This is evidenced in the high rates of abortion worldwide and in increasing efforts in many countries to legalize PAS, euthanasia, or both. These developments are surely of grave concern. But what I find even more troubling and potentially dangerous is the devaluing of human life in debates about embryonic stem cell research and cloning. Proponents of these technologies either accord no value to beginning human life or not enough value as to prohibit it from being destroyed. Of further concern is that proponents of these technologies are willing to destroy early human life for our purposes. Early human life is considered to have little or no value in itself, but is accorded instrumental value. It is or may be useful for us. It can be destroyed to benefit us (and in the case of cloning, it can be created and destroyed to benefit us). This attitude seems to cross a new threshold.
The other development that is troubling moves in the opposite direction in the direction of vitalism (i.e., life itself is considered to be the highest value and must be sustained at all costs). This is evidenced particularly in several statements made over the past thirty years by a few bishops, local bishops' conferences, and Vatican offices about medically administered nutrition and hydration (MANH). It was further evidenced in the address of Pope John Paul II in March, 2004 and in subsequent responses to the papal allocution.
As you may know, John Paul II's remarks were directed at patients in a permanent vegetative state. Among other things, the Pope stated his belief that medically administered nutrition and hydration are "In principle, ordinary and proportionate, and as such morally obligatory, insofar as and until it is seen to have achieved its proper finality, which in the present case consists in providing nourishment to the patient and alleviation of his suffering." Since the allocution, at least in the United States, we are seeing some people extend — the Pope's remarks to all patients unless those patients are imminently dying (i.e., death is a few hours away). We are also just beginning to see the application of this approach beyond MANH to other life-sustaining measures, e.g., cardio-pulmonary resuscitation.
This is a troubling development for a number of reasons. It is a departure from the Catholic tradition around forgoing treatment, a tradition that has been in place and has remained constant for almost five hundred years. It accords physical, biological life a status that is not consistent with the Catholic tradition where we consider human life to be sacred, but not absolute. It medicalizes the dying process and plays into the hands of the technological imperative (i.e., if we have the technology, we must use it). It will dramatically reshape the way we care for the dying and move us back to where we were in the early days of bioethics. It will create enormous problems for Catholic health care and place Catholic health care where it exists at odds with the standard of care and with the law, at least in many countries. It will inadvertently foster PAS and euthanasia. And it seems to contradict our belief in the resurrection.
For centuries, the Catholic tradition of forgoing treatment has walked a middle path between prolonging dying and hastening death. As the Australian Code of Ethical Standards states (5.3): [T]wo extremes should be avoided: on the one hand, an insistence on futile and overly-burdensome treatments which merely obstruct death, on the other hand the deliberate withdrawal of treatment in order to bring about death. Since good medicine treats a person rather than a condition, respect for persons requires that they neither be under-treated nor over-treated; rather, when people are dying they should have access to the care that is appropriate to their condition. The two developments I have noted, if they take hold, would likely shift this balance with potentially unfortunate if not tragic consequences.
Overemphasis on Autonomy
Another challenge spawned by bioethics, at least in the United States, is an excessive emphasis on the individual, on individual rights, and on individual choice. Autonomy is a cornerstone of much of the bioethics literature and bioethical analysis. The emphasis on autonomy has had a profound impact on the development of bioethics as well as the practice of medicine. I wish to point to a few consequences of this emphasis (which, by the way, represents a particular way of viewing the human person) and the challenges they raise.
First, this conception of human beings is at minimum truncated and more probably deficient and even false. It leads people to think and act as if they were isolated and detached entities, self-sufficient islands as it were, and fails to recognize that social life is an essential dimension of the human person. In fact, we are social by nature and we are able to exist and flourish only in relationships with others. Relatedness to others is not a matter of autonomous choice, but an intrinsic dimension of what it means to be human. Because of this inherent sociality, we not only have individual rights, but also responsibilities to others. The exercise of individual rights and the pursuit of individual goods must always be balanced by social considerations. A sense of connectedness to others, together with a concomitant sense of responsibilities to them is seriously underdeveloped in much of contemporary bioethics.
Second, the emphasis on the autonomous individual elevates choice as the defining characteristic of the person, and gives individual choice a status that is extremely problematic. The choice of the autonomous person is often regarded as trumping all other considerations. In other words, the very act of choosing something makes it right regardless of what is chosen. We see this most clearly exemplified in some arguments regarding abortion, PAS, and euthanasia. What is chosen is not central to the choice, the decision making process, or the moral argumentation (if there is any). The fact of choosing eclipses all else. This leads inevitably to relativism and to a privatization of issues—relativism because idiosyncratic preferences and the choices based upon them are all that matter, and privatization of issues because there is little or no consideration of the consequences of one's choices upon immediate others and upon the common good (e.g., euthanasia).
Third, and very problematic, the emphasis on individual autonomy has curtailed the scope of bioethics. So much of bioethics has to do with individual rights and their protection. Issues tend to be addressed almost exclusively from this perspective—individual problems to be addressed on an individual level. It is largely patient-focused. For example, in the early days of the AIDS epidemic, the central questions had to do with whether it was necessary to obtain informed consent to test an individual, whether test results could be passed along to public health authorities, maintaining the privacy and confidentiality of those with AIDS, and whether health care professionals could refuse to care for a patient with HIV-AIDS. What has been missing from so many discussions in bioethics is attention to questions of social justice that go beyond the individual. As Catholic moral theologian Lisa Cahill has noted in her book, Bioethics and the Common Good:
[W]hen AIDS first came to the attention of Catholic moral theology, its analysis was closely connected to the morality of personal sexual behavior. Gradually, awareness grew that the impact of AIDS on the health of populations around the world is dire.
AIDS began to move out of the category of a sexual problem and into that of a global health problem. It is also a problem of appropriate medical and social responses to suffering and death. Broader social issues began to be examined, including more effective means of preventing transmission (the debate about the use of condoms), the inequities of wealth and power that contribute to the spread of AIDS, the need of resource redistribution to treat all those with AIDS with antiretroviral drugs, and the obligation to care for communities afflicted by AIDS (especially AIDS orphans) as falling on the international community, especially its wealthiest members. AIDS has become a problem of bioethics and the global common good. (Lisa Sowle Cahill, Bioethics and the Common Good, 2004, pp. 67-68).
What Cahill suggests is that an overemphasis on autonomy and the individual has resulted in a lack of concern for the common good, and a neglect of the social dimensions and implications of developments in medicine and biotechnology. Hence, what is needed, and this can be a major challenge, is a reorientation of perspective, a transformation of vision. It means seeing the nature of human beings and approaching developments in medicine and the life sciences differently, with different assumptions, different categories, and different questions. This re-orientation entails not only the individual, but the individual-in-community; not only choice and individual rights, but also justice and responsibilities to the common good, including the global common good; not only the questions relevant to the developed world, but those as well relevant to the third world, or the two-thirds world.
Such a reorientation would likely bring to the forefront the reality that much of the world does not benefit from the advances in medicine and biotechnology. In the words of John Paul II:
[There is a] very serious and unacceptable gap that separates the developing world from the developed in terms of the capacity to develop biomedical research for the benefit of health care assistance and to assist peoples afflicted by chronic poverty and dire epidemics— It is essential to realize that to leave these peoples without the resources of science and culture means to condemn them to poverty, financial exploitation and the lack of health care structures, and also to commit an injustice and fuel a long-term threat for the globalized world (Address to the Pontifical Academy for Life, 2003).
The challenge here is enormous. It is especially pressing for Catholic bioethics, which is not immune from a focus on issues as they affect individuals. It is critical that we do more bioethics from the perspective of Catholic social ethics bringing to bear our fundamental commitments to human dignity in the context of community, the common good, solidarity, and justice.
Finitude and Limits
Another critical challenge is the need to recover or, perhaps, acquire a sense of finitude and limits. We are finite beings, pure and simple. We will all die. Our lives are marked by pain, suffering, disease, disability, and countless other limits. We will never fully overcome our finitude and all that that entails. This reality does not mean that human beings ought to be passive before the various manifestations of finitude. That is simply not human nature. In fact, human history can be viewed at least in part as an on-going attempt to overcome limits of various sorts. We would be remiss if we did not employ our God-given intelligence and creative abilities to improve upon our lot and to bring ourselves and creation to fuller development.
But are there limits to this effort? Or can anything and everything be justified in the process of curing disease and delaying death? The latter very often seems to be the case among the scientific community as well as the general population. There seems to be a sense that with adequate time, money, and effort, particular diseases can be conquered and death itself can be overcome. The American philosopher and bioethicist Daniel Callahan puts it this way:
Medicine, I believe, has implicitly defined its central purpose as an all-out fight against death. [E]very cause of death is taken to be contingent, a matter of chance. By contingent and chance I mean that it need not exist, that there is in principle and in medical theory no reason why any particular disease cannot be overcome. Death is in some sense biologically programmed, but not particular causes of death. Just as smallpox was eliminated and diphtheria and typhoid and typhus all but eradicated, so cancer and Alzheimer's can also be done away with. This is the abiding faith of scientific medicine. No cause of death has been declared beyond hope; none could be. All of the known causes of death can, in principle, be picked off, one by one. All of the wars against disease can eventually be won, not only those that kill us but also those that weigh us down our aging (Daniel Callahan, The Troubled Dream of Life, 1993, pp. 74-75).
The belief that all diseases and even aging can be conquered along with death is often coupled with a belief that there is a moral obligation to use whatever means are possible to pursue this goal. Again, in the words of Daniel Callahan:
The advent of effective medicine, the kind that can save and extend life, changed the perspective on death as an evil. As it became increasingly possible to manipulate the conditions of dying, fatalism was rejected and a moral dimension was added. That dimension soon took the form of a simple principle: since death is an evil in human life, we have a moral obligation to use medical means to combat it. What can be done to struggle against death ought to be done. (Daniel Callahan, The Troubled Dream of Life, 1993, p. 75).
Those who choose not to do everything possible to overcome disease and stave off death are considered to be blameworthy. This is the kind of rhetoric, for example, that we hear, at least in the United States, with regard to the pursuit of embryonic stem cell research. One proponent of the research puts it this way: What excuse will we offer this young woman should we fail her now? What might we tell her children? Or the millions of others who suffer? That when given an opportunity to help, we turned away? That facing political opposition, we lost our nerve? That even though we knew better, we did nothing No, no, we owe this young woman and all those who suffer we owe ourselves better than that.
Part of what fuels such thinking seems to be a belief that there are no limits to human ingenuity and to medical progress. Again, in the words of Daniel Callahan:
[W]e must understand that it [the dream of medical progress] is, in modern hands, open-ended and expansionist. The dream of medical progress does not have any logical or obvious endpoint or any intrinsic constraints. Nor is it at all clear just what would count as a full realization of the dream. The eradication of all suffering? The cure of every disease? An endless old age? Immortality?
Precisely because modern medicine's unspoken goal is simply more, there are no limits to what can be hoped for and sought. The very absence of any more clearly and precisely articulated goals fuels the entire enterprise. In modern medicine's dream of progress, there are no set boundaries to what societies and individuals can desire, nor to what may be done to satisfy those desires. (Daniel Callahan, False Hopes, 1998, p. 52).
The challenge here it twofold: we need to recognize that not everything is justified in the attempt to cure horrible diseases that plague the human condition and, second, we need to learn to live with our finitude and some of the limitations that we encounter. We need to understand that we are creatures and not God. The maddening reality that we must accept is that we can never fully overcome ourselves. This is what it means to be finite. While we can and should strive to overcome human limitations, a complete transcendence of them through technological means will never be possible. Yes, we should attempt to alleviate human suffering and its causes and even seek to prevent premature death, but within limits, recognizing that there are other needs and other goods to be pursued, that there are moral constraints, and that there are realities called the common good and the global common good. Viewing human endeavors in biotechnology against the backdrop of our finitude can help us temper unrealistic expectations and use our creativity more constructively. Again, we need to see differently, we need to correct our vision, and then perhaps we will choose differently.
Recovering the Voice of Religion and Theology
A further challenge (and this is the final one I will address this evening) posed by much of contemporary secular bioethics and many practitioners within the field is the marginalization of religious and theological contributions to bioethics. This may be a challenge more troubling in the United States than elsewhere because of my country's strong tradition of the separation of Church and state, the reality of religious pluralism, and concerns over the views and tactics of the religious right. However, I suspect the problem may exist elsewhere, but for somewhat different reasons (such as secularism, anti-clericalism and the like).
It is well known that the first practitioners of modern bioethics were theologians. It is also well-known that there is a long history of attention to medical-moral matters within Catholicism. For a variety of reasons, however, shortly after the birth of bioethics in the late 1960s and early 1970s, philosophy and law came to dominate and define the field. It was then that the "Georgetown mantra" came to exist the four principles of autonomy, beneficence, non-maleficence, and justice that originated at Georgetown University. Each of these was understood individualistically and focused on protection of individual rights. These philosophical concepts were seen as offering a more neutral and objective mode of moral analysis in a pluralistic society, especially with regard to the formation of public policy. Religion was deemed to be partisan and as imposing solutions upon society derived from a religious perspective that was not shared by the general populace. Within a very short time, religious and theological voices were relegated to the margins of bioethical debates and policy formation. In response, in order to —remain in the game,— many theologians began to adopt the language and categories of secular bioethics abandoning their own theological traditions, concepts, and symbols. They began to function as philosophers, employing the Georgetown mantra, focusing on the individual, individual autonomy, and individual rights.
This development, I believe, has lead to a great impoverishment of secular bioethics. Deprived of religious and theological voices, bioethics has operated out of a very inadequate notion of the individual, society, and justice. It has resulted in a narrowing of the scope of bioethical concerns. It has permitted bioethics to focus excessively on the impact of new technologies on individuals primarily, as well as on individual choice and individual rights. And it resulted in many of the underlying meaning questions not being addressed, such as, the meaning of finitude, limits, dependency, parenthood, procreation, health, medical progress, life and death and the like.
In recent years, the place of religion and theology in bioethics has improved somewhat, but there is still much room for improvement. Going forward, I believe that communities of faith and theological bioethicists have a critical role to play. I would like to suggest six ways in which religion and theology can contribute to bioethics. First, and rather obviously, it can provide a far richer understanding of what it means to be human than what is currently operative in much of Anglo-Saxon bioethics and public policy formation. An understanding of the human person that has breadth and depth that goes beyond an emphasis on the individual, on autonomy, on choice, and on individual rights could lead to a bioethics and a public policy that will better contribute to the flourishing of individuals and society.
For example, in the embryonic stem cell debate, the moral status of the embryo is surely a primary consideration. But this is not the only consideration. A fuller theological understanding of the human person would also want to underscore our social nature and the duties we have toward and responsibilities we have for one another, including nascent human life and those who suffer from disease and disability. This includes what we become as individuals and as a society in and through the choices we make. What will be the impact on us and on those who come after us if we accept the destruction of nascent human life? What will be the impact on us if we acquiesce to using nascent human life for our purposes? — We would want to consider what we owe one another in our various social interactions, that is, what justice requires of us. Who will benefit from the cures, if any, developed from embryonic stem cells? Who will have access to such treatments? Will we ensure fair access and equitable distribution?
Such a theological understanding of the human person would likely consider the fact that human beings are finite, that limitations of various kinds are an ultimately inescapable part of our life experience. It would also likely consider human sinfulness, that fact that so often we pursue and choose to do what is contrary to respect for human dignity and human flourishing . It would underscore the fact that often we pursue the wrong goals, or the right goals for the wrong reasons or in the wrong ways. Power, greed and hubris are powerful forces that can lead us off the mark.
A second and very much related contribution is that religious and theological voices in bioethics can lead to an expansion of the considerations that enter into discussions of developments in biomedicine and public policy. As previously mentioned, bioethics discussions often become narrowly construed, focusing on rights, for example, individualistically understood, or procedures to ensure non-interference, or the pragmatic results and benefits of particular technologies. The embryonic stem cell debate is focused on the moral status of the embryo, the hoped-for benefits of the research, a presumed obligation to pursue this research for the benefit of others, and an unfettered pursuit of knowledge. These are undoubtedly all critical considerations. But there are more, as was suggested above in identifying some aspects of a theological understanding of the human person and some of their implications for embryonic stem cell research. By broadening our considerations, by paying attention to more of what is at stake, one would hope for public policies that have taken account of the complexities of these situations and, hence, become a more fitting response for the good of society.
Third, theological approaches to bioethics of necessity raise questions of meaning. In bioethics and public policy discussions, questions of meaning are there invariably, but they are most often not recognized or, if recognized, are not engaged. Cultures marked by classical liberalism and a hyper-sensitivity toward pluralism are not inclined to take on questions of meaning. But this is to the detriment of public policy and society. It results in thin discussions, inadequate readings of what is going on and of what is at stake, and, often, responses to biomedical developments and public policy that reflect this. Part of this broadening of the agenda and considerations of bioethics is, as Lisa Cahill observes, "to make sure the debate addresses the needs and concerns of all, to ensure that the needs of the voiceless are given voice, and to ensure that the marginalized are protected and thus enabled to make their contribution to society" (Cahill, Theological Bioethics, p. 20).
In the embryonic stem cell debate, the meaning questions go beyond the moral status of the embryo. They encompass such other things as how we understand illness, disability and death, our finitude and how we deal with limitation as well as the drive to overcome it, our obligations to others and to future generations to seek and provide cures for disease and disability, the common good, scientific progress, and the pursuit of knowledge. Attending to these issues could result in richer more adequate deliberations, responses and policies.
Fourth, theological approaches to bioethics could serve a prophetic function in bioethical discussions and with regard to public policy. They could remind society of critical dimensions that are not being considered; challenge beliefs and values that ultimately do not contribute to human flourishing; point to the consequences for individuals and society of certain values, conviction and choices; and call society to be and become more. Theology, for example, could invite society to reflect on its attitude toward nascent human life and its obligations toward that life and all the vulnerable in our midst. It might call into question a mentality and a practice that is willing to sacrifice the most vulnerable for the benefit of many and, concomitantly, the use of a utilitarian calculus in the development of public policy. It might call for examination of the assumption that we must pursue every avenue available to us in the great desire to relieve pain and suffering. In their prophetic role, religion and theology might challenge the technological imperative and might raise up for consideration the variety of motives behind the drive to make use of embryonic stem cells, including profit, prestige and power. They might hold up for reflection and debate the possible impact of our choices about this issue on our very humanity and upon the kind of society we become.
Fifth, theological approaches to bioethics have the potential for transforming the community of believers. All of us operate out of a particular world view, a particular way of seeing and interpreting reality. That worldview affects what is seen and not seen, what is valued and not valued, what is valued more and what is valued less. All of us bring these values, beliefs, dispositions, intentions, motives and sentiments to our deliberations and our judgments. One of the primary contributions of religion and theology to bioethics is to influence the worldview of members of the faith community who in turn can influence public debate and influence the shaping of public policy.
This contribution of religion and theology, however, hinges on at least two things. One is education or formation, the gradual shaping of the character of individual believers. How is this done and done deliberately, consistently and successfully? The other is dialogue, communities of believers functioning also as communities of moral discourse, exploring moral issues in light of their faith and their theological understanding of what it means to be human. If these two things can occur successfully, it is more likely that theology will have some effect on bioethical deliberations and the formulation of public policy.
Sixth, and finally, theological bioethics should lead to action, to the transformation of those situations related to advances in medicine and biotechnology that are unjust. In the words of Catholic moral theologian Lisa Cahill:
[T]heological bioethics is not just about talk. It is about action. The 'truth" and viability of the vision of Christian theological bioethics is warranted not just by cogent theory or argument but by the emergence of transformative practices that join with other movements in global civil society to encourage human solidarity, empower "the poor," and motivate the powerful to change.
[B]ioethics in the twenty-first century must in every case be social ethics, not just as theory but as engagement. This is particularly true in light of globalization.
[T]heological biooethics must go beyond decrying injustice, beyond taking a "prophetic" stance against social practices that commercialize human beings, the human body and its processes, or important human relationships. It must even move beyond painting a vision of a more egalitarian and solidaristic future. Theological bioethics must critically reflect on and make normative judgments about, theoretically account for, and ultimately take part in a global social network of mobilization for change. (Lisa Sowle Cahill, Theological Bioethics, 2005, pp. 2, 3).
The challenge to theological bioethics as well as to people of faith is to enter bioethical debates true to their own theological convictions, bringing them to bear in appropriate ways to the issues at hand, while, as Lisa Cahill suggests, "seeking common cause and building a common language with all who are similarly committed to health care justice" (Cahill, p.18).
Looking back on twenty-five years of bioethics, there is much to be pleased with. It has accomplished much for the benefit of individuals and, to a considerable extent, for the good of societies as a whole, though less so for some of the marginalized, especially in underdeveloped countries. In pursuing and bringing about these benefits, however, bioethics, at least in some of its expressions, has contributed to beliefs, values and attitudes that seem not to contribute to the ultimate flourishing of individuals and communities. It has contributed to a vision of human beings and human purposes that in some cases is inadequate and in others, harmful. If I might paraphrase the text from Proverbs: "Where there is a faulty vision, the people wander, and they might perish." Or, in the words of Father Michael McCabe:
In exploring the possibilities of biotechnology there is an ever-present danger of losing our way, of taking ourselves and future generations into territory or an environment which is fundamentally harmful to human life. The irony is that we are most likely to do this as we search for ways of sustaining life, relieving suffering and improving our quality of life" (Michael McCabe, "Bioethics and Decision Making," The Nathaniel Report, April 2001, p. 3).
As we begin the next twenty-five years of bioethics, it is critical for people of faith and for theologians who do bioethics to attend not only to the advances in medicine and biotechnology, the dilemmas, but also to the vision or visions that accompany debates about them. It is perhaps here that communities of faith and theological bioethics can make their greatest contributions and where their contributions are most needed. — As Joseph Cardinal Bernardin pointed out in a talk to the United States Conference of Catholic Bishops on health care reform:
[This is] a time of testing and a moment of opportunity for the Church. We will be tested on how our teaching contributes to the moral framework for reform. Our tradition can illuminate important aspects of the debate, illustrating the potential of the Catholic social vision for contemporary issues" (Joseph Cardinal Bernardin, "The Right to Healthcare: A Test and an Opportunity for the Catholic Community," 1993).
Ultimately, the vision ought to be a transformational vision. Our vision of the person-in-community, the common good, solidarity, justice, and the option for the poor is inherently oriented toward change, change in personal attitudes and behaviors, change in social attitudes, policies, practices and structures, change in how we view and deal with old and new developments in medicine and biotechnology. This will lead to a different kind of bioethics. The vision that grounds it, however, is difficult to achieve and realize in so many respects. But that is our challenge as we take bioethics into the future.
The Catholic Foundation Silver Jubilee Lecture was delivered by Dr Hamel at St Joseph's Catholic Church, Mount Victoria, Wellington on October 18, 2006.
Ron Hamel, PhD, is Senior Director, Ethics, for The Catholic Health Association of the United States of America
Editorial - Taking a Deeper View
Issue 20, November 2006
In recent years the New Zealand Government has spoken often about one of its central goals, namely, the transformation of New Zealand into a knowledge-based economy and society. Towards that end it recently released a document entitled The New Zealand Curriculum: Draft for Consultation 2006 as part of a comprehensive review of the country's curriculum for primary and secondary schools. The draft curriculum document states that at Level 8, students will use relevant information to develop a coherent understanding of socio-scientific issues that concern them and to identify possible responses at both personal and societal levels.
Guest Editorial: Concerning Information, Knowledge and Wisdom
Bishop Peter Cullinane
Issue 19, August 2006
When the Second Vatican Council spoke of "familial relationship" between the laity and the pastors" (LG 37), it was making the point that each learns something from the other when it comes to understanding, interpreting and applying the Church's teaching.
The practical implications of this were later spelled out in c.212, which emphasises both the rights of the laity and the respect due to the teaching ministry of pastors. But more than that, good collaboration in practising and presenting the Church's teaching is rooted in the relationships proper to a community of Jesus' disciples. Their learning from each is qualitatively affected by friendship between them.
A little learning
If before the Council it was the insights and the rights of the laity that were often neglected, perhaps today it is the ministry of the pastors that is being disrespected – not by careless Catholics, but by zealous Catholics, who seem to be very sure of themselves. Of whom was the poet speaking when he said: "a little learning is a dangerous thing"?
The harshness and sarcasm to which pastors are sometimes treated does not come from those family relationships the Council describes, and not from the Holy Spirit.
Adequately presenting the Church's teaching involves much more than just getting information, even from the best of sources. Information on its own is not knowledge. Much less is it wisdom. Someone has rightly asked: whatever happened to wisdom that it got buried in knowledge; whatever happened to knowledge that it got buried in information?
Information is only the raw material for knowledge. It needs to be processed through the methods proper to theology. In this way we see individual teachings in the light of each other and in the light of the whole. This involves years of study.
At the time the Catechism of the Catholic Church was issued, Cardinal Ratzinger emphasised the importance of "mediating" the Catechism. This is something more than merely drawing conclusions for local application, and it is more than merely repeating the text. It involves a process of internalising, interpreting and re-expressing the text in other ways. He even said the Catechism "is not and cannot be the only possible way, or even the best way, of giving a catechetical re-expression to the Christian message". It belongs to the ministry of bishops and bishops' conferences to oversee these processes of "mediation" and ensure faithfulness to the apostolic tradition.
In a private discussion with two of New Zealand's bishops during the 1989 Synod, Cardinal Ratzinger confirmed that bishops and bishops' conferences have a similar role in interpreting and applying Instructions issued by Roman Congregations for the Universal Church.
How did Cardinal Ratzinger get it so wrong, if it is sufficient just to repeat what can be read in the Catechism or in an Instruction?
What would be left of the charism and vocation of theologians if the ability to read the internet or the Catechism were all that is needed, without the need for years of theological study?
And what would be left of the teaching ministry of bishops if it were reduced to merely repeating what anyone could pick up from the media?
These are the kind of questions that must be faced by those who use information (albeit accurate information) in isolation from theological method and independently of the teaching ministry of bishops.
They might also notice that according to the Council, the factors which give rise to ongoing development and growth in the Church's understanding of its faith are rooted in the lived experience of the faith (DV n.8) – and therefore in the life of the Church at every local level.
The need for bishops to speak up
That is why the charism and responsibility for authenticating Catholic teaching belongs to the whole episcopate, including and especially the Bishop of Rome. Regional bishops would be acting in an un-Catholic way if they were not to assume their share of responsibility for how the Church's teaching continues to be clarified and expressed.
If the reaction of some Catholics to a recent explanation of the Church's teaching on contraception and avoiding the spread of infection proved anything, it proved the need to say what was said. Otherwise, people really will think that clarifications such as those recently offered by at least two Cardinals and a consultor to the Congregation for the Doctrine of the Faith amount to a "change" in the Church's teaching. It was important to explain why this is not so.
It is also required of pastors that they hold the torch for those thinking Catholics and others who know instinctively that some of the Church's teachings have been inflated beyond what the Church actually teaches.
Beyond knowledge is wisdom. Knowledge is its raw material still being processed through prayer, reflection and life-experience. Of course, it is also a gift. Those who are least likely to feel the need for wisdom are those who are most sure of their own knowledge. Lots of information and easy access to it have become their power-base. (The power-base in society used to be with those who hold wisdom).
Some of those who rely heavily on information would probably find Cardinal Ratzinger's remarks on mediating and on the role of bishops' conferences bewildering – even if they are not so long out of the seminary.
The Catholic laity are entitled to pay more attention to those who have heard more confessions, visited more homes, worked with more addicts, failed more often, and experienced their own vulnerability over a longer period of time. They seem to know something that is not taken from the internet. (I used to feel scandalised by these priests – I had learned the books very well. I was yet to learn humility.)
An increasing need
Legislation on social, economic and industrial issues, and ethical questions arising from bio-technology, are just some obvious areas in which pastors and laity need each other for a proper understanding of how the Church's teachings apply. This will become more so, not less so. How shall we put in place the structures needed to facilitate friendship?
Bishop Peter J Cullinane is Bishop of Palmerston North Diocese and New Zealand Bishops' Conference Deputy for The Nathaniel Centre.
From CD to MP3 for Free? The Principle of Moral Cooperation
Issue 17, November 2005
Having carefully saved his pocket money, my thirteen year old son recently purchased a new music CD. One of his friends immediately wanted to borrow the CD so that he could copy the songs - at no cost - onto his MP3 player, something that is a clear breach of copyright. "Heaps of people do it Dad, but I don't think it is right. What do you think?" I had to agree with him. "Could you tell him that he can borrow it to listen to, but that you don't want him to copy it," I ventured to suggest. "Yeah right, Dad. We both know that he will copy it anyway."
The Pursuit of Wisdom
Dr Anna Holmes
Issue 17, November 2005
There is in her a spirit that is intelligent, holy, unique, manifold, subtle, mobile, clear, unpolluted, distinct, invulnerable, loving the good, keen, irresistible, beneficent, humane, steadfast sure, free from anxiety, all-powerful, overseeing all, and penetrating through all spirits that are intelligent, pure and altogether subtle.
--Wisdom of Solomon 22-23
We live in a knowledge economy and access to information is power. Those who do not have access to information are disempowered. We live in a world that values scientific knowledge but pays scant attention to wisdom. Indeed it tends to discount any knowledge that cannot be measured and tested by scientific method. Knowledge gained through experience is also often ignored. This trend has been escalating in the past century as scientific understanding of the world has increased. It is almost as if the more we unravel about our physical being and world the less we really understand our real selves and relationships.
Personhood and Human Dignity
Issue 17, November 2005
"During the next 35 years, the traditional view of the sanctity of human life will collapse under pressure from scientific, technological, and demographic developments. By 2040, it may be that only a rump of hard core, know-nothing religious fundamentalists will defend the view that every human life, from conception to death, is sacrosanct."
--Peter Singer, 2005
In the September/October 2005 edition of the magazine, Foreign Policy Professor Peter Singer from Princeton University wrote an Op-Ed piece entitled The Sanctity of Life: Here Today, Gone Tomorrow. In it he argues that, because of significant scientific and technological developments, the belief that life is sacred from conception to death has become, in 2005, untenable. To support his argument Singer cites two examples one at the beginning of life, the other at the end of life.
Earlier this year scientists from South Korea successfully replaced the nucleus of an unfertilized human egg with the nucleus of a human cell. Such a development appears to confirm that any and every human cell contains the genetic information required to create a new and independent human being. The possibility of cloning from the nucleus of an ordinary cell, Singer argues, undermines the idea that embryos are precious because they have the potential to become human beings. For Singer while the life of a human organism begins at conception, the life of a person that is, at a minimum, a being with some level of self-awareness does not begin so early. Similarly, he argues that personhood can end long before an individual dies.
When patients have suffered such irreversible brain trauma from which they will not recover, then, Singer argues, a decision to remove a feeding tube will be less controversial, because it will be a decision to end the life of a human body, but not of a person. For Singer a patient in this condition has already ceased to be a person and only his or her body remains.
While Singer is right that the development of sophisticated technology will increase our ability to make sound judgments about the limits of curative treatment, the leap in judgment that patients who have lost even a minimum of or considerable self-awareness, are no longer persons is disturbing to say the least. While we argue that the unborn, infants and the cognitively impaired have an innate dignity and a profound moral connection to the community, it is clear from the above argument that not everyone agrees.
The implications of Singer's argument are disturbing, not least because such views are not uncommon in secular bioethics.
For example, in his book The Foundations of Bioethics, H. Tristram Engelhardt outlinea the philosophical basis for such an understanding of personhood in general secular morality and, by extension, in so-called secular bioethics. He lists four fundamental elements of personhood: the ability to be self-conscious; rational; have a minimal moral sense and be free. To the degree that a human being is conscious, able to make autonomous choices, and perform actions which benefit society, his or her life has value and the status of personhood. When these qualities are lacking, so is their personhood. Engelhardt states:
not all humans are persons. Not all humans are self-conscious, rational, and able to conceive of the possibility of blaming and praising. Fetuses, infants, dhe profoundly mentally retarded, and the hopelessly comatose provide examples of human nonpersons. They are members of the human species but do not in and of themselves have standing in the secular moral community. Such entities cannot blame or praise or be worthy of blame or praise; they cannot make promises, contracts, or agree to an understanding of beneficence. They are not prime participants in the secular moral endeavor. Only persons have that status. (Engelhardt, 1996, pp.138-139)
Engelhardt argues that such definitions highlight and reflect the tension between general secular morality and traditional Judeo-Christian morality and the bioethics that it, in turn, supports. Inevitably different philosophical starding points lead to a painful gulf between general secular and content-full morality. (1996, p.140)
The logical outcome of the current trends in secular bioethics regarding personhood is a society divided into persons and non-persons. Non-persons would include those who are cognitively disabled in some way, through genetics, accident, or disease. The requirement to exhibit certain cognitive capacities means that some bioethicists do not see newborns as being persons.
The human rights of those declared to be non-persons would be severely curtailed. Some bioethicists have already speculated as to whether they could be used as non-voluntary sources of organs.
From a Catholic perspective the intense philosophical debates about personhood occurring in secular bioethics give cause for considerable concern. Human dignity is the source of rights in Catholic thinking, not a slippery concept of personhood which can be defined and redefined so that some people are designated as non-persons. It is hard to escape the conclusion that in some cases this is being done for utilitarian purposes.
There is reason to be very afraid if this philosophy should make further inroads into public policy in New Zealand, as it is already doing in other parts of the world.
H. Tristram Engelhardt. (1996). The foundations of bioethics. (2 nd ed.). New York: Oxford University Press.
Singer, P. (September/October 2005). The sanctity of life: here today, gone tomorrow. Foreign Policy.
Smith, W.J. (2000, April 3). Is Bioethics Ethical? The Weekly Standard.
Rev Michael McCabe, PhD
The Nathaniel Centre
Guest Editorial: Decisions, decisions...
On an Intrepid Journey programme on television recently a group of Turkish carpet makers gave a mesmerizing demonstration of their craft. With incredible speed they pulled each tuft into the carpet, changing colour without hesitating as they created an intricate pattern.
The carpet makers provided a visual analogy with life. We make many small decisions every day, often without a lot of thought. These decisions are like tufts in the carpet, collectively creating a pattern in our lives. We would be hugely burdened if we were to pay too much attention to them, so we create routines to simplify our daily decision-making processes. Routine saves us from expending unnecessary energy on making minor decisions.
Christian Moral Argument and Natural Law "Faith and Reason" or "Faith vs. Reason"
Issue 16, August 2005
In America, and now in New Zealand, an increasing number of strong and powerful "religious" voices are emerging in the political arena to debate the moral issues of our time. A number of these Christian voices employ an approach to morality that appeals strongly and at times exclusively to the authority of God in Scripture.
Guest Editorial: Morality and Reality
Issue 16, August 2005
In 1984 Cardinal Joseph Ratzinger gave an address entitled "Bishops, Theologians and Morality" to the Annual Bishops Workshop run by the National Catholic Bioethics Centre in the United States.
Editorial: Beyond Slogans
Anne Dickinson, Michael McCabe, John Kleinsman
Issue 15, April 2005
Slogans and bumper stickers are a popular feature of modern life. They offer us messages which are memorable for their precision and conciseness. That is why we love them.
We live in a world of ever-increasing complexity which may explain, in part, why there is a tendency to think we can grasp bioethical principles and ethical solutions in simple one-liners such as the right to choose and the right to life. For all their power and attractiveness and kernel of truth slogans can trap us into thinking that we can come to an adequate understanding of an issue via one perspective alone.
Editorial: Engaging with Society
Issue 13, August 2004
"Economic, technological, systemic and medical realities are not enemies. Rather it is to them that we bring our ministry of Christian hope."
--Cardinal Joseph Bernardin
On 14 September 1965 the fourth session of the Second Vatican Council opened in Rome. In the three months that followed the Council Fathers finished their work on Gaudium et Spes (The Pastoral Constitution on the Church in the Modern World). This landmark document was to change the way in which the Church related to the world. It is as relevant forty years later as it was when it was first made public.
Toi Te Taiao: The Bioethics Council
Issue 9, April 2003
The New Zealand Catholic Bishops' Conference Submission to the Royal Commission (2000) on Genetic Modification analysed the debate around genetic modification. The Bishops recommended there be an ethical framework for decision making and suggested the following as a way forward:
In order to prevent unethical or unwise use of GM, oversight of its use by appropriate bodies, established by regulation, is a moral imperative. We strongly believe that a framework of ethical principles is needed to assist individuals and the community to make informed decisions about the profound issues associated with genetic modification....
Editorial: Listening to the Culture
Issue 9, April 2003
When people think about bioethical issues they inevitably bring their own human needs and fears into the process. Without a deeper and more distanced knowledge the only way an individual can respond to the complexities of an issue is through their feelings and emotions.
Exploring the Role of Health Professionals in Truth Telling: A Nursing Perspective
Issue 7, August 2002
Truth telling (veracity) is a key factor in the relationship between patients, their families and health professionals. The Oxford dictionary defines truth as: a quality or state of being true, genuine, loyal, faithful; in accordance with fact or reality, exact, accurate.
Surveying a Catholic Approach to Bioethics
Issue 7, August 2002
"Healthcare ethics is about the medical art of curing where possible, and the human art of caring always."
--Richard C. Sparks
The Catholic moral tradition emphasises that life is a free and totally unsolicited gift from God. An appreciation of this fact engenders an attitude of profound gratitude and thanksgiving. When we look at life like this, Christian morality is nothing other than our response to the unconditional and amazing love of God: 'How ought we who have been so gifted by God to live?' Like any special gift, we instinctively feel that life is something to be treasured and to be used in a responsible way. This is the starting point for any Catholic approach to bioethics.
The absolute dignity accorded human beings in Catholic teaching reflects the biblical message that each person is created in the image and likeness of God (Genesis 1:26-31). The belief that human life is a reflection of God's own nature means that personal worth and human dignity are inherent or innate characteristics; that is to say, our worth comes from 'inside' the human person rather than from anything 'external'. Human dignity is absolutely independent of our value to others, our ability to function, our age, health, gender, race or economic status. The belief that dignity is innate explains why the Catholic moral tradition upholds, absolutely, the teaching that persons may never be used by others as a means to an end, no matter how worthwhile the end may be.
Acknowledging God as the author and giver of all life calls us to recognise the sacredness of, and our interconnectedness with, all of creation. In other words, human persons are fundamentally relational beings. The person is always person in relation to the totality of reality; self, other people, all created reality and God. Due recognition of this highlights the responsibility we have of living in "right relationship". Often expressed in the biblical terminology of "stewardship", our interconnectedness is not, however, to be confused with "absolute dominion". Instead, the interconnectedness of all life demands recognition of, and respect for, the fact that there are limits to what we as humans should do. Our responsibility to protect and enhance the integrity of all relationships is the key to identifying what the limits are.
These limits have been, and continue to be, well traversed (even if not always agreed on) in regard to our responsibilities towards other human beings. That we are fundamentally social beings means that the human person, adequately considered, is a cultural person. Our ability to function in autonomous ways and to develop as individuals is always dependent upon our identity with a particular cultural group. Such a perspective nurtures a broad vision of the human person as called to live within caring communities. We find our fulfillment as committed individuals bound in kinship, friendship, and fellowship to our families and our neighbours. Yet the Gospel reminds us that we owe loyalty not only to those whom we readily choose as friends, but also to strangers and even to enemies. In Catholic language the term "common good" is used to describe the fact that our individual welfare and flourishing is inextricably connected with the welfare of others.
At the very heart of Catholic respect for human life is a special and persistent advocacy for those who depend on others for survival itself. Indeed, Jesus Christ teaches that the moral heart of any society may be measured by how well it provides for those who are most vulnerable and dependent. The beginning and end of life are areas of special interest and concern in bioethics because people are particularly vulnerable at these stages of their life journey.
The limits of human freedom have perhaps been less well delineated in regard to the relationship between humans and the rest of the created order. As recently as 1999, Pope John Paul II, in an address given to the WTO Conference in Seattle, Washington, has talked about the need to address the ecological crisis: "Faced with the widespread destruction of the environment, people everywhere are coming to understand that we cannot continue to use the goods of the earth as we have in the past ... [A] new ecological awareness is beginning to emerge ... The ecological crisis is a moral issue."
Our own New Zealand Bishops have also written that it is "in keeping with the traditions of the Māori of Aotearoa that we need to respect the sacredness of creation, as partners in life with the earth, the oceans, the lakes, the animal world, the mountains, the fish of the sea and the birds in our forests and gardens. From such sources, balanced by the infinite hand of God we draw all life and nourishment."  The integrity of all creation needs to inform our bioethical discussions with regard to the lengths to which we humans are prepared to go in order to delay death or to improve the quality of our life.
Recognition of the need to respect limits itself calls for a certain approach to understanding personal freedom, one that may be at odds with the way in which freedom is sometimes understood. Freedom can never mean the experience of simply exercising choices or options for action. A Catholic-Christian approach upholds an understanding of autonomy (the idea that we are the authors of our own fate) that includes the notion of our inter-dependence with others. We act freely when we act in ways that help us to flourish according to our deepest needs and yearnings, including our need to be in caring community. "Human nature" is a term sometimes used in Catholic teaching to refer to that which is in keeping with our deepest human yearnings.
A further principle that underpins a Catholic-Christian approach to bioethics is the belief that faith informed by human reason can discern the good. This means that, in their endeavour to determine what is appropriate human conduct, Catholics are committed to dialogue with all the sciences. In the words of John Paul II: "Faith and reason are like two wings on which the human spirit rises to the contemplation of truth."
From the above broad and general vision of the goodness and sacredness of the created order the following set of key moral and ethical principles inform a Catholic-Christian approach to the interdisciplinary science of bioethics:
- The sanctity of life
- The dignity of human persons
- The relief of suffering
- The duty to care for one's own health
- The duty to care for those who are sick – in body and in spirit
- The existence of limits, including the limit to provide treatment
- The promotion of the 'Common Good'
- Respect for culture
- A preferential option for those who are most vulnerable and deprived
- Respect for the integrity of all creation
- Justice – the equitable distribution of risks and benefits
- A commitment to truth telling
- A consistent ethic of life
- Respect for autonomy
While the above principles are identifying of a Catholic-Christian approach, it will be obvious that they are not uniquely Catholic and that they resonate with the values of all other people of good will. That this is so is not at all surprising since the Gospel values of Jesus Christ, upon which these principles are based, ultimately point us to what is most truly and deeply human and to what will lead the whole of the created order to flourish: "I have come that you might have life and have it in abundance." (John 10:10)
(Previous editions of the Nathaniel Report have explained the implications of some of these principles as understood in the Catholic moral tradition.)
For further reading see:
Beauchamp, T.L., Childress, J.F. (1994). Principles of Bioethics. Fourth Edition. New York: Oxford University Press.
Brody, H. (1989). Transparency: Informed Consent in Primary Care. Hastings Centre Report 19:5, pp.5-9.
De Dios Vial Correa, J., Sgreccia, E. (Eds.) (1998). Human Genome, Human Person and the Society of the Future: Proceedings of Fourth Assembly of the Pontifical Academy for Life. Vatican City: Libreria Editrice Vaticana.
De Dios Vial Correa, J., Sgreccia, E. (Eds.) (1999.) The Dignity of the Dying Person: Proceedings of Fifth Assembly of the Pontifical Academy for Life. Vatican City: Libreria Editrice Vaticana.
Gormally, L (Ed.). (1999). Issues for a Catholic Bioethic. London: The Linacre Centre.
The Hastings Center. (1987). Guidelines on the Termination of Life Sustaining Treatment and the Care of the Dying. Bloomington: Indiana University Press.
New Zealand Catholic Bishops' Conference. (1997). A Consistent Ethic of Life – Te Kahu-O-Te-Ora. Wellington: Catholic Communications.
O'Rourke, Kevin D. & Boyle, Philip. (1993). Medical Ethics: Sources of Catholic Teachings. Washington, D.C.: Georgetown University Press.
The Pope John Center. (1989). Conserving Human Life. Braintree, Massachusetts: Pope John XXIII Medical-Moral Research and Educational Center.
John Kleinsman teaches Moral Theology at the Catholic Education Centre in Wellington and is also a part time researcher for The Nathaniel Centre
 New Zealand Catholic Bishops' Conference. (1997). A Consistent Ethic of Life – Te Kahu-O-Te-Ora. Wellington: Catholic Communications.
The Principles Revisited
Issue 7, August 2002
In June 2002 Anne Dickinson was a participant in the Kennedy Institute of Ethics 28th annual Intensive Bioethics Course (IBC XVIII) at Georgetown University, Washington DC. Here she writes about the part of the course which focused on the principles of bioethics.
The Restoration of Trust
Bishop Peter Cullinane
Issue 7, August 2002
The relationship between professionals and those they serve implies of its very nature a certain need, and therefore vulnerability, on the part of those who seek help. It is this vulnerability and sense of dependency that can become deep hurt and insecurity when trust is betrayed by the professional. To whom does one go when those that one trusted have become the threat and the danger?
Editorial: Ethics and Trust
Issue 7, August 2002
"Trust is most problematic when we are in states of special dependence – in illness, old age, or infancy or when we are in need of healing, justice, spiritual help, or learning. This is the situation in our relationships with the professions that circumstances force us to trust. We are forced to trust professionals if we wish access to their knowledge and skill. We need the help of doctors, lawyers, ministers, rabbis, priests, chaplains, or teachers to surmount or cope with our most pressing needs. We must depend on their fidelity to trust and their desire to protect rather than exploit our vulnerability."
—Edmund Pellegrino and David Thomasma 
The concept of community is a central motif in bioethics. It is based upon the belief that the human person is fundamentally a social and cultural being who lives in relationship, and finds meaning in and through those relationships. The term "the common good", for example, illustrates the belief that the welfare of the individual is inextricably connected with the welfare of others.
A profession can be viewed as a "community" which exists for the purpose of meeting a human need, and which is based upon a body of knowledge and a particular set of skills. Professions have unique educational and socialisation processes, together with codes of ethical practice, which help to guarantee and shape the integrity of relationships both within the profession and between the professionals and those they serve. Professional codes of ethics help to establish accountability and to preserve the ethical boundaries within which the nurturing and continuation of trust can happen. When professional obligations are neglected or exploited by some members of a professional community, the sense of belonging can be undermined for others in the community. Members of a profession can feel isolated and let down by the unethical actions of fellow professionals.
Recent experiences in the medical and teaching professions and in the Church could lead to a deep-seated ambivalence about involvement with professionals in various fields, and relationships in general. Because people require the services of the caring professions when they are at their most vulnerable, a betrayal of trust exacerbates this sense of vulnerability, eroding a sense of security for the injured individual, the community and the particular profession itself. This feeling of heightened vulnerability, the consequence of very real hurts and grave injustices, may lead us to become even more cautious and diffident in our relationships with others, and possibly deter us from seeking professional help when it is needed. In these circumstances such diffidence in relationships becomes a form of self-protection.
When trust is removed or lacking in human relationships the ability to live fully in society and the ability to attain the essentials of a satisfying life are diminished. Possibilities of growth and fulfillment are restricted. Loss of trust inevitably impacts on the transcendent dimension of life for individuals and for communities, namely, in the ability to be creative and in the ability to anticipate the future in a hope-filled manner. Ultimately, the withdrawal of trust removes the very possibility of healthy community life.
Trust entails risk. As Pellegrino and Thomasma note, to trust and entrust is to become vulnerable and dependent upon the goodwill and motivations of those we trust. In times of conflict and hurt, such as in the betrayal of professional trust, whether individually and/or institutionally, the ability and willingness to risk trusting requires even greater courage. While the withdrawal of trust can be justified as a form of self-protection, personal growth is only fully achieved within community and will always involve taking risks.
The restoration of trust cannot be achieved without the building and maintenance of clear boundaries. Neither can it be restored without fulfilling the requirements of justice. In the Catholic tradition justice is prior to charity, which means relationships cannot be fully restored while any injustice remains.
It is possible that talking about the betrayal of trust may only further erode an already battered professional confidence, and threaten the fragile relationships between professionals and those they serve. That is a risk for those involved, and it is a real risk. But the damage that will ultimately be done by silence or concealment is a much greater risk. Renewed wisdom and potential healing can only emerge with honesty and with courage. Silence prevents both reconciliation and growth and provides conditions for multiplying the harm. That has been the lesson at the heart of recent events in the Catholic Church.
In recent months the actions of medical personnel at Green Lane Hospital provide an illustration of how trust can be rebuilt. Following revelations of organs being retained without consent by hospitals in Great Britain and in Australia, Green Lane Hospital initiated its own self-review of procedures. Subsequently, they accepted responsibility for the fact that certain actions of hospital staff, the result of both individual decisions and systemic processes, were both unacceptable and unethical. Most importantly, in the face of uncertainty over the current laws in New Zealand relating to post mortems, they have not sought to hide behind legal ambiguities but have acknowledged the need to do things differently. Significantly, the ability to move ahead and the potential that now exists for trust to be re-established between the caregivers and patients at Green Lane Hospital is a result of the honesty and courage to name and discuss the issues. Painful as this process has been, the openness with which the discussions have taken place has allowed both the deep hurts and pain to be expressed and a more ethical practice to emerge. In my view this is a wonderful example of rebuilding trust so that patient care and respect, high quality research, and professional practice are all enhanced.
Rebuilding trust has profound implications for those who have broken a trust, be they individuals in the professions, or within the institution itself. Even after this has been achieved, and it will inevitably be a very painful process, the rebuilding of trust will also have implications that are personal, communal and institutional. Nevertheless, to rebuild trust is to reinvest in a hope-filled future.
 Pellegrino, E., Thomasma, D. (1993) The Virtues in Medical Practice. New York: Oxford University Press. p. 65.
Rev Michael McCabe, PhD
The Nathaniel Centre
Xenotransplantation: Issues and Challenges
Issue 6, April 2002
In Rome the Pontifical Academy for Life has given qualified approval to xenotransplantation. In New Zealand the Ministry of Health has declined approval for an Auckland company to carry out clinical trials involving xenotransplantation. What are the issues raised by this emerging form of biotechnology?
Autonomy and Community Care: Are They Compatible in Aged Care?
Issue 6, April 2002
"What occurs at the cellular level inevitably affects the structures of which the cells are the basic unit, and their physiological performance, with consequent effects at all levels of human existence. Accordingly, the process of aging manifests itself in the body, the behaviour, the attitudes, the feelings and the self-image; it has large social consequences on social relations, performance and on the economic condition of the individual and the community in which he or she lives."
—Abbot John Bamberger
Ethics and the Internet
Nathaniel Centre Staff
Issue 6, April 2002
On February 22, 2002, the Pontifical Council for Social Communications released a document entitled "Ethics in Internet". A summary of this article is presented below.
Follow Your Conscience
Issue 5, November 2001
The doctrine of conscience lies at the very heart of Catholic moral teaching. The Catechism of the Catholic Church stresses that we have a right to act in conscience and in freedom so as to make moral decisions, and that no-one should be forced to act contrary to his or her conscience. [i]
Pastoral Letter on Conscience
Issue 5, November 2001
The following article is a paraphrased version of a Pastoral Letter on the topic of Conscience issued by the Irish Catholic Bishops' Conference in spring 1998. Read the full letter.
When we approach an important decision we go to great lengths to ensure that we make the right choice. Everyone knows the experience of looking back regretfully on decisions taken after the most serious reflection and saying, 'If only I had realised...'
Editorial: Making Connections - The Consistent Ethic of Life
Issue 5, November 2001
How does one begin to think coherently about the many assorted issues that threaten and diminish the gift of life? How can we enhance our reflection and examination of the complexities in issues affecting the gift of life?
Striking a Balance in Truth Telling
Issue 4, August 2001
The obligation of veracity is the obligation to tell the truth and not to lie or deceive others. Even though veracity is an essential part of the relationship between healthcare professionals and their patients, and an indispensable feature in establishing goals of care at the end of life, many codes of medical ethics frequently ignore rules of veracity and have little or nothing to say about deception and when or whether it is ever justified. The Hippocratic Oath, for example, does not mention this principle.  Ethicist, Sissela Bok, in her germinal book, "Lying; Moral Choice in Public and Private Life" suggests the reason why little is said about truth telling in codes of ethics is because, "reasons to lie occur to most people quite often. Not many stop to examine the choices confronting them; existing deceptive practices and competitive stresses can make it difficult not to conform. Guidance is hard to come by, and few are encouraged to consider such choices in schools and colleges or in their working life."  The principle of veracity and its allied virtue of truthfulness are expressions of the fundamental obligations contained in the primary principles of bioethics - respect for autonomy, justice, beneficence (to do the good) and non-maleficence (first do no harm).
The Complexities of Cloning
Issue 3, April 2001
The lack of legislation in New Zealand relating to human cloning has been highlighted recently by the announcement that a team of scientists from Italy, Israel and the United States is seeking to use cloning to create human embryos, as a means of assisting infertile couples to have children.
Informed Choice and Consent
Issue 3, April 2001
"The voluntary consent of the human subject is absolutely essential". In the practice of human experimentation, this is the first of the basic principles to satisfy moral, ethical and legal concepts, as laid down in the Nuremburg Code 1947. The Code is the concluding statement of the judgment in the trial of the Nazi doctors who were accused of crimes against humanity by conducting criminal scientific and medical experiments on concentration camp prisoners. The Nuremburg Code has become part of international law and it serves as the basis for many formulations of the ethics of research with human subjects.
Understanding Ethical Issues: The Clinical Ethics Model
Issue 3, April 2001
"Clinical ethics is a practical discipline that provides a structured approach to decision making that can assist physicians and family members to identify, analyse, and resolve ethical issues in clinical medicine."
—Jonsen, Siegler & Winslade
Healthcare professionals frequently contact The Nathaniel Centre asking for advice on a particular issue in clinical practice, or an issue concerning treatment options for a family member. We thought it would be helpful, therefore, to provide a brief outline of a model to assist these readers understanding of some of the ethical issues in healthcare practice. This particular model comes from Jonsen, Siegler & Winslade's book, "Clinical Ethics".
"When is a rose not a rose?" : Reflections on Moral Decision Making
Issue 3, April 2001
We live in a time of increasing complexity, some would even say "chaos." Quantum technological advances are for the first time enabling us to envisage such possibilities as human cloning and designer organs, possibilities hitherto only dreamed of. In the light of these developments we are confronting questions and challenges never before faced by the human race. Yet, somewhat paradoxically, it is my perception that many people remain very certain about their judgements of what is right and wrong. Why is this?
Editorial: Bioethics and Decision Making
Issue 3, April 2001
Making decisions about the use of biotechnologies has become increasingly complex. The speed of technological development is tending to overwhelm our moral and ethical decision making.
Editorial: Bioethics and Poverty
Issue 2, November 2000
"Fear ... has a definite object ... which can be faced, analyzed, attacked, endured. One can act upon it, and in acting upon it participate in it – even if in the form of struggle. Courage can meet every object of fear, because it is an object and makes participation possible... One could say that as long as there is an object of fear love in the sense of participation can conquer fear."
—Paul Tillich, The Courage to Be
A foundational insight of the interdisciplinary science of bioethics has been the belief that no single discipline was considered adequate to address the challenges brought about by the rapid development in medical technology and by a growing awareness of individual rights and the potential for the abuse of these rights. An interdisciplinary approach enables an appreciation of the fact that ethical issues centre on competing goods. Equally, it provides a richer context for debate on the complex issues in healthcare and the life sciences. Nevertheless, it is still relatively easy in bioethics to lose sight of the person so much so that the individual can appear quite isolated and removed from any ethical discussion.
Ethics and The Treaty of Waitangi
Issue 1, August 2000
The Treaty of Waitangi is regarded as the founding document of New Zealand. In signing the Treaty the Crown agreed that, within our society, the values and traditions of both cultures (Māori and British) would be reflected in society's customs, laws, practices and institutional arrangements. There was also an agreement to share control of resources and decision-making. The Treaty guarantees Māori equal status and power within New Zealand society, and it also legitimates the rights of Pakeha New Zealanders. This concept was explained by Judge Eddie Durie at his Waitangi Day address in 1989: the Treaty of Waitangi is not just a Bill of Rights for Māori. It is a Bill of Rights for Pakeha too. It is the Treaty that gives Pakeha the right to be here. Without the Treaty there would be no lawful authority for the Pakeha presence in this part of the South Pacific. The Pakeha are the Tangata Tiriti, those who belong to the land by right of that Treaty.
The Biotechnology Debate: A Way Forward
Issue 1, August 2000
In late June this year President Clinton and Prime Minister Blair jointly announced the completion of the first phase of the Human Genome Project. They compared the significance of this achievement to Gallileo's discoveries, the landing of a man on the moon and the first circumnavigation of the earth. There was extensive media coverage of this achievement in New Zealand, with many questions being asked about its implications.
Editorial: Bioethics - Challenges for the Church
Issue 1, August 2000
The word bioethics was coined in 1972 and is derived from two Greek words: bios meaning life and ethos meaning ethics, principles or mores. Bioethics is the interdisciplinary field which encompasses all the ethical issues surrounding life from its beginning to its end.
The Pain of an Abortion: It Can Take Years, Sometimes Decades! Stephanie Kitching
As a psychotherapist ministering at Catholic Social Services, I heard many different types of distressing or joyful stories over the years; stories of achievements, losses, addictions, relationships. You name it, I probably heard it. Of course, everything said in therapy remains entirely confidential, so details may not be shared.
One bunch of stories I heard were from women who had said ‘yes’ to abortion many years previously.
I do not remember any woman coming to therapy for this reason. Often, the presenting issue was depression, or loss, or relationship difficulties. Gradually, as trust grew in my relationship with the woman, she would begin to open up more freely until at last she could tell me she had had a pregnancy termination when she was younger. Then the tears would flow. I felt for her. I stayed with her emotionally and compassionately, for it was obvious to me that this was a cause of deep pain in her life and, in the words of Pope Francis, “Who am I to judge?”
I understand that not all women react in this way, but there are numerous women for whom, years later, that sense of sadness becomes too much to bear. Anniversaries, such as the expected date of a live birth, become calendar dates for her, dates that prompt her to recall that her child would be turning 10, 20 or 30 that day. Questions buzz in her mind, even though she felt certain at the time and had taken time to think through her options.
There are many reasons why a termination is considered, and many of them appear valid. As Catholics, we believe all life is sacred from its conception, but what I heard as a counsellor were accounts of how societal and personal pressure often came into play when a woman found herself with an unplanned pregnancy.
Frequently, too, she found herself with no one to turn to. If she wanted to explore her options, she was afraid of being condemned by those of us who believe in the value of life.
Just as I have worked with people who have had abortions, so too have I worked with people considering whether to have one. It is a delicate dance, for it takes into account two lives. I could only offer support as a decision was reached and then again in its aftermath, whatever the decision was. In my experience, when a woman feels pressured into an abortion against her natural inclinations or beliefs, the downstream effects are long-lasting and may even be severe.
Listening to women who regretted their decision has helped me understand the difficulty of an unplanned pregnancy. Yet, I continue to believe abortion is not the best answer. It is an answer, but not the best answer. The best outcome is a supportive community response that helps the woman during her nine months of carrying this child, followed by assistance after birth.
So, when these women courageously opened up about having ended the life of a child in their womb, what could I do? First of all, I listened. For many, this was the first time they had admitted it out loud to a person who was not around at the time of the event. I was someone recognised as a ‘Church’ person who could well condemn them, but whom they hoped would hear them. That I always tried to do. I prayed for them, although not aloud, unless they requested it, which some did.
In my prayers, I always asked our loving God to hold them and their child with loving care. After some time, when the emotion had calmed, sometimes weeks later, I would ask if they wanted to say goodbye to their child, to let the spirit of that child fly free and, if they believed in God, to know that their child was safe with God. I never received a negative reply.
We would then design a small service of thanksgiving and remembrance. We would go through their memories and find words, sometimes in poetry or another’s writing, sometimes in art or photography. I would put together a small brochure if that was what was asked for, and we would choose a place to reflect on the event using the brochure or the memories. Occasionally, this was in the therapy room, at other times outdoors. Some women chose to plant a tree or flower to show life was still present. It was a healing time.
I often wished I had been present when the earlier decision was being made so I could have offered pastoral support, both emotional and practical. Maybe then I would not have found myself face to face with their suffering years later.
One question I was always left with, but never explored unless the woman broached it first, was “Where was the father of the unborn? What did he think or feel about what happened?” This still sits with me.
Stephanie Kitching (rsm) ministered as a trained psychotherapist for 12 years, mainly in Wellington. She is currently the Congregation Archivist for Nga Whaea Atawhai o Aotearoa – Sisters of Mercy NZ.
Joint Written and Oral Submission to the Abortion Legislation Committee NZ Catholic Bishops Conference and The Nathaniel Centre
This article is an abridged version of the written and oral submission made to the Special Abortion Select Committee in September 2019. The full submission may be accessed at www.nathaniel.org.nz.
Key Concerns with the Proposed Legislation Changes
1) There are always at least two human lives at stake in an abortion. It is unacceptable that the proposed abortion law removes the current statutory requirement to consider the rights of the unborn child. The proposed Bill is in breach of our commitment to the UN Convention on the Rights of the Child.
2) It is unacceptable that the proposed Bill will enable abortions to occur without requiring any justification up to 20 weeks gestation, especially when a request might be the product of coercion. We wish to see the eligibility criteria for the current law retained for abortions up to 20 weeks.
3) It is unacceptable that the proposed Bill lowers the threshold for obtaining abortions after 20 weeks gestation. The proposed criteria for the statutory test are vague and open to broad interpretation and will legally allow abortions up to birth. Given that the wording of the statutory test virtually mirrors the current wording for eligibility up to 20 weeks, we believe that the proposed criteria will, in practice, lead to abortion on demand after 20 weeks.
4) We believe disabled unborn children will be more vulnerable under the proposed law. The current law explicitly prevents abortions on the basis of “fetal abnormality” after 20 weeks. That the proposed law does not do this is a major step backwards in terms of disability rights.
5) The proposed law will allow for abortions on the basis of gender discrimination up to 20 weeks, and arguably beyond that given the broad parameters of the statutory test for abortions after 20 weeks.
6) A woman of any age can self-refer under the proposed law, including pregnant teenagers. Under the current law, the process of requiring a doctor to refer, and two certifying consultants to sign off, provides layers of scrutiny and support for pregnant teenagers that will no longer exist. There are no safeguards in the proposed law to ensure that teenage mothers are not seeking an abortion because of abuse or coercion or a lack of awareness of other options.
7) The proposed law will not assist women to deal with the coercive realities that surround many abortions. We wish to see independent counselling built into the process of obtaining an abortion.
8) If the stated aim is to bring abortion more in line with other health services, then the proposed Bill is a step backwards because it will not promote informed consent. The existence of a robust process, including awareness of the risks and options other than abortion, is essential for protecting women’s choice.
9) As part of promoting informed consent, we would like to see a resource published that will provide balanced and objective information about the consequences of abortion, as well as knowledge of and access to the various financial, practical and emotional supports available.
10) The proposed Bill fails to adequately protect health practitioners’ rights to freedom of conscience.
11) There is no attempt in the proposed Bill to address the socio-economic coercive realities that lead women or couples to choose an abortion. Poverty should never be the reason for an abortion.
1) We welcome the opportunity to contribute to the debate about abortion law reform in New Zealand. Our arguments are informed not only by our religious tradition, but also by our pastoral and practical experience of caring for women who are pregnant and women who have had abortions.
2) We are opposed to the Abortion Legislation Bill for reasons outlined in this submission.
3) The Explanatory note of the proposed Abortion Legislation Bill claims that the intention of the Bill is to “better align the regulation of abortion services with other health services” and to “modernise the legal framework for abortion”. This suggests that the changes being considered are modest in nature. As we see it, however, the proposed new law heralds a significant and substantial change, ethically and legally, to the way the State views its duty towards the protection of unborn human life.
4) That change is readily identifiable in Part 1, Section 4 of the Bill which states that the Long Title of the Contraception, Sterilisation, and Abortion Act 1977 (CSA Act) is repealed. Critically, the significance and nature of this change becomes evident when considering that what is edited out are the words “after having full regard to the rights of the unborn child”.
5) Thus, while the present law acknowledges the tension between the needs of the woman and the rights of the fetus/unborn child and seeks to balance both, the proposed law obscures this tension by dissolving it from our statutes; there will no longer be any requirement to take into consideration the rights of the unborn child when decisions about abortions are being made. In effect, the proposed law effectively removes all legal protections for the unborn. There is nothing, for example, to proscribe abortions on the grounds of gender.
6) Ethically and legally, this change is inconsistent with Section 182 of the Crimes Act (“Killing unborn child”), which remains unchanged. It is inconsistent because, biologically and humanly speaking, the reality is the same in both situations – the death of an unborn child. What is deemed criminal in one context is framed as a ‘health’ issue in the other only by virtue of the subjective intentions of others.1
7) We are opposed to any changes that would either lessen or, as the proposed new law seeks to do, totally remove the (limited) rights the current law accords to the unborn child. The changes we advocate for (and which would not constitute a policy change) are those which would: (i) ensure continued consideration of the rights of the unborn child; (ii) promote the well-being of women, including better processes to detect coercion and ensure adequate informed consent; and (iii) address the socio-economic factors that can set in motion an abortion trajectory.
8) Along with the 65% of New Zealanders identified in the 2017 Curia Poll,2 we would like to see changes implemented that would further reduce the number of abortions occurring in New Zealand. The proposed Bill fails to consider how such changes could be made.
9) We believe it was seriously remiss of the Minister of Justice not to ask the Law Commission to carry out a full review of the abortion legislation, especially after he was reported as saying that this would first take place.3 An extensive and objective investigation by this independent, statutory body would have provided a solid and robust basis for a review of our abortion law reforms, something that is currently lacking.
Area of concern 1: Children need appropriate legal protection before as well as after birth
10) We will use the term “unborn child” throughout this submission, not only because this reflects what is for us a self-evident human reality, but because this is also the language used in the longer title of the CSA Act 1977, as well as in Section 182 of the Crimes Act 1961.
11) We understand and support the fact that under the current law there is no absolute ‘right’ to have an abortion in New Zealand. The proposed law will change this for women not more than 20 weeks pregnant. Because the statutory test for women more than 20 weeks pregnant is so weak as to make abortions in these situations a ‘right’ in all but name, we believe that the proposed law will, in practice, also allow abortion on demand after 20 weeks gestation, including viable babies (i.e. from 32 weeks to birth4 ). This is unacceptable to us and many others.5
12) We urge you to draft a law that acknowledges the tension between the rights of the mother and the rights of the child, as the current regulatory approach to abortion does. The proposed law, by focusing exclusively on an impoverished conceptualisation of a woman’s well-being, effectively obscures the fact that there is another human life at stake. In this regard, the present abortion laws, by virtue of the fact that they seek to balance the rights of the unborn child with the mother, are more honest and more ethical.
13) In every abortion a human life is at stake. Therefore, it is appropriate that abortions be subject to some sort of ‘test’ according to an agreed set of eligibility criteria. These criteria must consider the rights of the unborn child. The State fails in its fundamental obligation to protect human life, an obligation borne out in our common law tradition,6 if it does not apply some sort of criteria.
14) The alternative to this approach is State and societal acquiescence to the idea that a human life can be ended for any reason at all. This will clearly be the case under the proposed new abortion law for women not more than 20 weeks pregnant. The abortion laws of our country should require that substantial consideration be given to the humanity of the fetus as part of the process of weighing up an abortion decision.
15) Various international treaties and covenants support the notion that the State has an interest in the protection of the life of the unborn child, including the UN Convention on the Rights of the Child, which, in its Preamble states that “the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.7
16) We conclude that the proposed scrapping of any statutory test for women not more than 20 weeks pregnant amounts to an overt breach of New Zealand’s commitment to the ‘UN Convention on the Rights of the Child’ to which it is a signatory. In addition, we conclude that the nature of the statutory test proposed for women more than 20 weeks pregnant fails to meet the level of appropriate legal protection demanded for unborn children by the same UN Convention.
Area of concern 2: Promoting an intellectually honest and respectful discussion about abortion law reform that prioritises accurate information
17) We are concerned that some of the discussion about abortion law reform in New Zealand is characterised by deliberate obfuscation and confusion.
18) Firstly, we note that there are groups and individuals pushing for change who claim, incorrectly in our view, that the current law “criminalises” women. Section 183 of the Crimes Act 1961 specifically states that “a woman (or girl) shall not be charged as a party to an offence against this section”. The Explanatory note to the proposed Bill itself states that it is only unlawful abortions that are a criminal offence.
19) From a strictly legal perspective, it seems the only real effect of ‘decriminalising abortion’ is that it will take away the possibility of legal sanctions against Health Practitioners who fail to adhere to the necessary standards when performing an abortion.
20) Secondly, we note there are various commentators who claim that the current abortion regime forces women to “lie” because they have to “create fictions and rely on some issue of mental instability to get the help they need, and that is not okay.”8 We see this as a mis-representation of the Crimes Act. There, Section 187A states that an abortion is not unlawful in circumstances where the certifying consultants or abortion provider believe “that the continuance of the pregnancy would result in serious danger ... to the life, or to the physical or mental health, of the woman or girl ...” (emphasis ours). It is this stress of not being able to cope in the future that currently provides the legal grounds for certifying consultants to approve the abortion.9
21) Thirdly, we question the claim in the Explanatory note of the Abortion Legislation Bill that “[t]he changes will mean that abortion is, in general, provided like other health services.” Phrasing it this way infers that abortions in New Zealand are not already provided like other health services. It is clear that the current process is already a medically driven one, with health practitioners already subject to the range of legislation and regulations that govern the safe provision of all health services.
22) Consistent with what we have already argued above, we maintain that the “additional layers of legislative requirements” that characterise the current regime (Explanatory note), are appropriate for at least two reasons: (i) the “set of processes that no other person seeking a medical procedure has to go through”10 appropriately reflect the fact that abortion is distinctive from all other medical procedures because it involves ending another human life; (ii) as argued below, we primarily see the “additional layers” that are part of the current abortion regime as supporting both the principle and the process of free and informed consent which underpins all good medical care. Our view of these layers is that they provide a means into deeper discussions in which the woman concerned can genuinely explore her options. Therefore, we reject the idea that the additional layers that characterise the current abortion regime “are out of step with modern health law” (Explanatory note).
23) Fourthly, we challenge the veracity of comments made by the Justice Minister, Hon Andrew Little, that “claims that the Government’s planned reform of abortion laws unveiled today will allow abortions right up to birth are absurd and the sort of statement that gets made by ‘fanatic anti-abortion people’.”11 A number of doctors and lawyers have, independently, observed that abortions up to birth will not be legally prohibited under the proposed Bill.
24) Fifthly, we wish to see an honest recognition of the widely researched and documented risks associated with abortions coming through in this review of the proposed law. These risks, which include the negative emotional and spiritual consequences of abortions experienced by many women, are too often denied or minimised.12 There can be no fully informed consent to an abortion without a robust and standardised approach which objectively lays out all of the potential risks. To insist on this is to insist on what is routinely expected for all health interventions as spelled out in Right 6 of the Code of Health and Disability Services Consumers’ Rights.
25) In keeping with Right 6 (4), “Every consumer has the right to receive, on request, a written summary of information provided”, we would like to suggest that the Ministry of Health, in consultation and collaboration with a wide range of appropriately qualified interested parties, including those involved in the counselling of women post-abortion, produce materials that lay out, in a clear form, what is involved in an abortion, including the potential risks and consequences of an abortion as well as alternative options. Such a resource would be entirely in keeping with the proposed Bill’s stated aim to “better align the regulation of abortion services with other health services”.
Area of concern 3: Abortion is a significant moral issue and this should be reflected in the processes surrounding a request for an abortion
26) Because we believe that abortion is both a justice and a health issue, we believe that it is problematic to create a regulatory regime that frames abortion as if it is only a health issue, as the proposed Bill seeks to do. The proposed changes will deny many women the chance to manage the inescapable moral and ethical tension that lies at the heart of all abortion decisions – the tension between doing what they genuinely perceive is best for themselves or their family, while being simultaneously aware that their decision involves ending a human life. As the feminist writer Naomi Wolf has stated, women have a right to deal with abortion as the significant moral issue that it is:
I will maintain that we need to contextualise the fight to defend abortion rights within a moral framework that admits that the death of a foetus is a real death: that there are degrees of culpability, judgment and responsibility involved in the decision to abort a pregnancy.13
27) In a peer-reviewed qualitative exploration of women’s needs in clinical care during the process of having an abortion, one of the strong themes to emerge was that the women in the study wanted to be recognised as “grappling with a real-life moral decision”, something that only occurred “when medical personnel recognized this conflict and affirmed the decision as moral” in nature.14
28) At the same time, if we are to treat abortion as a health issue, then it deserves to be viewed through a healthcare lens. We argue that the true test of whether any law is in keeping with modern health law is the extent to which the process as a whole supports the concept of free and informed consent.
29) Within the health framework, free and informed consent, without which there can be no exercise of true autonomy, is facilitated by good processes and supportive, responsive and honest relationships. As an example, this is clearly illustrated in the carefully regulated practices that govern health research in this country; practices that are designed not as “onerous or bureaucratic”15 but for the purposes of protecting research participants. Significantly, the importance of such practices for abortion decisions has been flagged by the Abortion Supervisory Committee (ASC) in its 2017 Report to Parliament: “[T]he ASC recognises the merit in having a robust pathway in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.”
30) The very real risk of coercion is yet another dimension which makes abortion distinctive from almost all other medical procedures. As Germaine Greer puts it:
What women ‘won’ was the ‘right’ to undergo invasive procedures in order to terminate unwanted pregnancies – unwanted not just by them but by their parents, their sexual partners, the governments who would not support mothers, the employers who would not employ mothers, the landlords who would not accept tenants with children, the schools that would not accept students with children.16
31) The reality of reproductive coercion in New Zealand has been highlighted by Women’s Refuge in a 2018 Report titled “Reproductive Coercion in Aotearoa New Zealand”:
Over one third of participants had experienced a partner trying to prevent them accessing an abortion, and just over one quarter had experienced a partner attempting to pressure them into terminating a pregnancy. Just under one third had also experienced a partner deliberately trying to cause them to miscarry, for example by using physical violence.17
The same Report makes it clear that the response of health professionals to reproductive coercion in a clinical setting is often seriously lacking.
32) We are concerned that there is no protection in the proposed Bill for a woman who is being coerced. If she presents herself as wanting an abortion then, regardless of the coercion behind that, the health practitioner concerned has no legal ability to deny the request.
33) Coercion and free choice are intrinsically opposed to each other. In this regard, we suggest that there is a fruitful analogy to be made with the well-developed consultation and counselling processes that surround the donation of organs, especially cases of live donation involving a family member or close friend. No-one argues that these processes are disrespectful to a person’s willingness or ability to make such a donation. Rather, the “additional layers” of requirements exist specifically in the service of promoting autonomy and real choice for the potential donor, as well as for the purposes of detecting and dealing with coercion.
34) The problem with the proposed Bill asking health practitioners to “advise women of the availability of counselling services if they are considering an abortion” (Explanatory note, emphasis ours) is that this way of framing sets counselling up as an optional activity. The assumption that counselling doesn’t make an essential contribution to the process of making a free and informed decision flies in the face of common sense, as well as good clinical practice. We believe that independent counselling by suitably qualified personnel is an essential step for any woman contemplating an abortion, especially given that many women will be genuinely undecided about what to do. We want to see counselling built into and presented as a part of a robust process of making what is a life-changing decision.18
35) The reason a woman contemplates having an abortion may well arise from a lack of awareness of the other potential options that exist. Just as a good surgeon would be expected to discuss non-surgical pathways as well as surgical pathways in the interests of informed consent, so women who are contemplating an abortion need to have an opportunity to explore the choice not to have an abortion as well. The option to keep the child should be a genuine choice for every mother.
36) Therefore, in keeping with the Minister of Justice’s stated aim of placing abortions “in a health framework where it properly belongs,”19 we conclude that the key changes being proposed in the Bill are, in fact, out of step with modern health law practice – out of step by virtue of the fact that they substantially weaken the processes for obtaining informed consent and detecting coercion. In this respect, we believe that the proposed law is a step backwards.
Area of concern 4: Conscientious objection
37) We understand that, under the current law, a registered medical practitioner is not required to refer the pregnant woman to another practitioner. We support this provision remaining. The proposed Bill goes too far in making it mandatory to tell a pregnant woman how she can access the contact details of an abortion provider. This requirement makes the practitioner complicit in the abortion process.
38) Allowing healthcare employers to consider whether a potential employee’s conscientious stance would affect an organisation’s ability to provide abortion services, effectively legitimises employee discrimination on the basis of conscience. This move, in a context where there is also a lower statutory threshold for abortions more than 20 weeks gestation and a weaker conscientious objection provision, potentially brings a new and unacceptable level of coercion into the employer-employee relationship; finding themselves in an impossibly difficult situation, employees with conscientious obligations and financial commitments to their own family may well feel they have no choice but to acquiesce to an employer’s demands.
39) It seems clear to us that the Minister of Justice anticipates the sort of dispute we allude to by virtue of the fact that the proposed Bill points out a pathway to remediation for employees forced to defend their right to employment.
40) The inherent dignity and worth of human life from conception means that the starting presumption should always be in favour of human life, whether born or unborn. It is appropriate that the unborn enjoy the same fundamental protections the Crimes Act provides for all other human beings. If the State is to continue providing abortions in certain situations, the law should only ever provide for abortion as an ‘exception’ to the fundamental right to life based on serious reasons.
41) There is much at stake in a review of the abortion laws; it is a deeply moral issue involving the future of a human life as well as the well-being of the woman and her family. The State has an essential responsibility to protect and care for all human life. It would abdicate this responsibility, captured in the UN Convention on the Rights of the Child, by creating an abortion regime in which statutory consideration of the rights and needs of the unborn child are excluded from the decision-making process.
1) As outlined in our written submission, Catholic teaching on abortion is premised on a belief that embryos and fetuses are entitled to be granted a place in the human family and to be treated with the same respect as persons, whatever their stage of development. This leads to the first of two points we want to emphasise; every pregnancy involves at least two lives – the mother and her unborn child – and therefore at least two sets of human rights. As the late Pā Henare Tate, Māori theologian and cultural commentator has written: “The tapu of the child is already intrinsic tapu. The child has its own tapu i a ia, its own existence, as opposed to that of another, even of its mother ... This is because in the womb the child already has its own identity. It also has its own identity within, and not just in relation to, whānau, hapū and iwi.”20
2) To hold that the fetus is not a ‘legal person’ ignores the fact that a genetically unique human life has begun which is neither that of the father or the mother. As Judge Sir John McGrath observed, in Harrild v Director of Proceedings (2003), a New Zealand case exploring whether ACC cover was available as a result of medical misadventure leading to the death of the fetus: “... the rule according legal rights only at birth is in modern times one founded on convenience. It does not rest on medical or moral principle.”21 A fundamental flaw of the proposed new legal regime is that there will no longer be any requirement to take into consideration the rights of the unborn child. This is biologically, humanly and ethically dishonest. The current abortion law rightly recognises that every abortion decision involves the resolution of a tension between the rights of the mother and the rights of the unborn child.
3) Ignoring the existence of the unborn child is not only inconsistent with maintaining Section 182 of the Crimes Act, but it denies women the right to deal with abortion as the significant moral issue that it is, a point well-made by the feminist writer and abortion supporter Naomi Woolf, whom we quote in our written submission. Both the law and the processes surrounding an abortion must allow those involved to grieve the loss involved. We do not serve women well by creating a legal narrative that abortion is only about the rights and choice of women. Every woman who chooses an abortion needs to know there is an emotional, spiritual and psychological space within which she can later deal with her decision, as required. That space is, in the first instance, either created or destroyed by the language we use, including the narrative generated by the law governing abortions.
4) To our second point. Looking at abortion as a health issue, one of the factors that distinguishes abortion from other medical procedures is the risk of coercion.22 Choices are always made in a context and shaped by that context – in many cases limited by our context. Abortion is not an acceptable societal response to financial poverty or to a lack of physical or emotional support. Neither is it an acceptable solution to partner pressure or sexual violence. Those women whose decision to have an abortion is made from a place of ‘no other choice’ are much more likely to experience negative emotional and psychological consequences.23
5) All of which underscores the importance of free and informed consent, without which there can be no exercise of true autonomy. Autonomy relies on good processes and supportive and honest relationships. The importance of such practices for abortion decisions has been flagged by the Abortion Supervisory Committee itself in its 2017 Report to Parliament: “[T]he ASC recognises the merit in having a robust pathway in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.”24
6) So, while the Explanatory note of the proposed new law speaks of “additional layers of legislative requirements that are out of step with modern health law” as a problem, we are led to conclude the very opposite; precisely because of what is at stake, including the potential for negative consequences for the woman, it is entirely appropriate that the regulations surrounding abortion involve “additional layers” of requirements not attendant on other medical procedures. Indeed, we would go so far as to say that it is the proposed Bill that is more out of step with modern health law; out of step because it substantially weakens the processes for obtaining informed consent and detecting coercion, processes that lead us to recommend that every abortion should necessarily involve a counselling session by someone independent of the abortion provider.
7) Finally, we wish to reinforce to the Committee our concern that the proposed law will (i) allow abortions on the basis of gender (ii) in practice, enable late abortions ‘on demand’ because of an incredibly weak test and (iii) no longer explicitly prevent late abortions on the basis of “fetal abnormality”.
1 We understand that the reference to “unborn child” only occurs in the section heading which is technically not part of the Crimes Act, and that Section 182 (1) refers to “the death of a child that has not become a human being”. On this basis, many argue that there are no ‘human’ rights involved because the child has not yet got to the stage of being a ‘human’. Nevertheless, there is in Section 182 explicit recognition of there being a “child” involved, and the crime of killing a child is preserved. Further, because there is no mention of the mother (or any other person) being protected in Section 182, it is clearly correct to say that this section accords legal recognition to the unborn child – a recognition that brings with it certain rights that are: (i) separate from the rights of the mother; (ii) correctly described as being ‘human rights’; and (iii) appropriately dealt with under criminal law.
2 Curia Market Research. Abortion Poll, February 8 2018, https://www.curia. co.nz/2018/02/abortion-poll-2/, accessed 3 September 2019.
3 See Craig McCulloch, “No abortion changes until ‘well into next year’”, 2 November 2017, accessed 29 August 2019: https://www.radionz.co.nz/ news/political/342899/no-abortion-changes-until-well-into-next-year.
4 While babies can be kept alive from at least 24 weeks on, it is generally accepted that, from 32 weeks on, babies have a good chance of surviving independently outside the womb.
5 The proposed grounds for a post-20 week abortion are essentially the same eligibility criteria currently applied for pregnancies up to 20 weeks. Commenting on the current criteria, Dr Christine Forster, former chair of the Abortion Supervisory Committee has said: “We do essentially have abortion on demand or request, however you like to put it.” Reported in the Sunday Star Times, 5 Nov 2000.
6 The proposed law would repeal over 800 years of legal protection of the unborn child in English common law, a system that our own legal framework is based on.
7 See https://www.ohchr.org/en/professionalinterest/pages/crc.aspx, Preamble, accessed 3 September 2019.
8 For example, Hon Amy Adams in her speech to the House during the first reading of the Abortion Legislation Bill: “I agree with the Minister and the Attorney-General when they said women currently are put into the position of having to lie and create fictions and rely on some issue of mental instability to get the help they need, and that is not okay.” Similarly, Hon Paula Bennett: “... we should not be telling them that they have to lie to the medical practitioner that they’re in front of so that they can get the medical help that they want.” See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/ HansDeb_20190808_20190808_12.
9 It might be, and has been, argued that the provisions in Section 187A are being interpreted by consultants in a much wider way than was the original intention of parliament in 1977 when it first passed the CSA Bill. We regard that as a separate discussion. Further to our point, we note that the wording of the statutory test for abortions post 20 weeks in the proposed Bill adopts terminology that is very similar to the ‘problematic’ terminology used in the current law. If the eligibility criteria are a problem in the current law, then why are similar criteria not a problem in the proposed law?
10 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.
11 As reported by TVNZ: https://www.tvnz.co.nz/one-news/new-zealand/ andrew-little-says-claims-reforms-allowabortion-up-birth-absurd-v1, accessed 30 August 2019.
12 As Dr Christine Forster, former Chairwoman of the New Zealand Supervisory Committee has previously stated: “Every woman I have seen who has had a termination has a difficult time subsequently. They have a grief process and sorting out time to go through. It certainly doesn’t leave them unmarked and I have never met a woman who has had one who would want to go through it again of her own free will.” Quoted by Dr Michael McCabe, Editorial: Anniversaries, The Nathaniel Report, Issue 11, November 2003.
13 “Naomi Wolf on Abortion: ‘Our Bodies, Our Souls’”. New Statesman, 27 January 2013 http://www.newstatesman.com/politics/politics/2013/01/ naomi-wolf-abortion-our-bodies-our-souls, accessed 3 September 2019.
14 Altshuler, A. L., Ojanen-Goldsmith, A., Blumenthal, P. D., & Freedman, L. R. (2017). A good abortion experience: A qualitative exploration of women’s needs and preferences in clinical care. Social Science & Medicine, 191, 109- 116.
15 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.
16 Greer, Germaine. The Whole Woman. Black Swan. London. 2011.
17 See https://womensrefuge.org.nz/wp-content/uploads/2018/10/ Reproductive-Coercion-Report.pdf, accessed 3 September 2019.
18 A good model for promoting autonomy and informed consent is provided by Capital Coast District Health which has built “counselling” into the process of applying for an abortion. As stated on their website: “Counselling is a[n] essential part of the process ... As well as offering counselling they will also explain the process and options available to you. The counsellor is also available to you after you have been through the termination.” See https://abortion.org.nz/providers/capitalcoast/ wellington-hospital. And, in another part of the website explaining what will happen: “... you will see a counsellor to discuss your decision, review procedures and provide contraceptive education and planning. You will then see a doctor for a medical assessment, examination and certification.” See https://www.healthpoint.co.nz/public/obstetricandgynaecology/capital-coast-dhb-termination-of-pregnancy/, accessed 3 September 2019.
19 Hon Andrew Little introducing the Abortion Legislation Bill into the House (8 August 2019). See https://www.parliament.nz/en/pb/hansarddebates/rhr/combined/HansDeb_20190808_20190808_12, accessed 3 September 2019.
20 2012, He Puna Iti I te Ao Mārama: A Little Spring in the World of Light. Auckland: Libro International.
21 See Harrild v Director of Proceedings –  3 NZLR 289 available at http://www.lawreports.nz/harrild-v-director-of-proceedings-2003-3- nzlr-289/.
22 See for example https://womensrefuge.org.nz/wp-content/ uploads/2018/10/Reproductive-Coercion-Report.pdf, accessed 3 September 2019.
23 Törnbom, M., Ingelhammar, E., Lilja, H., Svanberg, B. & Möller, A. (1999) Decision-making about unwanted pregnancy. Acta Obstetricia et Gynecologica Scandinavica 78:636-641; Kirkman, M., Rosenthal, D., Mallett, S., Rowe, H. & Hardiman, A. (2010) Reasons women give for contemplating or undergoing abortion: a qualitative investigation in Victoria, Australia. Sexual and Reproductive Healthcare 1:149-155; Söderberg, H., Janzon, L. & Sjöberg, N.O. (1998) Emotional distress following induced abortion. A study of its incidence and determinants among abortees in Malmö, Sweden. European Journal of Obstetrics & Gynecology and Reproductive Biology 79:173-8; Korenromp, M.J., Christiaens, G.C., van den Bout, J., Mulder, E.J., Hunfeld, J.A., Bilardo, C.M., Offermans, J.P. & Visser, G.H. (2005) Long-term psychological consequences of pregnancy termination for fetal abnormality: a cross-sectional study. Prenatal Diagnosis 25:253-260.
24 See Report of the Abortion Supervisory Committee 2017, available at https://www.justice.govt.nz/assets/Documents/Publications/ASC-AnnualReport-2017.pdf, accessed 3 September 2019.
New Zealand Abortion Law to be “modernised so it is treated as a health issue” [Synopsis]
On the 8th August, a new Abortion Legislation Bill passed its first reading in Parliament and was referred to a specially constituted Select Committee. The legislative process now includes an opportunity for the public of New Zealand to give feedback on the proposed new abortion regime by 19th September. In this article New Zealand Abortion Law to be “modernised so it is treated as a health issue”, the Nathaniel Centre offers material to stimulate compassionate thought and dialogue about abortion.
The full article is available by subscription to The Nathaniel Report
The Gift of Poetry and Down Syndrome [SYNOPSIS ONLY]
In this article, Andrew Hamilton challenges the depiction of Down syndrome as pitiable and as a burden on parents and society that is best resolved via an early termination of pregnancy: instead, it is a gift to be cherished. Thousands of people witnessed the delight of Stevie Payne, who has Down syndrome, when his sister, Michelle, won the 2015 Melbourne Cup.
The full article is available by subscription to The Nathaniel Report
I am Pro-Life. Don’t Call me Anti-Abortion [SYNOPSIS ONLY]
In this candid article, Charles Camosy elucidates how the struggle in the abortion debate is a struggle over language. He challenges the use of language that allows critics to dismiss pro-lifers as single-issue obsessives, while highlighting the ways in which language is employed to hide the dignity of the vulnerable. Our ‘throwaway culture’ has infected our attitude toward marginalized populations such that some use terms like ‘sub-humans’, ‘defective humans’, and ‘parasites’.
The full article is available by subscription to The Nathaniel Report
Law Commission Recommendations
In October 2018, the Law Commission reported back to the Minister of Justice, responding to a request for advice on what alternative legal approaches could be taken in the event the Government decided to propose a policy shift to treat abortion as a health issue.
The Law Commission has set out three alternative legal models that could be adopted if abortion is to be treated as a health issue: Under Model A there would be no statutory test that would need to be satisfied before an abortion could be performed – the decision whether to have an abortion would be made by a woman in consultation with her health practitioner; under Model B, a statutory test would need to be satisfied before any abortion could be performed – a health practitioner who intended to perform the abortion would have to reasonably believe the abortion was appropriate in the circumstances, having regard to the woman’s physical and mental health and wellbeing; under Model C, for pregnancies of not more than 22 weeks gestation, it would be the same as Model A; and for pregnancies of more than 22 weeks gestation, same as Model B.
Some corollaries of the law change and other comments by the Commission:
Model A contemplates no specific abortion legislation and would therefore involve repealing the abortion provisions in the Crimes Act 1961 and the Contraception, Sterilisation, and Abortion Act 1977.
Models B and C would retain a specific statutory regime for abortion, although both would be significantly simpler than the current regime.
There would be two changes to the law that would be required under all of the three models: the current grounds for abortion in the Crimes Act would be repealed and the requirement for abortions to be authorised by two certifying consultants would be repealed.
The Commission has proposed either repealing the criminal offences for abortion or amending them so that they only apply to unqualified people who perform abortions.
The Commission considers that the current law and guidance surrounding informed consent for health procedures would be sufficient for the purposes of regulating abortions.
The Commission has suggested that counselling should not be mandatory for women seeking abortion, although it should remain available to women who want it.
While not suggesting removing the current conscientious objection rights of health practitioners, the Commission suggested that the Government consider changing the law to ensure that conscientious objection does not unduly delay women’s access to abortion services.
The Commission recommends that Health Practitioners with an objection be required to actively refer a woman seeking an abortion to someone who can provide the service. (This represents a significant departure from current legal approach to allow doctors to exercise their freedom of conscience.)
The Commission acknowledges a concern that if abortion becomes more easily accessible, it might be used for reasons related to the sex of the fetus or fetal impairment, and that this may warrant further consideration.
The Crimes Act contains a provision that makes it an offence to kill an unborn child, an offence not aimed at abortion, but rather at the killing of children during birth or through assaults on pregnant women. The Commission suggested that as the wording of the offence is wide enough to cover abortions performed at later gestations, the Government may wish to consider amending the provision to ensure it is consistent with the Government’s preferred policy approach to abortion.
The Law Commission Report raises a number of serious concerns that include the following:
In the submission to the Law Commission made by the NZCBC and The Nathaniel Centre, we noted that the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, upholds a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. The different Models, all of which start with the premise that abortion is a health procedure, uphold this tension to different degrees, with Model A arguably removing the tension in all cases and Model C removing the tension for all abortions performed before 22 weeks, that is, more than 99% of all abortions (ASC Report 2017).
In the health approach being presented, there is nothing acknowledging that there are at least two human lives involved in every abortion. As noted in our submission, most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. Creating an altered legal regime that frames abortion as being solely about the well-being of the mother potentially undermines a women’s sense that abortion is a serious moral issue and, consequently, their moral agency.
Because all three of the proposed models frame abortion as a matter solely between a woman and her doctor, there is nothing to prevent the ‘inappropriate’ use of abortion for sex-selection or for reasons of impairment. The Law Commission suggests this ‘may warrant further consideration by the Government’, a view with which we concur.
Submission to ACART on Posthumous Reproduction: A review of the current Guidelines
Staff of The Nathaniel Centre
In July 2018 the Advisory Committee on Assisted Reproductive Technology (ACART) sought public feedback on significant policy issues about whether and in what circumstances posthumous reproduction is acceptable. A summary of the Nathaniel Centre’s submission to ACART is printed below.
A Catholic-Christian approach to the moral/ethical issues associated with posthumous reproduction rests on a number of core values and principles. Those that are particularly relevant to this Consultation Document are listed below in no particular order:
Respect for the dead
The bodies of the dead must be treated with respect and charity. A person’s identity is always an embodied one and respect for a person involves respect for their bodies, something which holds true in both life and in death.
While enduring respect for a deceased person includes the duty to uphold their previously expressed wishes, this does not mean acceding to all their wishes. Just as a person’s wishes are not treated as absolute in life but remain subject to the considerations of others, including the common good of society, so the wishes of a deceased person must be weighed up against the demands and impacts on others.
Unconditional respect for human life at all stages of its development
Catholic teaching holds that, without exception, the living embryo has, from the moment of fertilisation, an absolute right to life. A unique human life is begun - it is already the human being it will always be and will only grow in size and complexity. On that basis, all embryos are entitled to be treated with the same respect as persons and each has its own ‘intrinsic dignity’ which is independent of the wishes and desires of any related adults. By virtue of the fact that embryos already possess an inherent right to life, we submit that the posthumous use of gametes involves different ethical and legal considerations from the posthumous use of embryos.
The rights and well-being of the child
This implies a commitment to reflect on the ethical issues from a perspective that actively considers and gives primacy to the rights and well-being of the child that is to be conceived. The voice and interests of children are routinely overshadowed in our society, characterised as it is by a neo-liberal framework which privileges autonomy and, de-facto, privileges the rights and choices of adults, in many cases to the detriment of children.
Upholding the genetic, gestational and social dimensions of parenting
Catholic teaching on the transmission of human life reflects a commitment to holding together the genetic, gestational and social dimensions of family and parenting. This commitment is demanded by our status as relational beings. It is also demanded by the nature of parenthood which, we argue, brings with it a responsibility to ‘parent’ a child. Within the Catholic tradition of moral teaching, upholding this principle rules out the use of third parties in assisted reproduction. The posthumous use of gametes involves knowingly disconnecting genetic parenting from social parenting; there is the deliberate conception of a child who will be denied the prospect of ever knowing or being cared for by the deceased mother/father.
We have argued in previous submissions to ACART that to set out to deliberately deprive children of their genetic or social parent, for the sake and needs of the adults involved, constitutes an injustice to the child concerned. When, as sometimes happens, a man dies after conceiving a child but before that child is born, this is rightly considered a tragic event. While such children can and do grow up well-adjusted, it is ethically speaking quite something else to allow the inherent relational integrity that characterises natural human procreation to be intentionally fractured.
We have also argued that no-one has an absolute ‘right’ to have a child. To the extent that there is a right to have a child, we would argue that it exists as a ‘negative right’i rather than a ‘positive right’. The 1994 Report on Assisted Human Reproduction concurs, noting, in addition, that “Any right to found a family must not be seen in proprietary terms. It is not a right to have or own a child, whom many see as a gift.”ii
In our considered view, proper respect for the dignity of any child who might be conceived, for the deceased person and for the nature of human procreation precludes the use of posthumous conception. Thus, we oppose posthumous conception in all its forms.
We use the term ‘conception’ very carefully and deliberately to reflect what is an important metaphysical distinction between the moral status of embryos and that of gametes (as noted above). In line with our belief that every embryo represents a unique human life already begun, we argue, drawing on an ethic of care, that embryos (presumably created with the consent of a deceased spouse/partner) already possess a right to be implanted by a surviving spouse or partner without the need for further explicit consent.
We note that the Consultation Document employs rather loose language in a number of places. For example, n.25 refers to a person having “agreed that in the event of their death they wanted to become a parent.” Philosophically and socially speaking, we would argue that it is nonsensical to speak in such a way given that, in common parlance, parenting implies a commitment to be an active part of the child’s life, something that a deceased person cannot do. At best, a person can only give advance consent to become a ‘biological father or mother’ to a child conceived after their death in the sense of contributing their gametes. The inability of a deceased person to be a parent in the fullest and normal sense of that notion goes to the heart of the issue when considering the implications of posthumous reproduction for the welfare of any child.
Posthumous conception is not simply an extension of the normal experience of deciding to have a child made possible by developments in technology. The normal experience of proceeding to have a child involves genetic and social parenting in the case of a male and a female and gestational parenting for the female partner. Thus, posthumous conception is most accurately described as a significant deviation from normal human reproduction, and the legal and ethical processes surrounding such decisions should reflect that, including the need for explicit consent and an external review process.
In ethics, attention to language includes recognising that the way in which practices are described shapes one’s ethical analysis of the issue at hand. With respect to assisted human reproduction, the legal issues associated with the storage of gametes and embryos and their use often revert to arguments around ownership and control. We regard this as inadequate for a number of reasons, in particular because a ‘property-based’ approach that leans heavily on rights and consent fails to adequately acknowledge critical relational notions such as attachment and care. These notions are critical because we are dealing with the creation of ‘persons’ whose well-being and identity is intrinsically connected to existential issues that include a sense of belonging and the need to be loved unconditionally.
Notwithstanding the foregoing, we understand that the current state of regulations in New Zealand already allows for the posthumous retrieval of gametes for the creation of embryos in a limited number of instances. Accepting this is the case, we wish to emphasise three key points in our submission:
There must be explicit consent on the part of the deceased or permanently incapacitated and imminently dying person from whom the gametes are to be retrieved before the case for posthumous conception can even be considered.
The well-being of children must be given greater precedence in guidelines concerning the use of posthumous reproduction than is currently evident in the Consultation Document. In line with the first principle in the HART Act, respect for the consent of the deceased or imminently dying person should be independently weighed against concern for the dignity and well-being of the children who will potentially be conceived posthumously. This should be considered by ECART on a case-by-case basis.
In line with the principle that the genetic, gestational and social aspects of parenting need to be held together, we submit that case by caseconsideration of the merits ofposthumous conception must be limited to surviving spouses or partners to whom a deceased person was married or in some other type of permanent long-term relationship akin to the committed nature of marriage.
Autonomy and Reproductive Choices:
Belinda Bennettiii has argued for autonomy to be seen as “in connections and relationships with others” (p. 300). She further argues for autonomy to be understood to mean “self-governing moral agency, rather than independent or self-contained decision-making. Self-governing in an ethic of care does not mean governing alone by abstract reasoning and distant observations, but means choosing options with respect to responsibilities, relationships, conversations, and dialogues with others”.iv
In Bennett’s words, individualised autonomy “provides us with [nothing] other than a basis for competing rights which must then be mediated with reference to some other principle”.v Accepting her ‘ethic of care’ model for autonomy enables a more adequate consideration of the relational aspects of posthumous reproduction. Then it can be seen that “… posthumous reproduction changes the shape of the deceased individual’s life and the relationships of that individual with others.”vi
There are justifiable limits to carrying out a person’s wishes after their death. Because the conception of a child rightly takes place within a relationship, there must be willingness and consent on the part of both partners (‘gamete providers’). Thus, even if explicit written consent exists on the part of the deceased person for their gametes to be used for posthumous reproduction, no-one would argue that the surviving partner has no choice in the matter.
In considering the merits of posthumous reproduction, an ethic of care demands that the wishes of the adults involved must always be balanced by what is in the best interests of the child being conceived and for whom the ‘gamete providers’ have a duty of care demanded by the commonly accepted understanding of what is involved in responsible parenting. As Atkin and Reid noted in 1994: “… individual [adult] rights can be limited when the aim is to protect important societal interests … that different people’s rights overlap, that rights are subject to various limitations ...”.vii Our analysis of the Consultation Document is that the ‘responses options’ defaults to a narrow legal framework focusing on the need for ‘consent’ and ‘authorisation’, and ultimately fails to give adequate recognition to the well-being of any future children. As Atkin and Reid argue: “… an ethic of care holds, broadly speaking, that moral reasoning is not solely, or even primarily, a matter of finding rules to arbitrate between conflicting interests … the priority … is on helping human relationships to flourish by seeking to foster the dignity of the individual and the welfare of the community.”viii
There is, in other words, a need for a consideration of issues that goes wider than ‘consent’ and ‘authorisation’.
The obvious benefits of collecting and using gametes from a deceased person for their family or partner, and the less obvious and tenuous nature of the philosophically thin arguments that the conception of a child ‘after death’ is potentially in the interests of the deceased gamete provider, mean that the starting point for each and every such case should involve a hermeneutic of suspicion. What is required is a careful deliberation that takes into account a range of factors concerning not just the decedent’s wishes. For this reason, we argue that each and every case for posthumous conception can only be properly investigated by an accredited ethics committee such as ECART.
There would also need to be separate consideration of the legal status and inheritance rights as well as the possible psychological impact on any child-to-be conceived and on other family members, including other children.
The notion of ‘consent’ in the case of posthumous reproduction is complex. The fact that a person wanted to have children is not a clear indication of their wish to have a child after they have died.
Therefore, it must never be presumed that consent given by a person to have their gametes stored while undergoing treatment, in the hope they could still become a parent at some time in the future, i.e. post-treatment, implies a consent to have their gametes used to have a child in a situation when they can never parent that child.
The consent process and forms used by Fertility Providers must be very specific in this regard. Even then, it is arguably very difficult to anticipate a situation where one does not survive and to make a truly informed decision that one’s gametes can be used posthumously to conceive a child.
Accordingly, regarding the question of inferred consent, we reject the adequacy of ‘substituted judgement’ on behalf of a deceased person (Consultation Document, n. 99). We admit that this could (unfairly) rule out some cases where a person might well have wanted their gametes to be used by their partner in order to conceive a child posthumously. However, as Bennett notes: “… it is difficult to see why it is any more fair to presume consent on the part of those who have contemplated posthumous conception but who decided against it while omitting to record their objections for posterity.”ix
We are aware that New Zealand guidelines allow for families to give consent to the posthumous removal and donation of organs from a loved one in the absence of explicit consent. We also note that analogies are sometimes drawn between posthumous retrieval of gametes for reproduction and the posthumous donation of organs as an argument in support of substituted consent. However, we consider that there are significant differences between the two situations which ultimately override any similarities, differences that are grounded, once again, in the very different outcomes sought – one being “life-sustaining” for one or more anonymous recipients and the other “life-creating”.
Orr and Siegler offer a valuable insight into the difference between posthumous organ donation and the retrieval and use of posthumous gametes:
In our view, there is a difference in kind between autopsy and organ retrieval on the one hand, and sperm retrieval. Giving consent for autopsy or for organ retrieval for transplantation is giving to benefit others. But requesting sperm retrieval after death without the consent of the dead man is not the same; in fact it is not giving at all—it is instead taking, because its aim is to benefit the person making the request. While retrieval of organs after death without the explicit consent of the decedent is likewise taking, it is different in that the family who is giving consent is altruistically giving the organs for someone else’s benefit. The parents or woman who request sperm retrieval after death without the explicit consent of the dead man are making a request for their own benefit. Thus, proxy “consent” in this situation is not consent at all.x
As the Consultation Document itself notes with reference to the Code of Health and Disability Services Consumers’ Rights: “It is not legally permissible to carry out procedures on … people just because those procedures will benefit someone else” (n. 19). This principle, closely aligned as it is with the notion of informed consent, underpins the whole approach to healthcare and research in New Zealand.
Consent from both partners is also consistent with viewing children as a ‘gift’ rather than a ‘right’. That being so, then the means used to conceive a child must be synonymous with a gifting paradigm. This in turn means that human conception must be an intentional act by both parties, something that is best measured by the presence of explicit consent.
While explicit consent for one’s gametes to be used by a surviving partner for the purposes of conceiving a child is a sine qua non, it is not of itself adequate for the purposes of assessing the merits of posthumous conception. We submit that every application for posthumous conception must, in addition be subject to independent consideration by the ECART Committee which can then reflect on and review the broader range of issues that are of relevance from a perspective that favours a care-based guardianship approach (which gives primacy to the best interests of children) rather than a property-based ownership/rights approach.xi
Best interests of children:
The Consultation Document asks for responses on the issues of: consent, authorisation for removal of gametes or tissue, the best interests of the deceased, who should be permitted to use the material, and ethics review. This is entirely ‘adult-centred’ and does not consider the impact of a posthumous reproduction policy on the position of children in our society.
While it is difficult to consider the ‘rights’ or ‘dignity’ of a child who would not be born but for the posthumous use and/or retrieval of gametes, it is nevertheless possible to consider the rights and dignity of children in general when considering policies that govern these practices.
We note the Document discusses the particular effects on the ‘resulting child’, such as inheritance rights or the potential negative effects on the child depending on the motivations of the parents. However, there is a broader effect on ‘children in general’ of prioritising the ‘rights’ of a parent to create a child using posthumous gametes, that is not adequately considered.
Posthumous reproduction potentially springs from and supports a view of children as desired ‘products’, that can satisfy the wishes and needs of a surviving parent, and even a deceased parent.
This positioning of the child as a ‘desired product’ for the parent/s not only contravenes the spirit of the Universal Declaration of Human Rights but also contravenes Article 3 of the United Nations Convention on the Rights of the Child: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.xii
The Consultation Document (p.14) refers to research that indicates outcomes for children created from material retrieved posthumously “are not different from a child produced by other assisted reproductive technologies”. However, the paper cited discussed only four cases and focuses particularly on physical health. There is no evidence presented, positive or otherwise, of the psychological or emotional outcomes for children once they become aware of their origins and have reached an age where this is likely to be of significance to them.
As we stated in our submission to ACART on Proposed Donation Guidelines: for family gamete donation, embryo donation, use of donated eggs with donated sperm and surrogacy, “the rejection of certain means and situations for conceiving human life, … is most correctly viewed as the logical and ethical consequence of a positive and intentional commitment to the optimal flourishing of children.”
We recognise that parents routinely choose to have children for their own reasons and without the broader oversight of an ethics committee. However, given our argument that posthumous conception is a deviation from natural conception rather than simply an extension of it, we believe such scrutiny is warranted. Policies on posthumous reproduction must take account of the broader implications or ‘unintended consequences’ beyond the desires of intending parents.
Conclusion: Posthumous conception represents a significant deviation from normal human reproduction. To speak of a deceased person becoming a ‘parent’ has a qualitatively different meaning from ‘parenting’ understood in the normal sense, which implies the ability and willingness to enter into an ongoing relationship of care. The legal and ethical processes surrounding posthumous reproduction should reflect that fact, including the need for explicit consent and a case-by-case external review process.
We oppose posthumous conception in all its forms on the basis that it is precluded by proper respect for the dignity of any child who might be conceived, for the deceased person and for the nature of human procreation.
Staff of The Nathaniel Centre September 2018.
i A ‘negative right ’in this context is the right not to be prevented by others from having a child. By contrast, a ‘positive right’ to have a child would impose on others (the State) an obligation to actively assist persons to have a child.
ii Atkin, W. R., & Reid, P. (1994). Assisted human reproduction: Navigating our future. Report of the Ministerial Committee on Assisted Reproductive Technologies. Department of Justice. New Zealand. Pp.31-32.
iii Bennett, Belinda. "Posthumous reproduction and the meanings of autonomy." Melb. UL Rev. 23 (1999, p.300.
iv Ibid., p. 300.
vi Ibid., p. 306
vii Atkin, W. R., & Reid, P. Ibid., p.30.
viii Atkin, W. R., & Reid, P. ibid., p. 28.
ix See Bennett, p. 303.
x Orr, R. D., & Siegler, M. (2002). Is posthumous semen retrieval ethically permissible? Journal of medical ethics, 28(5), p.301.
xi See Bennett, pp. 297-298.
xii Unicef, 1989. Convention on the Rights of the Child. https://www.ohchr.org/en/professionalinterest/pages/crc.aspx
GUEST EDITORIAL: Poverty and abortion
Last year I encountered a young woman’s abortion story. She described sobbing as she saw the results of her pregnancy test. Her husband heard her, came into the bathroom and hugged her and cried. She said to me they didn’t need to talk about it, they both knew they couldn’t afford another child.
Although they had both been working, they couldn’t pay their bills on one income; she had just finished maternity leave after the birth of a previous child and needed to go back to work. She said in another world she would have liked to have another child, but she couldn’t see how it could be possible.
Her feelings after the abortion were primarily of relief, that they would manage to cope financially. The rent would be paid; power wouldn’t be disconnected; there would be food in the cupboard. However, what I heard above all was a sense of pride that - despite their feelings and wishes - they had managed to do what they thought was the responsible thing to do; they would not have a child that they could not afford.
It’s rare for people to talk me about their abortion – the cross around my neck usually precludes this. But the subject of our conversation hadn’t been the ins and outs of pro-choice and pro-life positions, or the dignity of human life, or the point when human life begins.
The conversation was about poverty. And these two lovely young people, teritary educated, were in low-paying jobs with little long-term security, without any hope or possibility of home ownership, frightened of being evicted from a cold rental home which they couldn’t afford to heat in winter; trying to keep an old car on the road in order to go to work in service jobs which started and finished at hours when no public transport was available.
What saddened me was that they thought abortion was a satisfactory outcome, even though they would have welcomed another child. What alarmed me was that they had absorbed and internalised messages that they alone had the responsibility for keeping their family out of poverty. What outraged me was that because of their own experience, they agreed with politicians who argued that beneficiaries who had additional children should be penalised.
Forty percent of children in New Zealand living in poverty are in homes where at least one parent is in employment. There are numerous reports about what poverty in New Zealand means in practice: the child poverty monitor of the Office of the Commissioner for Children (www.childpoverty.co.nz) is one source of information. Families living in poverty are usually experiencing deprivation in multiple areas – for example, living without warm clothing, adequate food, a bed for each person and participation in the community. It looks different in different settings.
Statistics tell us some of the picture; what I hear and meet are stressed and worried parents who cannot see any way out of poverty, whether on benefits or in paid work. While this is a societal responsibility, the outcome of deliberate public policy decisions over the past 30 years, the message society sends to parents in these circumstances is one of judgement, condemnation , guilt and shame.
Consequently, too many people living in poverty have absorbed the political rhetoric of individual responsibility, and now see hardship primarily as an individual matter about which they alone have made their own choices. It is especially heartbreaking and unjust that some parents regard abortion as an answer to poverty; as a solution to their problem of high rents, low wages and unaffordable childcare.
A consistent ethic of life affirms that we care about life from conception to natural death; however, that isn’t what comes across to people in mainstream rhetoric about abortion. What many people perceive is that anti-abortion/pro-life organisations and voices are only concerned about life before birth, and are content to leave a child to live in poverty after they are born.
Welfare policy continues to be a strongly debated topic, and not every pregnancy that is ended is because of financial hardship. However, it is an area where we can find common ground with people of different perspectives. At a Welfare Working Group forum in 2010 I unexpectedly found support from a representative of a family planning group when I stood to oppose proposals that would have penalised women who had additional children while receiving a benefit. We had different philosophies and different approaches to issues of welfare and sexuality. But we were able to stand together and publicly agree that poverty is the worst possible reason to have an abortion.
Rather than just focusing narrowly on the debate about the legal availability for abortion, we need to be visible participants in working on issues around low incomes, housing affordability and job security. So our society becomes one where a working family does not just sob in the bathroom at the news of an unexpected pregnancy, but where parents know that they can afford to welcome another life into their home and that they will be supported and cherished by the wider community.
Lisa Beech is Justice, Peace and Development Advisor in the Archdiocese of Wellington. As a sole parent, at different times on wages and on a benefit, she raised three children, who are now adult.
[Synopsis Only] Mind the Gap: Every Pregnancy Needs to be Celebrated
This true story of one woman’s experience of an unexpected pregnancy, offers personal insights into the social and cultural challenges women can face. As this case reveals, the response of those within the Catholic community can vary. Catholic faith communities should be the safest place in New Zealand for a woman to be pregnant, whatever the circumstances of the conception.
The full article is available by subscription to The Nathaniel Report
[Synopsis Only] Reasons Women Seek Abortions
Cynthia Piper highlights the reasons why women seek abortions, something that is not often explored. Women facing an unexpected pregnancy are inevitably frightened and distraught. The prevalence of socio-economic drivers indicates the need for adequate and independent pre-decision counselling and support to empower women to make real choices.
The full article is available by subscription to The Nathaniel Report
Review of the Abortion Laws in New Zealand: Submission to the Law Commission – May 2018
Joint submission by the New Zealand Catholic Bishops Conference & The Nathaniel Centre
The Status of Unborn Human Life: Our Position
The debate about when human life begins is uncontroversial. As reported by the Royal Commission on Contraception, Sterilisation and Abortion (1977): “From a biological point of view there is no argument as to when life begins. Evidence was given to us by eminent scientists from all over the world. None of them suggested that human life begins at any time other than conception.”
The ethical questions around abortion and research on embryos centre on the sort of respect or protection we should accord human life; in particular, whether it is ethically consistent to accord a different level of respect to humans in the earliest stages of life, as well as whether there are ever factors that mitigate the respect due to human life at any stage of development.
Most people, whatever their position on issues such as abortion or embryo research, agree that human life deserves a ‘special’ status even if they do not accord unborn human life the same moral status as human life post-birth. The belief held by some that the life of a human embryo matters less than other human life at a more developed stage may reflect the fact that it is largely unseen. However, an embryo is not simply a collection of cells that happen to be contiguous. These cells are a human embryo, a new human individual and part of the human family. Embryos and foetuses become children just as children become adults, not by some addition to what they are, but simply by developing further as the kind of beings they already are.
The common understanding of ‘person’ in our culture has, latterly, been shaped by an emphasis on self-consciousness as the mark of personhood. A much older understanding of person, however, locates personhood in the dignity of a being's rational nature, irrespective of whether that being is even ‘conscious’ at a particular phase in his or her life. According to this traditional view, there is nothing problematic about saying that an unborn child or a persistently unconscious patient is a person, for they are truly our fellow human beings.
Recognising that the status of the human embryo or fetus flows from their inherent connection to the human family is key to understanding why Catholic teaching holds they ought to be treated with unconditional respect whatever the stage of development – a life is begun which is neither that of the mother nor the father. It is already the human being it will always be and will only grow in size and complexity. Mothers instinctively recognise this by invariably referring to the embryo or foetus within the womb as their baby.
On that basis, embryos and foetuses are entitled to be granted a place in the human family and treated with the same respect as persons. As the Royal Commission stated: “The unborn child, as one of the weakest, the most vulnerable, and most defenceless forms of humanity, should receive protection.”
There is a lack of clarity that has led to confusion in the community about the precise meaning of the brief that has been given to the Law Commission by the Minister of Justice. We are assuming that the wish to treat abortion as “a health issue that is a reproductive choice for women”1 centres around a wish to provide for ‘abortion on demand’ in New Zealand – that is, a wish to make it a decision solely between a woman and a doctor as is the case for reproductive choices involving contraception. However, this is nowhere clearly spelled out, something which makes it difficult to comment on your brief in a truly informed way.
If our assumption is correct, then what the Law Commission is being asked to do represents a significant policy change. As we understand it, the current law, as set out in the Contraception, Sterilisation, and Abortion (CS&A) Act 1977 and the Crimes Act 1961, sets up a ‘tension’ between the needs and desires of the woman and the rights of the foetus/unborn child and seeks to balance both. Making abortion solely “a health issue that is a reproductive choice” would ignore this tension, removing any requirement to consider the rights of the unborn child.
Meanwhile, we note that in public comments explaining your brief,2 you state that the Law Commission will not be commenting on policy issues.
In our minds there is a degree of incongruity between the brief and your public comments. In which case we interpret your comments about policy to mean that it is not part of your task to recommend that any changes be made to the eligibility criteria for abortion or to promote any alternative approaches as preferable to the existing policy approach.
The public and other interested parties have a right to be fully consulted on any changes to the current policy approach, including eligibility criteria. It concerns us that the Law Commission could potentially be cooperating in a policy change by stealth.
That your brief falls short of the “full review of the legislation” that Justice Minister Andrew Little was reported as saying “would first take place” adds to our concern about a lack of proper process on what is a critically important piece of legislation.3
In line with the Catholic position stated above, we are opposed to any change in the law which would either lessen or, worse, totally remove the (limited) rights the current law accords to the unborn child. The changes we would advocate for (and which would not constitute a policy change) are those which would (i) ensure continued consideration of the rights of the unborn child and (ii) promote the well-being of women, including better processes to ensure adequate informed consent.
Indeed, along with the 65% of New Zealanders identified in the 2017 Curia Poll,4 we would like to see changes implemented that would further reduce the number of abortions occurring in New Zealand.
We understand that under current law there is no ‘right’ to have an abortion in New Zealand and that administering (or supplying the means for procuring) an abortion is unlawful except when certain eligibility criteria are met as spelt out in Sec 187A of the Crimes Act 1961. The current situation is arguably well-described as providing for ‘abortion on request’ insofar as any discussion about abortion must be initiated by the woman but ultimately depends on two appointed doctors being satisfied that critical eligibility criteria are met.
We note that there are certain groups and individuals pushing for change who claim that the current law criminalises women. Sec. 183 of the Crimes Act 1961 specifically states that “a woman (or girl) shall not be charged as a party to an offence against this section” (the relevant section being that which describes “unlawful abortions”). We therefore regard such claims as both inaccurate and mischievous – under current abortion legislation, women are not liable for prosecution except in situations where they attempt to procure their own abortion, something we comment on below.
Our Key Arguments:
The ‘tension’ that we believe characterises the current regime (see above) is revealed in the legislation in several places:
It is spelt out in Section 30(5) of the CS&A Act which stipulates that the appointment of members to the Abortion Supervisory Committee should have regard to views ‘incompatible’ with the tenor of the CS&A Act. The views described as ‘incompatible’ are:
(a) that an abortion should not be performed in any circumstances:
(b) that the question of whether an abortion should or should not be performed in any case is entirely a matter for the woman and a doctor to decide.
It is also evident in the longer title of the CS&A Act: An Act … to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child…
That the unborn child has a status that gives it rights is also upheld in Section 182 of the Crimes Act (“Killing unborn child”) which, we note, you have been instructed need not be reviewed (Letter from Minister of Justice Hon Andrew Little to Hon Sir Justice White QC, 27 February 2018 – letter released under the Official Information Act). Logically speaking, the ongoing existence of Section 182 andthe existence of a parallel law making abortions solely a matter between the woman and her doctor, would set up an inherent contradiction between two laws.
Making abortion solely a health issue, in the sense of making it merely a matter between a woman and her doctor, will deny many women the chance to manage the tension that lies at the heart of all abortion decisions. That is, it will deny women the chance to deal with abortion as a significant ‘moral issue’ involving the ending of a human life. This, we argue, would not be in women’s interests. As the feminist writer Naomi Wolf has stated: “I will maintain that we need to contextualise the fight to defend abortion rights within a moral framework that admits that the death of a foetus is a real death: that there are degrees of culpability, judgment and responsibility involved in the decision to abort a pregnancy; that the best understanding of feminism involves holding women as well as men to the responsibilities that are inseparable from their rights…”.5
Most women understand that an abortion, whatever the reason they are contemplating it, has significant moral implications. This is signified, among other things, by the way women who have had abortions commonly speak of their ‘child’ rather than using terms such as ‘the products of conception’. In a peer-reviewed qualitative exploration of women’s needs and preferences in clinical care during the process of having an abortion, one of the strong themes to emerge was that women want to be recognised as “grappling with a real-life moral decision”; to be affirmed as “moral decision-makers”, something that only occurs “when medical personnel recognized this conflict and affirmed the decision as moral …”6
Using language which either denies what is happening or which disguises the complexity and moral dimensions of abortion, is ultimately not in the interests of women. Equally, and even while it might be presented as empowering women to make their own decisions without interference from the State or others, creating an altered legal regime that frames abortion as being solely about the well-being of the mother will potentially undermine women’s sense that abortion is a serious moral issue and, consequently, their moral agency. Were that to eventuate, the State would be party to undermining the true ‘moral’ dimension of abortion and would be potentially contributing to poorer outcomes for many women.
It is our considered and strongly held view that the tension that characterises the current legal approach must be retained. To be retained, it must be reflected in the legal framework governing access to abortion.
There are three other important reasons for retaining certain provisions relating to abortion in the Crimes Act that we wish to highlight:
Under the current law, there is protection provided to women from unscrupulous abortion providers. This needs to remain and it is proper that the Crimes Act continue to spell out sanctions to prevent and/or punish such actions.
The increased use of medical abortifacients and their ready availability from other countries via the internet, means that some women may seek to import such drugs and take them without proper medical supervision. This is particularly a risk for young women who feel the need to keep their pregnancy and abortion decision secret. Whether they import the drugs directly or fall prey to unscrupulous providers, it is for the protection of these women that the importation of such drugs must be restricted in law.
If treating abortion as a ‘health issue that is a reproductive choice’ means, as we suggested above, ‘abortion on demand’, then this allows for abortion for any reason, including gender selection and disability. These reasons for abortion are highly contentious. We note here the Curia poll of 1,000 New Zealand residentswhich found that only 9 percent of respondents supported sex selective abortions, and 90 percent were opposed. For females, only 1 percent supported sex selective abortion while 94 percent opposed it.
For all the reasons spelled out above, we argue that abortion needs to be treated as both a justice and a health issue. We argue this requires legislation which clearly and precisely specifies the circumstances under which abortion remains unlawful and under which abortion providers will be prosecuted for unlawful abortions.
In support of our position we note that the Abortion Supervisory Committee (ASC) has notbeen advocating for a significant change in the way that abortions are administered in New Zealand. In the 2017 Report to Parliament’s Justice Select Committee, the ASC stated that: “The ASC does not propose amendments that would change the original intent of the Act.”
Furthermore, and importantly, in the same 2017 Report it is written that “[T]he ASC recognises the merit in having a robust pathway in place, which requires certifying consultants to assess and certify patients and to ensure counselling is offered.” While there are some who argue that the current law disempowers women because it makes what should be a personal decision subject to external interference, to cumbersome and intrusive legal and procedural obstacles, we argue that choices are always limited by the constraints of knowledge and by context, including coercion,.8,9 As The Nathaniel Centre has previously stated:
Many women, after the event, report feeling that they had no other option at the time but to proceed, often because of pressure from parents, partner and/or peers. At times this pressure is also experienced as coming from staff at the Termination of Pregnancy Units. For other women, the pressure they feel is generated by employment or social factors. In the words of another commentator, in such situations, the decision for an abortion is best described as a tragic response to lack of choice.10
It is therefore in the interest of free and informed consent that all women should be offered independent counselling that (i) addresses the coercive realities surrounding many abortions and (ii) canvasses the other options that exist. The law has an important role in ensuring that women are given the opportunity to understand and work with the complex moral, personal, family and social contexts within which they find themselves contemplating an abortion. ‘Abortion on demand’ will not achieve this. In other words, it is important to keep in place carefully considered eligibility criteria as well as providing a robust pathway of options that is clearly laid out in law.
Furthermore, reducing abortion decision-making to ‘a reproductive choice for women’ denies the fact that many others are involved in and/or impacted by the decision. As Germaine Greer has written:
Pregnancy is unlike other patient-doctor relations in that there are two other individuals involved - the father-to-be and the child-to-be … What women ‘won’ was the ‘right’ to undergo invasive procedures in order to terminate unwanted pregnancies - unwanted not just by them but by their parents, their sexual partners, the governments who would not support mothers, the employers who would not employ mothers, the landlords who would not accept tenants with children, the schools that would not accept students with children.11
Women are reported in the literature as taking into account a range of persons and factors when contemplating an abortion including “the woman herself, the potential child, her sexual partner, existing children, the extended family, and financial matters.”12 Women contemplating an abortion are well aware of the broader ramifications of such a decision and it would be a moral and social disservice to them if the language and regulatory frameworks around abortion conveyed something different. The legal model for regulating abortions in New Zealand must acknowledge and account for this broader reality. A narrow framework focussed solely on the mother will not achieve this.
If the law is to protect and promote genuine informed consent, then women contemplating abortion must be given the time and support required to make a genuine decision. A decision for an abortion can only be described as a truly ‘free’ choice if the woman knows there is tangible support (familial, financial, emotional, social) that enables her to choose to keep the child. This requires a parallel review of the social support structures that our society offers to women who are pregnant.
We note that the health risks associated with an abortion are widely acknowledged in the research literature. While there is some disagreement in the research literature about the extent of the negative health consequences of abortion for women, the negative effects on some women are incontestable. This provides a further reason in our minds for clearly laid out and robust processes, including the funding and availability of independent counselling provided by an individual or organisation otherthan the abortion provider.
Referring again to the 2017 ASC Report, as well as the 2016 Report, we do agree that some of the language used in the present CS&A Act is outdated and clumsy and needs to be reviewed.
Public awareness of the complexities of this issue is illustrated in the Curia Poll13 referred to above. Some of the findings of this poll include:
52 percent of respondents ‘generally support abortion’ but 29 percent ‘oppose’ and 19 percent were ‘unsure/refuse’;
Of respondents aged 18 to 40 years, only 47 percent ‘support’ abortion, with 34 percent opposed and 19 percent ‘unsure/refuse’.
65 percent of respondents agree that society should work together to reduce the number of abortions; only 17 percent disagree;
Of those who generally support abortion, 63 percent agree we should reduce the number of abortions.
Only 9 percent of respondents support a time limit of 20 weeks (the current legal limit); 4 percent support time limits over 20 weeks; 41 percent support time limits of 15 weeks or less.
It is noteworthy that in New Zealand, abortion numbers and rates have been declining since 2007. That is, the numbers of abortions, the ratio of abortions (number of abortions per 1000 pregnancies) and the rate of abortion (number of abortions per 1000 women aged 15-44) have all declined. While the reasons for this are not understood, those on both sides of the divide can agree this is a good thing. We suggest that while the reasons for this decline are not understood, it is a precarious time to tamper with the law. Any proposed changes should be considered keeping this in mind.
Conclusion: ‘Abortion is both a health and a justice issue’
Human life begins at conception and is entitled to the full protections offered to human persons from that point forward.
The inherent dignity of human life from conception means that the starting presumption should always be in favour of human life, whether born or unborn. It’s on this basis that we oppose establishing a ‘right’ to abortion. This being so, it is appropriate that the unborn enjoy the same fundamental protections the Crimes Act provides for all other human beings. Therefore, if the State is to continue providing abortions in certain situations, the law should only ever provide for abortion as an ‘exception’ to the fundamental right to life.
Our considered view is that abortion is both a health and a justice issueand it should be treated by the law as such.
There is much at stake in a review of the abortion laws; it is a deeply moral issue involving the future of a human life as well as the well-being of the woman and her family. The State has an essential responsibility to protect and care for allhuman life. It would abdicate this responsibility by making abortion solely a matter between a woman and her doctor.
We need legislation which clearly specifies the circumstances under which abortions remain unlawful and under which abortion providers will be prosecuted for unlawful abortions.
We do not support changing the original intent of the Contraception, Sterilisation, and Abortion Act 1977. The current law acknowledges and upholds a ‘tension’ between the effect of the pregnancy on the woman and the rights of the unborn child. This must not be lost in any review of the current laws.
The changes we would advocate for are those which would (i) further recognise the rights of the unborn child, (ii) promote the well-being of women, including better processes to ensure adequate informed consent and (iii) lead to fewer abortions occurring in New Zealand.
We want to see the law provide a more “robust pathway” governing abortions in New Zealand, one that acknowledges women’s need for full and independent information and support in order that genuine informed consent can take place. To this end, we want to see the provision of independent and publicly funded counselling for all women considering an abortion.
1 Letter from Rt Hon Jacinda Ardern to Hon Andrew Little, released under the Official Information Act – not dated.
2 Radio New Zealand, Sunday 22 April, “Commissioning Changes”. Interview with Hon Sir Douglas White, QC, Law Commission. https://www.radionz.co.nz/audio/player?audio_id=2018640535
3 See Craig McCulloch, “No abortion changes until ‘well into next year’”, 2 November 2017, https://www.radionz.co.nz/news/political/342899/no-abortion-changes-until-well-into-next-year, accessed 17 May 2018.
4 Curia Market Research. Abortion Poll, February 8, 2018, https://www.curia.co.nz/2018/02/abortion-poll-2/
5 “Naomi Wolf on Abortion: ‘Our Bodies, Our Souls’". New Statesman 27 January 2013http://www.newstatesman.com/politics/politics/2013/01/naomi-wolf-abortion-our-bodies-our-souls
6 Altshuler, A. L., Ojanen-Goldsmith, A., Blumenthal, P. D., & Freedman, L. R. (2017). A good abortion experience: A qualitative exploration of women's needs and preferences in clinical care. Social Science & Medicine, 191, 109-116.
7 Curia Market Research. Abortion Poll, February 8, 2018, https://www.curia.co.nz/2018/02/abortion-poll-2/
8 Jones, R. K., Frohwirth, L., & Moore, A. M. (2013). More than poverty: Disruptive events among women having abortions in the USA. The Journal of Family Planning and Reproductive Health Care, 39(1), 36: “More than half (57%) of the women obtaining abortions experienced a potentially disruptive event within the last year, most commonly unemployment (20%), separation from a partner (16%), falling behind on rent/mortgage (14%) and/or moving multiple times (12%).”
9 Hall, M., Chappell, L. C., Parnell, B. L., Seed, P. T., & Bewley, S. (2014). Associations between intimate partner violence and termination of pregnancy: A systematic review and meta-analysis. PLoS Medicine, 11(1): “Among women who underwent TOP, reported rates of IPV in the preceding year ranged from 2.5% to 30%, while lifetime rates of IPV in this population varied from 14% to 40%.” (TOP refers to “termination of pregnancy” and IPV refers to “intimate partner violence”.)
10 Piper, C. and Kleinsman, J. Editorial – Why are abortion advocates afraid of informed choice? The Nathaniel Report, 51, April 2017.
11 Greer, Germaine. The Whole Woman. Black Swan. London. 2011.
12 Kirkman, M., Rosenthal, D., Mallett, S., Rowe, H., & Hardiman, A. (2010). Reasons women give for contemplating or undergoing abortion: A qualitative investigation in Victoria, Australia. Sexual & Reproductive Healthcare, 1(4), p. 152. See also Biggs, M. A., Gould, H., & Foster, D. G. (2013). Understanding why women seek abortions in the US. BMC women's health, 13(1), 29.
13 The full results for this poll can be found at: https://www.familyfirst.org.nz/wp-content/uploads/2018/01/Abortion-Poll-Results-January-2018.pdf
Abortion Law Reform and the State’s Interest in Protecting Unborn Life [SYNOPSIS ONLY]
In the wake of the current debate about abortion laws, Ian Bassett briefly outlines the legal history surrounding the protection of human life in all its forms – from our tradition of English common law through to more recent statements by the New Zealand judiciary. The long-standing protection of life is put at risk by the latest moves to remove abortion from the Crimes Act. The gravity of what is being proposed should initiate a broad and informed public debate.
The full article is available by subscription to The Nathaniel Report
Proposed Abortion Law Reform in New Zealand
The request from the Minister of Justice that the Law Commission review the abortion laws centres on the Government’s stated desire “to make changes to ensure New Zealand’s abortion laws are consistent with treating abortion as a health issue that is a reproductive choice for women, rather than as a criminal issue” (Letter from the Prime Minister, Rt Hon Jacinda Ardern, to Minister of Justice, Hon Andrew Little – not dated).
In response to the question of whether the current legal framework needs to change we offer the following points for consideration.
Abortion is best treated as both a justice issue and as a health issue. The starting presumption should always be in favour of human life, no matter the stage of development of that life. Any decision to end a human life should only be granted as an ‘exception’ to the principle that all members of the human family have an inherent dignity. This principle, spelled out in the United Nations Declaration of Human Rights, is meaningless if it is not enshrined in the law. The Contraception Sterilisation and Abortion Act 1977 holds the rights of the child and the rights of the mother in tension, having due regard for both. This should not change.
In every abortion there are two human lives involved and at least one life is at stake. Our present laws reflect the fact that human life should not be taken without good reason. Making abortion solely a ‘health issue’ places the fundamental right to life, something that should be a presumption for all human life, outside of any law and making the rights of the unborn child totally dependent on the choice of the mother. This which would potentially allow for abortion for any reason, including gender selection. We need legislation which clearly specifies the circumstances under which abortion remains unlawful and under which abortion providers will be prosecuted for unlawful abortions.
Any change in legislation needs to ensure women are free to make informed choices, including the choice to continue their pregnancy. Abortions have been shown to cause psychological and mental harm to some women, affecting their physical and emotional well-being. What is required are better processes that support women and allow them access to unbiased information and adequate safeguards by way of independent counselling. In the face of evidence which shows that many women choose abortions under duress – whether from a partner or family or because of financial or social reasons – the introduction of mandatory independent counselling will allow them greater control and choice while minimising the risks to health and well-being that often follow.
The current law does not make criminals of women – a fact often misrepresented by those proposing change. Any woman in New Zealand who procures an abortion within the current regulatory framework is not committing an illegal act. The law does, however, protect them from unlicensed and unscrupulous abortion providers. “Unlawful” providers can be prosecuted under current legislation but the woman seeking an abortion cannot be prosecuted. Sec 183 of the Crimes Act specifically states that while the person who “procures” the miscarriage is liable for imprisonment, the “woman or girl shall not be charged as a party” to any offence.