Use of I.U.D. said to be offence under Crimes Act

Press, Volume CXVI, Issue 34130, 17 April 1976, Page 2

Use of I.U.D. said to be offence under Crimes Act

rx z. Pre»» Mfociattoni t n&LLIMjIU.x, April 16. The infra use or Uterine devices by women is apparently an offence under section 183 Of the Crimes Act, the Secretary of Justice r' a (Mr G. S. Orr) told the Royal Commission on

contraception, sterilisation and abortion yesterday. Mr Orr, in submissions which he said were his alone, was explaining the "grey area” in the law between contraception and abortion. "There is a gre, area be-

tween contraception and abortion on which no great assistance is to be derived from the Lane Committee report. Yet if cannot be ignored in any proposals to reformulate ’ the abortion law. "Perhaps the most notable device in this area is the intra-uterine device (1.U.D.) which is now in widespread use,” Mr Orr said. Quoting from medical references he said that I.U.D.S in some way appeared to interfere with the implantation of fertilised ovum, or destroyed it, or caused its expulsion. He also referred to the stilboestrol '•morning-after” pill and the early menstrual extraction by vacuum cannula as being in the "grey area.” ‘‘lt is uardly surprising

that te New Zealand Jaw on abortion, which has changed littie for over 100 years, cannot cope with these developments. The essence of section 183 of the Crimes Act is the unlawful use of a drug or instrument with intent to procure a miscarriage." he said, u Under accepted definitions, he said that the law is wide - nough to encompass the loss of fertilised ovum.

"It is unlikely that under present law a court would exclude that situation because. if it did, the result would be that for the first few days after intercourse nobody (not even the backstreet operator) who interfered with a suspected pregnancy would be guilty of any offence.

“It is therefore highly likely that a person who inserts an I.U.D , knowing the effect this will have on the product of any future conception, commits an offence under section 183.” Mr Orr said. "The same is true of the person who, with intent to counteract a possible pregnancy, supplies ’morn-ing-after’ pills, or administers prostaglandins, or uses a vacuum cannula, even at a very early stage before implantation could have occurred. Whether there is any help for such a person in the obscure word ‘lawful’ is a matter on which there is no judicial authority.” Mr Orr said the situation was not very satisfactory. ‘The LU.D. is, I understand, a useful method of

family planning. Any attempt to ban the device on the grounds that it went, beyond what the law permitted would, I believe, be strongly opposed. Moreover, according to the Health Department’s initial submission on contraception and sterilisation, ’morning-after' pills are available here on medical prescription. Yet both these methods are ‘abortifacient’ not ’contraceptive’ in that they interfere with the fertilised ovum. Very early menstrual extraction is in the same category. “It seems to me that these reasonable precautionary practices fall legitimately into the proper sphere of family planning tend that the law must stand aside from them,” Mr Orr said. Mr Orr attacked the existing act for the use of the word "unlawfully.” He said its use was “quite unsatisfactory.” “The provision (of the word) has forced courts to become legislators in order to give some reasonable meaning to the term,” he said.

“This is an abrogation of Parliament’s responsibility not only to the courts but also to the doctors, who must try and judge whether an abortion would be legally justified. It must also be remembered that the (Mr Justice) Bourne interpretation does not exhaust the possible meanings of ‘unlawfully’. Again, the proper construction of the section is obscure,” Mr Orr said. He said that it was not

clear whether the prosecution has to prove that the defendant was acting in bad faith in order to secure a conviction.

“If conduct is to constitute a serious criminal offence it should be clearly and precisely expressed. It must be small consolation to a doctor to know (if indeed he knows this much) that he commits no crime in performing an abortion that, he believes is necessary to preserve the woman from serious danger to her life or physical or mental health. How is he to judge how serious the danger must be? In the psychiatric field, particularly, sufficient danger could be anything from simple depression and anxiety to a full blown psychosis,” he said. Mr Orr said that if the matter were to be tested in courts, “the lawfulness of a termination may rest in the long run on little more than prevailing social attitudes, as reflected in a jury verdict. "It is my view that no definition as to when a termination would be unlawful can avoid being unacceptably vague. This is not only unfair to the medical profession, it is unfair to women.”