Denied abortion: Woman discovers pregnancy at 4 months, 2 weeks
Erica never wanted children.
Certainly not aged 22, on minimum wage as a waitress, regularly binge-drinking alcohol, and without a partner.
But the Auckland woman discovered when she was 18 weeks along that she was pregnant.
She tried to get an abortion but says she was told it was too late.
Abortion is legal in New Zealand if the foetus is under 20 weeks, but only if two certifying consultants agree that the pregnancy will seriously harm a woman's physical or mental health.
Erica - not her real name - claims she wasn't asked about her mental health by Family Planning or the North Shore Hospital.
Abortions when the baby is between 20 and 24 weeks are legal in Australia but Erica was unable to afford to travel across the Tasman.
This is the second known case of a woman being declined a second trimester abortion by Waitemata District Health Board this year.
Kate, a 28-year-old administrator, was 18 weeks and five days pregnant when she was referred by her GP to the board for an abortion.
But the day after her referral, she was called by a social worker who told her doctors were not comfortable performing a termination after 18 weeks. She told The Wireless she found the ordeal so traumatising she contemplated suicide.
Erica wants to highlight the issue for other women who have unwanted pregnancies.
Erica was on the contraceptive pill when she got a positive pregnancy test at the Takapuna Family Planning Clinic on May 22.
Two days later she had an ultrasound scan where she found out she was 18 weeks and three days pregnant.
"I looked at my friend who came with me and burst into tears.
"I was binge drinking every single weekend.
"I had my workmates dragging me home at 4am so I could go to work at 5am. I smoked weed every single day. I wasn't eating properly, I was only having one meal a day.
"If I had known I was pregnant I wouldn't have done that."
Erica discussed her pregnancy with her former boyfriend, who is 20-years-old, and he agreed they were not in a position to have a child.
Denied an abortion
Erica says she asked the nurse at the Takapuna Family Planning clinic about getting an abortion, but was told they do not perform terminations after 17 weeks.
On the Family Planning website it states that abortions may be granted under 20 weeks on the grounds of serious danger to life, physical health, mental health, incest or sexual relations with a guardian, mental subnormality and foetal abnormality.
Family Planning national medical advisor Dr Christine Roke told the Herald that Erica saw a senior nurse who discussed pregnancy options with her.
On May 25, a day after Erica's scan, the senior nurse called her to confirm the results of the scan that identified the pregnancy as 18 weeks and one day.
"She was told that an abortion was not available in Auckland for a pregnancy at that duration and that she could seek a second trimester appointment in Melbourne, Australia.
"Abortions are available in Auckland beyond 17 weeks for foetal abnormality and occasionally for very serious physical or mental health issues but not otherwise."
Roke said mental health was for certifying consultants to consider. She said Family Planning is a referral agency and their role is confined to confirming the pregnancy, assistance to get the scan and talking over options.
A few days later, Erica went to her GP who referred her to North Shore Hospital. A Waitemata District Health Board representative called Erica.
"I was told that no one in New Zealand would perform a termination as I was so far along," Erica recounted.
"They didn't ask about my mental health state or even seemed to care about my current situation. I am young, on a low wage job living at home and no longer with the dad who is younger than me. They told me my only option was going to Australia and paying for everything myself.
"I'd be driving and wonder what would happen if I just took myself off the edge."
Last year, Auckland District Health Board performed 17 terminations at 18 or 19 weeks.
Erica argued that she did suffer from mental health issues and had previously experienced depression. She said she was not asked about her mental health and it would not have been obvious from her medical records. She said there is a family history of mental health issues and her mum used to take anti-depressants.
The Waitemata DHB said Erica's GP did not indicate any mental health concerns and there were no indications of foetal abnormality.
"Under Waitemata DHB policy, in order to be eligible for a medical termination the patient must have evidence of maternal mental health concerns and/or foetal abnormality."
Erica did not see a certifying consultant.
WDHB have updated their policy based on Erica's experience and now women in similar situations would get the opportunity to meet a doctor, a spokesman said.
WDHB's policy stated that an abortion would not be agreed to at 18-20 weeks gestation "despite the law permitting abortion up to 20 weeks".
However, if there were serious mental health risks to the mother or physical abnormalities identified for the in-utero baby then a referral should be made to a WDHB certifying consultant for discussion. They could consider offering a medical termination at North Shore Hospital.
"Women requesting a termination of pregnancy between 18 and 20 weeks gestation must be advised that they may wish to consider going to Australia for a surgical termination at their own expense."
Legally the criteria for an abortion at nine weeks is the exact same as it is for an abortion at 18 weeks, Abortion Law Reform Association president Terry Bellamak wanted to point out.
Bellamak said the Waitemata health board should have referred Erica to the Auckland health board, which had done late stage terminations in the past.
"Not being able to get [an abortion] at 18 weeks despite, it being approved up to 20 weeks, that seems strange ... It seems the system is not working for her."
Bellamak described getting an abortion as "tricky" because women needed to be aware of legal loopholes, such as arguing having the child would damage their mental health. She said a patient should always be allowed an interview with a certifying consultant, but they have to know to request it.
"It's unreasonable to expect a patient who goes in to get an abortion already has a law degree or knows the legislation. It's not a reasonable ask.
"It shows the degree New Zealand women jump through hoops to get simple, safe medical care."
No other choice
With the baby due on October 24, Erica has moved to Whangarei to live with her dad and raise the child. She is having a boy.
She stopped drinking, smoking and her unhealthy habits once she learned of the pregnancy.
"I'm terrified. Sometimes I wake up and I still can't believe I'm pregnant. I forget as I haven't known for that long.
"I'm excited, but nervous, but terrified. I'll be doing it on my own."
Adoption was a consideration until she realised she would have to keep the baby in her custody for 12 days before giving it up. She thought that would be too emotionally taxing.
Going to Australia wasn't an option as she couldn't afford the cost.
Erica wants medical professionals to make it clearer to pregnant women that there are options for terminations up to 20 weeks.
She does not plan to complain to the Health and Disability Commissioner as she does not feel it would achieve anything.
The majority of abortions in New Zealand are carried out within the first 10 weeks of pregnancy, Family Planning reported.
Of the abortions performed in New Zealand, around 99 per cent are performed under the grounds of serious danger to the mental health of the woman.
Abortions changed from a surgical procedure prior to 18 weeks, which involves the fetus being sucked out by a vacuum. After 18 weeks a medical abortion may have to take place which is similar to inducing labour.
Last year, 252 abortions were declined and ruled "not justified" by certifying consultants in information released by the Abortion Supervisory Committee under an Official Information Act request made by the Herald.
However, some of these women would have sought a third opinion and been able to access an abortion.
An Auckland health board report noted that 35 second trimester terminations were performed last year, 17 at 18 or 19 weeks. Between 2010 and 2016, two terminations were performed at 20 weeks and one at 21 weeks.
The Crimes Amendment Act 1977 states that the woman must see two certifying consultants who agree there are good reasons for the abortion under New Zealand abortion law.
The grounds for an abortion under 20 weeks are:
- serious danger to life
- serious danger to physical health
- serious danger to mental health
- any form of incest or sexual relations with a guardian
- mental subnormality
- foetal abnormality (added in the July 1978 amendment).
Other factors which are not grounds in themselves but which may be taken into account are:
- Extremes of age
- Sexual violation (previously rape).
After 20 weeks' gestation the grounds are different. They are:
- to save the life of the mother
- to prevent serious permanent injury to the physical or mental health of the mother
There is no legal age limit on seeking or having an abortion and abortion is free for New Zealand residents.
A doctor can have conscientious objection if they do not believe in providing a service such as abortion or contraception.
They are not required to assist in the performance of an abortion and, under a December 2010 High Court ruling, may also refuse to refer a patient for assessment.
However, the doctor must inform that patient that they can obtain the service from another healthcare provider.
What the parties think
Abortion became a hot topic during the election campaign when Labour leader Jacinda Ardern pledged to move on legislation if Labour was in power.
"It shouldn't be in the Crimes Act," she said in the Newshub leaders' debate.
"People need to be able to make their own decision."
She said it would be a conscience vote, where MPs could vote based on their views rather than along party lines.
She expected some of those within her own caucus would oppose the bill, but thought "there will be a majority of Parliament that think, actually in 2017, women shouldn't face being criminals for accessing their own rights".
"That doesn't mean it wouldn't have regulation that sits around it but we just don't think it should be in the Crimes Act."
Caretaker Prime Minister Bill English, who is a devout Catholic, said he believed the country's abortion laws were working fine and the law should not be changed.
His wife Mary English, a Wellington GP, is reportedly on a list of doctors who have refused to provide abortion services or contraception.
This is not the first time legal reform has been proposed.
In 2010, Labour MP Steve Chadwick proposed a law making abortion legal on request for women up to 24 weeks into their pregnancy. But the Labour party stayed silent on the issue and the proposal did not proceed.