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Where the law fails women

20 Apr 2023

| Author: Diana Clement

Women were once considered second-class citizens under the law. Act by Act, this has changed during the past 100 years. Yet by design, omission or simply through unexpected consequences, some laws still fail women.


Abortion was formally decriminalised by the Abortion Legislation Act 2020. The new Act recognised abortion as a health issue and conferred on pregnant women the ability to self-refer to an abortion provider (up until 20 weeks), thus removing practical and financial barriers for many.

In addition, women can now get advice from the national abortion telehealth service, which can organise access to medical abortion services (using medication to induce miscarriage) up to 10 weeks.

The new Act and the changes it brought are all positive improvements for women, says Haigh Lyon associate Erica Burke. On the other hand, several practical and legal issues remain.

The first, Burke says, is the threshold of 20 weeks’ gestation, after which abortion is more difficult to get. Up until that stage of the pregnancy, an abortion is simply a health procedure.

“Post-20 weeks, a qualified health practitioner must reasonably believe that the abortion is clinically appropriate, consult with another medical professional, have consideration of the woman’s physical health, mental health and overall wellbeing, and the gestational age of the foetus, except where there is a medical emergency,” she says.

“This creates an environment where a woman’s agency is undermined as primary decision-maker concerning medical procedures to their body.” It may also rush a decision as the 20-week threshold approaches.

Yet, only around 1.8% of terminations are conducted post-20 weeks. “These abortions are typically accessed in consultation with health practitioners anyway and brought about by medical reasons. The gestational limit imposes an unnecessary step before the pregnant person can access a health service,” Burke says.

Medical professionals are allowed to opt out of providing abortion services. They must, however, inform the patient of this and direct her to the closest provider.

“Anecdotally, the evidence you hear is that whilst it may be their requirement for a conscientious objector to tell them as soon as possible, it will often be coupled with moral judgment,” Burke says. A requirement to make a direct referral to an abortion provider would offer better support for women.

Having been turned down once, the woman may not have the wherewithal to go further. “If you’re in a rural town [or] if you’re a victim of family violence, it may be a threat to your safety if anyone knows of your access to an abortion. You’re at greater risk of that being the case if you have to drive around town or out of town, making multiple inquiries of available health practitioners.”

At best, women in this situation get the runaround. It can also be demoralising and patronising, Burke says. Another step to protect women would be having a register of conscientious objectors.


Counselling prior to abortion was compulsory under the former Contraception, Sterilisation and Abortion Act 1977.

Now, providers are required only to recommend counselling. But this is “not ideal”, Burke says. “That’s imposing a patriarchal view on what is now legally recognised as a person accessing health services. It undermines independent choice [by women].”

There is no comparable legislation when it comes to men’s decisions about their bodies, such as requirements for counselling services to be recommended to a man accessing vasectomy services.

Safe areas

The Contraception, Sterilisation and Abortion (Safe Areas) Amendment Act 2022 aims to protect the safety, wellbeing, privacy and dignity of people who are accessing or providing abortion services, by setting up areas of up to 150 metres around any premises where abortion services are provided.

The intention is to stop the type of harassment of staff and patients often seen in the United States – and sometimes here in New Zealand. Protestors threaten the peace and can undermine the wellbeing and mental health of patients, Burke says.

For her, the issue lies in this exclusion zone not being created automatically. “You have to apply and part of the application process requires you to detail prior incidents that may have occurred. That, in my view, opens the whole system or the process up to creating quite a dangerous threshold. It’s almost a requirement that there are prior incidents. That shouldn’t be the case. It should just be an automatic safe area created around these locations.”


Adoption following surrogacy

It’s no secret that New Zealand’s adoption and surrogacy laws are in need of a major rewrite. The Adoption Act dates back to 1955, a very different era where birth mothers were often excluded from decision-making and the law was spectacularly monocultural.

The current laws have a long list of problems. For example, a child born as the result of surrogacy has to be adopted by the intending parents, even though the child might be genetically theirs.

The Births, Deaths and Marriages Act provides that the birthing parent and partner are the natural parents and therefore guardians. “So you have a very real disparity between what the intentions are of parties going into a surrogacy arrangement versus what the law recognises, Burke says. “[The law] is very much out-of-date and out of kilter with what’s already happening practically.”

Where the law really fails the surrogate mothers, she says, is that they don’t always even recover their costs. “Women are left quite financially vulnerable at being out-of-pocket.”

Although surrogacy itself is not illegal, commercial [payment for] surrogacy is, meaning surrogacy arrangements in New Zealand remain unenforceable.

Because commercial surrogacy is banned, the only payment that can be made is for the physical process of the surrogacy. In practice, that means in vitro fertilisation (IVF) costs, leaving uncertainty about other costs the intended parents are permitted to cover.

Breaches are punishable by imprisonment for up to one year or a fine of up to $100,000, or both, under the Human Assisted Reproductive Technology Act 2004.

Gender pay gap

Prior to the Equal Pay Act 1972, there was nothing illegal about gender dictating work opportunities and pay in the private sector, says Stace Hammond partner Kesia Denhardt.

The Act set about flipping this on its head by prohibiting discrimination in pay on the basis of gender. “The corollary of this should be that women can expect to receive the same remuneration as their male counterparts doing the same kind of work. [They] should be entitled to enjoy equal access to all types and levels of roles.”

A Court of Appeal case clarified the meaning and scope of the Act as providing for pay equity claims, and not just equal pay. The decision in Terranova Homes & Care Ltd v Service and Food Workers Union settled any question of whether the Act allowed for pay equity claims and paved the way for other employee groups to bring such action, including social workers, school support staff and teacher aides.

The Court of Appeal upheld an Employment Court ruling which acknowledged some industries such as aged care paid less because the work is exclusively or predominantly performed by women.

Despite all this, 50 years after the Equal Pay Act, the gender pay gap lingers. It’s currently more than 9% and higher for Māori and Pacific women.

“What our domestic and international law provides, and the reality of the situation, does not stack up,” Denhardt says. At the current rate of progress, it will take around 130 years to reach full parity.

The amendments in the Equal Pay Amendment Act 2020 improved the situation, including the introduction of a more generous gateway for bringing a pay equity claim, Denhardt says. Yet it is not a simple fix.

“A good start would be normalising conversations about pay and pay gaps to encourage greater transparency. Extending the requirement for pay gap reporting beyond only the public service would also help.”

Some employers have chosen to do so voluntarily, including Mercury Energy, Deloitte, Sharesies, EY, Fonterra and BNZ.

Experience overseas suggests when pay gaps are known, they can start to be closed. A voluntary “Mind the Gap” register has been launched here for employers to publish their gender (and ethnicity) pay gaps.

Denhardt would prefer that to be made mandatory for private-sector businesses as it is in countries such as Australia and the UK.

“Legislating for mandatory pay gap reporting should narrow, if not close, the gender pay gap over time by creating transparency and accountability,” she says. “It would also send the message that this issue is being treated seriously and that action is being taken to bring about real change.” ■

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