Ministry of Health
133 Molesworth Street
PO Box 5013
Dear Ken Orr
Response to your request for official information
Thank you for your request for information under the Official Information Act 1982 (the Act) which was transferred from the Ministry of Justice under section 14 of the Act to the Ministry of Health (the Ministry) on 10 June 2020. You asked:
“What medical or biological evidence do you have to prove that the unborn child is not a human being with a right to life until it is born?
The Royal Commission on Contraception Sterilisation and Abortion, in its report to Parliament in 1977 stated that they had received expert biological evidence from around the world confirming that human life began at conception. The Commission also stated that the child from implantation has a status which entitles it to preservation and protection and that from implantation to birth, changes in the unborn child are of a developmental nature only. The three events suggested as being of significance, namely, quickening, viability and brain development, are no more than stages in that development and are not indicative of any qualitative changes in the developing child which would make it non-human at one point of time and human at another.”
As you are aware, Parliament passed a new legislative framework for abortion services in New
Zealand on the 24 March 2020. The Ministry’s role is to implement the legislation as passed by Parliament and monitor the performance of all service providers to ensure their delivery of services complies with the law as specified. The legislative framework pertaining to the health service as defined in the relevant statutes is the policy framework that the Ministry and providers of health services adhere to.
The Royal Commission you refer to in your question is now 50 years old. The more recent Law Commission’s report, commissioned by the government in 2019 ‘Alternative approaches to abortion law’, provided the basis for the government’s review of the legislation. This report is available at:
The Law Commission’s report above only uses the term ‘unborn child’ when referring to existing legislative provisions that include it, as it is not a scientific term and does not have a commonly accepted definition. The term ‘unborn child’ is not used in the recently amended Contraception, Sterilisation, and Abortion Act 1977.
The Act enables people to request official information from the Ministry. However, the Act only applies to information that is already held by the Ministry. There is no obligation on the Ministry to create information in order to respond to a request. The information you are seeking in this case is not held by the Ministry and would need to be created in order to respond to your request. I am therefore refusing your request in full under section 18(g) of the Act.
I trust that this information fulfils your request. Under section 28(3) of the Act you have the right to ask the Ombudsman to review any decisions made under this request.
Acting Deputy Director-General Health System Improvement and Innovation
Office of the Ombudsman
Our ref 518143 (Complaint ground: 518146)
Contact Josh Logan
18 December 2019
Mr Ken Orr
Right To Life New Zealand Inc
By email: email@example.com
Dear Mr Orr
Complaint against the Minister of Health
I refer to your correspondence of 9 December 2019, in which you raise concerns about a recent request for information you made under the Official Information Act 1982 (OIA).
It appears that you are concerned with the decision of the Minister of Health to transfer your request to the Ministry of Justice. You were advised that this was on the basis that the information you are seeking ‘appears to be more closely related with the functions and responsibility of the Minister of Justice’ (section 14(b)(ii) of the OIA refers).
While I acknowledge your frustration at the Minister’s decision to transfer your request, this is not a matter that the Chief Ombudsman is able to investigate.
Sections 28 and 35 of the OIA describe the Ombudsman’s functions under the OIA. These functions provide the Ombudsman with authority to ‘investigate and review’ any decision made by a Minister or agency which:
- refuses to make official information available to any person in response to a valid request;
- decides in what manner a request is to be granted, or what charge is to made for the release of information;
- imposes conditions on the use, communication or publication of information made available in response to a valid request;
- refuses to confirm or deny the existence of information under section 10 of the Act; and
- extends the time limit for providing a response to a valid request.
You will observe that the OIA does not provide an Ombudsman with authority to investigate complaints about the transfer of a request for official information.
As you may know, there are rules in the OIA regarding the transfer of requests, and under the Ombudsmen Act 1975, and an Ombudsman may investigate a complaint that these rules have been transgressed. However, Ministers of the Crown are not subject to the Ombudsmen Act 1975 and an Ombudsman therefore has no jurisdiction to investigate such a complaint where it is made in relation to the transfer of a request by a Minister.
For the reasons above, the Chief Ombudsman is unable to investigate your concerns about the Minister’s decision to transfer your request to the Ministry of Justice.
Manager – Intake and Early Assistance Team