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Netherlands: New Regulation on Late-Term Abortions and Terminations of Lives of Neonates

(Jan. 15, 2016) The Dutch Ministry of Health, Welfare and Sport and the Ministry of Security and Justice have prepared a new regulation clarifying the due care criteria and medical and legal considerations to be taken into account in performing late-term abortions and the euthanasia of neonates experiencing unbearable suffering and who have no prospect of improvement. The new norm also provides for a review committee to examine each notification of such measures being carried out and issue its findings.  (New Regulation on Late-Term Abortions and Termination of Life in Neonates, Ministry of Security and Justice website (Dec. 11, 2015.) It will enter into force on February 1, 2016. (Id.)

Background

Termination of late-term pregnancies is governed by the Criminal Code and by the Directions on the Non-Prosecution of Cases of Euthanasia Not by Request [niet op verzoek, i.e., of neonates] and Late Abortions.  The  Criminal Code penalizes the killing of a viable fetus under the punishments for taking a life and imposes penalties for unlawful termination of pregnancy. (Criminal Code (Jan. 15, 1886, as last amended effective Jan. 1, 2016), §§ 82a & 296, respectively (in Dutch).)

Under the Directions, late-term abortions, characterized as the termination of pregnancy after 24 weeks, are authorized only in two instances, both involving serious fetal disorders: (1) the unborn has an untreatable disease expected to lead inevitably to its death during or immediately after birth; or (2) the unborn has a disease that has led to serious and irreparable impairment, where a (usually small) chance of survival exists. These are also referred to as Category 1 and Category 2 late-term abortions in related legal documents (see below). (Directions on the Non-Prosecution of Cases of Euthanasia Not by Request and Late Abortions (2007 Directions) (in force on Mar. 15, 2007), 46 STAATSCOURANT (Mar. 6, 2007); see also Wendy Zeldin, Netherlands, ABORTION LEGISLATION IN EUROPE (Jan. 2015), Law Library of Congress website.)

Late-term abortions, like terminations of lives of neonates, may be performed only in exceptional circumstances, and due care criteria must be met. Some of these criteria are the same or similar:

  • the neonate’s suffering must be unbearable or the fetus must be suffering or be likely to suffer after birth;
  • there must not be a prospect of improvement, and in the case of a late-term abortion, the fetal disorder must be so serious that medical experts believe that medical treatment after birth would be futile;
  • the parents must have been fully informed of the diagnosis and prognosis, and both the physician and the parents must be convinced that no reasonable alternative exists given the situation of the child or the fetus;
  • at least one other, independent physician must have examined the child or fetus and given a written opinion on compliance with the due criteria of the kind listed above; and
  • the termination of life or of the pregnancy must be carried out with all due care. (Euthanasia and Newborn Infants, Government of the Netherlands website (last visited Jan. 13, 2015); 2007 Directions, 2.3(a & c-e) & 4.6.2 (a-b & d-f).)

In the case of termination of life, parental consent must be obtained; for a late-term abortion, the mother must explicitly request that the pregnancy be terminated on the grounds of the situation causing her physical or mental suffering. (Euthanasia and Newborn Infants, supra; 2007 Directions, 2.3(b)) & 4.6.2(c), respectively.)

Under the Termination of Pregnancy Act, abortions may be performed up to the 24th week of pregnancy, “the point at which the foetus becomes viable outside the mother’s womb.”  The Act does not apply to late-term abortions. (Euthanasia and Newborn Infants, supra; Wet afbreking zwangerschap [Termination of Pregnancy Act] (May 1, 1981, as last amended May 17, 2010, in force on Oct. 10, 2011).)

Provisions of the New Regulation

The new regulation clearly defines late-term abortions as those performed after 24 weeks of pregnancy and defines neonates as children up to one year of age. (Regulation of the Minister of Security and Justice and the Minister of Health, Welfare and Sport of December 11, 2015, Establishing a Commission for the Assessment of Reported Cases of Late Abortion and Euthanasia of Newborns (Regulation for Evaluation Late Abortion and Euthanasia of Newborns) (Dec. 11, 2015), OVERHEID.NL  (in Dutch); Regulation on a Central Expert Committee for Late-Term Abortions in Category 2 Cases and Neonatal Life Termination (Feb. 27, 2007, in force on Mar. 14, 2007), No. 5471313/07, OVERHEID.NL (in Dutch).)

The new regulation draws the distinction, in connection with late-term abortions, between a fetus not expected to survive outside the mother’s body (Category 1) and one with such serious conditions that, even with medical interventions, its chances of survival are small (Category 2). (New Regulation on Late-Term Abortions and Termination of Life in Neonates, supra; Directions on Prosecutorial Handling of Termination of Life Not on Request and Late-Term Abortions (Dec. 4, 2012, in force on Jan. 1, 2013), STAATSCOURANT (Dec. 24, 2012), Nr. 26896 (in Dutch).)  Category 1 cases do not fall under the existing regulation, but are reported to a medical committee.  Under the new regulation, “the review committee will examine whether late-term abortions are carried out with due care,” and if so, “the case will be closed and the committee’s decision will be final.”  (New Regulation on Late-Term Abortions and Termination of Life in Neonates, supra.)  However, if the committee determines that a doctor had not taken due care, “the case will be referred to the Healthcare Inspectorate … [to] determine whether further investigation is required or measures need to be taken.”  (Id.)

For cases of Category 2 late-term abortions or of termination of a neonate’s life, the review committee will also make determinations as to whether the doctor acted with due care, but instead of being sent to the Healthcare Inspectorate, the findings will be sent to the Board of Procurators General of the Dutch Public Prosecution Service. Those findings will be taken into account by the Board in making a decision on whether to conduct a criminal investigation and/or prosecute the case.  (Id.)