BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Consideration of the alternatives facing "Jenny" after becoming pregnant was dealt

with over a number of episodes of Shortland Street. Finally, she decided to have the

pregnancy terminated by an abortion. Shortland Street is a long-running serial

broadcast Monday to Friday each week at 7.00pm on TV2. Set in a medical centre,

some of its storylines deal with current issues.

Ms James, secretary of the Society for the Protection of the Unborn Child (SPUC),

complained to Television New Zealand Ltd, the broadcaster, that the sequence

breached the standards. First it had not dealt with the abortion issue in a balanced

way and, secondly, it was apparent that the consultant certifying the abortion had not

applied the appropriate legal rules.

Merlene and John Gliddon complained that the sequence promoted a criminal act. An

abortion, they wrote, was not legally permissible on the grounds advanced in the

series.

Arguing that many of the issues which arose around pregnancy had been considered in

past episodes involving other characters and that this was the first occasion that

termination had been decided upon, TVNZ declined to uphold the complaint about

balance. Explaining that it had acted on medical advice, it also said that the legal

grounds for an abortion were appropriately applied. Dissatisfied with TVNZ's

decision, the Gliddons and on SPUC's behalf, Ms James, referred their complaints to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declined to uphold the complaints.

Decision

The members of the Authority have watched the sequence of episodes complained

about (episodes 676–685) and have read the correspondence (summarised in the

Appendices). As is its practice, the Authority has determined the complaints without

a formal hearing.

Anne James, the secretary of SPUC, complained to TVNZ about the series of

episodes of Shortland Street which led to a character terminating her pregnancy with

an abortion "when she obviously did not qualify under the law". Because only one

side of the abortion debate had been presented, she added, the sequence had been

unbalanced. Ms James expressed concern about the lack of balance particularly on the

grounds that it could influence the large number of teenage viewers.

Merlene and John Gliddon focussed on the reason advanced for the abortion. Listing

the legislative grounds under which an abortion was legal, the Gliddons said the

grounds given during the sequence did not fall into any of them and thus the series had

flagrantly promoted abortion and the flouting of the law.

TVNZ assessed the complaints under standards G5 and G6 which require

broadcasters:

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.

It provided the following summary of events portrayed in the sequence leading to the

abortion.

The character Jenny (played by Maggie Harper) was depicted agonising over

whether or not to seek a termination during episodes spanning several weeks. In

that time viewers heard her discussing her thoughts in some detail with her

doctor Grace Kwan (played by Lynette Forday), her partner Johnny

Marinovich (Stelios Yiakmis) and her son Nick (Karl Burnett).

It was also stated that she would discuss the issue with a doctor and counsellor

at the clinic where the termination was to take place. This conversation was not

included in the drama for reasons of discretion and taste.

TVNZ explained that Shortland Street, although foremost a drama serial, attempted to

reflect contemporary issues in New Zealand. In the case of the pregnancy and

termination raised by the complainants, it added, the series had canvassed the question

of a woman's right to choose and the relevant legal constraints. That, it added, had

been done in a thought-provoking way without sensationalism.

TVNZ maintained that the reasons why the character decided to have an abortion

were presented clearly and that her decision had not been taken lightly.

In regard to the complaint under standard G5, TVNZ said the series had given due

weight to the legal situation. It continued:

A drama series of this nature is not a vehicle for a detailed legal exposition but it

was made clear that her doctor judged her to be at mental and physical risk. The

programme makers took medical advice in developing the storyline and believe

that what was broadcast represented in broad terms the situation as it exists in

New Zealand today.

As for balance, TVNZ said the argument for and against in the specific instance were

advanced by the parties and the issue of pregnancy in several different situations had

been dealt with on several occasions during 700 episodes. Indeed, TVNZ added:

In its effort to reflect widely on New Zealand society, it was appropriate that at

some point it should represent a woman choosing to have a termination. To

have not done so, TVNZ believes, would have opened "Shortland Street" to a

charge of imbalance.

In conclusion, TVNZ said that it recognised and respected the complainants' deeply

held views but believed that the standards had not been breached.

When she referred SPUC's complaint to the Authority, Ms James listed a number of

matters which, because they had not been addressed, indicated the lack of balance in

the series. As for the lack of recognition of the relevant legal principles, Ms James

said that the woman's age, while a factor which could be taken into account, was not

in itself a reason for an abortion. Further, as the character was shown to be a

competent administrator, Ms James asked how could the continuation of her

pregnancy be seen to have been likely to cause serious damage to her mental health.

The Gliddons confined their referral to an alleged breach of standard G5 and argued

that TVNZ had attempted to "wriggle out" of the complaint. Again listing the legal

grounds for an abortion, they stated:

None of the above were shown as grounds for an abortion ... .

In its response to the Authority on the complaint from SPUC, TVNZ said it was not

its role – in any programme – to take sides on an issue such as abortion. Emphasising

that Shortland Street was a drama series, TVNZ said it had taken medical advice to

show that the character had proceeded to have an abortion because she was considered

by her doctor to be at mental and physical risk mainly because of her age. It

maintained that the abortion issue had been dealt with in a sensitive and

compassionate manner.

In its response to the Authority on the referral from the Gliddons, TVNZ referred to

its response on the SPUC referral and made three additional points.

First, it believed that the sequence accurately reflected the legal position in New

Zealand. Secondly, although the legal position had been referred to, the focus had

been on the character's ethical dilemma. Thirdly, Shortland Street was a drama which

could not and should not be judged as a current affairs exposition.

In its final comment, Ms James wrote on SPUC's behalf:

In response to TVNZ's arguments, we do not accept that the episodes gave

either a balanced portrayal of the opposing interests of mother and baby, or

presented the legal position in a favourable and respectful light.

To fail to do so in a programme rated highly by young teenagers is considered a

gross abuse of the trust that they place in their elders, and of the natural values

of justice and fair play that they hold.

The Gliddons repeated their argument that the sequence had breached standard G5

and, in addition, alleged breaches of standards G6 and G7. They had not expected a

"detailed exposition" of the law but the law should not have been disregarded. The

decision addresses standards G5 and G6. As standard G7 was referred to for the first

time in the complainants' final comment, the Authority has followed its established

policy and has not dealt with it specifically in the decision.

The Authority noted initially that the abortion issue is one on which many members

of the community hold strong views. It also noted, as emphasised by TVNZ, that the

abortion issue had been dealt with on this occasion in a drama series. The ethical

dilemma had been the feature and while the Authority considered that it was not

necessary to canvass the legal or moral issues in full, the series had to ensure that the

characters advanced the main moral arguments and that the termination, should it be

decided upon, had to comply with the legal requirements.

One part of the balance complaint alleged that there were a number of aspects of the

abortion debate which were not addressed – eg SPUC's complaint that the

foetus/unborn child was not acknowledged as a growing human being. As can be seen

from the way this issue has been referred to the Authority, that is one of the

contentious areas and one which, because of the way the issue was advanced on

Shortland Street, the Authority was not required to address.

Taking into account TVNZ's statement that the series focussed on the ethical

dilemmas, the Authority had little hesitation in deciding that whereas the balance

expected of a current affairs programme might have been in question, a broad range of

the differing viewpoints on abortion were advanced by the characters. Indeed, the

discussion not only canvassed the issues but the pregnant character was required to

deal with a proposal of marriage from the unborn child's father – a person who argued

strenuously that the pregnancy proceed.

On the balance aspect of the complaint, the Authority decided that the issues were

advanced in a way which ensured many, if not all, of the competing arguments were

appropriately and adequately aired.

Whereas the competing arguments were advanced to ensure that various perspectives

were aired, albeit in a style appropriate to a drama series, the legal issues were not

presented in such an explicit way. Rather, the details of the event were implied in a

manner which would not be unfamiliar to regular viewers of Shortland Street. That

had occurred to deal with a situation in which, in the real world, there are few explicit

quantifiable criteria as to whether a pregnancy will result in serious danger to the

woman's life or to her physical or mental health.

The Authority is not suggesting that in practice this ground is devoid of meaning or

that it is unduly elastic. However, it is aware that each individual's circumstances

require careful interpretation and that these matters were unlikely to be dealt with

satisfactorily in a drama series other than in a superficial way. Indeed, as an indication

of the need for care, had the series stated that age alone determined the probable effect

of a pregnancy on mental health, it would have misinterpreted the criterion. Whereas

age was referred to explicitly, the Authority did not agree with the complaints that it

was advanced as the sole criterion for an abortion.

The relevant matters are usually explored at the compulsory counselling session

required before termination. In the Authority's understanding, these sessions are

usually thorough and the information passed to the certifying consultant will explore

in depth the probable impact of the pregnancy on the expectant woman's mental

health.

As the sequence referred, first, to the counselling which the character was required to

receive, and secondly, as it referred to her session with a counsellor, the Authority

was prepared to accept that the legal grounds for an abortion were adequately

addressed. Although the legal grounds were discussed sparingly in the drama series,

the Authority accepted, given the format of the series, that the matters advanced were

sufficient to comply with standard G5. The Authority also accepted TVNZ's

argument that it was not necessary to include the counselling session. To include it in

sufficient detail to ensure compliance with the law, the Authority believed, would

move outside the format of the Shortland Street series.

As for the aspect of the complaint that teenage viewers might accept the character's

decision unquestioningly, the Authority was of the view that such viewers, although

of an impressionable age, were unlikely to identify closely with a 41 year old woman.

Some of the arguments advanced by TVNZ could be interpreted as suggesting that

standard G6 does not apply to Shortland Street or a similar drama series but is

confined to news and current affairs. Taking into account the introduction of that

section of the standards, the Authority observed that the balance, impartiality and

fairness requirements in standard G6 applies to all programmes.

In summary of its views on the alleged breach of standard G6, the Authority decided

that it was unnecessary to refer to previous episodes of Shortland Street which had

dealt with the pregnancy theme. The sequence complained about dealt with one

character's pregnancy and her decision to have it terminated by an abortion. The

sequence, the Authority concluded, reflected accurately the situation faced by one

older woman and had canvassed a range of arguments which she would have to

consider and, should she decide to seek an abortion, the process through which she

would have to proceed. Because the issue was raised in a drama series and not in a

current affairs programme, it was approached in a way applicable to that format.

That approach, while possibly down-playing the legal requirements, emphasised the

agony in reaching a decision in the case of a specific pregnancy in a manner that is

unlikely to occur in a current affairs programme. In taking that approach, the

Authority concluded, TVNZ had at the same time complied with the requirements in

standards G5 and G6.

For the reasons above, the Authority declined to uphold the complaint.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
18 May 1995

Appendix I

SPUC's Complaint to Television New Zealand Ltd - 6 February 1995

Ms Anne James, secretary of the Society for the Protection of the Unborn Child

(SPUC), complained to Television New Zealand Ltd about a series of episodes of

Shortland Street broadcast on TV2 between 7.00–7.30pm on Monday to Friday.

In a recent episode, Ms James wrote, a woman was certified to have an abortion

"when she obviously did not qualify under the law". As a result of the one-sided

portrayal, she added, the broadcast breached the standards requiring balance and the

maintenance of the law.

Ms James referred to Shortland Street's strong following among teenagers and

expressed particular concern about them being influenced by the lack of balance. As

for the other aspect of the complaint, she said that it was irresponsible and

unacceptable for the woman to obtain an abortion when, in the doctor's opinion, she

was in good health.

TVNZ's Response to the Formal Complaint - 23 February 1995

Noting that the abortion theme had been dealt with during a number of episodes of

Shortland Street, TVNZ assessed the complaint under standards G5 and G6 of the

Television Code of Broadcasting Practice.

TVNZ reported:

The character Jenny (played by Maggie Harper) was depicted agonising over

whether or not to seek a termination during episodes spanning several weeks. In

that time viewers heard her discussing her thoughts in some detail with her

doctor Grace Kwan (played by Lynette Forday), her partner Johnny

Marinovich (Stelios Yiakmis) and her son Nick (Karl Burnett).

It was also stated that she would discuss the issue with a doctor and counsellor

at the clinic where the termination was to take place. This conversation was not

included in the drama for reasons of discretion and taste.

Arguing that Shortland Street's storylines reflected current New Zealand issues,

TVNZ wrote:

In the case of Jenny's pregnancy and termination, the dialogue over several

weeks canvassed many areas of the debate over whether or not a woman has a

right to choose. TVNZ believes this was done in a relevant and thought-

provoking manner, but without sensationalism.

TVNZ then noted the reasons why "Jenny" had decided to go ahead with an abortion

and, in respect of the two standards cited, it stated:

In respect of Code G5 TVNZ does not believe that the programme failed to give

due weight to the legal situation. A drama series of this nature is not a vehicle

for a detailed legal exposition but it was made clear that her doctor judged her to

be at mental and physical risk. The programme makers took medical advice in

developing the storyline and believe that what was broadcast represents in broad

terms the situation as it exists in New Zealand today.

On the matter of balance (G6), TVNZ points to the prolonged debate that

preceded Jenny's decision to go ahead with the termination. Strong counter

arguments were advanced by her partner and her son Nick.

TVNZ commented that the issues of balance were not to be confined to a single

incident or situation and pointed out that pregnancy, including consideration of

termination and an ectopic pregnancy, had been dealt with in past episodes. In

summary, TVNZ wrote:

It is TVNZ's view that "Shortland Street" has explored the joys of parenthood

in a multitude of ways.

It continued:

In its effort to reflect widely on New Zealand society, it was appropriate that at

some point it should represent a woman choosing to have a termination. To

have not done so, TVNZ believes, would have opened "Shortland Street" to a

charge of imbalance.

While recognising and respecting SPUC's deeply held concerns, TVNZ expressed its

opinion that the sequence complained about had not breached the standards.

SPUC's Complaint to the Broadcasting Standards Authority - 16 March 1995

Dissatisfied with TVNZ's response, Ms James on SPUC's behalf referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989.

She listed a number of areas in which she considered the sequence complained about

had been deficient. She began by pointing out that Shortland Street had failed to

recognise the unborn child as a living human being and that there had been no mention

of the possible after-effects of the abortion on the mother. These deficiencies could

have been overcome by portraying a counselling session and not to do so on the

grounds of "discretion and taste" meant that the treatment of the issue had been

flawed.

She said that SPUC regarded TVNZ's references to the series' earlier consideration of

welcome pregnancies as an acknowledgment that the abortion episodes - taken on their

own - lacked balance. She disputed TVNZ's claim that Shortland Street had explored

the joys of parenthood and referring to the three instances covered in the programme,

emphasised:

... we are unaware of any births having occurred to married parents over the

period of 700 episodes since the programme began. This is surely an omission

that TVNZ would be happy to redress in future episodes.

SPUC maintained that the episodes showed "scant respect" for the legal principles

because, first, the possibility of serious danger to the mental health of the mother

("Jenny") seemed most unlikely given her level-headed approach to issues and,

secondly, the mother's age, while a matter which can be taken into account, was not a

ground in itself. This point, SPUC noted, was not mentioned in the series.

Maintaining that the standards were breached, SPUC concluded:

Shortland Street, by all accounts, is a top rating programme particularly popular

with young teenagers. This group could be described in general as very

impressionable. It would seem imperative then that any social or moral

messages coming through in such programmes as Shortland Street be seen to be

both balanced and in accord with the law of the land.

TVNZ's Response to the Authority - 3 April 1995

In its response to the Authority, TVNZ said that the abortion theme extended over a

number of episodes starting on 9 January.

Reporting that it had little to add to its reply to the complainant, TVNZ emphasised

that it was not its role in either factual or fictional programmes to take sides on a issue

like abortion. It continued:

In the sequence to which this complaint refers the character Jenny, her

partner Johnny, and her son Nick are seen agonising over the matter before

Jenny makes the decision to go ahead. It was not shown as a spur of the

moment judgement made without weighing up all the relevant factors.

TVNZ said that a drama series was not the place for a detailed discussion about the

legal arguments for an abortion, especially as Shortland Street focussed on human

conditions. It added:

However, we believe that a viewing of the relevant episodes will show

that Jenny is considered by her doctor to be at mental and physical risk -

the main reason given being her age. The producers took medical advice

when working through this sequence.

TVNZ also commented that the series explored some issues from different

perspectives and because balance was achieved over time, it was unfair to examine in

isolation any single issue dealt with in the programme.

As for the complainant's concerns about the impact of Shortland Street on

impressionable young people, TVNZ emphasised the sensible and compassionate

manner in which the issue had been tackled. Observing in addition that the series

reflected life in New Zealand and while expressing its appreciation of the Society's

stand on abortion, TVNZ noted that abortion was not an uncommon practice.

As the issue of the pregnancy and termination had been spread over a considerable

period, TVNZ supplied the Authority with ten episodes and said more were available

if required.

SPUC's Final Comment - 20 April 1995

On SPUC's behalf, Ms James did not accept that the episodes gave either a balanced

portrayal of the opposing interests of mother and child or presented the legal

position in a favourable or respectful light. That aspect of the series, she added, was a

gross abuse of the trust youngsters placed in their elders

Appendix II

Merlene and John Gliddons' Complaint to Television New Zealand Ltd -

received 6 March 1995

Merlene and John Gliddons complained to the Broadcasting Standards Authority

about the way abortion had been dealt with in a number of recent episodes of

Shortland Street. The Authority forwarded the complaint to Television New Zealand

Ltd, the broadcaster.

Explaining that abortion was promoted in the series for a reason which was not legally

acceptable, the Gliddons complained that an abortion in those circumstances would

amount to a criminal act.

Noting the popularity of the series among school pupils, they argued that the

programme should have been a great deal more responsible. Rather:

... it is a very subtle and also very blatant promotion of abortion and flouting of

the law.

TVNZ's Response to the Formal Complaint - 23 March 1995

TVNZ's response to the Gliddons was similar to its letter of 23 February to SPUC.

The Gliddons' Complaint to the Broadcasting Standards Authority - 6 April

1995

Dissatisfied with TVNZ's response, the Gliddons referred their complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

They maintained that the episodes breached the standards as the law which provides

the grounds for an abortion was not adhered to. They listed the grounds under which

an abortion was legally accepted and argued:

None of the above were shown as grounds for the abortion ... .

They regarded TVNZ's response as an attempt to "wriggle out of" the complaint.

TVNZ's Response to the Authority -18 April 1995

Noting that the complaint from the Gliddons - unlike the complaint about the same

sequence from SPUC - concentrated on the legal position, TVNZ made three points.

First, we believe that the sequence reflected accurately the position in New

Zealand regarding termination. The character Jenny obtained the abortion within

the legally prescribed time frame, and after attending compulsory counselling

sessions. She was depicted as feeling ill-equipped both emotionally and

physically to have another child at her age, and her doctor is seen to agree with

that assessment. In developing this story line, South Pacific Pictures took

medical advice and believes that in broad terms it has correctly portrayed the

situation as it exists in New Zealand today.

Second, we submit that, although the dialogue and action referred obliquely to

the legal position, the focus of the story was on the ethical dilemma being faced.

...

Third, we emphasise again that "Shortland Street" is drama...it is fiction.

Arguing that one test when determining the complaints was to ask whether a

complaint

would have been received if the final decision had been to have the baby, TVNZ said

that if that was the test, then the storyline was acceptable.

The Gliddons' Final Comment - 3 May 1995

The Gliddons rejected TVNZ's stance and maintained that a drama series which

reflected issues in New Zealand should reflect and uphold the law. They repeated

their complaint that the sequence breached standard G5 and, in addition, breached

standards G6 and G7.

While accepting that a drama series was an inappropriate place for a legal essay, they

also argued that the law should not be disregarded. The storyline, they stated, had

misconstrued the legal requirements.