Crimes Amendment (Zoe's Law) Bill (No. 2) 2013

Friday 6 September 2013 @ 8.24 a.m. | Crime | Legal Research

The Crimes Amendment (Zoe's Law) Bill (No. 2) 2013, which will recognise the crime of grievous bodily harm against an unborn child, is likely to be debated in the state parliament next week. However, women's rights groups are warning that the amendment could be used to curtail women's reproductive freedom.

The Bill - introduced by State Liberal MP Chris Spence - is named after the stillborn child of New South Wales mother Brodie Donegan, who was struck by a car in 2009, suffering injuries that resulted in the loss of her 32-week-old foetus. The driver was not charged with Zoe's death because the law did not recognise her as a person.

Mr Spence says that the current state of criminal law does not reflect the value put upon the life of a foetus by other government departments. Federal and state laws require that when a foetus dies after 20 weeks, the woman should be given birth and death certificates, be able to conduct a funeral, and be eligible for paid parental leave or the baby bonus.

A similar bill was put forward by NSW Christian Democrat MP Fred Nile last year. However, other MPs rejected it on that basis that it could serve as a stepping-stone to criminalise all abortions in the state.

Brodie Donegan was said to be shocked by the intent of Nile’s Bill, telling the Sydney Morning Herald, “What we want has nothing to do with abortion; we support a woman’s right to have an abortion. We lost our baby unwillingly in a completely different context.”

In August, Mr. Spence introduced a rewritten bill, which would amend the Crimes Act to establish a separate offence for conduct causing serious harm to or the destruction of a child in utero. Reverend Nile will sponsor Spence's bill in the upper house.

The Bill states that the offence will not apply to medical procedures or to conduct engaged in with the consent of the mother, and Mr. Spence says it will have "absolutely nothing to do with abortion laws nor will it have any influence on them." 

However, Melanie Fernandez, Chair of the national Women's Electoral Lobby, says the established law is sufficient to ensure that crimes against a foetus are punished.

"The concern that the women's sector has is that this bill establishes personhood for a fetus so it defines a fetus as a living person from 20 weeks or from 400 grams and so the concern that we have is that this legislation is being used to set precedent to then bring further legisation that rolls backs women's access to abortion and productive rights."

Under current New South Wales law, abortion is a crime for women and doctors; however, it can be deemed legal if a doctor believes a woman's physical or mental health is in serious danger. Social and economic factors may also be taken into account.

Ms. Fernandez says the precarious nature of abortion laws in New South Wales could be tipped in favour of 'pro-life values' if Zoe's law is passed.

A 2010 review by Michael Campbell, QC, concluded that there was no reason to change the law, or create a new offence that recognised a separate crime against the unborn child. The NSW Bar Association, the Australian Medical Association, the Director of Public Prosecutions and women's legal and health groups were consulted and opposed any such move.

Medical expert Professor John Seymour told Campbell that if a criminal offence against an unborn child was introduced, it could gradually change the way the foetus is regarded. Protecting the foetus from assault and reckless driving could progress to protecting it from pregnant women behaving in risky ways. Despite the exclusions, the symbolic effect would likely have ramifications in other contexts.

Only 20 per cent of lower house MPs are women in the New South Wales Parliament, and just a third of upper house MPs. The Bill, which critics say is the first step towards eliminating reproductive freedom for women, will ultimately be determined by men.

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