The NSW Legislative Assembly (lower house) will shortly be voting on Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013, a private members bill introduced by Liberal MP Chris Spence in the lower house and (if passed) to be introduced by Christian Democratic Party leader and MP Fred Nile in the upper house. This Bill proposes to insert Section 8A into the Crimes Act 1900 No 40, where Section 8A would read in part:
8A Offences in relation to the destruction of or harm to the foetus of a pregnant woman
(1) In this section… unborn child means the foetus of a pregnant woman that:
(a) is of at least 20 weeks’ gestation, or
(b) if it cannot be reliably established whether the period of gestation is more or less than 20 weeks, has a body mass of at least 400 grams.
(2) For the purposes of an applicable offence:
(a) an unborn child is taken to be a living person despite any rule of law to the contrary, and
(b) grievous bodily harm to an unborn child is taken to include the destruction of the unborn child.
(3) For the purposes of an applicable offence, the destruction of the foetus of a pregnant woman (not being an unborn child) is taken to be grievous bodily harm to the woman, whether or not the woman suffers any other harm.
(4) This section does not apply to or in relation to:
(a) anything done in the course of a medical procedure, or
(b) anything done by, or with the consent of, the pregnant woman concerned.
The stated intent of the bill is to allow separate prosecution of injury to a fetus, following the death of Zoe Donegan (stillborn at 32 weeks gestation) in 2009 after Zoe’s mother Brodie was hit by a van driven by Justine Hampson. Hampson was convicted of grevious bodily harm with regards to Brodie, but not with injuring Zoe or causing Zoe’s death.
However, the bill has been introduced by an anti-abortion politician, and there are grave concerns about its potential interpretation, particularly “an unborn child is taken to be a living person”. Concerns about fetal personhood in general include:
- potentially allowing the prosecution of abortion (or, in NSW, where abortion is already criminalised, extending the circumstances in which it can be prosecuted)
- potentially allowing the prosecution of pregnant people who do not act in the best interest of the fetus (which could include activities with a risk of physical injury, self-harm attempts, drug use, dietary choices, failure to follow medical advice)
- potentially exposing pregnant people who have a late pregnancy loss to the additional trauma of a legalistic investigation as well as any medical one
- potentially compromising the pregnant person’s medical care when it is at odds with the best interests of the fetus (say, in cases where early delivery might be beneficial for the pregnant person)
- potentially coercing the pregnant person into medical intervention against their wishes, if judged in the interests of the fetus (eg coerced hospital births or coerced Caesareans)
The fourth clause appears to try and answer these objections, but given the source of the bill and the outcome of fetal personhood laws elsewhere, we should be very worried. In addition, the media reports concerns and objections from many groups including the Australian Medical Association NSW; the NSW Bar Association; the Royal Australian and New Zealand College of Obstetricians and Gynaecologists (previous three mentioned in SMH: Another minister to battle foetus bill); Family Planning NSW; Women’s Health NSW; Domestic Violence NSW; Rape & Domestic Violence Services Australia; the National Foundation for Australian Women; Reproductive Choice Australia; and Children by Choice (previous seven mentioned in Guardian: Abortion rights under threat from ‘Zoe’s law’, say Australian women’s groups). Coalition MPs opposed include Health Minister Jillian Skinner; Environment Minister Robyn Parker; and Nationals whip John Williams (SMH).
Legislative arguments that incorporate words like ‘personhood’, ‘viability’ and ‘fetal rights’ are code for anti-choice sentiments that are always used as an attempt to limit the fundamental right for those born biologically female to control their reproductive choices, if not reverse them entirely.
Spence has repeatedly argued that the exceptions provided in the Bill, concerning anything done in the course of a medical procedure or with the consent of the woman, guarantee that his amendment would not infringe upon a woman’s right to terminate a pregnancy. However, the exceptions do not meaningfully buffer against the overarching conceptual change represented by the Bill.
Moreover, it is outrageous that a woman’s legal right to terminate her pregnancy could be threatened by the law telling her that she is at risk of criminal liability until she can prove that she falls into a narrow exception. Zoe’s Law further pushes lawful termination of pregnancies to the fringes of legal debate, where it shamefully already lies as an exception to sections 82-84 of the NSW Crimes Act[…]
The Bar Association also argues that there are “legitimate concerns” about the broader implications of the bill. Once we adopt a definition of a foetus as a living person for the purpose of this bill, “it would be difficult to resist its adoption in respect of other New South Wales criminal laws”
Coalition and ALP MPs have been granted a conscience vote on Zoe’s Law, so if you are a NSW voter, today is a great day to contact your MP expressing your concerns and encouraging them to vote against the bill. One way to do this is through the Our Bodies Our Choices email form.
Note: when I was discussing this post with other Hoyden authors, they wanted to discuss fetal personhood in Western Australia, and extended recognition of stillbirths in South Australia. Since the vote on the bill is pending, I wanted to get this post up, but feel free to discuss fetal personhood and potential threats to pregnant people’s bodily autonomy in any Australian state in comments.