Fetal personhood (“Zoe’s Law”) before NSW Parliament

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.

A woman standing in front of the US Capitol building holds up a sign displaying a stylised uterus and reading 'Is this mine yet?'

“Is this mine yet?”. Photo by Ann Harkness.

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).

Commentary includes:

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.

Clementine Ford: The bill that could criminalise abortion in Australia

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”

Mehreen Faruqi: Why Zoe’s Law Must be Defeated

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.

Categories: gender & feminism, Politics, social justice

Tags: , , ,

20 replies

  1. I have used the email form, I edited the bit where it said next week to read tomorrow. We will see how it goes.

  2. an Barham
    13:30 (7 minutes ago)
    Thank you for contacting me with your concerns about the Zoe’s Law Bill.
    The Greens unequivocally oppose this bill and we will be working to ensure that it does not pass. I note that the NSW Bar Association and the Australian Medical Association (NSW) state that the law is unnecessary and may restrict women’s reproductive rights.
    As the Greens NSW Spokesperson for the Status of Women, Dr Mehreen Faruqi is working with women’s groups, community legal centres and others to campaign against this proposed change.
    Thank you again for taking action on this important issue.

    The Greens are on top of this already.

  3. Penny Sharpe too

    Penny Sharpe
    13:30 (8 minutes ago)
    Thank you for your email about the proposed Crimes Amendment (Zoe’s Law) Bill No. 2 2013.
    One of the reasons I became involved in politics was to advance and protect the sexual and reproductive rights of women and girls. I believe that these rights are fundamental to the wellbeing of women and their families.
    I share your concerns regarding the Bill and can indicate that I will not be supporting it.
    This Bill has highlighted the fragile legal underpinnings of abortion law in NSW. I will not support any law that chips away at the scant protections in place for women, doctors and medical practitioners.
    I believe that the ramifications of this Bill have not been well thought out and that there will be far reaching unintended consequences for women in NSW if this Bill is passed.
    I will do everything I can to convince my colleagues that although well intentioned, Zoe’s Law should not be passed.
    Thanks again for contacting me.
    Kind regards
    Penny Sharpe

  4. I also received an email from Adam Searle MLC (ALP, Deputy Leader of the Opposition) stating that he opposes the bill.

  5. Left a phone message with my local member from a Sydney suburban electorate at 4:37pm with name, number, suburb and how I want him to vote. I worry he and his staff may not be in his office and may go direct to parliament tomorrow. Anyone know how this stuff works, if I need to chase in other ways or if my message will be received?

  6. Robyn, while my slight acquaintance with politicians suggests that the members themselves work late on sitting nights like tonight and wouldn’t head into their local offices, I think the local offices are usually staffed during the day. There’s constituent drop-in and such. The staff will tend to keep an eye on patterns: if they get a lot of contact about this, the overall pattern (hopefully “a lot of voters say to vote against”) gets passed on.
    There should also still be a reasonable amount of time to contact the upper house members to state your opposition, even if it passes the lower house tomorrow. Most bills spend at least a few days in the upper house in the course of the three readings there, and after tomorrow they don’t even sit again until the 15th October.

  7. Our Bodies, Our Choices is also tweeting that they encourage people to attend the parliamentary debate tomorrow (19th September). Meet in the Legislative Assembly foyer at 10am. Do not bring banners or signs.
    Separately, I am now pretty sure I remember media coverage of Zoe Donegan’s death at the time; I was also pregnant in late 2009 (and am again now), probably about a month closer to my due date than Brodie Donegan was. My child is 3½. Unspeakably sad.

  8. People interested in the debate can watch online or follow @OurBodiesChoice, who are tweeting from the galleries.

  9. The Legislative Assembly spent one hour on the debate and ran out of time by the sounds. Next sitting day is October 17. Watch this space, I suppose?

  10. Thanks for your reply, Mary. Looks like I’ve now got some time to see if he calls me back and chase him if not.

  11. This issue is really hard. I think it’s one of those cases where I can see both sides of the argument – essentially the personhood of a foetus depends not on point of gestation, but whether the pregnancy is wanted. I absolutely agree that there should be a right to prosecute someone who harms an unborn child (at whatever point of gestation) and I absolutely agree that a woman should have a right to terminate a pregnancy (though I’m not sure that I think that should be an unlimited right in terms of gestation).
    I think that Zoe’s Law has the ability to tie us into knots, because if we acknowledge that personhood is not an absolute, and that the point at which a foetus attains personhood always going to be subject to debate. Some people think that personhood begins at conception; others think it begins at birth (I suspect that’s a reasonably small number – few people would support the idea of abortion at 35 weeks for example). Historically, many societies have believed that it started some time after birth. For many people, it’s a moveable point somewhere between conception and birth – moveable as we find out more about such things as development of cognition, and as medical technology allows for the survival of babies born at progressively earlier stages of gestation.
    (For what it’s worth my personal view is that personhood starts at conception, but I don’t think it’s my right to impose that view on anyone else. I do, however, think that society has the right to impose a view of personhood as commencing at birth as a lowest common denominator.)
    So, philosophically at least, I think that we have to defend a woman’s right to choose, but that should include her right to choose personhood for her child. Zoe’s law as it’s written seems to do that as far as I can see. I think that if we maintain the view that a foetus is not a person until birth then we undermine the very real experience of loss and trauma that women undergo in miscarriage and stillbirth.
    At best I think this is a very grey area.

  12. ”essentially the personhood of a foetus depends not on point of gestation, but whether the pregnancy is wanted.

    So, philosophically at least, I think that we have to defend a woman’s right to choose, but that should include her right to choose personhood for her child.”

    You’ve managed to encapsulate my thoughts exactly. However, I’m not sure that Zoe’s Law as it is drafted really achieves this.

  13. Engaging narrowly with the above two arguments for a moment: one of the problems with “the fetus is a person when the pregnant person wants it to be” is that even wanted pregnancies get terminated. In fact, quite a lot of later terminations (or very risky early deliveries, if the fetus is old enough) are of wanted pregnancies due to, eg, pre-eclampsia or other risks to the pregnant person, or fetal health problems incompatible with life. I am not a lawyer, but I imagine that having some kind of personhood status that can get revoked by a carer is probably not compatible with current legal principles regarding personhood (and probably shouldn’t be, in the interests of born people!)
    In addition, it’s often construed as OK to give the fetus as many rights as possible as long as people can terminate unwanted pregnancies, but there are actually other issues outlined in the post about the pregnant person’s bodily autonomy even in wanted pregnancies. Wanting a pregnancy is not the same thing as consenting to always or usually acting in the fetus’s best interests when it turns out they conflict with yours, but separate personhood for the fetus does start to impose that burden of care.
    As best I understand it, the Bar Association’s major criticism of this specific law is that judges need to interpret legislators’ intent all the time. If the bill passes and therefore the judiciary knows that legislators regard 20+ week fetuses as having legal personhood, the judiciary will need to take that into account in other cases around the lives of people more than 20 weeks pregnant, regardless of the statements in clause 1 (which elided in my post) restricting it to certain sections of the Crime Act.

  14. I don’t see the point of the law – do the legislators feel that the punishment for the original crime was inadequate, or is this primarily an attempt to reflect the symbolism of someone dying and not being recognised?
    Enshrining gestational dates into legislation is fraught: these are classically based on the date of the last normal menstrual period, but this relies on the veracity and recollection of a mother who may have a vested interest one way or another in having the date shifted by a few weeks. (Ultrasound dating at the 12 week mark is excellent, but not compulsory)
    As for South Australian stillbirth recognition: should stillbirths be reportable to the coroner in the case of extended personhood? (See the Lisa Barrett case.)

  15. Mary, I take your point about women who choose to terminate a ‘wanted’ pregnancy. I guess I was using the term more specifically to mean wanted at the specific time. I appreciate and support the right of women to terminate a late pregnancy for reasons such as serious foetal abnormality, and in the sense that I was using it, that is no longer a ‘wanted’ pregnancy – even if, as is often the case, it’s a situation of heartbreak because the pregancy was originally wanted.
    From my point of view (which I realise other people don’t necessarily share), I think that we do better if we acknowledge the personhood of the foetus in those circumstances. And that’s where we get very uncomfortable, because if we think that abortion is the taking of a human life, then it would seem that we shouldn’t allow it. My feeling is quite different. I think that abortion is the taking of a human life, but that, because that life is entirely dependent on the pregnant woman, she should still be able to choose whether she continues or does not continue a pregnancy. As a society we accept other instances where the taking of a human life is not considered murder – typically in war, and in other countries by the death penalty. Actually, I think both of those cases are a great deal more problematic than abortion.
    I should make the point again, though, that I don’t seek to impose my views on anyone else.

  16. Just got an email from Mehreen Faruqi about a community forum this Thursday:

    I have organised a community forum to provide information about the negative consequences of this Bill and why it must be defeated. We will hear from experts in both health and the law, and discuss our upcoming actions as the debate continues in the Legislative Assembly.
    The forum is on this Thursday 26th September at 6.30pm
    Sydney Mechanics’ School of Arts
    280 Pitt Street, Sydney, Australia 2000
    Guest Speakers will be:
    * Dr Leslie Cannold, author ‘The Abortion Myth’
    * Dr Philippa Ramsay, obstetrician and gynaecologist, Sydney Medical School
    *Julie Hamblin, Sydney based Health Lawyer, specialising in sexual health and reproductive rights
    MC – Dr Mehreen Faruqi MLC
    For more, go to: http://www.facebook.com/events/170512913141548/ or visit my campaign page at <a href="http://www.mehreenfaruqi.org.au/stop-crimes-amendment-zoes-law-bill/


  17. I know this discussion is quite old now, but I was thinking about this today, and to me this legislation is doomed to fail one way or another. It essentially deems personhood based on who harmed the foetus. If I was a criminal covered by this law, I’d be challenging why personhood is determined externally to the person in question. Surely, in a legal sense, a foetus is or isn’t a person, it doesn’t magically become a person the moment it is killed in the act of a qualifying crime.
    So while I completely understand the desire of a grieving parent to confer personhood on their lost child, I don’t think the law can do it meaningfully. It will either fail to make any difference in the cases it’s supposed to make a difference in, or it will be subverted to remove the exceptions and make a foetus a person in all cases from 20 weeks.
    From the article I read by Ms Donegan, her intent in supporting this law is symbolic. She feels it is wrong that the law didn’t formally recognise Zoe as a separate person, in the way that she did. And I sympathise entirely with that position, but of all the great strengths of law, flexibility isn’t one of them. Personhood is understood differently by different people (my thoughts on it are different to those expressed here so far), and so I think changing the established (if arbitrary) line in the legal sand we have will never help. Personhood should be bestowed through ritual and social means, where appropriate.

  18. It essentially deems personhood based on who harmed the foetus. If I was a criminal covered by this law, I’d be challenging why personhood is determined externally to the person in question.
    This is a very good argument.
    or it will be subverted to remove the exceptions and make a foetus a person in all cases from 20 weeks.
    And this, I don’t doubt, is the true purpose of those proposing the law.

  19. And this, I don’t doubt, is the true purpose of those proposing the law

    I think this is largely correct, but I don’t believe it is the true purpose of Ms Donegan, who was involved in drafting this version. It is likely that some of the people involved in proposing it are doing so with genuine reasons. But that doesn’t mean there aren’t people seeing a clear path to universal personhood through this legislation.

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