As the Upper House of the NSW Parliament gets ready to debate this Private Member’s Bill, the NSW Society of Labor Lawyers (‘Labor Lawyers’) wishes to make known its strong opposition.
In doing so, Labor Lawyers supports the position taken by the following professional bodies: the NSW Bar Association, the Law Society of NSW, Women Lawyers Association of NSW, Women’s Legal Services NSW, Office of the Director of Public Prosecutions, Community Legal Centres of NSW, the Royal Australian College of Obstetricians and Gynaecologists, the Australian Medical Association (AMA), Womens’ Health NSW, Family Planning NSW, the Medical Women’s Association of NSW and medical indemnity insurers.
The Bill would, if passed, significantly change Australian law by introducing the concept of “foetal personhood” into the NSW Crimes Act. Currently, the law in this country adopts the principle that until a child is born and takes a breath, it cannot be regarded as a legal person.
The debate in parliament has proceeded on the underlying assumption that the adoption of “foetal personhood” is necessary to show compassion for Brodie Donegan and others in a similar position. This is not so. Foetal personhood is not the only way to show that support.
Hannah Robert, a Melbourne legal academic, lost her baby while 8 months pregnant in strikingly similar circumstances and, strangely enough, in the same time period as Brodie Donegan. She does not support the introduction of Zoe’s Law due to its central reliance upon the adoption of foetal personhood which she sees as suddenly creating the potential for conflict between mother and foetus. Ms Robert, who sees foetal personhood as undermining a woman’s ability to make decisions about her own body, has put forward alternative legal models to recognize the type of loss suffered by both Brodie Donegan and herself. These include remedies outside the confines of the Crimes Act as has been the approach taken in some European jurisdictions.
The Bill introduces the new label of “unborn child” into the Crimes Act (s 8A) – a phrase generally associated with the abortion debate. Yet those who support the Bill claim that it would have no impact on access to abortion. This is disingenuous. As has been pointed out by other legal academics who have expertise in this complex area of the law, once Parliament has declared a foetus to be a living person in one context, there is every likelihood that the notion of a foetus as an “unborn child” would flow over into legal scenarios. Julie Hamblin, health lawyer of HWL Ebsworth puts the concern succinctly: “Zoe’s Law would add a new weapon to the armoury of those seeking to secure a conviction for unlawful abortion”.
Much is also made by the Bill’s supporters of the “medical procedure” exemption contained
in s 8A(4)(a) of the Bill. However, there is no reason to be complacent about this so-called protection. Legal access to abortion in NSW is extremely precarious with women and doctors still able to be charged with the offence of “unlawful abortion.”
Sections 82 and 83 of the Crimes Act create an offence in the case of a woman (s 82) and also in the case of a third party (generally a doctor)(s 83) who unlawfully administers or does something to “procure a woman’s miscarriage”. The interpretation of a lawful abortion therefore hinges on the word “unlawfully” with no assistance being provided within the Act as to the meaning to be given to the term “unlawfully.” Unlike most other offences contained in the Crimes Act, the elements of abortion offences are not clearly stated.
Proposed section 54 of the Bill creates the separate offence of causing grievous bodily harm – unlawfully or negligently - to the foetus of a pregnant woman independently of any offence of grievous bodily harm involving the pregnant woman. Given this, it is easy to imagine the arguments that would call into question the “medical procedure” exemption. “Medical procedure” is nowhere defined but should any “medical procedure” designed in the best interests of the mother be permitted to harm, let alone result in the destruction of, another ‘person”?
The second limb of the exemption in proposed s 8A (4)(a) excludes anything done by or with the consent of the pregnant woman. But how can a woman consent to a procedure that constitutes a criminal offence? It also raises the spectre of a Court having to determine issues of mental or intellectual capacity in relation to the actions of the mother.
In the United States, not only has “foetal personhood” been the cornerstone of laws limiting access to abortion but it has also been used to criminalise any conduct that might pose a risk to the foetus during a pregnancy. Women have been prosecuted for drinking, smoking and/or taking anti-depressant drugs while pregnant – with the charge being causing grievous bodily harm to the foetus. Recognition of the legal rights of the foetus have also given rise to a number of disturbing cases. For example, in 2004, a woman in Utah was charged with murder when she refused to undergo a caesarean section when pregnant with twins after one of the twins died at birth.
In Australia and despite the known risks associated with smoking during pregnancy, many Australian women (as many as 1 in 7) keep smoking during pregnancy. Would these women – subjecting the foetus to the increased risk of intra-uterine growth restriction and still birth – be prosecuted for acting contrary to the interests of the other “person”?
Other troubling clinical scenarios have been put forward by doctors practicing in reproductive medicine. What of the situation of the pregnant woman who has an aggressive invasive form of cancer requiring surgery and/or chemotherapy? Or a pregnant woman with fulminating pre-eclampsia who needs to be delivered despite the foetus being of 22 weeks gestation and non-viable. In both cases, the required medical treatments will cause grievous bodily harm to the foetus and will put the pregnant woman in clear conflict with those advocating for foetal rights. It is not right that these decisions should be made by someone other than the pregnant woman.
The wider implications of the Bill are troubling to all those who oppose it and should be of concern to all. That the Bill is legally unnecessary and poorly drafted makes these concerns even more significant.
There are a number of definitional problems in addition to those already noted. The definition of an “unborn child” (being a living person) as a foetus of 20 weeks gestation or if the gestational period is unable to be reliably calculated, a foetus weighing 400g or more, is completely arbitrary. It has no legal or policy based merit. As has been noted by the NSW Bar Association, why should a foetus of 19 weeks and 6 days be treated differently from a foetus of 20 weeks for the purposes of the criminal law? Or why should a foetus of 399 grams be treated differently from a foetus of 400 grams for purposes of the criminal law. No (sensible) principle has been advanced by the drafters of the Bill to justify such arbitrary classifications.
The Bill would create inconsistency with other legislation in NSW such as the Victims Rights and Support Act 2013 where the injury to the foetus is interpreted as an injury to the pregnant woman.
In a similar vein, the law already provides protection for the foetus, irrespective of its gestational age or size, while it is in utero. The issue of whether a change to the law was required has already comprehensively been considered (and at significant expense to the NSW taxpayer) in the context of the Campbell Review in 2010. The situation of Brodie Donegan was one of the cases providing impetus to that Review. It was the recommendation of the Hon. Michael Campbell QC that there was no need for any change to the current law.
No-one would underestimate the sense of personal loss that has been experienced by the Donegan family. However, it is not right to allow this tragic situation to become the justification for something that is poor legal policy that will inevitably have unintended adverse consequences.
NSW Labor Lawyers would be pleased to address further any aspect of this submission. Please contact firstname.lastname@example.org, if required.
NSW Labor Lawyers