Zoe's Law Back on NSW Parliamentary Agenda

A move to allow unborn babies to be treated as "persons" in court judgments appears set for debate in the NSW parliament. The private member's bill has been languishing in the state's upper house for a year having failed to secure a majority of votes and is due to lapse in November. But the case of unborn baby Mia, who died in a crash last year, has renewed calls for the Crimes Amendment (Zoe's Law) Bill 2013 (No. 2) in NSW (dubbed "Zoe's law") to be brought back before parliament again.

Background to the Bill

As previously stated by TimeBase, the Bill was introduced into Parliament by State Liberal Chris Spence and has become known as Zoe's law after the stillborn child of NSW mother Brodie Donegan, who was struck by a car in 2009, suffering injuries that resulted in the loss of her 32-week-old foetus and the driver of the vehicle not being charged with Zoe's death because the law does not recognise the stillborn child as a person. The Bill would amend theCrimes Act 1900 NSW to provide that a separate offence exists for conduct causing serious harm to or the destruction of a child in utero but excluding medical procedures or conduct engaged in with the consent of the mother.

Current Status of the Bill

Zoe's Law has come back on the Parliamentary agenda after it was reintroduced into the upper house in NSW Parliament and set down for the order of the day in 2014. Although it was introduced into the upper house on 26 November 2013 by Senator Marie Ficarra, no further debate has occurred as of yet.

Premier Mike Baird said at the end of October 2014 that the case of Baby Mia was "heart-wrenching" and he would ask the leader of the upper house to have the bill debated soon. But he has refused to adopt a government position on the bill and says MPs are free to vote according to their conscience.

Christian Democratic Party leader Fred Nile has told his parliamentary colleagues that he will introduce a two-year sunset clause to Zoe's Law. The amendment means the bill will be repealed two years from when it is first enacted.The clause is designed to protect against any unforeseen consequences of the legislation. It has been speculated that Nile included the amendment in order to sway MPs who are still undecided on whether they will vote in favour of the bill.

Greens MP Mehreen Faruqi said it was disappointing that Mr Baird was resurrecting a bill which would "further criminalise women's reproductive choice":

Why Fetal Personhood Matters

Although much of the debate surrounding Zoe's Law has been centred on the risk that Zoe’s Law will affect the legality of abortion in New South Wales and ultimately provide ammunition to make abortion more difficult to obtain; if passed in the upper house, this would be the first time in Australia that a fetus is given separate legal status from its mother even though it remains within her body. The law would create a tension between a woman’s rights and those of her fetus.

Proponents of the bill say arguments that fetal personhood could be used to deprive women of their autonomy and liberty are scare tactics because the proposed law includes exceptions for actions done by or with the consent of the mother. But efforts to direct or curtail pregnant women’s behaviour in the interests of their fetus are not unknown.

In the Conversation, author Alexandra Barratt cites a US study of pregnant women deprived of their physical liberty because their behaviour might be considered a threat to the well-being of their fetus, between 1973 and 2005. In this instance, there were 413 cases and in 86% of the cases (354), women were charged with criminal offences, the majority (295) of which were punishable by more than one year in prison. As well as being arrested and jailed, they underwent forced medical interventions including caesarean sections, drug and alcohol treatments, and in-hospital detention for drug addiction or mental illness. The authors of the study note that, in most cases, efforts to deprive the women of their liberty “occurred through use of existing criminal statutes intended for other purposes”, and 71% involved disadvantaged, poor women.

Any law that raises the possibility of criminal liability for maternal choices that may be considered not ideal for the fetus, such as refusing a recommended medical intervention, is detrimental to women. It is also a challenge to public health because it fails to recognise and respect that women have the right to autonomy, bodily integrity and informed consent under our legal system.

Zoe's law will be keenly tracked by the NSW Bar, as well as doctors, women's groups and other lawyers, with most agreeing that the unforeseen consequences for criminal law in the State means that it should not be supported at all.

Late Development on 21 November 2014

In a late development as this article goes to press, Zoe's law has been reported by the Guardian to have lapsed, meaning it is unable to be debated again.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

NSW Parliament Website - Links to Zoe's Law Bill

The Conversation Article

The Australian Article

Women's Agenda Article