The Sydney Morning Herald

Zoe's Law boosts the arsenal of pro-life cause

Author: Julie Hamblin - Julie Hamblin is a Sydney lawyer who has worked for many years on sexual and reproductive rights.
Date: 19/09/2013
Words: 732
Source: SMH
          Publication: Sydney Morning Herald
Section: Opinion
Page: 24
The debate around the "Zoe's Law" bill, before NSW Parliament, has shown yet again that women's reproductive rights cannot be taken for granted in NSW. If the bill is passed, it will only be because highly emotive and ideologically driven political tactics have won out over rational policy debate.

The bill declares a foetus of 20 weeks' gestation or more to be a "living person" for the purpose of grievous bodily harm offences under the NSW Crimes Act. It has the vocal support of Brodie Donegan, whose daughter Zoe was stillborn as a result of injuries sustained by Ms Donegan in 2009 in a car accident caused by a driver who was under the influence of drugs.

It is not difficult to understand why Ms Donegan would want the driver to be punished for causing her child to be stillborn. What is extraordinary is that NSW Parliament would consider changing the law in an area as complex and contested as the legal status of the foetus based on an individual case alone. In fact, the driver of the car was convicted for the injuries caused to Ms Donegan including the loss of her 32-week foetus. This was not a case where a serious wrong went unpunished.

Ms Donegan's complaint is that the driver should have been convicted not just for causing harm to Ms Donegan, but also for causing harm to her foetus as a person.

This is not a new argument. Calls for changes to the criminal law were made in 2010 immediately following Ms Donegan's accident. A review by Michael Campbell, QC, concluded the existing criminal offences were appropriate. So why are we still debating the matter, and still in the guise of achieving justice for Zoe?

The answer, it seems, lies in the determination of some MPs to capitalise on this issue in order to gain ground in the battle to have the law recognise a foetus as a person. The precursor to this bill was introduced into Parliament by the Reverend Fred Nile. The bill also has the support of the Attorney-General and former president of NSW Right to Life, Greg Smith. Both are long-term anti-abortion activists.

Ms Donegan has argued that the amendment is "tightly written" and will have no legal consequences beyond the grievous bodily harm offences in the Crimes Act. However, no one who appreciates the precarious status of lawful abortion in NSW can share her confidence.

Contrary to popular belief, abortion is still an offence in NSW for the woman undergoing an abortion and the doctor performing it. The Crimes Act says that a woman who "unlawfully" procures her own miscarriage and a person who "unlawfully" brings about a woman's miscarriage is guilty of a criminal offence. So the legality of abortion depends on how the courts interpret "unlawfully".

NSW courts have held that where an abortion is necessary to prevent a serious risk to the life or health of the woman, it can be undertaken lawfully, but the Crimes Act does not recognise this explicitly. When the next abortion prosecution is brought in NSW, a court will again have to determine the test of lawfulness based on legal precedent and the facts of the case.

Against this background, it would be foolhardy to believe that Zoe's Law would have no impact on the legal status of abortion in NSW. Judges strive for consistency and coherence in the principles they apply to legislative interpretation. Once Parliament has declared a foetus to be a living person in one context, the overwhelming tendency would be for judges to take this into account - not conclusively, but perceptibly - whenever other issues involving the legal status of a foetus arise. Zoe's Law would add a new weapon to the armoury of those seeking to secure a conviction for unlawful abortion.

Premier Barry O'Farrell understood this bill is not just about an amendment to the Crimes Act when he decided that MPs would have a conscience vote. The NSW Bar Association, the Australian Medical Association and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists oppose the bill because of concerns about consequences it would have in hospitals and courts.

The tragic circumstances of Zoe's stillbirth should not be used to weaken the already shaky foundation of women's reproductive rights in NSW.

Fairfax Digital Privacy Policy | Conditions of Use | Member Agreement | Copyright