The minefield of Zoe's Law


Coral Levett, President of both the Australian Nursing and Midwifery Federation and the NSW Nurses and Midwives’ Association, was the keynote speaker on Zoe’s Law at Sydney’s recent International Women’s Day March. Coral’s speech will also appear in the Australian Nursing and Midwifery Journal.

International Women’s Day is normally a day for celebration. It is an opportunity to celebrate our differences and the many gains women have made throughout history. Sadly, celebrations for the women in NSW (and ultimately elsewhere) were marred by recent events in the NSW Parliament.

Zoe’s Law Bill (No 2) was introduced to the Parliament by Liberal MP Chris Spence. It proposes to allow charges of grievous bodily harm to be brought against someone who hurts a foetus of more than 20 weeks or 400 grams. A similar Bill was promulgated by Reverend Fred Nile (Christian Democrat in the NSW Legislative Council) at the time of the incident but did not proceed through a lack of support.

The law was prompted by the tragic stillbirth of Brodie Donegan’s daughter Zoe, after Ms Donegan was hit by a car on Christmas Day 2009 when she was 32 weeks pregnant.

The Bill in its current form was passed through the NSW Lower House on November 21, 2013, in a vote of 63 in favour and 26 against. At the time of writing, the intention is to introduce the Bill into the Legislative Council who will vote on the Bill when parliament resumes this year.

While at first glance Zoe’s Law represents a compassionate response to a tragic situation, passing it would open up a veritable minefield of legal ramifications that in themselves could cause more trauma and injustice.  While there is always concern about the harm done to women including their foetuses (such as through domestic violence), this Bill has the potential to undermine women’s rights by changing the legal status of a foetus.

Under the current law, “grievous bodily harm” includes “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm”. Grievous bodily harm at the moment carries a maximum prison sentence of 25 years in NSW.  The wider community is of the view that the Bill is neither necessary nor appropriate. The injury must always be interpreted as an injury to the pregnant woman in order to protect a women’s autonomy over her body. This proposed law could potentially be used to impose restrictions on the behaviour of pregnant women.

Coral Levett.

If passed, the Bill would mean that if someone caused the destruction or harm to a foetus they would be charged with grievous bodily harm to the foetus, instead of being charged with grievous bodily harm to the pregnant woman. There is a legal concern that giving ‘personhood’ status to a foetus may affect the lawfulness and accessibility of abortion in NSW, particularly for procedures carried out later in a pregnancy.

The Hon Michael Campbell QC considered whether these changes to the law were justified. After months of work (which cost the taxpayer a lot of money), the Campbell Review decided that not only was there no reason to change the law, but that there would be serious flow-on effects in giving legal recognition to a foetus.  One of the central issues is the impact on access to abortion if Zoe’s law is passed. In NSW, the legal foundation of abortion is very fragile anyway. Unlike Victoria and the ACT, where abortion offenses have been removed from the criminal law, NSW women seeking abortion (and the doctors performing them) can still be charged with having/performing what is known as “an unlawful abortion”.

The NSW Director of Public Prosecutions has said that it can’t understand the need for the law to change. It argued that if Zoe’s law was passed it was likely to “result in prosecutions protracted by medical evidence and legal argument, leading to extra distress and cost to those involved.”

The DPP’s views on this are shared by pretty much every reputable legal and medical organisation in NSW that has a view on the matter. The NSW Bar Association, Women’s Legal Services and NSW Community Legal Centres all oppose the changes. So do women’s organisations like the Women’s Electoral Lobby, the National Foundation of Australian Women and Rape Crisis Centres across NSW.  The passing of this law could take the women of NSW back decades in time when it comes to women’s rights generally.  Let’s hope 2015 brings us a reason to better celebrate International Women’s Day.

Thank you to the Australian Nursing and Midwifery Journal for allowing us to publish Coral’s regular column.

More on this topic: Why losing my daughter means I don’t support Zoe’s Law



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