On Christmas Day of 2009, Brodie Donegan was hit by a car and lost her unborn baby, Zoe. In October of last year, a husband and wife were involved in a car accident that resulted in the death of the woman’s unborn child. Most recently in this string of tragedies, this year in South Australia a pregnant woman and her unborn child were killed in a car accident. These cases are all connected by their link to the ongoing debate about whether or not an ‘unborn child’ should be recognised as having legal personhood. Can a foetus be considered a person? If so, to what extent should a mother, or any other individual, be held legally and criminally responsible for the life and health of the unborn child?
Current NSW law does not recognise the existence of a life until a person has been born and has taken their first breath, and thus the negligent driver who caused the death of Brodie Donegan’s unborn child was not criminally charged in relation to its death. As a result, Christian Democratic MP Fred Nile has proposed the Crimes Amendment (Zoe’s Law) Bill 2013 in order to ensure that unborn children are legally recognised by the law in such cases. It is the third time Mr Nile has proposed a version of the law in the last four years alongside more wide-reaching restrictions on abortion. It is this version of the law, however, which has seemed to gain the most traction in public debate. The government is yet to state its official position on the bill.
The bill provides for a maximum penalty of ten years imprisonment for those who recklessly cause serious harm to, or the destruction of, a ‘child’ in utero. The use of the term ‘child’, defined only as the “prenatal offspring of a woman”, is itself controversial, as seen in the debates surrounding the personhood of a foetus in the US. The NSW bill, however, specifically protects women from prosecution in cases where they themselves harm, or consent to the harm of the foetus. In this way, the present bill can be distinguished from US cases that afford the foetus personhood.
Bei Bei Shuai for example, was pregnant and recently abandoned by her husband when she ingested rat poison in a suicide attempt in early 2011 and, following treatment and recovery, was charged with murder by Indiana prosecutors. A similar case saw a 15-year-old Mississippi girl charged with the murder of her unborn child because she was found to have been suffering from a cocaine addiction during the pregnancy.
The issue is further problematised by its inextricable links to the ongoing debates surrounding the regulation of abortion in Australia. Associate Professor Thomas Crofts of the University of Sydney expressed concerns about the possible dangerous implications of Zoe’s Law, and also noted that it seemed out of line with legal frameworks in other Australian jurisdictions. He suggested that an appropriate alternative to these reforms might be “to create a new offence to specifically deal with this issue, such as child destruction, as exists in WA,” rather than reform existing statute law.
Brodie Donegan herself also expressed concerns about the possible implications of Zoe’s Law on the abortion debate. ‘‘’What we want has nothing to do with abortion… We just want Zoe’s Law to be as practical and logical as possible without religion at all coming into it.’’ Donegan, 33, told the Sydney Morning Herald. Reverend Gordon Moyes, a member of the Legislative Council at the time the bill was proposed, also expressed strong concerns about the use of Zoe’s Law to reignite debates about the legality of abortion when speaking to Honi Soit. Moyes commented: “Fred Nile is trying to make this a test case against abortion. Doing that is totally wrong… Zoe’s Law should not be mixed up with that.”
Of course, even if a solution such as this is decided upon, we are still left with the unanswered question, both legal and philosophical, of how to define when a person becomes legally recognised as such, while avoiding the accusation of this definition being arbitrary and therefore unhelpful. As these debates continue, it is clear that there will be several issues – legal, ethical and practical – to be considered in relation to any such reform.