17 October 2013
(Contribution to Debate, Legislative Assembly, NSW Parliament)
I welcome the many people from our community who have joined us in the gallery to watch the debate on this issue. I join the member for Hawkesbury in acknowledging the importance of the respectful nature in which this debate is conducted. Many members are conflicted about this issue. They are conflicted because they want to do the right thing by Brodie Donegan and mothers like Brodie Donegan. But many are concerned, based on expert legal advice, that the consequences of such legislation are unknown. What is known is that the bill would acknowledge a foetus as a person. This is potentially separate to and even at odds to the mother.
I oppose the Crimes Amendment (Zoe's Law) Bill (No. 2) 2013 because it could reduce women's access to safe and legal abortions and because the current law acknowledges a crime that results in the loss of a foetus. The bill creates a new crime for conduct that causes serious harm to or destruction of an unborn child and extends existing dangerous driving offences that result in the death or grievous bodily harm of a person to also apply to the death or serious harm of an unborn child. An unborn child is defined in the bill as a foetus of at least 20 weeks gestation or which has a body mass of 400 grams.
I assess the bill with an open mind. The story of Brodie Donegan is heartbreaking and sad. After being hit by a car driven by someone under the influence of drugs, she sustained injuries that led to an urgent caesarean, followed by a stillbirth delivery. The loss of a foetus as a result of being a victim of crime can be a significant loss to pregnant woman and the law should acknowledge that loss. However, I strongly believe that the loss of a foetus is not a loss separate to the experience of the pregnant woman. A crime that results in the death of the foetus is a crime against the pregnant woman. A foetus is not a person until it is born. It relies entirely on the woman's body to exist. Creating an offence against the foetus separate to its mother by law recognises the foetus as a separate entity that has rights of its own. This has major legal ramifications for women's reproductive rights.
The rights of the foetus can be put at odds with the pregnant woman's rights. If the foetus has rights that should be protected against assault or recklessness, a legal argument could be made that a foetus should be protected from other harms. Although the bill explicitly excludes anything that is done during the course of a medical procedure or that is done by or with the consent of the pregnant woman concerned, it does not prevent the bill from creating a grey area in abortion law. A medical practitioner who performs an abortion or a woman who may obtain one, particularly in the later term of pregnancy, will have a new layer of criminality to consider and potentially negotiate through.
In New South Wales abortion is not a given medical procedure. Under the existing law, judges have to determine whether an abortion is lawful or unlawful. Anti-abortionists could use the offences under the bill to mount a case against a pregnant woman who has an abortion or the doctor who carries out the procedure that a crime has been committed against the foetus, thus resulting in grievous bodily harm. Consent also fails to protect some women and their medical practitioners. If a woman has an intellectual disability or a mental illness, consent may be difficult to establish. Medical practitioners working to ensure the best mental health and social outcomes of the pregnant woman will need to consider the legal risks in addition to her welfare. Consent could be irrelevant if a woman has a car crash due to reckless driving or if she takes an illegal substance that results in a miscarriage or stillbirth.
In overseas law, I understand that recognition of the status of a foetus has been used against pregnant women who have addiction problems. The courts could interpret passage of this bill as the Parliament's endorsement that a foetus should be treated as a live being with regard to criminal activity. The bill inappropriately introduces the term "unborn child" in the Crimes Act. The term is emotive, contentious, medically incorrect and heavily used by anti-abortion campaigners. A child is born when he or she breathes life outside his or her mother's body. Prior to that, a woman is pregnant with a foetus, which is part of her body. A crime against a foetus is a crime against a pregnant woman. Existing laws recognise this and provide an avenue to ensure that judges take into account physical injury to a pregnant woman and loss of her foetus.
Under the Crimes Act, a person who harms a pregnant woman causing the loss of her foetus can be convicted of grievous bodily harm, regardless of whether the woman suffers injury or not. This is a serious crime. If intent is proven, the maximum sentence is 25 years. If the person was reckless, the maximum sentence is 14 years. Judges can take into account physical injury to a woman and the loss of her foetus when considering the severity of a crime and an appropriate sentence. The loss of a foetus is not left unpunished. It is hard to imagine the pain that a pregnant woman would experience if she miscarried or had a stillbirth delivery as a result of a crime committed against her. The law must recognise this as her loss, not a separate crime against the foetus.
The 2010 Campbell review, which was initiated by the former Government to investigate whether existing laws enabled justice in crimes that cause the loss of a foetus, noted that while a new offence would cover only a few cases, its wider implications would affect many more women. Reproductive rights are essential to gender equality. Article 16 (1) (e) of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, to which Australia is a party, states that women should be able to freely decide if and when they will have children and how many. This is supported by the wider New South Wales community. It concerns me that while women make up more than 50 per cent of the population, this bill will be voted on by members of this House of which less than a quarter are women.
This bill is opposed by the Australian Medical Association, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists, medical insurer MDA National, the New South Wales Bar Association, the Woman's Electoral Lobby, Family Planning NSW, the Women's Legal Service, the Australian Women Against Violence Alliance, the Women's Abortion Action Centre, the National Foundation for Australian Woman, the Equality Rights Alliance, Rape and Domestic Violence Services Australia and Pregnancy Help Australia. By giving legal status to a foetus, the bill will reduce women's reproductive rights, and I cannot support it.