Foetal homicide: Can an unborn child be ‘murdered’?

At what point does a life start?

Last week, a pregnant woman and her unborn baby were killed when their car went off the road and crashed head on, into a tree.

The father of the baby and driver of the car, was charged with one count of causing death from dangerous driving.

Only one.

The unborn child’s death was not counted because under South Australian law, a foetus cannot be a victim of crime.

The foetus’ death was, however, included in the national road toll. The case has reignited the fierce debate about when a foetus should be considered a person for the purposes of criminal and calls for changes to foetal homicide laws.

The ABC reports:

Family First MP Robert Brokenshire is drafting a bill that would see criminal charges apply to people who cause the deaths of unborn babies in circumstances including assaults, domestic violence and car accidents where drivers are found to be at fault.


Mr Brokenshire says he has been planning legislation for several months to amend the Criminal Law Consolidation Act.

The immediate past president of the Australian Lawyer’s Alliance, Greg Barns, says the question is a fraught one.

“It is an area where we ought to be looking at compassion and keeping the criminal law well away, except for those extreme cases where, for example, a person deliberately assaults another person who is pregnant,” he said. “Outside of those cases, there’s no room for the criminal law in this area.”

There have been subsequent allegations that the Family First party’s calls for law changes are simply “sneaky” attempts to change abortion laws without people noticing. This is because the operation of laws about abortion would be subsequently affected by any changes to the definition of when life begins.

The law currently treats unborn children differently in different jurisdictions. The state which appears to give the most credence to the idea that a crime against an unborn child should be treated the same as if the child were a independently living is Queensland. Queensland law states that “Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime.”

A few years ago, Mamamia publisher Mia Freedman wrote about the rights of unborn children after a 41-year-old woman was sent to jail for nine months when she ran her van into a pregnant woman on Christmas day in 2009 (while on a cocktail of drugs). The pregnant woman was badly injured and her unborn baby girl was killed.

The baby girl was called Zoe. She was named, after being stillborn a few hours later. Zoe’s mother Brodie had been 36 weeks pregnant. At the time, Mia wrote:

The woman driving the van was charged with causing ‘grievous bodily harm’. There was no related charge able to be made around Zoe’s death because the law did not recognise the baby as a person. To do so, would have implications for abortion law.

To recognise an unborn baby as having the same legal rights as you and I, would mean that choosing to terminate a pregnancy would be mired in legal implications.

Here’s where it gets soooo complicated. For me, anyway. And maybe for you too.

I support a woman’s right to control her own fertility. I am pro-choice (not to be confused with pro-abortion which is a bizarre term thrown around by the anti-choice movement to try and tarnish the pro-choicers. I don’t know anyone who is pro-abortion or even how you could be. It’s a ridiculous term). I have marched in rallies to support a woman’s right to choose and I will again if I ever believe it’s seriously under threat by any state or federal government or law.

And yet.

I’m not comfortable with late term abortions for non-medical reasons. I’m just not. And I guess it comes down to this: When do you think life begins? And how do you define “late term”?

The anti-choice movement, who do believe abortion at any stage past conception is akin to murder, would very much like all unborn babies to be recognised as having the same legal rights as anyone else. From conception. Because this would certainly throw abortion laws into chaos. How can you abort an entity that has legal rights?

That’s why this is such a fraught and complex issue.

It would be a travesty if the current laws around abortion were in any way wound back.

Because if history has taught us anything, it’s that women who are desperate not to be pregnant, will find a way to end their pregnancy, no matter the risk to their own lives. We certainly don’t want to go back THERE.

But back to Brodie for a moment. As she tearfully said outside the court, she wanted her daughter Zoe’s life to count for something. And her death to be a punishable offence. Surely, to deny that is somehow to deny the precious life that was so much wanted by Brodie and her husband, isn’t it?

I’m not a lawyer but to me, that is the crux of the difference between the legal status of an aborted foetus and one that was taken against the will of the mother. The mother’s will. It’s as simple as that. If a mother wishes to be pregnant and have a baby and that choice and baby is taken from her by someone else – either in a deliberate attack or an act of reckless negligence like the one that ended Zoe’s life – surely that can be classed as murder or manslaughter. Can’t it?

I realise this is very very dangerous territory to stray into because I’m fearful of anything that might give those who are determined to take choice away from women any ammunition. But I still think it’s an important conversation to have. Respectfully and civilly as always.

When do you think life begins and do you think there should be changes to the law to recognise the death of babies like Zoe?

Three years on, the law has seen very little movement towards a united national position on when life begins. So we’re putting Mia’s question to you once again.

What do you think of feotal homicide laws? Should a person be charged with murder for killing a feotus? When does life begin?


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