UPDATE: Zoe’s Law has been passed by the NSW Lower House, 63 votes to 26.
The bill now moves to the upper house where it will be debated. If passed, Zoe’s Law will change the Crimes Act so that any foetus more than 20 weeks old –or weighing more than 400g – will be regarded as a person when it comes to charging someone with grievous bodily harm.
Opponents of the law worry about the affect it could have on abortion laws.
If you’re not familiar with Zoe’s Law, here’s is a cheat sheet Mamamia previously ran.
By CATHERINE HENRY
It was a terrible tragedy. Brodie Donegan was 32 weeks pregnant when she was hit by a car on the NSW central coast. The driver was high on a cocktail of drugs, including methadone.
As a result of the accident, Brodie lost her baby, who she called Zoe. The woman driver responsible was charged with grievous bodily harm – a criminal offence under the Crimes Act – for the injury she inflicted on the mother. But she couldn’t be charged with a separate offence of injuring Zoe, as the law currently sees a woman and the unborn baby as one and the same.
1. Should we change the law?
Today, MPs in the NSW Legislative Assembly will be asked to consider an amendment to the Crimes Act known as ‘Zoe’s Law’. The changes, if passed, will mean that any foetus more than 20 weeks old –or weighing more than 400g – will be regarded as a person when it comes to charging someone with grievous bodily harm. In other words, someone who damages a foetus will be responsible for injuring it, separate to any injury they cause to the mother.
Given the circumstances of this heart-wrenching, devastating case, it is not surprising that there are a lot of people who feel sympathy for the plight of Brodie Donegan.
However, we should all be very concerned about Zoe’s Law and hope that it doesn’t become law. That’s because Zoe’s Law will threaten abortion access and could also lead to women being charged for engaging in a whole range of activities – many of which are low-risk – while pregnant.
Similar laws have been introduced in the United States in similar circumstances. These laws have caused a whole new body of law to develop around the “legal personhood” of foetuses. For instance, in 2004 a Utah woman was charged with murder when she refused to undergo a c-section for her twins and one died at birth.
In 2003, a disabled woman in Florida who became pregnant after being sexually assaulted had a legal guardian appointed over her foetus and was forced to give birth.
Women in the United States have also been prosecuted for drinking, smoking and taking drugs during their pregnancy. If foetuses are given the same legal status as their mothers, it’s likely that we’d see a whole raft of similar cases here in NSW.
2. How Zoe’s Law could make things worse.
This fact wasn’t lost on former NSW Supreme Court judge – the Hon Michael Campbell QC. Three years ago he was given the job of considering 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 were serious flow-on effects in giving legal recognition to a foetus.