Concern at push for foetus rights

September 20, 2013
Protesters outside NSW Parliament House on September 19. Photo: Pip Hinman.

A push to give a foetus “personhood” has been, until now, quietly making its way through the NSW parliament.

About 100 people packed out the NSW Parliamentary gallery on September 19 to witness a debate on a bill to amend the NSW Crimes Act to give foetuses of 20 weeks, and more than 400 grams, “personhood” or legal rights.

Liberal MP Chris Spence and his supporters, including anti-abortion campaigner Fred Nile, say the Crimes Amendment (Zoe’s Law)(No. 2) Bill aims to fix a loophole in the NSW Crimes Act. They say the loophole allows those who commit a crime against an “unborn child” to go unpunished.

The bill is named after the stillborn daughter of Brodie Donegan, who was 32-weeks pregnant when she was hit by a car on Christmas Day in 2009 near Ourimbah on the central coast. Donegan suffered severe injuries and an emergency caesarean was too late to save the foetus.

The driver was convicted of committing grievous bodily harm and sentenced to nine months in jail. The bill’s supporters say the sentence was too lenient.

Since 2005, grievous bodily harm under the NSW Crimes Act 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”.

This definition upholds the rights of the mother while still allowing for a crime of harm to her pregnancy to be prosecuted. Grievous bodily harm carries a maximum 25 years in prison if there was intention to cause harm, 14 years if a company recklessly causes harm, and 10 years if a person recklessly causes harm.

Soon after the tragic accident, the state government appointed Michael Campbell, QC, to review the Crimes Act and report on any need to amend it to address cases involving the death of an unborn child. Campbell said the existing criminal offences were appropriate and warned of the “unintended consequences” of such an amendment.

Campbell said the 2005 amendment to the NSW Crimes Act “appropriately reflects the seriousness of the offence and, most importantly, differentiates between abortions and criminal acts by third parties resulting in fetal [sic] death”.

He said the NSW definition of grievous bodily harm means that the law does not have to deal with complicated medical issues of whether a foetus was viable. Importantly, it recognises that pregnancy is part of the pregnant woman and not a separate legal entity. It “avoids the common law issue of whether there is ‘a creature in being’ to which harm can be done”, he said.

This important differentiation is not made in a special exception, but is structurally encoded in the law.

This is what supporters of this bill want to change.

MPs speaking in favour of Spence’s bill in parliament made clear that their main concern was for the foetus, or “unborn child”. They argue that giving a foetus at 20 weeks (or weighing more than 400 grams), the status of “personhood” would enable it to bring assault-related charges against those who cause their deaths.

They say exemptions could be made for medical procedures and female “victim’s rights to choose”, opponents of the bill say that this is no protection from the anti-choice lobby.

In the parliament debate, Liberal MP Tanya Davies repeatedly said that the term “still-born child” — used in the Births, Deaths and Marriages Act — should be replaced by “unborn child”. “A woman’s right to carry her child to full term is her ‘right’ and her ‘choice’,” she said.

National Party MP Troy Grant said the bill was necessary to deal with “the realities of the 21st century”. He said there were plenty of people who had suffered through tragedies like Donegan’s, including his mother who gave birth to twins, one of which was still born.

Spence’s bill has several similarities to one Nile wanted to introduce in February.

The Crimes Amendment (Zoe’s Law) Bill 2013 aimed to amend the Crimes Act 1900 to prohibit conduct that causes serious harm to or the destruction of a child in the womb.

Nile wanted to set a precedent for all stages of pregnancy to be considered legal “personhood”. But the idea that a zygote/embryo/foetus has legal rights from the moment of conception did not get widespread support.

Nile, like other anti-choice campaigners, has been studying the US anti-choice movement. There, a “personhood” constitutional amendment, which says a fertilised egg should be considered a person in the eyes of the law, is being pushed hard by the right in several states.

Women’s rights activists in the US say that if this amendment were to become law, women’s rights to choose would be all but eliminated and abortion, certain types of contraception and in-vitro fertilisation could amount to murder.

Abortion still a crime

Spence’s bill is of particular concern given that abortion is still governed by the 1900 NSW Crimes Act. Abortion can still — legally — be criminalised, targeting a woman for undergoing an abortion and the doctor for performing it.

Abortion is widely accessible, but it’s only because of a 1971 ruling that said abortion is legal if a doctor found “any economic, social or medical ground or reason” that it was necessary to avoid a “serious danger to the pregnant woman’s life or to her physical or mental health” at any point during the pregnancy.

Julie Hamblin, a Sydney lawyer who has worked for many years on sexual and reproductive rights, said in the September 18 Sydney Morning Herald that not only was Spence’s bill of grave concern, it was even more alarming in the context of the illegality of abortion rights in NSW.

“NSW courts have held that where an abortion is necessary to prevent a serious risk to the life or health of the woman, it can be undertaken lawfully, but the Crimes Act does not recognise this explicitly. When the next abortion prosecution is brought in NSW (which is only a matter of time), a court will again have to review and determine the test of lawfulness based on legal precedent and the facts of the case.

“Against this background, it would be foolhardy to believe that Zoe's Law would have no impact on the legal status of abortion in NSW. Judges strive for consistency and coherence in the principles they apply to legislative interpretation. Once Parliament has declared a foetus to be a living person in one context, the overwhelming tendency would be for judges to take this into account – not conclusively, but perceptibly – whenever other issues involving the legal status of a foetus arise. Zoe's Law would add a new weapon to the armoury of those seeking to secure a conviction for unlawful abortion.”

The debate on Spence’s bill was adjourned after 40 minutes. Two Labor MPs (including opposition leader John Robertson) and one Liberal, Robyn Parker, spoke against it. One Liberal and one National MP spoke in favour.

MPs will have a conscience vote, so there is no way to know how the numbers will stack up when the bill returns to parliament on October 17.

Labor MP Paul Lynch said the Campbell recommendations, the NSW Bar Association, the Australian Medical Association (AMA), the Director of Public Prosecutions and the Victorian Law Reform Commission all say there was no loophole in the Crimes Act.

AMA's NSW president, associate professor Brian Owler, has warned that the bill could affect access to late-term abortions.

In relation to Nile’s bill he said: “The problem is that once you actually recognise the foetus as being a person with rights, it’s actually not possible for the mother, for instance, to give consent for someone to actually perform the abortion.”

Lynch said that that the bill was really about stopping terminations: “the thin edge of the wedge” for women’s right to choose.

Keep up the pressure

Dr Mehreen Faruqi, the NSW Greens’ Status of Women spokesperson, told Green Left Weekly that pro-choice activists had to keep up the pressure on MPs while the bill was adjourned for further debate on October 17.

“From today’s debate, it is clear that the strong opposition from community groups and legal and medical experts is starting to get through.

“Unfortunately, there are still parliamentarians who are simply not listening, and defend this bill as having no impact on women’s rights.

“It is truly unbelievable that MPs in favour of this bill would take the word of Chris Spence over the legal advice of the NSW Bar Association, Community Legal Centres NSW and the NSW Women’s Legal Service.

“The Greens see this bill for what it is — an ideologically-driven tactic from those who would seek to restrict women’s access to reproductive health and rights.

“While the best outcome would be the defeat of this bill in the Lower House, the Greens and our progressive allies from across the political spectrum are already building momentum to overcome it in the Legislative Council.”

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