'Foetal personhood' a step closer to becoming law

November 22, 2013

On the same day that Tasmania decriminalised abortion, the New South Wales parliament took a big step backwards for women’s rights. The Legislative Assembly voted 63 to 26 for a bill aimed at giving 20-week-old foetuses the same legal rights as human beings.

Abortions occupy a grey legal area, although they still illegal in NSW, they can be performed if there is danger to a woman’s physical or mental health. There are fears this new law will strengthen those seeking to challenge terminations that are currently allowed.

The bill has been debated in parliament for three months and the Labor and Liberal parties allowed their MPs a conscience vote on the issue. Nine Labor MPs voted for this bill.

In the end, the bill was opposed by just 26 MPs on the basis that severe penalties already apply under the Crimes Act to those inflicting grievous bodily harm to a foetus. The Crimes Act had already been toughened in 2005 by extending the definition of grievous bodily harm to include the loss of an unborn child (Byron’s law).

Legal or “personhood” rights for fetuses would have unintended consequences for the rights of the mother and potentially a doctor, and significant legal and medical groups including the NSW Bar Association, the Australian Medical Association NSW, and the Royal Australian and New Zealand College of Obstetricians and Gynaecologists as well as women’s health providers and feminist organisations oppose the bill.

Two Liberal MPs said they opposed the bill because they believed life began at conception and not at 20 weeks (or 400 grams) as the bill had determined.

Chris Spence, formerly a One Nation member and now Liberal MP for The Entrance, introduced the bill in August after the Christian-right MLC Fred Nile failed to get support for a similar bill in the Legislative Council.

Before the vote on November 21, the bill was again debated.

NSW Premier Barry O’Farrell said he would only support it if MPs supported an amendment by Mark Speakman, Liberal MP for Cronulla. Speakman’s amendment purported to “clarify” that there would be no new level of criminality or sentencing imposed.

This proved to be the fig leaf the bill’s movers needed to persuade wavering MPs concerned about the bill’s potential to further restrict women’s reproductive rights — in particular late-term abortions — which are rare and increasingly harder for women to access.

Greens MP Jamie Parker, independent MP Alex Greenwich and Labor MP Carmel Tebbutt spoke against the Speakman amendment, reminding MPs that abortion is still a crime in NSW.

Greens MLC Mehreen Faruqi said on November 1 that if the Speakman amendment was not about imposing tougher sentencing for those charged with grievous bodily harm “then it was clearly about introducing the notion of ‘foetal personhood’”.

“The overriding danger of this bill, regardless of amendment, is that if legislated, anti-abortion groups can point to its precedence to bring criminal charges against women and their doctors in the procurement of otherwise legal abortions,” Faruqi said.

Greenwich said the Speakman amendment did “nothing to alleviate peak health and legal groups’ concerns that the bill provides personhood to a foetus, giving it rights that could be at odds with a pregnant woman’s”.

“If there were no risks to safe and legal abortions, the bill would not be subject to a conscience vote. Instead it would have been introduced by the Attorney General with briefings available.”

Many MPs have pointed out that “foetal personhood” would be a hugely significant change from common law, which recognises that life begins at birth.

Women’s rights groups are worried that a law giving foetuses personhood rights will open up the potential for the prosecution of 100 or so women each year who seek late-term abortions — including, possibly, by the foetus that they are carrying.

The Speakman amendment passed with 68 in favor and 21 against.

The bill will go to the NSW Legislative Council in early 2014 where it will be introduced by Nile.

Supporters of women’s right to choose are adamant that NSW will not become the first state jurisdiction in Australia to give legal rights to foetuses.

They are determined to continue the campaign against this bill becoming law as well as campaigning for NSW to follow Tasmania’s lead and remove abortion from the criminal code.

Abortion is a health issue. While it remains under the Crimes Act, women are not free to make the most personal of decisions about their lives.

For decades women have been told — mainly by the Labor Party — they should not “rock the boat” and campaign to get abortion out of the Crimes Act because “that could make abortion access more difficult”.

We’re now at a critical point. If Spence’s bill — which purports to support grieving parents — becomes law, abortion rights will become even more precarious than they already are.

It is way past time to treat abortion as a health issue — and that means a mass campaign to get it out of the criminal code.

As Van Badham said, writing in the Guardian on November 22, “A likely reduction in available abortion services could be the sly intention of the exercise [Spence’s bill]. Make no mistake: it's not a coincidence that those who design these bills are most often those already associated with anti-abortion beliefs.”

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