Along with a number of other women’s organisations and services, Women’s Abortion Action Campaign (WAAC) has written to the NSW Attorney General, Greg Smith, as well as other NSW MPs to express our grave concerns about the Crimes Amendment (Zoe’s Law) Bill 2013 No. 2 soon up for debate in the parliament.
An earlier version of this bill was introduced by Fred Nile. The current version was introduced by Chris Spence, MP for The Entrance, in late August.
The draft Bill was developed as a result of injuries sustained by Brodie Donegan on Christmas day 2009 near Ourimbah (in the state seat of The Entrance).
Donegan was 32 weeks pregnant when she was hit by a vehicle, and pinned under it for three hours before being rushed to Royal North Shore Hospital. Despite her requests, doctors chose to stabilise Donegan's condition before conducting an emergency caesarean. A foetal heartbeat, clearly audible when she was admitted, was no longer present two hours later.
An emergency caesarean was performed and Donegan and her partner, Nick, were able to hold the foetus, which they named Zoe. Though Donegan had been advised she could see Zoe as many times as she wished, miscommunications led to police taking the foetus to the Coroner.
Many women who have experienced a still birth will know how distressing that last event, in particular, would have been for Donegan.
So, some will see that this Bill has come from a “good” place in terms of motivation.
Chris Spence has said he didn’t intend to create an anti-abortion outcome. Unfortunately, good intentions provide no guarantee the potential harm of this Bill could be contained.
There are several issues of concern to reproductive rights activists with regard to this Bill.
Firstly, it draws a distinction between a foetus before and after 20 weeks of pregnancy and thereby changes the legal status of a foetus:
The Bill proposes to create a new offence of grievous bodily harm to a foetus by drawing a distinction during pregnancy at before 20 weeks of pregnancy and after 20 weeks of pregnancy. The Bill defines an “unborn child” as “the foetus of a pregnant woman that is of at least 20 weeks gestation or if this cannot be reliably established, a foetus with a body mass of at least 400 grams”.
That is, this Bill ultimately utilises anti-abortion language and it moves away from terminology which is scientifically and medically correct. There is no place for emotive and incorrect terms to be used in our laws.
Medically, pregnancy involves a zygote and then an embryo in the early stages, which develops into a foetus. Upon live birth the foetus becomes a child when at least one of the signs of independent life is detected. We cannot allow our laws to move away from medically and scientifically correct terminology.
The draft law is a clear attempt to undermine women’s reproductive rights. Womens’ organisations who have objected to this Bill, including WAAC, argue that there is sufficient scope in the current wording of the Crimes Act to respond appropriately to all criminal incidents involving the destruction of a foetus.
If this Bill is carried, it will open up avenues for women who have experienced miscarriage, stillbirth or foetal harm as a result of a criminal act to be legally persecuted by anti-abortion organisations or even aggrieved former partners. At the very least it will introduce the real risk of unwanted and invasive scrutiny of individual women by social workers, police, medical staff and even private individuals.
Potentially, this law will provide an avenue through which those with anti-abortion sentiments can interfere in a woman’s life. Some may claim this view is alarmist – but there is a clear pattern discernable between the introduction of foetal personhood laws and increased legal scrutiny of women in several US states. From long experience of anti-abortion activity in both NSW and in other states WAAC knows such interference can and will occur.
The proposed amendment is neither necessary nor appropriate. It is inappropriate because it is based on an incorrect assumption that a foetus is a separate human personality capable of being the subject of a crime of violence. It is unnecessary because current NSW law exists which offers substantial penalties for the same offence (grievous bodily harm), without introducing the new legal concept of foetal personhood.
Finally, women’s reproductive rights are essential human rights. This draft Bill elevates the impact of any action on a foetus over the rights of a woman.
The UN Convention on the Elimination of All Forms of Discrimination Against Women, Article 16(e) provides that women should be free of discrimination in exercising “rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights”.
Any further award of personhood status to a foetus may affect the lawfulness and accessibility of abortion in NSW, particularly for procedures carried out later in a pregnancy. One can never underestimate the ability of a party who has anti-abortion sentiments to exploit language and legislation to their own ends. This has been proved time and time again both here in Australia and overseas.
In its current form the Bill appears, superficially, to be a caring response to an awful event. After working for women’s rights for over four decades, WAAC members feel deep sympathy and empathy for Donegan and her partner for their loss.
But sympathy and empathy for individuals, however tragic the situation, do not alone provide a basis for changes in laws which have the very real potential to cause distress and criminalisation for many others.
This is why WAAC strongly urges NSW MPs to vote “No” to this Bill.
Find out more about the amendments at the NSW Women’s Legal Service.
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