Why Zoe's Law Must be Defeated


As progressive Australians come to terms with the new federal Coalition government, conservative elements of the Parliament of New South Wales have launched a fresh attack on women’s rights.

This latest episode comes in the form of the Crimes Amendment (Zoe’s Law) Bill 2013 (No 2), introduced as a private member’s bill by Liberal Chris Spence last month. Zoe’s Law Bill No 2 is a repackaged version of an earlier bill from Fred Nile with essentially the same aim: to achieve legislative recognition of foetuses as living persons, entirely separate from their mothers.

Put another way, Zoe’s Law does not seek to create a new offence against persons under the law – it instead redefines what it is to be a "person" in NSW for grievous bodily harm (GBH) offences. This is both dangerous and unnecessary.

Legal personhood has been a battleground issue for “pro-life” and “pro-choice” activists in the United States for many years. The danger is that if legislated in a way preferred by anti-abortion groups, legal personhood for foetuses would incriminate women and their doctors in the procurement of otherwise legal abortions.

In Colorado, for instance, a law has been proposed in the aftermath of very similar, tragic circumstances to Zoe's law. "Brady’s Amendment" has been pushed and applauded by extreme right groups such as Personhood USA as a “pro-life” bill. It is deeply concerning that laws with comparable objectives and implications are coming to NSW. No other Australian state has equivalent legislation.

Spence has repeatedly argued that the exceptions provided in the Bill, concerning anything done in the course of a medical procedure or with the consent of the woman, guarantee that his amendment would not infringe upon a woman’s right to terminate a pregnancy. However, the exceptions do not meaningfully buffer against the overarching conceptual change represented by the Bill.

Moreover, it is outrageous that a woman’s legal right to terminate her pregnancy could be threatened by the law telling her that she is at risk of criminal liability until she can prove that she falls into a narrow exception. Zoe’s Law further pushes lawful termination of pregnancies to the fringes of legal debate, where it shamefully already lies as an exception to sections 82-84 of the NSW Crimes Act.

The NSW Bar Association opposes the bill, noting that the Crimes Act was amended as recently as 2005 to address the destruction by a person of the foetus of a pregnant woman against their wishes. As a result of these amendments, such an act is considered a crime against the mother, regardless of any other harm to them, and is punishable with a maximum 25 year sentence.

Only three years ago, the NSW Attorney-General instructed Michael Campbell QC to investigate the adequacy of criminal offences surrounding foetal destruction. Campbell recommended no changes, advising the Parliament that moving towards foetal personhood may result in prosecutions of mothers where they are deemed to have acted contrary to the interests of the “person” they are carrying.

The Bar Association also argues that there are “legitimate concerns” about the broader implications of the bill. Once we adopt a definition of a foetus as a living person for the purpose of this bill, “it would be difficult to resist its adoption in respect of other New South Wales criminal laws”.

The unfortunate truth is that this is just the latest in a sustained attack on women’s rights. Women occupy only a fifth of Lower House seats and comprise less than a third of the Upper House. Until we all demand that women’s bodies and women’s rights are not political bargaining chips on the floor of parliament, we will be playing defence yet again before long.

While the Greens unequivocally oppose this bill, Labor and Coalition MPs have been granted a conscience vote. Fred Nile is supportive of the new bill, and is expected to introduce it into the Upper House, should it pass the Legislative Assembly.

As MPs debate this Bill in the coming weeks, a grassroots movement is building in  opposition to this unnecessary piece of legislation and its broader implications for women’s right to choose and have control over their own bodies. Women’s rights should not be political pawns, nor issues of conscience.

Supporters of women’s rights both inside and outside Parliament must now come together, as we have done on innumerable occasions in the past, to make our voices heard and challenge this alarming legislation before it is too late.

Dr Mehreen Faruqi is a NSW Greens MP and a civil and environmental engineer.