The NSW lower house yesterday voted to recognise the foetus as a separate living person. Despite significant concerns expressed by the Bar Association, Chris Spence, the Liberal MLA who put forward the bill, attempted to offer reassurance that it would not be used to restrict the reproductive rights of Australian women.
As we debate the potential legal ramifications of this decision, it’s important that we don’t lose sight of one of the key drivers of this legislation: the disenfranchised and often unnamed grief of mothers who lose their children before birth.
Forty-five years ago when my brother died, my mother was told many things; how she should have another baby, how it was a blessing, how lucky she was to still have me. My grandmother constructed a family tree and left him out of it. We were supposed to move on and we were supposed to do that with as few words and as little recognition as possible.
Similarly, when Brodie Donegan lost the baby daughter she was carrying in a collision in 2009 with a drug-affected driver, her 32-week-old daughter Zoe was legally recognised as simply one of her mother’s many terrible injuries. There were no words to distinguish Donegan’s physical injuries from the loss of her child.
Donegan wanted this lack of recognition and understanding addressed. She wanted her loss to be acknowledged legally and with the right words.
So she became part of a process to put forward a bill, named after her daughter. It was passed by a significant majority in a conscience vote and recognises that foetuses over 20 weeks who die in utero as a consequence of dangerous driving (and a number of other offences) are separate people. The bill will be debated in the upper house next year.
We have already been given hundreds of good reasons why this bill has the potential to be used to severely restrict the reproductive rights of women. The AMA, the NSW Law Society and other experts have expressed concern that this legislation could have as-yet-unknowable consequences for women’s reproductive autonomy. Recognising the foetus as a separate person has led to, among other unconscionable things, a woman being charged with murder over her birthing choices.
We need to be very afraid of what this means for women in this country. But we also need to address the silence surrounding the grief of women whose unborn children die. We still need to respond to the losses of mothers like Brodie Donegan. We need a language to speak about losing an unborn child in the eyes of the law.
We need words to grieve and we need other people to name our losses in order to make sense of them and to build our new worlds around the empty space they leave behind. Forty-five years ago when my brother died, those words were almost never spoken.
Things have gotten better since then, it’s true. The silence surrounding grief and bereavement is being slowly filled by words of acknowledgement and words of compassion. But until we have a language that clearly names loss in all of our institutions, then there will always be the risk that in our grief we will choose to be heard in any forum available, no matter what the consequences may be for others.
So while we are understandably and rightly critical of Zoe’s Law, we need to also be critical of legislation that doesn’t have words for the death of a child yet to be born to a mother who loved her.
Unacknowledged grief makes us vulnerable to being used by others with an agenda that has nothing to do with naming what we’ve lost. Until we can give that pain words, the grief of women like Brodie Donegan will be used as it has been for millennia, to silence and control the choices of other women.
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