Should New South Wales enact the Crimes Amendment

Indeed, like other matters that tend to touch on abortion rights, Zoe’s law has emerged just as divisive. The law’s promoters have presented the argument that the Bill is meant to protect the unborn children. The Bill’s supporters assert that the deaths of unborn children should be punishable if they have resulted from violence or trauma meted on the mother or due to acts of recklessness. As such, the Bill seeks to give legal recognition to deaths of unborn babies, a currently grey area, legally. The argument has, however, not been satisfactory to the opponents of the Bill. While the driver faced charges for Donegan’s grievous bodily harm, he was not charged for the death of the unborn baby as the death, as already mentioned earlier, is not recognised under the law.

The mother has since relentlessly lobbied for the law to be amended so that such deaths of unborn babies that result from recklessness can be punished in a court of law. In essence, the proposed Law, Zoe’s Law, seeks to recognise as an offence grievous bodily harm subjected to a fetus. The Bill was firstly proposed by Fred Nile an MP aligned with the Christian Democrats. It was reintroduced by Chris Spence, a Liberal MP, in 2013. Although the law has the effect of granting personhood to a fetus, it is not intended to dilute women’s reproductive rights or even jeopardize abortion in NSW. The concerns that the law could lead to prosecution of women for aborting can easily be addressed.

Indeed, the proponents of the Bill are well-intentioned. The basis of supporting the Law is the recognition that a fetus, although reliant on the mother, is an independent entity deserving of moral and legal protections. If successfully passed into law, the fetus would attain legal personality unlike the current status where such status is nonexistent. Importantly, miscarriages should not lead to charging of the concerned women on suspicion of malicious destruction of fetuses. Necessary guarantees and provisions should accompany the Bill to address the concerns that the law may put at risk reproductive rights of women or endanger the careers of medical professionals working within the guidelines and code of conduct of their respective jobs. Such have been the issues raised by various vocal entities including New South Wales Bar Association, Women’s Legal Services NSW, Australian Medical Association NSW Branch, among others4.

Their main area of concern about the law is that vulnerable and disadvantaged pregnant women may easily fall victims to the law. Similarly, other Australian jurisdictions whose legislative assemblies have attempted to pass the legislation have had limited success if any. In effect, the law expands the range of victims to include unborn children by granting them legal personhood. The Crimes Amendment Bill 2013 (No 2) need not necessarily be passed exactly as it is. The concerns of the opponents should be considered and addressed. In fact, a range of adjustments or amendments have been proposed to mitigate various areas of contention, including the matter of definitions. One such recommendation is the Finlay Review that, indeed, supported the creation of a new offence criminalising the killing of an unborn child6.

At least, such laws place limitations to a woman’s autonomy and ability to make exclusive independent decisions by influencing conditions under which an abortion may be procured. For instance, in most jurisdictions including in Australia, such abortions may only be done if the mother’s life is in danger, otherwise, they would constitute a crime. Therefore, it is not unprecedented, contrary to Zoe’s law critics’ persistent claims, for women’s rights and freedoms to be impeded by law9. Similar observations are made by Faunce & Jefferys who observe that the Australian women, generally, lack constitutional right to on-demand abortion10. Zoe’s law will be just another of such other laws that have sought to improve protections of the unborn child.