Zoe's Law: What Cost Extending Personhood Pre-natally?

A potential victim of crime.

Zoe's Law is a bill currently before the New South Wales Parliament to amend the section of the Crimes Act dealing with grievous bodily harm, adding a specific definition of 'unborn child' (being a foetus of twenty weeks or more gestation, or a mass of at least 400g).

Most troubling for pro-choice advocates, it includes this provision:-

(2) For the purposes of an applicable offence:                                         
(a) an unborn child is taken to be a living person despite any rule of law to      
                          the contrary, and                                                           
(b) grievous bodily harm to an unborn child is taken to include the                
                          destruction of the unborn child. 

(full text)

There are savings provisions to the effect that the section does not apply to medical procedures or acts by consent of the woman concerned. These exist to placate women worried about the erosion of their right to decide to legally terminate an unwanted pregnancy. Why we might be worried by this type of reform? We only have to look to Georgia, USA in 2011 - when a representative tried to pass a bill that put the onus on women who miscarried to prove they weren't guilty of murder. NSW Liberal MP Chris Spence, who introduced the bill, should be able to understand why women's advocacy groups are touchy on this subject. Granting personhood to a foetus is traditionally a legal position that has not boded well for a woman's right to choose to take a pregnancy to full term or not.

Mr. Spence has beseeched anyone with doubts about the intent of Crimes Amendment (Zoe's Law) Bill 2 (2013) to go read the second reading speech. Heavily doubt-laden, I did just that. I learned that the bill is a response to a case where a woman (Brodie) was crossing a road when she was hit by a drug and alcohol affected motorist. She was thirty-two weeks pregnant at the time.  The force of the impact caused extensive injury to her - shattering some of her bones. The previously healthy foetus, which she had named Zoe, was stillborn. The driver responsible was charged, and served jail time for the offence of grievous bodily harm of Brodie. Zoe was listed as an injury to Brodie, not a death in and of herself. The core part of this issue seems to be that the parents felt less vindicated in their grief because their unborn child was not treated as a person for the purposes of the Crimes Act.

Mr. Spence refers to a variety of legal mechanisms which apply only to a foetus lost after 20 weeks. The loss must be recorded with Births, Deaths & Marriages and certificates issued. The baby bonus is available. Maternity/grief leave is available. It seems an arbitrary line. In circumstances where a birth is happily anticipated by a mother, if the pregnancy fails at 19 weeks and two days we don't extend the baby bonus or maternity leave, and this feels arbitrary and wrong.  Does a matter of days or weeks make that much difference between the grief felt over a miscarriage? I suspect not. Drawing the line at 20 weeks for the state to include vengeance into criminal statute is similarly arbitrary and insufficient, if the goal is to give grieving parents satisfaction. It is an area which I think must be deeply personal and deeply subjective, and in such fields the law is an indelicate instrument.

I have unqualified sympathy for Brodie and her family in their loss -from the story related in the second reading speech, and their advocacy for legal reform in this process, it is clear they grieve for the loss of the child they did not get to have. This was a traumatic event which had a devastating impact upon their family. Given, though, that Zoe's Law would not in fact turn what occurred from a grievous bodily harm charge to a manslaughter charge, it seems unlikely that it would increase the sentence available to the judge in a case like theirs - not because it was not tragic, but because the loss of Brodie's foetus was already covered under the law. I am wary of causes like this, however, that seek to tie one family's distressing emotional experience to a reform of the laws which may have a broader impact on us all. I do not believe that a harsher sentence, or a recognition of Zoe's personhood as a victim, could truly be much comfort to her parents.

Assaulting a woman and causing the loss of a foetus is already a serious GBH offence punishable by up to 25 years imprisonment (if intentional), 14 years (if in the company of another person and recklessly) and 10 years if recklessly.  Recklessly, in this context, means to commit the act with disregard for the possibility of injuring others. A driver who drives dangerously where pedestrians cross is reckless to the possibility of injuring them. A law which grants personhood to a foetus in circumstances like those set out in the reading speech of Zoe's Bill is a law which will struggle to demonstrate the requisite recklessness - were you reckless in your driving sir, such that you did not consider the prospect of damaging a foetus? In any circumstance where a foetus is going to be lost as a result of a serious violent offence, there will already be a crime, and a victim; the woman upon whose body the foetus is reliant for survival.

Women's legal advocacy groups fear individual women who suffer miscarriages as a result of a criminal act may be subject to unwanted and invasive scrutiny under this proposed law. Victims of domestic violence may be further victimised by a State determined to prosecute - and if we have granted the foetus personhood, we may undermine women's rights to some say in the proceedings, to not to merely be a field for the collection of evidence. Some commentators are even suggesting that women who engage in risky behaviour during their pregnancy could be charged with a crime against their foetus.

This is an emotional area, and there are clearly stories of deep personal grief on both sides. It does our lawmakers little credit to legislate based on such appeals to emotion (for example, naming a prospective law after the stillborn baby of grieving parents) without considering calmly and rationally what impact this bill could have on our legal system. Critically, whether it stands any real chance of achieving something new and meaningful, and what the inherent risks are. The second reading speech Mr. Spence wanted me to read so badly tells a deeply personal, deeply emotional story, and it draws my sympathy. That story, and sympathy for grieving parents, should not be enough to set in motion a reform which will do very little in practical terms to assist parents like Brodie and which creates legal personhood which may well critically undermine the rights of existing legal persons - women - as a class.