Zoe's Law has been looming over NSW women since it was first introduced to parliament in 2010. With only two sittings left for the year, it is likely the bill will finally be debated in the Upper House this Thursday. If it passes, then a foetus of 20 weeks or more will be regarded under the NSW Crimes Act as a "living person," meaning anyone found to be causing harm to the foetus could be subject to charges of grievous bodily harm.
The bill was drafted following the loss of Zoe Donegan, who was stillborn at 32 weeks after her mother Brodie was hit by a drug-affected driver. While the bill has languished due to lack of support, a similar accident last year causing the loss of another foetus has renewed calls for its support.
These tragedies cannot be denied. Ms Donegan, who has been one of the driving forces behind the current incarnation of the bill, says her stillborn daughter, "deserved recognition separately from me."
While that is certainly true in terms of moral recognition, any such legal recognition will have terrible consequences for women, but not necessarily for the reasons many people may think.
Much of the opposition to Zoe's Law has centred on concerns that it will impede women's access to abortion. Like the bill's parliamentary supporters, Ms Donegan (who says she is pro-choice) has tried to reassure women that the law will not affect reproductive rights, or "anything done by the mother or with her consent."
I have no doubt that Ms Donegan sincerely believes that the rights of women will be protected.
Unfortunately, I also have no doubt that Ms Donegan is wrong.
The precedent has already been set in other countries. Wherever there has been a push for foetal rights, women have suffered disastrously.
And, as Lynne Paltrow and Jeanne Flavin from Advocates for Pregnant Women, point out in this timely New York Times article, abortion is only a fraction of the story. In fact, foetal personhood has the potential to negatively impact all pregnant women, whether they seek an abortion or not. Paltrow and Flavin explain:
"(W)hen the state is regarded as protector of foetuses, then the rights of the woman carrying them will suffer…Based on the belief that he had an obligation to give a fetus a chance for life, a judge in Washington, D.C., ordered a critically ill 27-year-old woman who was 26 weeks pregnant to undergo a cesarean section, which he understood might kill her. Neither the woman nor her baby survived.
In Iowa, a pregnant woman who fell down a flight of stairs was reported to the police after seeking help at a hospital. She was arrested for "attempted fetal homicide."
In Utah, a woman gave birth to twins; one was stillborn. Health care providers believed that the stillbirth was the result of the woman's decision to delay having a cesarean. She was arrested on charges of fetal homicide.
In Louisiana, a woman who went to the hospital for unexplained vaginal bleeding was locked up for over a year on charges of second-degree murder before medical records revealed she had suffered a miscarriage at 11 to 15 weeks of pregnancy."
The more foetuses, embryos, and even fertilised eggs(!), are increasingly seen as "persons" with separate rights under the law, the more pregnant women are deprived of liberty, privacy, and the freedom to make their own medical decisions.
Opponents to Zoe's Law have been warning about unintended consequences since the original version of the bill was first floated by none other than Fred Nile who, unsurprisingly, wanted to grant personhood from the moment of conception.
These opponents include lawyers and doctors groups, such the NSW Bar Association, the Director of Public Prosecutions, and the Australian Medical Association. Lawyer Julie Hamblin warns that despite the exemption provided to women in Zoe's Law, there can be no guarantee that it "will not be used to assert rights on behalf of a foetus in opposition to those of the mother. And, even with the stated exemption in the bill for medical procedures, one could not blame doctors for being uneasy about what duties they might be found to owe to the foetus as a "living person".
Hamblin is right to be concerned. From the United States to El-Salvador to Ireland, we have already seen that whenever the state separates the foetus from the woman carrying it, women inevitably suffer.
Women are being forced to have dangerous C-sections they don't want. They are being criminalised for falling down stairs, and jailed for having miscarriages, all under the guise of foetal protection.
These are severe violations of basic human rights. What personhood laws do, far from protecting foetuses, is not only endanger women's lives and liberty, but criminalise women should they, for whatever reason, fail to successfully give birth to a healthy baby.
How can anyone not find the prospect of introducing such a scenario into Australia utterly terrifying?
As I have written before, by its very nature of pitting the rights of the foetus against the rights of the woman, foetal personhood, at any stage of pregnancy, diminishes the personhood of women. The rights and lives of women should not be dependent on a flimsy "exemption" in a crime law.
Defeating Zoe's Law is about far more than reproductive freedom. It is folly to think that Australian women will somehow escape the fate that has met women overseas. If our parliamentarians value women as full human beings, they must not pass foetal personhood into law.