The bill that could criminalise abortion in Australia


There are few things more reprehensible than the exploitation of a person’s genuine tragedy to further your own political agenda. But that’s exactly what we’ve come to expect from ‘Reverend’ Fred Nile, whose campaign to pass the emotively titled ‘Zoe’s Law’ into NSW legislation continues apace. Nile’s proposed law would transfer personhood onto a fetus, and make it a criminal offence punishable for anyone to ‘cause serious harm to or the destruction of a child in utero’.

Zoe’s Law was drafted in response to an accident that occurred in 2009 on the NSW Central Coast. Brodie Donegan was eight months pregnant when, while taking an afternoon stroll, she was mowed down by a van. She suffered a shattered pelvis and fractures to her spine, leg and foot. Tragically, her unborn baby didn’t survive. Zoe Donegan was stillborn at 32 weeks. As Donegan would later learn, the driver of the van had been high on a cocktail of alcohol and prescription drugs.

Here’s where the law gets tricky. NSW legislation assigns personhood based on whether or not a breath has been taken. Because Zoe was stillborn, it was legally impossible for charges of manslaughter to be brought against the driver of the car. Instead, existing legislation allowed for Justine Hampson to be charged with the grievous bodily harm caused to Brodie Donegan. For Donegan’s injuries, Hampson received a nine month prison sentence with no possibility of parole.

There have been two responses to this. The first is from Brodie Donegan, who is  justifiably upset that no course of action was available to acknowledge that Hampson’s reckless behaviour directly caused the death of her unborn baby. As Donegan has said, “I think it's about the victims feeling that someone has taken responsibility for the baby losing its life. It's important for the victims to feel like their baby mattered and counted.'' 


The second response came from Fred Nile, who (without consulting with the Donegans) has spent the last three years trying to ferry through a law in their daughter’s name that would pave the way for abortion to be further criminalised in NSW by ascribing personhood to unborn fetuses. Way to go, Rev!

For the purposes of the law currently, fetuses are considered to be a part of the woman carrying them - which is why the charge of grievous bodily harm against the mother (which carries a punishment of up to 25 years in prison) is applied, and pretty effectively. Nile’s Bill seeks to remove that consideration entirely, establishing the fetus from conception as a person in its own right and subject to protection under the law.

Nile has been careful to include wording that suggests the offence (which would carry a penalty of up to 10 years in prison) won’t apply to medical procedures or to ‘conduct engaged in, by or with the consent of the mother of the [fetus] in utero’. But consider this: in February this year, Nile embarked on a graphic campaign in the NSW Parliament, distributing colour images of abortion procedures in a publication designed to support not just Zoe’s Law, but the four other pieces of Nile’s proposed abortion legislation. His bills call for:


1. Abortion seekers to be required to undergo counselling and to view an ultrasound of the unborn fetus before proceeding with an abortion;

2. Abortion seekers to be (incorrectly) informed that abortion causes pain to the unborn fetus;

3. The prevention of abortion on the grounds of race or sex; and

4. The complete outlawing of the abortion of fetuses with a detectable heartbeat.


Fred Nile is anti-abortion. And in yet another of his attempts to further criminalise it, he’s exploiting the very real pain and tragedy of a family whose own desire for acknowledgement is currently at odds with the law.

Even Brodie Donegan is shocked by the intent of Nile’s Bill. After its introduction, she told the Sydney Morning Herald, “I was quite shocked by what Fred Nile has proposed. What we want has nothing to do with abortion; we support a woman’s right to have an abortion. We lost our baby unwillingly in a completely different context.”

Since then, the Donegans have been working with Liberal MP Chris Spence on an amended version of Zoe’s Law, called Zoe’s Law II. The new Bill would recognise fetuses at 20 weeks and over, or fetuses weighing at least 400 grams as living persons under the Crimes Act. Harm or destruction caused to such fetuses could result in charges of grievous bodily harm being laid against them directly, not the person carrying them. Like Nile’s Bill, Spence’s amended version contains specific exemptions for medical procedures or ‘anything done by or with the consent of the pregnant woman’.

On the surface, it’s easy to see why such proposed legislation would seem reasonable, particularly when contextualised by the horrible loss of the Donegan’s very much wanted baby. But while I have all the sympathy in the world for Brodie Donegan (and truly, my heart breaks for her just thinking about it), I also know that the legislative application of personhood to fetuses is a very, very slippery slope that we should be wary of wandering too close to, particularly when the limitations of time periods are put in place. Legislative arguments that incorporate words like ‘personhood’, ‘viability’ and ‘fetal rights’ are code for anti-choice sentiments that are always used as an attempt to limit the fundamental right for those born biologically female to control their reproductive choices, if not reverse them entirely. Conversations about fetal care and treatment are appropriate between these people and their healthcare providers - not their legislators.

In both its inceptions, Zoe’s Law will ultimately open up the possibility of limiting reproductive health care choices in NSW while potentially only ‘protecting’ a very, very small number of fetuses whose parents have naturally projected an emotional personhood onto them. Once you broach the topic of personhood in a fetus, you make it that much easier for anti-choice legislators and campaigners to chip away at hard won rights that have saved countless women and biologically born females over the years. And reversing these rights won’t prevent abortion - it will only make them happen later and increase their risk.

This isn’t an easy situation. As Donegan says, people who’ve experienced the loss of a wanted baby at the hands of someone else naturally want to feel like the life that they valued so highly is acknowledged. They want to feel like their baby mattered and counted. And of course it does. Because for pregnancies that are very much wanted, the welfare of the unborn fetus is inextricably linked to the desires and autonomy of the person carrying it, and it is their life that experiences the full brunt of its loss.

But the law cannot confer personhood onto a fetus, because a fetus isn’t a person yet. Recognising it as such, first as a victim of GBH and then perhaps later as a victim of termination or reckless drug use or dangerous driving or whatever it is that’s invoked as evidence that deliberate harm is being caused to an innocent person might allow for individual cases to be mourned by the legislature, but it will cause countless more trauma to those people denied the services, help and medical intervention needed to terminate a fetus they do not project emotional personhood onto and where circumstances have sadly aligned to result in the need for a late term termination. 

The loss of Zoe Donegan has had a profoundly traumatic effect on the family that so eagerly awaited her. But the introduction of legislation that would wrongly recognise the personhood of fetuses and confer rights on them under the law? That would have a profoundly traumatic effect on every person capable of bearing a child, and it must be opposed in every one of its different guises.