What's next for Zoe’s Law?

Brodie Donegan with her 2-year-old son Lachlan Ball and 5-year-old daughter Ashlee.

Brodie Donegan with her 2-year-old son Lachlan Ball and 5-year-old daughter Ashlee. Photo: Jacky Ghossein

New South Wales parliament will resume this week after a turbulent month for the Coalition government. In this context of rapidly diminishing trust and confidence in the government, it is possible that the Upper House will imminently consider legislation of great importance to the over 3 million women who live in our state.

The controversial foetal personhood bill known as “Zoe’s Law” sits ominously on the Upper House notice paper with no indication of when it will be moved. This is after having gone through the Lower House on 21 November last year with overwhelming support from both Labor and Coalition MPs.

Mehreen Faruqi, NSW Greens MLC and spokesperson for the Status of Women.

Mehreen Faruqi, NSW Greens MLC and spokesperson for the Status of Women.

On that same day, one thousand kilometres away the Tasmanian parliament in Hobart joined the ACT and Victoria in finally decriminalising abortion. Abortion reform in Australia, it seems, continues to be a matter of ‘two steps forward, one step back’.


The passage of foetal personhood through the New South Wales Lower House was disappointing for the many women’s rights advocates, lawyers, and doctors who have spoken out and organised against the bill. It heralds dangerous consequences for women’s reproductive health and bodily autonomy, as well as placing doctors and lawyers in precarious decision-making dilemmas.  However, after ongoing discussions, demonstrations, and efforts of key groups and individuals, the private member’s bill has now reached an impasse before the Upper House, more than five months after the bill was introduced there.

This provides a unique opportunity for progressive MPs, organisations and individuals to come together and set the agenda for the way forward. The time has come for us to start working to enforce the rights of women. This can only be achieved through the passage of a comprehensive New South Wales abortion decriminalisation bill which will ensure access to safe and legal reproductive health services. As pointed out by obstetrician and gynaecologist Professor Caroline de Costa, failure to decriminalise and reform abortion in some states results in abortion practices remaining a grey area for many medical practitioners. Removing abortion from the Crimes Act should be a public health goal.

Abortion law reform in New South Wales will not be an easy task, especially as many people are not even aware of the shaky status of the current law.  But we have no other choice. The debate around foetal personhood has only confirmed that women’s autonomy will continue to be under threat of persecution and prosecution from minority conservative forces until we actively move to repeal our out-dated and inappropriate abortion laws. Only in the last few months we have seen new efforts in Victoria and South Australia, for instance, where conservative right-wing forces have moved to again undermine reproductive rights.

As foetal personhood lingers here in New South Wales, the conversation appears to be turning towards its alternatives, that is, legislation that would recognise the involuntary loss of a foetus, without bestowing legal personhood on the unborn. Some women believe this is an appropriate measure.

At the moment, my personal position is that involuntary foetal loss is already adequately criminalised under New South Wales law as an extension of grievous bodily harm to the pregnant woman. This was legislated in 2005, with a full independent review in 2010 that endorsed the adequacy of the existing law. I am, however, certainly willing to consider any proposals from members of the community on developing options for recognition of a lost foetus, without bestowing legal personhood on the unborn. For instance, legal academic Hannah Robert suggests a “specific offence addressing conduct that ends the life of a foetus without the mother’s consent”.

However, one thing is clear: parliament should not pass any new law relating to pregnancy loss until we have law reform that removes abortion from the Crimes Act, where it does not belong, and protects a woman’s right to make decisions that affect her own body.

For far too long, women’s access to reproductive health services in New South Wales has been dictated by a male dominated parliament, an unfortunate consequence reflecting the disproportionate representation of women.  It’s time for New South Wales women to take charge, to stand together and lead the campaign for decriminalisation.  Until then, the ambiguous legal status of abortion in New South Wales will continue to create too much risk for women and their health practitioners.

Dr Mehreen Faruqi is the NSW Greens MLC and spokesperson for the Status of Women.