Why the fight against Zoe's Law must go on

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Julie Hamblin

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Zoe's Law clears first hurdle

Controversial foetal rights legislation known as Zoe's Law passes NSW Parliament's lower house on a conscience vote but won't be seen by the upper house until next year. Nine News.

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Anyone who harbours the hope that rational and informed policy debate will win out in politics cannot help but be dismayed by the fact that the "Zoe's Law" bill passed comfortably through the lower house of the NSW Parliament on a conscience vote yesterday. 

The bill declares a foetus of 20 weeks or more to be a "living person" for the purpose of grievous bodily harm offences under the NSW Crimes Act. It was proposed ostensibly to address the concerns of Brodie Donegan, whose daughter Zoe was stillborn as a result of injuries sustained by Donegan in a car accident when she was 32 weeks pregnant. 

Donegan's complaint was that, while the driver of the car was convicted for causing grievous bodily harm to her, including the loss of her foetus, the law did not permit the driver to be charged for causing harm to her foetus as a separate person. To enable this to occur, the foetus needed to be redefined as a legal person in its own right.

Brodie Donegan with her daughter Ashlee, 5, and son Lachlan Ball, 2.

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

Donegan's loss was a terrible one but, as every lawyer is taught, hard cases make bad law. Moreover, law reform is a complex and delicate business. Passing legislation to address one set of facts is fraught with risk if it is not accompanied by careful and expert analysis of how the same legislation might apply to other, different facts. Sadly, such analysis has been sorely lacking in the NSW Parliament's consideration of this bill.

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If the bill is passed by the NSW Legislative Council next year and becomes law, it will be the first time a foetus has been recognised under NSW law as a "person". This is a radical change to the law, and takes us into uncharted and dangerous legal waters, notwithstanding the limitations written into the bill. 

There are good reasons that the law has not previously recognised a foetus as a legal person. As Melbourne lawyer Hannah Robert has argued eloquently, legal personhood is a technical category (that sometimes includes non-humans, such as corporations) intended to enable the "person" to have an autonomous interaction with the law. 

The notion doesn't make sense in the case of a foetus that is contained wholly within the body of a woman, nor is it appropriate for the law to confer legal rights on the foetus independently of its mother. Any interests or rights the foetus has should only ever be advanced through the mother.

Robert also sustained injuries in a car accident when she was pregnant and lost her baby as a result. She understands the risks of recognising a foetus as a legal person. So too do the NSW Bar Association, the Women Lawyers Association, the Australian Medical Association, the Royal Australian and New Zealand College of Obstetricians and Gynaecologists and medical indemnity insurers, all of which wrote to members of Parliament before yesterday's vote, urging them not to support the bill. 

These organisations represent a wide constituency of doctors and lawyers who fear that recognising a foetus as a person in any context (even though the bill excludes medical procedures and things done by or with the consent of the mother) will have implications far beyond the stated rationale for Zoe's Law.

At the heart of these concerns is the fact that abortion remains a criminal offence in NSW, and can only be lawfully performed where it is determined to be necessary to avert a serious risk to the life or health of the mother. 

For as long as abortion remains a crime, it is impossible to be sanguine about any foetal personhood law. Nor can we be confident that the bill, if passed, 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".

These are all matters that call for careful review and consideration before we rush to legislate based on the facts of a single case.  

The opposition to this bill includes a broad coalition of professional groups – expert in their field and unable to be stereotyped as pro-choice activists – who have voiced concern about its consequences, both legal and medical. The fact that these concerns have been given such scant regard demonstrates, yet again, that women's reproductive rights in NSW cannot be taken for granted.

 Julie Hamblin is a Sydney lawyer who works on sexual and reproductive rights.