Foetal Personhood Bill (“Zoe’s Law”)

Please note that the page below is an archive as of 20 November 2014, however news articles continue to be added to the Media Coverage section.

UPDATE: The Bill was not voted on by the Upper House on 20 November 2014, so it will now lapse.

 Read background information
 Links to media coverage

The Liberals and Fred Nile’s Christian Democratic Party have proposed a new law that will give legal personhood to a foetus.

While extremely concerned about the harm done to women including their foetuses (such as through domestic violence), WLS views the draft law as a clear attempt to undermine women’s rights by changing the legal status of a foetus.

The law already provides a serious offence punishable by up to 25 years imprisonment.

WLS is also worried the law could be used to impose restrictions on the behaviour of pregnant women.

What’s happening now?

  • The Bill passed through the Lower House on 21 November 2013. 
  • It was introduced into the Upper House on 26 November 2013.  
  • The NSW Upper House is due to vote on the Bill on Thursday, 20 November 2014.

If it is not debated by the end of the parliament’s last sitting week of the year, then it will lapse without being voted on.

‘Sunset clause’ amendment

An amendment to the Bill was proposed on 12 November 2014 by the Christian Democrats to add a sunset clause. This would mean that the law would operate for 2 years and then be reviewed.

WLS is opposed to this amendment. We wrote to the Premier to express our opposition and explain why it does nothing to alleviate or concerns about the proposal to change the legal status of a foetus.


What is “Zoe’s Law”?

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“Zoe’s Law” is a proposal to create a new offence of grievous bodily harm to a foetus.

Christian Democrat MP Fred Nile proposed the first Bill, but the current version was introduced by Liberal MP Chris Spence on 29 August 2013. It is called the Crimes Amendment (Zoe’s Law) Bill 2013 (No 2).

If passed, the new law would mean that if someone caused the destruction or harm to a foetus they would be charged with grievous bodily harm to the foetus, instead of being charged with grievous bodily harm to the pregnant woman.

On Thursday 21 November the bill was put to a conscience vote in the Legislative Assembly and was passed, 63 votes to 26. The Bill was opposed by some government ministers including Health Minister Jillian Skinner, Minister for Women Pru Goward, Transport Minister Gladys Berejiklian, and Environment Minister Robyn Parker.

The Bill is now before the Legislative Council where, if passed, it will become law.

Current law – grievous bodily harm

WLS is extremely concerned about the harm done to women including their foetuses, particularly in situations of domestic violence. WLS acknowledges the pain and loss that follows harm or destruction to a foetus. However, WLS does not consider the new law is necessary or appropriate. The injury must always be interpreted as an injury to the pregnant woman.

Under the current law, “grievous bodily harm” includes “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm”. Grievous bodily harm carries a maximum prison sentence of:

  • 25 years if there is intention to cause harm;
  • 14 years if, in the company of another person(s), a person recklessly causes harm;
  • 10 years if a person recklessly causes harm.
Proposed new law

Under the Bill introduced by Mr Spence, a new offence would be created for the “destruction” of an “unborn child”. The new offence would apply to a foetus of at least 20 weeks’ gestation; or, if this cannot be reliably established, a foetus with a body mass of at least 400 grams. Rather than being an injury to the pregnant woman, this will be considered an injury to the foetus.

The new section 8A would include the various “grievous bodily harm” offences, (ie, intentional, reckless, unlawful or negligently causing grievous bodily harm) as well as driving offences such as predatory or dangerous driving or navigation.

Medical procedures and “anything done by, or with the consent of, the pregnant woman concerned” are excluded. However, this is open to interpretation.

WLS is particularly concerned that the creation of this offence could mean unwanted and invasive scrutiny of individual women who have experienced miscarriage, stillbirth or foetal harm as a result of a criminal act.

Legal personhood

The Bill uses the term “unborn child”, which WLS views as incorrect and emotive. Pregnancy involves a zygote and then an embryo in the early stages, which develops into a foetus. Upon live birth the foetus becomes a child.

The status of “child” is also conferred on a stillborn foetus in certain circumstances, which is a respectful way of acknowledging significant loss. However, it does not confer legal status with any associated rights beyond registration of the birth.

A foetus only becomes a person after it has been born and when at least one of the indicia of independent life is detected (as discussed in cases such as R v Iby). Before birth the foetus is “connected to, and a part of, the body of its mother” as described by Savell in ‘The Legal Significance of Birth’. In the later stages of a pregnancy a foetus may be a more viable form of potential life, however, until the foetus achieves an independent existence it must not be granted legal personhood in its own right.

Additionally, even though there is currently an exemption in the definition of “grievous bodily harm” in the Crimes Act 1900 for medical procedures that result in the destruction of a foetus, WLS is concerned that giving personhood status to a foetus may affect the lawfulness and accessibility of abortion in NSW, particularly for procedures carried out later in a pregnancy.

Reproductive rights are essential human rights that are confirmed in the Convention on the Elimination of All Forms of Discrimination against Women. WLS is opposed to legislative change which elevates the impact of any action on a foetus over the rights of the woman.

For further information

See the WLS submission to the review of laws surrounding criminal incidents involving the death of an unborn child undertaken by Michael Campbell in 2010. In that submission WLS outlined how the provisions of the Crimes Act 1900 were sufficient to respond appropriately to all criminal incidents involving the destruction of a foetus.

What can you do?

Write to the Attorney General and to your local member directly or use the CLCNSW email template.

More information

Fact sheet produced by a group of concerned women’s organisations (including WLS):

WLS has written to the Attorney General and all Members of Parliament:

WLS Submission to the Campbell Review in 2010:

The New South Wales Bar Association has indicated that it too opposes the Bill. The Association has prepared a letter to all Members of Parliament setting out its views on the Bill

In the news:

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November 2014
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December 2013
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