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.
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.
Email Upper House Members of Parliament and ask them to oppose the Bill. Contact details can be found here .
What is “Zoe’s Law”?
Download Fact Sheet
“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.
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?
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 letter to the Attorney General dated 26 August 2013
- WLS letter to the Attorney General dated 30 August 2013
- WLS letter to the Attorney General dated 30 October 2013
- WLS letter to the Premier dated 11 November 2014
- WLS letter to the Premier re sunset clause amendment dated 18 November 2014
WLS Submission to the Campbell Review in 2010:
- Submission to NSW Department of Justice and Attorney General on the Review of Laws Surrounding Criminal Incidents involving the Death of an Unborn Child (23 July 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:
- “Zoe’s Law: NSW mum pushes for recognition of death of foetuses over 20 weeks old as a crime” 9 News (4 April 2016)
- “‘We owe it to Zoe to fight for criminal law change’ to protect the rights of unborn children” Central Coast Gosford Express Advocate (15 March 2016)
- “Women still fighting for their reproductive rights despite lapsing of ‘Zoe’s Law'” Sydney Morning Herald (10 April 2015)
- “Zoe’s Law will be a tragedy for women” Sydney Morning Herald (14 November 20143)
- “Foetal personhood laws have terrible consequences for women, but not necessarily for the reasons you might think” Daily Life (12 November 2014)
- “Pregnant, and No Civil Rights” New York Times (7 November 2014)
- “Why is the NSW parliament treating this as the “most urgent” issue relating to women?” Women’s Agenda (5 November 2014)
- “Zoe’s bill to remain a conscience issue” The Australian (6 November 2014)
- “Zoe’s Law could take NSW backwards in women’s rights” The Conversation (6 November 2014)
- “The curious tale of Zoe’s Law and the ICAC” Sydney Morning Herald (26 October 2014)
- “Marco Silvestri jailed for crash that killed unborn baby” Sydney Morning Herald (26 October 2014)
- “Wagga Women’s Health Centre anti-Zoe’s Law lobbying under fire” The Daily Advertiser (29 May 2014)
- “What’s next for Zoe’s Law?” Daily Life (4 May 2014)
- “Zoe’s law: new bill could be drafted if law fails to pass NSW upper house” The Guardian (28 March 2014)
- Speech by Carol Levitt, President of the NSW Nurses & Midwives’ Association at International Women’s Day 2014
- “Adviser to Attorney-General Greg Smith sparks fears over abortion access under Zoe’s law” Sydney Morning Herald (9 March 2014)
- “Zoe’s law bill delayed in NSW upper house amid abortion fears” Sydney Morning Herald (7 March 2014)
- “Point of View: Crunch Time for ‘Zoe’s Law'” NBN News (28 February 2014)
- “Sydney protesters vow to fight Zoe’s law” The Age (23 February 2014)
- “Laws are to protect, not add risk” Medical Observer (11 February 2014)
- “Zoe’s legacy” The Age (18 January 2014)
- “The scandal is that there are no jobs for the girls” Sydney Morning Herald (5 January 2014)
- “Foetal Personhood Law For NSW?” Alternative Law Journal (December 2013)
- “Foreign Correspondent: ‘Zoe’s law’ – Reflections from the US environment” Human Rights Law Centre (20 December 2013)
- “What Australian women need to fight for” Daily Life (16 December 2013)
- “The five biggest moments in reproductive (in)justice in 2013” Daily Life (16 December 2013)
- “When does a human being become a person?” Reportage (3 December 2013)
- “Decriminalise abortion: pro-choice in practice is not the same as legal protection” Sydney Morning Herald (3 December 2013)
- “Make no mistake: Zoe’s law is an assault on women’s reproductive rights” The Guardian (22 November 2013)
- “Why the fight against Zoe’s Law must go on” Daily Life (22 November 2013)
- “Zoe’s Law passes in NSW Parliament lower house” Sydney Morning Herald (21 November 2013)
- “Zoe’s law, giving personhood to a foetus at 20 weeks, passes NSW lower house” The Guardian (21 November 2013)
- “Zoe’s law passes first hurdle” 702 ABC Radio (21 November 2013)
- “Why losing my daughter means I don’t support Zoe’s law” The Conversation (18 November 2013)
- “What does giving rights to a foetus mean for women? Ask Alicia Beltran” The Guardian (13 November 2013)
- “Zoe’s law vote in NSW parliament may be delayed to new year” The Guardian (12 November 2013)
- “Zoe’s Law: Human rights for a 20 week foetus?” ABC Radio National Background Briefing (10 November 2013)
- “Loyalty keeps MPs in line on conscience votes” Sydney Morning Herald (3 November 2013)
- “No need for foetal rights bill, says Law Society” Sydney Morning Herald (31 October 2013)
- “Law on foetal rights ‘will put many women at risk” Sydney Morning Herald (27 October 2013)
- “Should a foetus have legal status?” ABC News (25 October 2013)
- “How the tragic death of a baby has pro-choice advocates extremely worried”, Mamamia (17 October 20113)
- “Zoe’s law ‘misogyny’, say NSW protesters”, Sydney Morning Herald (17 October 2013)
- “On Zoe’s Law, And The Accidental/On Purpose Erosion Of Your Reproductive Rights” Junkee (16 October 2013)
- “OPINION: Foetus bill a risk to doctors and women”, Newcastle Herald (26 September 2013)
- “Fetal personhood (‘Zoe’s Law’) before NSW Parliament”, Hoyden About Town (18 September 2013)
- “Zoe’s Law sparks debate” Prime 7 News (17 September 2013)
- “Critics dismiss proposed amendments to Zoe’s Law” TimeBase (20 September 2013)
- “Revamped Zoe’s Law ‘does not add’ protection to women” Sydney Morning Herald (19 September 2013)
- “Zoe’s Law attacks reproductive rights in NSW” Sydney Morning Herald (18 September 2013)
- “‘Zoe’s law’ stalemate: women fearing abortion consequences fail to sway MP” The Guardian (17 September 2013)
- “Another minister to battle foetus bill” Sydney Morning Herald (15 September 2013)
- “Baird has open mind on Zoe’s law” Daily Telegraph (13 September 2013)
- “Abortion rights under threat from ‘Zoe’s law’, say Australian women’s groups” The Guardian (12 September 2013)
- “Abortion fears raised over proposed NSW foetus law” ABC (12 September 2013)
- “Abortion access threatened by new law: doctors” Sydney Morning Herald (12 September 2013)
- “Coalition MP under pressure to drop Zoe’s Law” Newcastle Herald (11 September 2013)
- “Zoe’s law risks female rights, women warn” Daily Telegraph (11 September 2013)
- “NSW Abortion Bill Is Bad For Women” New Matilda (10 September 2013)
- “Personal grief and women’s rights” The Hoopla (11 September 2013)
- “The bill that could criminalise abortion in Australia” Daily Life (6 September 2013)
- “Women MPs fear Zoe’s bill will criminalise abortion” Sydney Morning Herald ( 1 September 2013)
- “Zoe bill could have unwanted consequence” Sydney Morning Herald ( 1 September 2013)
- “Why ‘Zoe’s Law’ Should Not Get Through” the f collective (21 August 2013)