Foetal Personhood Bill (“Zoe’s Law”)

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 Links to media coverage

Following the expiry of the previous Bill in 2014,  Fred Nile’s Christian Democratic Party have proposed  a new Bill to 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 10 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 was introduced in 2017.
  • The Bill was not voted on.
  • The Premier has indicated that she will introduce a law recognising the legal personhood 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 introduced the Crimes Amendment (Zoe’s Law) Bill 2017 on 9 March 2017.

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.

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 Niall, a new offence would be created for the “serious harm” or “destruction” of a “child in utero”. Rather than being an injury to the pregnant woman, this will be considered an injury to the foetus.

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

Medical procedures and “anything done by, or with the consent of, the mother of the child in utero” 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

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.

The New South Wales Bar Association has indicated that it too opposes the Bill. The Association has prepared a Briefing Note setting out its views on the Bill.

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.

Previous campaign 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:

November 2018
October 2018
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November 2014
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