Australia: Zoes law: NSW Government moves to criminalise foetal homicide

Richard Moananu was driving at 45 kilometres above the speed limit and without a licence, when he ploughed a Mazda 3 into a Nissan Tiida on a street in Sydney's Orchard Hills on Friday evening, 28 September 2018 .

The collision caused the death of 23-year-old Katherine Hoang and her two unborn twins, as well as her 17-year-old sister-in-law Anh Hoang. Bronko Hoang, Katherine's 25-year-old husband, was also critically injured, but survived.

NSW police charged Moananu with ten offences at his hospital bedside on the following Sunday. They included two counts of manslaughter, for the deaths of Katherine and Anh. But, to the disappointment of Ms Hoang's family, there were no charges specifically relating to the deaths of the unborn twins.

Under NSW laws, a foetus is not considered a separate entity from its mother – harming a foetus is classed as an offence against the mother. The death of Katherine's unborn children renewed the now decade-long debate around changing the law, so that foetuses are independent legal entities.

Amongst the abortion debate

Following the furore over the Orchard Hills accident, NSW premier Gladys Berejiklian promised last October that if her party took out the March election, it would introduce new legislation that would make it a crime to harm or cause the death of a foetus when committing a criminal act.

Just over a week ago, Berejiklian announced that she'd been consulting her colleagues for the two weeks prior regarding a new bill that would see a wilful act by an individual that caused harm to a foetus – such as negligent driving or a domestic violence incident – become a separate crime.

The law has been proposed on numerous occasions over the last decade. And it's controversial as critics warn it could be used against a woman who terminates a pregnancy, as has been done elsewhere in the world where such laws exist.

And there's also been criticism that this issue is being brought to the table at the same time that NSW parliament is considering a piece of legislation that would decriminalise abortion. NSW is the only jurisdiction in the country where the medical procedure is still a crime.

Part of the mother

NSW law considers an unborn foetus as part of the mother. A 2005 amendment to the Crimes Act 1900 (NSW) saw the laws around grievous bodily harm changed, so that they include harm against a foetus or the destruction of one.

The amendment bill altered section 4 of the Crimes Act, so that the definition of 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".

This means, for example, that if a drunk driver crashes into another vehicle and it results in the death of the foetus that the pregnant woman driving the car is carrying, then the offender can be charged with grievous bodily harm.

An intentionally perpetrated grievous bodily harm offence can result in a maximum penalty of 25 years behind bars. If a person recklessly causes grievous bodily harm, it carries a 10 year sentence. And if this is done in company, it can result in a prison sentence of up to 14 years.

The born alive rule

Under common law, the born alive rule applies. As set out in the 2005 NSW Court of Criminal Appeal case Regina versus Iby, murder or manslaughter can only be perpetrated upon a legally recognised person. And a person is not a legal being, until they're "fully born in a living state".

Although, then NSW Chief Justice James Spigelman asserted that the born alive rule is based on two out-of-date premises. Firstly, the "primitive state of medical knowledge at the time it was adopted", and the fact that back then birth was risky and carried a "high probability" of stillbirth.

NSW Christian Democrat MLC Reverend Fred Nile introduced the Crimes Amendment (Zoe's Law) Bill 2019 into the state upper house on 8 August. It's the third iteration of this legislation that the reverend has tabled in NSW parliament since 2013.

The bill establishes an offence of causing serious harm to or the destruction of an unborn child, which carries a maximum penality of 10 years imprisonment. And it also aims to extend the offence of dangerous driving causing death or grievous bodily harm, so that it applies to an unborn child.

Nile's new bill, as well as its older versions, define an unborn child as "the prenatal offspring of a woman", which means at any stage from conception onwards. This provision has been highly derided as a means under which a woman terminating a pregnancy could fall short of the law.

Another 2013 version of Zoe's Law, introduced by the O'Farrell government, defined an unborn child as a foetus of at least 20 weeks old. At the time, the AMA raised concerns as to whether this would prevent doctors from aborting foetuses of over 20 weeks old, as required on occasion.

In utero legal status

These foetal homicide laws have been dubbed Zoe's Law in this state after a 2009 Central Coast tragedy. On Christmas Day that year, Brodie Donegan, who was 8 months pregnant, was walking along a footpath with her children, when an intoxicated driver swerved and hit her.

The unborn child, Zoe, was stillborn as a result of the injuries sustained. And while Ms Donegan welcomes laws that would make an offender accountable for such loss of life, she has cautioned against the enactment of laws that could be used against women who have abortions.

Reverend Nile told the Telegraph over the weekend, that he's prepared to remove Zoe's name from his piece of legislation at the request of Ms Donegan, who explains that she's pro-choice and Nile's bill is not in line with her views.

The Berejiklian government's version of the law is being drafted by the office of NSW attorney general Mark Speakman. It won't be introduced until the abortion bill is passed, which, the government asserts, will prevent Zoe's Law from applying to women who abort pregnancies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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