At Christmas time in 2009, Brodie Donegan was eight months pregnant with her daughter-to-be Zoe when she was struck down by a car driven by a drunk driver. While Brodie survived, Zoe tragically didn't.
The driver received a sentence of 9 months behind bars.
At the time of Brodie's accident, the loss of Zoe was listed as just one of her grievous injuries.
Brodie believes the law failed to recognise the loss of Zoe's right to life, and that 'in terms of the law, there was no real acknowledgement of what the family had lost'.
Brodie has campaigned tirelessly for a separate law – called 'Zoe's Law' – which would reflect and acknowledge the harm to, or killing of, an unborn child.
Acknowledging unborn children as 'legal persons'
Brodie's experience is not the only one to highlight the issue.
In 2018, Katherine Hoang, her unborn twins and sister-in-law Anh Hoang were killed when 29-year old Richard Moananu allegedly crashed into their car.
Katherine's pregnancy was almost full-term; she was just a week or so away from her 'due date'. Katherine's husband, Bronco Hoang, survived the crash.
Police brought a total of 10 charges against Mr Moananu, but could bring additional charges of murder or manslaughter in respect of the unborn children.
This is because the law in New South Wales considers the loss of a foetus through a criminal act as grievous bodily harm to a pregnant woman – there is no separate offence relating to an unborn baby.
Attempts to enact Zoe's law
There have been several unsuccessful attempts to introduce Zoe's Law to New South Wales Parliament, so that harm caused to a foetus can be recognised as a discrete offence. These attempts have not come to fruition.
And last week, NSW Attorney General Mark Speakman introduced laws to State Parliament once again with a view to enacting standalone offences that recognise the loss of a foetus.
Zoe's law – key points
The Bill proposes to add up to three years to a sentence if a woman is killed or inflicted with grievous bodily harm and loses her pregnancy.
The foetus must have reached at least 20 weeks gestation or weigh 400 grams
The bill also enables the name of the unborn baby or babies to be included on an indictment when charges are laid.
Families will also be able to claim funeral costs, and the proposal further includes a provision enabling family members of a woman who has lost a foetus as a result of a criminal act to provide victim impact statements to the court.
The New South Wales Government is also working on developing a scheme to provide bereavement payments to families who lose a foetus due to third party criminal acts.
Maintaining women's rights
While most people see the necessity of ensuring that unborn babies are recognised under law if they are killed or harmed, one of the reasons the bill has taken so long to reach this stage is concern from pro-choice groups that such changes could impact or restrict women's access to abortion, or make a woman for harm to her own unborn child.
However the Attorney General assures that the proposed draft of Zoe's law
"does not in any way affect a woman's ability to obtain a lawful abortion under existing NSW legislation."
Abortion recently decriminalised
New South Wales finally decriminalised abortion in 2019, more than a century after it was included in the state's criminal code, and well after most of the other jurisdictions around the country.
Although prosecution over abortion was not common, the state's laws now provide a legal framework for easy and safe access to appropriate health services for women wanting or needing to seek a termination.
If passed by Parliament, Zoe's Law be enacted sometime early or mid next year.
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.
