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A child becomes a legal person once they are “born alive”. If a crime is committed against a foetus that is subsequently born alive, then the offender faces standard criminal charges as the foetus has become a legal person. However, a foetus destroyed in utero who is subsequently stillborn is not recognised as a victim of crime as it has not been born alive.

Currently, crimes against unborn children are provided for in section 4 of the Crimes Act 1900. This section provides that the offence of grievous bodily harm includes the destruction of the foetus of a pregnant woman, an offence committed against the mother. This provision was introduced following the case of R v King (2003) 59 NSWLR 472, where the father of the unborn child kicked and stomped on the mother’s stomach in order to cause her to miscarry. However, the mother herself did not suffer grievous bodily harm and the trial judge initially held that the charge of grievous bodily harm to the mother was not made out. This was overturned on appeal and the Crimes Act1900 was amended to provide that the destruction of the foetus constitutes grievous bodily harm against the mother even when the mother herself does not suffer injury.

The laws recognising unborn children again came to light when Brodie Donegan was struck by a driver affected by drugs on Christmas Day in 2009. Ms Donegan was 32 weeks pregnant. She was pinned against a tree for several hours and seriously injured herself, and her daughter Zoe was stillborn.  The defendant was charged with dangerous driving occasioning grievous bodily harm in relation to the injuries sustained by Ms Donegan. However, no separate charges were laid against the defendant for the harm caused to Zoe herself.

In an opinion piece of the Guardian, Brodie Donegan wrote:

“…I couldn’t reconcile that my daughter – which I’d held, cried over and willed to breathe – was placed in a list of broken bones and soft tissue injuries. I couldn’t reconcile that the child I’d applied for a stillbirth certificate for, held a funeral for, received the baby bonus for and received paid parental leave from work for wasn’t recognised separately to me …”

This prompted Brodie Donegan and her family to develop and introduce “Zoe’s Law”. Zoe’s Law proposed that a foetus of at least 20 weeks gestation or weighing at least 400gm would be a legal person. This created a charge of grievous bodily harm to the unborn child as the victim, rather than the mother. It was argued that this  would provide greater recognition for unborn children in the eyes of the law which would provide grieving parents a greater sense of justice.

After the introduction of Zoe’s Law, there was considerable concern by community groups that the amendments could restrict a woman’s right to access abortion. It was further argued that the existing law already provided adequate recognition or crimes committed against foetus and that no change was necessary. While the Bill establishing Zoe’s Law  was passed in the lower house of the NSW Parliament in November 2013, the Bill lapsed in 2014 after it failed to be passed in the upper house.

The case demonstrates the conflicts that exist between regulation of abortion and the criminal law. If a foetus is to be given greater recognition in the eyes of the criminal law, then clarification would be necessary to provide for its relationship with a woman’s ability to terminate a pregnancy.  This issue tends to arise following cases where unborn children are harmed and the tragedy of baby Zoe illustrates the potential inadequacies of the criminal law in recognising the loss of the potential human life.

This article was written by the Kells Criminal Law Team.