Foreign Correspondent: ‘Zoe’s law’ – Reflections from the US environment

‘Zoe’s law’ – Reflections from the US environment

The NSW lower house has recently passed the Crimes Amendment (Zoe’s Law) Bill (No. 2) 2013 to amend the Crimes Act 1900 (NSW). This version of Zoe’s Law establishes a separate offence for actions that cause serious harm to or the destruction of a foetus. There are a wide range of legitimate criticisms of Zoe’s Law that need examination before the Bill comes before the NSW upper house early next year.

When looking for the original text of the Bill, I came across three different Bills before the NSW parliament this year purporting to be a “Zoe’s Law”.

The one that passed in the lower house is the (No. 2), and was sponsored by Chris Spence MP, a Liberal Party MP. What brings Spence to the party on this matter is that he is the local MP for Brodie Donegan, a woman who lost her 32-week old foetus after being hit by a driver under the influence of drugs.

Before the law that passed the lower house existed, there were two previous versions of “Zoe’s Law”, sponsored not by Chris Spence, but by Fred Nile MP of the Christian Democratic Party. The Christian Democratic Party policy platform includes strong opposition to abortion and believes that it should be banned, and that abstinence only sex-education is the only acceptable form of sex-ed in schools. Fred Nile’s version was developed with no consultation with or consent from Brodie Donegan.

In the previous Fred Nile version of “Zoe’s Law” (the “No.1″), the language of the Bill is telling. The object of that Bill was to “establish a separate offence for conduct causing serious harm to or the destruction of a child in utero”. The use of the term “child” here, that is, “a young human being”, rather than “foetus”, immediately denotes a state of personhood. Using this term means the only difference between a child before birth and after birth is its location, not its viability or its capacity to survive outside the mother’s uterus. As a result, the term “in utero” is required to designate the particular location of the “child”. As a contrast, “foetus”, however, denotes reliance on the mother’s body for life – it does not possess its own personhood and information about its location is superfluous.

The latest version of “Zoe’s Law” changes the term “child” to “foetus”. However (and this is a big however), it clearly states that:

an unborn child is taken to be a living person despite any rule of law to the contrary

An unborn child is defined as the foetus of a pregnant woman that is at least “20 weeks’ gestation” or, where gestational age cannot be determined, has a body mass of least 400 grams. This immediately creates personhood in law for a foetus that has a gestational age of 20 weeks or more. Why this figure? Why 20 weeks?

It’s no coincidence that 20 weeks is also the point at which some of the most extreme anti-abortion laws put forward by Republican Party politicians over the last three years in the US come into effect. This is one measure used by Tea Party Republicans to skirt around the constitutionally-protected right of US women to an abortion before “viability”. Viability means the ability for a foetus to exist on its own outside of the uterus PROVIDED that substantial medical assistance is provided. To put this into context, actual viability is typically deemed to be about 28 weeks (or seven months) without substantial intervention, and this was the definition of viability accepted by the US Supreme Court in Row v Wade.

At 20 weeks, chance of viability is considered to be zero percent. If a baby is born before 22 weeks, resuscitation generally does not occur due to major disability. When I completed my Bachelor of Biomedical Science a couple of years ago, contemporary medical science stipulated 24 weeks as the absolute minimum of survival of a baby born; however, this was survival with significant disabilities and substantial medical intervention. To put it simply, the foetus’ organ development is just not advanced enough for survival before these dates.

So, when Zoe’s Law defines an unborn child at 20 weeks, I find it scary. I find it scary for women’s rights to access reproductive health services, such as abortions, and I find it scary when I think about attempts to redefine viability by politicians rather than experts, such as neonatal physicians and doctors.

Zoe’s Law Mk II, does include the following provision:

This section does not apply to or in relation to: (a) anything done in the course of a medical procedure or medical treatment, or (b) anything done by, or with the consent of, the pregnant woman concerned.

On its face, this provision is comforting. It reiterates the notion that Zoe’s Law is intended to give some sort of acknowledgement of the loss of a potential baby as a result of an attack (deliberate, reckless or negligent, such as with dangerous driving) to a pregnant woman. I remember when I was studying criminal law, and I felt torn by the notion that a pregnant woman who loses her baby as a result of an attack, for example domestic violence against the mother, has no additional criminal recourse against the attacker beyond a criminal assault charge and other crimes specifically against the mother. I agree with the desire to have this loss recognised. I just don’t think that this is the way to do it.

Introducing this law is incredibly risky to women’s rights. The provisions attempt to cover all bases and protect women’s reproductive rights, but it puts criminalising the destruction of or injury to a foetus on the table.

A law that creates foetal personhood is not the answer to the horrible situation experienced by Brodie Donegan and other women. Such a law is medically and scientifically faulty. Legal personhood should not be extended to a baby in utero. A foetus in utero is not capable of surviving on its own, and furthermore, exists solely within the pregnant woman’s body, covered by her legal personhood. Birth is the point of separation – where the baby is no longer a foetus, no longer a part of the mother’s body, but becomes a separate individual. Defining personhood before birth completely obfuscates and ignores the existence of the woman’s body.

By giving the foetus legal personhood, you are also giving the foetus rights against its mother. With the pregnant woman’s consent one of the pivotal “safeguards” in this law, the right of that person to give consent, can then be challenged. The autonomy of the pregnant woman becomes second to the personhood of the foetus.

That is why I disagree with this law. Any legal challenges brought on behalf of a foetus’ legal personhood risks a woman having to continue a pregnancy beyond the point at which she no longer can access reproductive services over her own body and violates her bodily integrity.

As an alternative solution, I agree with Hannah Robert’s proposal: a law that is focused on criminalising a violation of a pregnant woman’s right to continue with a pregnancy against her will. Such a law focuses on the mother, and the right of the mother to bodily autonomy. It attempts to criminalise any person that deliberately, recklessly or negligently violates a woman’s right to reproductive autonomy, to keeping her pregnancy, and having a child. This is the sort of right that is engaged in arguments against China’s previous one-child-policy, or forced abortions.

From a medical, scientific and ethical perspective, protecting the reproductive autonomy of a pregnant woman – not constructing personhood for a foetus – is the best answer.

Alexandra Phelan is an Australian lawyer studying in the US. She has a blog called Lex Sanitas.