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Left vs. Right: On Zoe’s Law

As a young woman, I find the thought of Zoe’s Law being passed in NSW alarming, especially while abortion remains in the Crimes Act. To many, that might seem like a shrill and irrational response to a bill merely trying to bring justice to a mother who lost her unborn child. What happened to Brodie Donegan was gut-wrenchingly awful. I can’t imagine the pain of losing a child due to the carelessness of another. But is Zoe’s Law – named for Ms Donegan’s unborn daughter – the best way to bring about justice in this situation?

The NSW Bar Association doesn’t think so. It argues that the current law in this area is satisfactory, as concluded by the 2010 Review of Laws Surrounding Criminal Incidents Involving the Death of an Unborn Child. It believes situations like Ms Donegan’s are addressed in the Crimes Act, which states that 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”.

The law, as it stands, acknowledges such an incident as a crime against the mother, rather than against the unborn child. This is where Ms Donegan wants to see a change. She wants the loss of her unborn daughter acknowledged as something more than a personal injury. That’s a completely understandable position to take. However, Zoe’s Law presents far more problems and risks for the broader community than it attempts to solve.

Firstly, the way Zoe’s Law defines the state of personhood is completely arbitrary. The idea that personhood begins at 20 weeks gestation, or at the weight of 400 grams, seems to be plucked out of the air. It’s ridiculous to deem the loss of a 19-week-old foetus as any less significant than the loss of a 20-week-old foetus. This is why the current law works better for those who have lost a pregnancy due to grievous bodily harm. It protects the foetus throughout gestation, regardless of age or size.

Secondly, this could have huge repercussions for the legality of abortion procedures. We cannot take abortion access for granted while it remains in the Crimes Act. The NSW Bar Association warns that once we accept the premise of Zoe’s Law, foetuses have separate rights from the mother, and it will be very easy for anti-abortion activists and lawmakers to go further with it.

We could see the definition of personhood chopped and changed around to yet another random definition. We could see this definition of personhood extended into manslaughter and murder offences. This could have catastrophic implications for abortion access in NSW, particularly for late-term abortions.

This is a legitimate concern. Peak medical and legal bodies, such as the Australian Medical Association and the NSW Bar Association, have been saying this for months. There are also countless anti-abortion groups supporting Zoe’s Law. I don’t for a second believe they’ll be content to see the bill pass and let it be. It’s their foot in the door for further restrictions on abortion access.

If we want to recognise forced pregnancy loss as more than an injury, then we need a bill that does this without the risks of Zoe’s Law. Law lecturer Hannah Robert suggested in The Conversation that experiences like Ms Donegan’s need to be recognised by the law as a violation of reproductive autonomy. Such a law would truly recognise the experience as something more significant and distinct from a personal injury. Such a law would also strengthen reproductive autonomy, rather than erode it.

Lauren McCracken