The current criminal law in NSW provides that the destruction of a foetus, other than in the course of a medical procedure, is grievous bodily harm to the woman and carries a maximum prison sentence of 25 years. The proponents of the Bill argue that this is an inadequate response to criminal acts resulting in the destruction of a foetus at a particular gestational stage and that the law should recognise two victims not one.
Opponents of the Bill believe that the amendment is unnecessary, creates needless complexity and that the exceptions provide insufficient protection. There are also concerns that the proposed new law establishes a conflict of rights between the foetus and the pregnant woman. The appeal of legal consistency is strong and if a foetus is defined as a person for certain purposes it is not difficult to imagine other scenarios where a foetus could be argued to be a person as well. Additionally the choice of applicable offences appears arbitrary as not all of them refer to grievous bodily harm in the existing legislation and it is illogical that other offences have been excluded.
Most compelling is the fact that the issue was extensively considered in the Review of laws surrounding criminal incidents involving the death of an unborn child undertaken by the Honourable Michael Campbell QC in 2010. Mr Campbell found that the current law in NSW allows for an appropriate response to such incidents and that no amendments were required.
If the Bill passes it will be the first time in Australia that legislation defines a foetus as a person. Supporters have stated repeatedly that the Bill has nothing to do with introducing foetal personhood into our legal system, but the fact that all parties have allowed a conscience vote on this issue is a clear indication of the recognised possible consequences of such an amendment.
In other jurisdictions, such as the United States, the legislative recognition of a foetus as a separate victim has lead to a range of restrictive and punitive consequences for pregnant women and for people providing them with medical and other services. Those opposing the Bill in NSW, such as the NSW Bar Association, Law Society of NSW, Women’s Legal Services NSW, Community Legal Centres NSW, AMA and RANZCOG are concerned that the Bill may have similar implications in NSW, including for access to and provision of abortion care, and increased, unwanted and invasive scrutiny of the behaviour of pregnant women.
The Bill, including two amendments, passed the Legislative Assembly on 21 November 2013 by a vote of 63 to 26. Debate will commence in the Legislative Council when Parliament resumes in March 2014.
Further information about the Bill is available at the following website:
CAROLYN JONES is a senior solicitor at Women’s Legal Services NSW.