Zoe’s law: NSW revives effort to punish offenders who cause the death of an unborn foetus
The New South Wales parliament will consider a revived push to make it a standalone criminal offence to cause the death of an unborn foetus when a pregnant mother is injured or killed.
On Wednesday, the NSW attorney general, Mark Speakman, introduced new legislation to state parliament which he said would “better acknowledge the heartbreak suffered by families and punish offenders appropriately” when an unborn child was killed.
Currently, if a foetus is killed as a result of a criminal act against a mother, it is legally recognised as an injury to the mother.
The new bill before the NSW parliament creates two new offences, including one which applies to situations where a crime leads to the death of a foetus but the mother survives.
The other offence covers the loss of an unborn foetus as a result of the death of a pregnant woman by criminal act.
Legislation to recognise causing death to an unborn foetus as an individual criminal offence has become known as “Zoe’s law”, named after the daughter of Brodie Donegan, a NSW woman who lost her unborn daughter when a drug-affected driver crashed into them on Christmas Day in 2009.
A “Zoe’s law” bill has been before the NSW parliament in some form since 2013, but has faced criticism from legal and women’s rights groups concerned about its implications for women’s reproductive rights.
The bill introduced on Wednesday also increases the maximum penalty by three years, with the total penalty also taking into account punishment for charges relating to the mother.
Under the proposed new laws, these charges can be laid where the foetus was at least 20 weeks or 400 grams in weight.
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Speakman said that dangerous driving occasioning grievous bodily harm currently carries a maximum penalty of
seven years imprisonment if a foetus was lost in the incident, and the maximum penalty would increase to 10 years.
“It’s about making sure the criminal law and the criminal justice process reflects and recognises the loss the Brodie Donegans of the world and their families have suffered,” Speakman said.
Donegan spoke of her experience with the law after losing her unborn child.
“It just didn’t seem fair,” she said. “I just couldn’t reconcile how Zoe was listed with ... my broken bones and there wasn’t sort of ... any acknowledgement of what we actually lost.
“You’ve already imagined, being eight months pregnant, that you’re having this child and they’re going to school and you start decorating nurseries and things,” Donegan said.
The new bill introduced on Wednesday would also allow family members to make victim statements that will be taken into account by courts when sentencing offenders, and for the name of an unborn child to be included in the formal wording of charges against an individual accused of the offence.
Family members will also be able to claim funeral costs for the loss of an unborn child caused by car accidents.
A one-off $3,000 bereavement payment will also be made available to help families access counselling, when either of the new offences are charged.
Since 2013 there have been multiple attempts by NSW politicians to revive “Zoe’s law”, including a push from the Christian Democrat MP Reverend Fred Nile in 2018.
At the time, women’s and legal groups criticised the proposed laws for setting a “dangerous precedent” and presenting “a real risk to women’s reproductive rights”.
Labor’s Jo Haylen, when asked if the opposition supported the bill introduced on Wednesday, said “these are complicated matters”. “The bill was only introduced a couple of hours ago, we’ll be seeking a detailed briefing from the government and we’ll go through our usual processes”.
Other advocacy groups Guardian Australia approached on Wednesday were still assessing the new laws.