When a man slips an abortion pill into his pregnant girlfriend's drink, how should he pay?

Brooke Fiske and Sikander Imran had been seeing each other on-and-off for about three years when she discovered she’d fallen pregnant.

The timing wasn’t great for the couple. Imran, a doctor, had just moved from Rochester, New York, to Arlington, Virginia, about six hours away for work.

But life, as it so often does, can take you on many twists and turns. This was one of those moments, and Fiske was intent on keeping their child.

So, in May last year when she was 17 weeks pregnant, Fiske decided to hit the road to visit Imran and nut out how they would raise their baby.

As they sat together in the evening drinking tea at Imran’s home, Fiske noticed something unusual in her mug.

“I got to the bottom of the cup. There was a gritty substance in there and when I looked at it, I could tell that it was a pill that had been ground up,” she told WROC in December 2017.

Hours later, Fiske was having contractions. She was suddenly going into premature labour.

“He [Imran] immediately started crying and said that he was a horrible person and that he had done what I thought he did,” Fiske said.

Fiske said Imran had previously tried to talk her into having an abortion. She realised he’d now taken matters into his own hands, slipping an abortion pill into her drink knowing it would cause her to miscarry.

Fiske was rushed to hospital. But it was far too late. She lost her unborn child.

Tests found the pill ‘Misoprostol’ in her system – about four times the prescribed amount, Fiske said.

Imran has since pleaded guilty to foetal homicide. He was charged in June with premeditated killing of a foetus of another and with illegally causing abortion or miscarriage.

#BREAKING: #Arlington doctor sentenced to 20years (17-suspended) for spiking girlfriend’s tea— forcing her to unknowingly have an abortion. #Virginia #NOVA #VA #DMV @ABC7News at 4pm/5pm. pic.twitter.com/rJt8jRhhkd

— Tim Barber (@ABC7TimBarber) May 18, 2018

On Friday last week, he was sentenced to 20 years in prison. Three of those years will be served in jail, while the remainder were suspended after Fiske asked for leniency.

His medical licence was also revoked and he may be deported to Pakistan after he is released from jail.

For Fiske, what was most important wasn’t the prison sentence, it was the acknowledgement of what he’d done: killing their unborn child and the heartbreak of that loss.

“To me, the length of time that he serves in prison isn’t what’s important,” she told WJLA.

At first, as an outsider looking into this terrible story, you’re probably somewhat pleased with the verdict. A man cruelly took away a life that would have been, that should have been, and you think to yourself that, yes, he should have to pay for it.

You’re then probably wondering why this case is not one Australia’s laws would allow to play out similarly in our courts. Shouldn’t the loss of life be acknowledged? And indeed, it should. The pain of a pregnancy lost because of the insidious or reckless actions of another person should never be diminished.

But recognising foetal homicide is a complex and prickly matter that risks bringing more problems and more suffering for women that it is worth.

In the USA there are almost 40 states that can legally recognise the foetus as a homicide victim – also known as “feticide”. Many of these states also characterise a foetus as a “person” from the moment of conception. But these laws often cause the justice system to wade murkily into the debate between pro-choice and pro-life advocates.

Because while the laws exist to protect unborn children, having been established to punish people who deliberately or carelessly end the life of a foetus without the mother’s consent (e.g. in a car crash or domestic violence incident), they are often also used to prosecute pregnant women who seek an abortion.

Between 1973 and 2016 in the US, at least 1000 pregnant women were arrested for matters related to their unborn foetus.

One of the most high-profile cases is that of 33-year-old Indiana woman Purvi Patel, who in 2013 chose to terminate what she thought was an early pregnancy. She took medication to abort the pregnancy in the safety and privacy of her own home. But she was actually about 25 weeks along, and the procedure resulted in a stillbirth. Distraught, she rushed to hospital, pouring with blood. When she woke up from surgery, police interrogated her.

Patel was sentenced to 20 years in jail for feticide and child neglect. Police argued feticide law could be used to punish a woman for attempting to have an abortion. Keeping in mind, Indiana’s feticide law was introduced after a bank robber shot a bank teller who was pregnant with twins.

Finally! Purvi Patel released after feticide conviction in self-induced #abortion overturned: https://t.co/SDfH5ONsxs #FreePurvi

— National Partnership (@NPWF) September 6, 2016

Thankfully, a year later in 2016, Patel’s conviction was overturned because the appeals court acknowledged it sent a dangerous message to pregnant women.

“When the law treats fertilised eggs, embryos, and foetuses as legally separate from the pregnant women who carry them, the door is open to a host of problematic consequences for pregnant women,” said National Advoactes for Pregnant Women’s Farah Diaz-Tello in 2013.

If a woman falls down a set of stairs? If she drinks alcohol? If she tumbles while skiing? If she attempts suicide? If she merely expresses doubts about her pregnancy only to have a stillbirth or miscarriage? Each of these acts risk being criminalised, simply because she is carrying a foetus.

And this is why Australian advocates for women’s reproductive rights became nervous when in 2013, NSW almost became the first state in Australia to follow some US states and define a foetus as a legal “person”.

In 2013, Christian Democratic Party MP Fred Nile introduced a bill named Zoe’s law which sparked a national discussion about the rights of a foetus.

The bill was created in memory of the daughter of Brodie Donegan, Zoe, who died in utero at 32 weeks in December 2009 when Donegan was hit by a drug-affected driver. The driver was charged with grievous bodily harm to Donegan, but could not be charged with Zoe’s death because an unborn child is not a legal person.

Instead, Zoe’s death was characterised as an “injury” inflicted upon Donegan.

Current NSW laws recognise a woman and a foetus as one and the same. Only when a child is born do they legally become a separate person.

So, in a bid to acknowledge the damage of pregnancy loss caused by another, Zoe's law (Nile's bill was later amended by the family) proposed to establish harm to a foetus of more than 20 weeks old as a separate crime to the harm done to the woman carrying it, arguing they are two separate people. This would then mean someone who kills a foetus through a criminal act could be charged with murder or manslaughter.

In 2013, Donegan wrote for Mamamia: "We have never felt that Zoe’s loss of life was acknowledged or taken into account. Losing her was far worse than my injuries. It was harder to recover from. Her loss was felt by our entire family."

La Trobe University Law School lecturer Hannah Robert has faced a similar tragedy to Donegan. In 2009, her car was hit by a 4WD in Melbourne, causing the death of her unborn daughter when she was eight months pregnant. In a piece she wrote for The Conversation, she explained why her child's death meant she did not support Zoe's law even if the bill exempts abortions.

Once the foetus is defined as a legal person, the law has a direct relationship with it, and the mother’s consent becomes irrelevant. She becomes invisible in the eyes of the law, despite the physical realities of pregnancy meaning that any interaction with the foetus necessarily involves her.

Zoe’s bill is drafted to create exceptions for anything done to the foetus by the mother, with her consent or by a medical professional. But this creates a situation where it is legal to take the life of some legal persons, but not others, depending on the consent of a third party (the mother).

And it opens up the prospect of human rights claims being brought on behalf of a foetus. With that comes the prospect of challenges to the pro-choice exceptions built into Zoe’s law.

Once a foetus is a legal "person", it could be argued it is contradictory and unfair to treat a foetus as a person when attacked by another, but not when harmed by the pregnant woman herself. This is an argument that pro-life advocates would seize on. And considering we live in a country where depending on where you live, abortion is still criminalised or restricted (NSW, Queensland and South Australia), it is dangerous territory. In time, safe access to abortions could be even harder.

So, instead of protecting a foetus as a legal person, Robert believes our laws should be changed to punish anyone who takes away a woman's ability to make decisions about the life she is carrying in her body.

"My own view is that the foetus is a life. But because it is a life completely contained within a legal person (the mother), any interests or rights it could have can only be advanced through the consent of the mother," Robert wrote.

And it is the violation of this - actions that kill a foetus without the mother's consent - that could provide the framework to effectively protect women from the same harms Donegan and Robert suffered.

Zoe's law ultimately failed after passing the NSW lower house in 2014. But only last year, Nile reintroduced the bill to parliament. And tragically, the problem of pregnancy loss caused by criminal behaviour is not going to go away. The states that give most credence to the idea that killing a foetus is a crime are Queensland and Western Australia, which applies when a pregnant woman is assaulted, but the laws do not go as far as to say a foetus is a living "person". In 2016, a bereaved Queensland mother, whose daughter died in a crash days before birth, pushed to introduce Sophie's law in the state to give any foetus past 30 weeks gestation full rights as an individual human being.

Australian Lawyers Alliance criminal justice spokesman Greg Barns - who has represented pregnant victims of assault in the past - told Mamamia he was against strengthening legal protections of the foetus, believing it to be both unnecessary and risky to separate the life of the foetus from the mother.

"I'm not a fan of extending the criminal law into areas where there is inherent uncertainty and where you might have difficulties in its application," Barns said.

"I think the existing law caters adequately. In these types of cases you'd be charged with serious assault and you'd go to jail for a long time. To extend the law of murder to a foetus is very difficult and highly contentious in legal, ethical and philosophical terms."

And the criminal barrister said while a situation like Brooke Fiske's is extremely rare, if it occurred in Australia the offender would certainly be be slapped with a substantial prison sentence, likely for grievous bodily harm or another severe form of assault. The rights of the mother as a human being by proxy protect the foetus she carries.

Whenever the conversation about foetal rights re-enters public discourse - and not just in NSW - it's important to not let our hearts get ahead of our heads.

The consequences on women's reproductive rights by introducing tougher foetal protection laws are uncertain. But when expert organisations like the NSW Bar Association and the Australian Medical Association warn that the benefit likely wouldn't outweigh the risk, it's important to listen.

Reading about Brooke Fiske's harrowing experience in Virginia, USA, it is certainly on the surface reassuring to see a man - who intentionally caused his girlfriend's pregnancy loss - convicted and jailed for the homicide of the foetus. But is the core tragedy of this incident that this foetus was a legal person that had its rights breached, or is it that this man removed a woman's right to decide what she did with her body and the little life growing inside it?

Both Brooke Fiske and Brodie Donegan wanted one thing: for the lost lives of their unborn children to be acknowledged. And there must be a way to do this through our legal system in a manner that both sufficiently recognises the mother's loss, but also preserves our reproductive rights.

How do you think the death of a foetus should be dealt with by the law? Tell us in the comments below.

Sophie Aubrey is on Twitter.

If this article has raised any issues for you, please contact SANDS - Australia's miscarriage, stillbirth and newborn death support organisation - on 1300 072 637.