How the tragic death of a baby has pro-choice advocates extremely worried.

UPDATE: Zoe’s Law has been passed by the NSW Lower House, 63 votes to 26.

The bill now moves to the upper house where it will be debated. If passed, Zoe’s Law will change the Crimes Act so that any foetus more than 20 weeks old –or weighing more than 400g – will be regarded as a person when it comes to charging someone with grievous bodily harm.

Opponents of the law worry about the affect it could have on abortion laws.

If you’re not familiar with Zoe’s Law, here’s is a cheat sheet Mamamia previously ran.

By CATHERINE HENRY

It was a terrible tragedy. Brodie Donegan was 32 weeks pregnant when she was hit by a car on the NSW central coast. The driver was high on a cocktail of drugs, including methadone.

As a result of the accident, Brodie lost her baby, who she called Zoe.  The woman driver responsible was charged with grievous bodily harm – a criminal offence under the Crimes Act – for the injury she inflicted on the mother. But she couldn’t be charged with a separate offence of injuring Zoe, as the law currently sees a woman and the unborn baby as one and the same.

1. Should we change the law?

Today, MPs in the NSW Legislative Assembly will be asked to consider an amendment to the Crimes Act known as ‘Zoe’s Law’. The changes, if passed, will mean that any foetus more than 20 weeks old –or weighing more than 400g – will be regarded as a person when it comes to charging someone with grievous bodily harm. In other words, someone who damages a foetus will be responsible for injuring it, separate to any injury they cause to the mother.

Given the circumstances of this heart-wrenching, devastating case, it is not surprising that there are a lot of people who feel sympathy for the plight of Brodie Donegan.

However, we should all be very concerned about Zoe’s Law and hope that it doesn’t become law. That’s because Zoe’s Law will threaten abortion access and could also lead to women being charged for engaging in a whole range of activities – many of which are low-risk – while pregnant.

Similar laws have been introduced in the United States in similar circumstances. These laws have caused a whole new body of law to develop around the “legal personhood” of foetuses. For instance, in 2004 a Utah woman was charged with murder when she refused to undergo a c-section for her twins and one died at birth.

In 2003, a disabled woman in Florida who became pregnant after being sexually assaulted had a legal guardian appointed over her foetus and was forced to give birth.

Women in the United States have also been prosecuted for drinking, smoking and taking drugs during their pregnancy. If foetuses are given the same legal status as their mothers, it’s likely that we’d see a whole raft of similar cases here in NSW.

2. How Zoe’s Law could make things worse.

This fact wasn’t lost on former NSW Supreme Court judge – the Hon Michael Campbell QC. Three years ago he was given the job of considering whether these changes to the law were justified.

After months of work (which cost the taxpayer a lot of money), the “Campbell Review” decided that not only was there no reason to change the law, but that there were serious flow-on effects in giving legal recognition to a foetus.

But the central issue is the impact on access to abortion if Zoe’s law is passed. In NSW, the legal foundation of abortion is very fragile anyway.

Unlike the situation in Victoria and the ACT, where abortion offences have been removed from the criminal law, NSW women (and the doctors performing them) can still be charged with having what is known as “an unlawful abortion”.

So, imagine the potential repercussions of terminating a pregnancy when the foetus has the legal rights of a person.

There’s also the problem that Zoe’s Law recognises an exemption for what is termed a ‘medical procedure’. However, the Crimes Act doesn’t even define what a ‘medical procedure’ is.

So, if the legislation is passed, lawyers will have to argue about what constitutes a “medical procedure and it will most likely become the main contested area under the new law. Doctors will constantly have to justify why they performed an abortion on a patient.

Doctors could easily decide that it’s just not worth the risk to carry out abortions at all, given the ever-present possibility that they could be charged with a criminal offence.

This has already happened in Queensland where recently doctors, as a group, refused to continue to perform abortions until the government there clarified the law to their satisfaction. This severely limited women’s options and right to choose and could certainly happen here in NSW.

3. What the experts say.

Given what’s at stake here, it’s really important to understand that just about every lawyer who has considered this has decided that there is no reason to change the law.

Lawyers point out that judges must already take into account –whether a woman is pregnant when they consider what an appropriate sentence would be.

Even the body responsible for laying criminal charges, the NSW Director of Public Prosecutions, has said that it can’t understand the need for the law to change. It argued that if Zoe’s law was passed it was likely to “result in prosecutions protracted by medical evidence and legal argument, leading to extra distress and cost to those involved.”

The DPP’s views on this are shared by pretty much every reputable legal and medical organisation in NSW that has a view on the matter at all. The NSW Bar Association (which represents the state’s barristers), Women’s Legal Services and NSW Community Legal Centres all oppose the changes. So do women’s organisations like the Women’s Electoral Lobby, the National Foundation of Australian Women and Rape Crisis Centres across NSW.

Even the usually conservative AMA thinks the law should stay as it is, as does the Royal Australian College of Obstetricians and Gynaecologists, Womens’ Health NSW and Family Planning NSW.

While at first glance Zoe’s Law represents a compassionate response to a tragic situation, passing it would open up a veritable minefield of legal ramifications that in themselves could cause more trauma and injustice.

Hopefully, when parliament comes to vote on the changes this week, reason will prevail.

Catherine Henry is a Newcastle lawyer who specialises in health and medical law and is the former NSW Branch President of the Australian Lawyers Alliance and the Newcastle Law Society. She has a longstanding interest in the legal aspects of women’s health and reproductive medicine. Her twitter is @chpartners.

What do you think about Zoe’s Law? Should it be passed? Do you think it would do more harm than good?