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Australia: Bill Giving Personhood to a Fetus at 20 Weeks Passed by State Lower House

(Nov. 29, 2013) On November 21, 2013, the Lower House of the New South Wales (NSW) Parliament passed a controversial bill that would allow authorities to charge a person who harms or destroys a fetus of 20 weeks’ or more gestation with a criminal offense. (Anna Patty, Zoe’s Law Passes in NSW Parliament Lower House, THE SYDNEY MORNING HERALD (Nov. 21, 2013).) The Crimes Amendment Bill was passed by a vote of 63 to 26 and is expected to be debated by the Upper House next year. The legislation was named “Zoe’s Law” after a fetus that was stillborn following a 2009 accident in which an eight-months pregnant woman was hit by a car driven by a person under the influence of drugs. (Bridie Jabour,Zoe’s Law, Giving Personhood to Foetus at 20 Weeks, Passes NSW Lower House, THE GUARDIAN (Nov. 20, 2013).)

The bill seeks to amend the Crimes Act 1900 (NSW) to insert a new provision on “offences in relation to the destruction of or harm to the foetus of a pregnant woman.” (Crimes Amendment Bill (Zoe’s Law) Bill 2013 (No. 2), sch 1, cl 2, Parliament of NSW website.) Under the provision, an unborn child would be defined as a fetus of at least 20 weeks’ gestation or, where the gestation period cannot be reliably established, as a fetus having a body mass of at least 400 grams. The amended law would state that an unborn child “is taken to be a living person despite any rule of law to the contrary,” and that grievous bodily harm to an unborn child is to be taken to include destruction of the unborn child. (<?Id. [click on “Text of Bill as Introduced”].)

The bill was the subject of a conscience vote in the Lower House, meaning that members of the different political parties could determine how to vote individually rather than voting as a party. The group of members who voted against the bill included several government ministers, among them the Health Minister and the Minister for Women. (Patty, supra.)

Various groups have spoken out against the bill, including the NSW Bar Association and Law Society, the NSW branch of the Australian Medical Association, and various women’s groups. Members of the Green Party in the Upper House vowed to fight the amendment. (Critics Vow to Fight Zoe’s Law in NSW, NEWS.COM.AU (Nov. 21, 2013).)

Critics of the bill raised concerns about its impact on the lawfulness of abortions after 20 weeks of pregnancy and other potential issues arising from a fetus having rights that could be at odds with the pregnant woman’s. They also argued that it was unnecessary to create a new offense, as harm caused to a fetus can currently be an aggravating factor at sentencing for an assault on the pregnant woman. (Patty, supra.) The supporters of the bill sought to address these concerns by introducing amendments that specify that anything done with a woman’s consent or in a medical procedure would not be a criminal offense. (Crimes Amendment Bill (Zoe’s Law) Bill (No. 2) 2013, sch 1, cl 2.)

The MP who introduced the bill, Chris Spence, told Parliament that the bill was not about curtailing abortion rights. However, female MPs who voted against the bill considered that not enough had been done to protect women’s reproductive rights, despite the amendments made to it. (Zoe’s Law to Protect Foetuses Passes NSW Lower House, ABC NEWS (Nov. 21, 2013).)