A bill currently before the NSW Parliament attempts to criminalise harm to late-term foetuses that die due to injuries inflicted on their mother. But is foetal legal personhood the best way to recognise the particular harm of losing a much-wanted pregnancy due to someone else’s violent or careless act?
As a feminist legal academic, I have professional insight into the prospective law; I also have personal insight as a mother who lost her unborn child in a car accident.
It reads like a macabre riddle – someone died within my body, and yet I live. It’s one that I’ve puzzled (and wept) over many times since a 4WD hit our station wagon when I was eight months pregnant in December 2009, causing our baby daughter to die before she could be born.
The current law’s attempt to answer this riddle is a clumsy one. It characterises our daughter’s death as one of my “injuries”, because she died in utero, and was not a legal “person” with a separate existence from me at the time she died.
It is exactly this riddle which Zoe’s law (No 2) attempts to resolve.
What the bill does
The bill defines a foetus over 20 weeks or weighing more than 400 grams as a legal “person”, for the purposes of dangerous driving causing grievous bodily harm and a number of other criminal offences.
Zoe’s law is named after Brodie Donegan’s daughter, Zoe, who also died in utero due to dangerous driving in December 2009.
For Zoe’s parents, this bill seeks to close what they see as a gap in the law:
We have never felt that Zoe’s loss of life was acknowledged or taken into account …I couldn’t reconcile that the child I’d applied for a stillbirth certificate for, held a funeral for, received the baby bonus for, received paid parental leave from work for; wasn’t recognised separately to me.
The law’s response touches a raw nerve because so much of the grieving process is about developing an understanding of who you are mourning – a process already complicated when your child dies before (or around the time of) birth.
Calling our loss an “injury” fails to acknowledge the depth of sorrow involved in grieving a child. But is foetal legal personhood the best way for the law to recognise our loss?
Legal personhood
A key difficulty here is that legal personhood has been interpreted as the definition of human life and worth. Legal personhood is a technical category that sometimes includes non-humans, such as corporations. Its purpose is not to define human life but to enable an autonomous interaction with the law.
Legal personhood doesn’t make sense for a baby in utero. The physical reality of pregnancy means that the baby is the opposite of autonomous – it depends completely on the mother and is completely contained within her body until birth.
While inside the mother, a baby is covered by her legal personhood. Birth is the moment of separation when the baby is no longer contained within the mother and her legal personhood.
I have no doubt that my daughter was a person - but I am comfortable with the idea that, at the time she died, she was protected by my legal personhood rather than her own.
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.
Reproductive autonomy
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.
As a pregnant woman, what you choose to do with the life within you is a huge moral decision. But because that decision is completely contained within your body, and because you are already the mother to any child that might potentially be born, you are the best person to make that decision.
You are the most qualified person, the most concerned person, the person most at risk, and the most interested person.
For anyone to take that decision out of your hands, whether to insist that you continue with a pregnancy or to terminate a pregnancy against your will, is a violation. It goes beyond pain and physical injuries – it violates the mother’s decision for her own body and for any potential child.
It is this violation that I would suggest would be a much more effective base for a law recognising the harm Brodie Donegan and I experienced.
This could involve, for example, a specific offence addressing conduct that ends the life of a foetus without the mother’s consent.
Our current laws misconstrue forced pregnancy loss as just another type of bodily injury, rather than recognising it as a violation of reproductive autonomy. Like rape, forced pregnancy loss deserves its own offence centred on the notion of violation, rather than injury.
A law that frames forced pregnancy loss as a specific offence could acknowledge the family’s suffering in cases like mine and Brodie’s – and protect reproductive autonomy.
It doesn’t resolve the heart-breaking riddle of losing a child, but I’m not sure that any law could.