Whenever I hear of a piece of legislation as a possessive proper noun, I wonder as to the tragedy that befell the person named. Occasionally the full title of the bill or the act will give some clue as to what precipitated parliament changing the law, but mostly the rest of the title is legalise.

The title of the NSW Crimes Amendment (Police Pursuits) Act 2010, better known as Skye’s Law, is instructive. Named for 19 month-old Skye Sassine who died when armed robbers being chased by police crashed into her family’s sedan, the law, appropriately, creates a specific offence of not stopping during a high-speed pursuit.

The NSW Crimes Amendment (Zoe’s Law) Bill 2013 (No. 2) is named for another car crash victim – indeed another victim of motorist stupidity. In this instance, the young girl tragically killed was 21 months younger than Skye; Zoe was killed in utero.

Brodie Donegan was 32 weeks pregnant when her car was struck by a drug-affected driver. A few hours later her baby Zoe was stillborn by emergency caesarian section. The driver was charged and later convicted in relation to the injuries he caused Miss Donegan (which, at sentencing, specifically included the death of her unborn baby), but he couldn’t be separately or specifically charged in relation to the death of Zoe. Enter Zoe’s Law.

In November last year it was introduced as a private member’s bill by former Liberal, now cross-bench MP Chris Spence. It passed the Legislative Assembly 63 to 26, and will come again to the NSW upper house as early as next week. It is adorned by emotion, confusion, and legal uncertainty, but it should not be passed.

The most vocal opponents of the bill are the abortion rights lobby and its fellow progressive travellers in parliament and outside of it. After it passed the second reading stage in the lower house, Sydney MP Alex Greenwich declared, ‘I am greatly concerned that the Legislative Assembly had voted to put women’s reproductive rights at risk.’ In the debate last year MPs from all parties, and on all sides of the argument, were falling over themselves to affirm their support for, what the mover of the bill referred to as, ‘a woman’s right to choose’ (the verb, apparently, no longer requiring an object). Others affirmed their allegiance to their local abortion clinic, women’s health centre, or feminist library.

But Mr Greenwich needn’t have worried. The final version to pass the lower house contains a pretty watertight exemption:

This section does not apply to or in relation to:

(a) anything done in the course of a medical procedure or medical treatment, or
(b) anything done by, or with the consent of, the pregnant woman concerned.

No risk to reproductive rights there! No risk of prosecution for abortionists. The fact of this clear exemption hasn’t stopped the shrieking abortion lobby from campaigning vigorously and hyperbolically against the bill. Greens MLC Dr Mehreen Faruqi described Zoe’s Law as ‘the controversial personhood bill’ which ‘sits ominously on the Upper House notice paper.’ Scary stuff!

The really frightening thing, however, is that the Greens believe that acts of parliament create personhood (akin, I suppose, to their understanding of human rights being created by the United Nations). Whatever personhood may or may not be affirmed in Zoe’s Law, it specifically does not criminalise abortion – or in fact any act done by a mother, or by a doctor in the course of medical treatment.

In any case, the personhood affirmed in Zoe’s Law is an arbitrary and inconsistent one. It defines as an Unborn Child a baby of at least 20 weeks gestation, or a body mass of at least 400 grams. But ask a woman who is happily 19 weeks pregnant if her unborn child is an Unborn Child and she would quickly point out the absurd and capricious nature of the legal distinction.

The legal definition in Zoe’s Law is not derived from any medical or philosophical principle, and judging by the expectant parents I know, it’s not derived from maternal joy or parental pride either. It’s derived from the political need to create Zoe’s Law. That, and the fact that no whip in Australia would be able to find 63 votes for life beginning at conception.

The arbitrary distinction Zoe’s Law envisages is a pragmatic necessity. But it is contrary to the rule of law, and unjust not only for the unborn child (or the Unborn Child as the case may be) but also for the offender whose culpability may be dramatically altered by a day in either direction, by a few foetal grams, or by a minor obstetric or pathological miscalculation. Or as pro-life Hornsby MP Matt Kean pointed out in his sensible speech in opposition to the bill, it may be the mother whose moment of reckless driving is responsible for her unborn baby’s death, and yet Zoe’s Law would not apply. If the loving father had been driving, Zoe’s Law could see him jailed.

In NSW the existing legislation provides no separate offence for the death of an unborn baby, however sentencing guidelines and case law deal with these issues. The death of such a child is held to be grievous bodily harm to a pregnant woman – a serious offence with a serious sentence of up to 25 years when caused intentionally or 14 years when done recklessly. Where the child is killed and the mother injured, both are to be considered aggravating factors at sentencing. Furthermore, it is well established that a mother’s emotional trauma, and other consequences of an unborn baby’s death, can be taken into account when determining a punishment, as happened with the driver in Zoe’s case.

I would love to see a bill before parliament to restrict the ‘right to choose’ abortion, but as many pro-choice and pro-life MPs have pointed out, Zoe’s Law isn’t it. It is a piece of legislative hypocrisy that purports to comfort grieving parents and bring offenders to justice while allowing MPs to affirm that an Unborn Child ‘is taken to be a living person,’ but only for the purposes of this small section of the Crimes Act, of course!

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