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Baby Zoe: why can’t a foetus be a victim of crime?

Tracey Spicer

by Tracey Spicer

25 May 05:55am

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Filed under: Abortion, Conception, Crime

108 comments

The first story I covered as a court reporter was about the point at which life begins. It was a big question for the tiny Moe Magistrates’ Court. The year was 1989.

Brodie Donegan and fiance Nick Ball in the nursery they had prepared for their unborn daughter Zoe who died in a car accident. Photo: Gary Graham.

Every Friday night, one of the local lads would throw a sex party. One night his heavily pregnant girlfriend objected, so he punched her repeatedly in the stomach.

The eight-month-old foetus didn’t survive.

Debate raged within the court and the Victorian community. Was it murder? Manslaughter? Grievous bodily harm?

There was nothing in the law to allow for any of these charges, because the baby hadn’t drawn breath. But had the baby been born at the same gestation, it almost certainly would have survived. 

In the end, the perpetrator was charged with assaulting his girlfriend. It was as if the foetus never existed.

This thorny issue has again been raised, in New South Wales. Brodie Donegan was eight months’ pregnant when she was allegedly hit by a drug driver while walking alongside the road at Ourimbah, on the state’s Central Coast.

Her unborn child, Zoe, was stillborn. A birth certificate was issued. A funeral was held.

But according to the criminal justice system, Zoe never existed. 

The toughest penalty that could be imposed is 25 years jail on a charge of grievous bodily harm caused to Brodie – not her unborn child.

It’s called Byron’s Law, introduced by the NSW government in 2004 after Renee Shields lost her unborn son in a road rage incident.

But it still doesn’t consider the foetus to be a human being.

Brodie is campaigning for the driver to be charged with manslaughter. The case has sent parenting and pregnancy websites into meltdown.

Does life begin at 24 weeks’ gestation, when a foetus can survive outside the womb? Or 22 weeks, because of recent advances in medical care?  Or eight weeks, when an embryo becomes a foetus?

Or from conception, as Christians, Muslims and Buddhists believe?

In the US, the Unborn Victims of Violence Act recognises the “child in utero as a legal victim if he or she is injured or killed during the commission of any federal crime of violence”.

Of the 35 states that recognise foetal homicide, 25 apply the principle throughout the entire pregnancy, while 10 establish it during the latter stages.

The laws don’t apply to legal abortions.

But in states where abortion is illegal, women and their doctors can be charged with foeticide.

In the UK, a woman who had an unsafe abortion while seven months pregnant was recently convicted of “child destruction”.

It’s the same law that was repealed in Victoria two years ago, in order to decriminalise abortion up to 24 weeks (and beyond, with the consent of two doctors).

Which raises the question: if we seek uniform laws across Australia to protect the child in utero in the case of a car crash or assault, could this pave the way for women or doctors to be charged with murder or manslaughter?

And would such laws contradict those allowing legal abortions in most states and territories to protect the physical or mental wellbeing of the mother?

Then there’s this anomaly: Victorian law doesn’t recognise a foetus as a human being until it has taken breath, but those killed in car crashes up to 20 weeks’ gestation are counted in the road toll.

A retired judge has been appointed to review NSW laws involving the deaths of unborn children.

But until we answer the difficult question of when life actually begins, our complex and contradictory laws will continue to cause heartache for already grieving families.

Most commented

353"Gifting", "journey" and other words we hate
309Thomson didn't answer the question everyone is asking
246A big day for Thomson, who thus far is guilty of nothing...
242They must pay for one's bitter disappointments
230Craig Thomson speaks. Meanwhile, in Australia...
229South Australia. It's the middle bottom bit.
224Punch on: Open thread 17/05/2012
224The most laughable, err, spoof since Einfeld

108 comments

Show oldest | newest first

    • biff says:

      06:04am | 25/05/10

      Fancy having to prod the government into action over this sad case. Maybe when the premier finishes setting up bike riding lanes she might turn her attention to this matter.

      Reply

    • Cheryl says:

      12:00am | 26/05/10

      This was not just a fetus this mother was 8 months pregnant nearly full term almost all babies born at 8 months survive with out any medical intervention, so this was a viable wanted child that has not had the chance to survive.  Abortion must be performed before it becomes a viable pregnancy when a fetus is no more then 3 months and would not survive out side of the womb I don’t see where the two issues are the same.

    • DG says:

      06:24am | 25/05/10

      The biggest part of the problem is that addressing this issue means facing the abortion debate.

      While this could be easily avoided by stating that:
      (a) a person has absolute rights over all biological processes within their own body,
      (b) a viable biological process within one person has rights against the whole world, except as provided by (a).
      (c) a person who assists a person referred to in (a) to terminate, remove or otherwise end a biological process within their body is entitled to the same protection as the person referred to in (a).

      A bioloical process is viable if, in the event of birth at the time of the incident, the biological process would have a better than 50% change of survival based on a comparison with other births in Australia of entities of the same approximate weight and gestation period.

      This allows for abortions, cosmetic surgery, the removal of parasites and even assisted suicide. Where’s the drama?

      Reply

    • Formersnag The Child Protector says:

      08:11am | 25/05/10

      @ DG, there are times when you can sound quite sensible, almost logical, but there is one huge hole in your logic, the same one with the abortion debate.

      Full term 9 month babies are just as unviable outside the womb as they are inside it.

      Inside the womb the placenta is like an extra set of vital organs, piggy backing off the mothers vital organs to provide nutrients to the “baby” & remove waste, to keep the “baby” viable until birth.

      After birth, parents continue feeding babies, wiping their arse, changing nappies, housing, clothing, educating, until about age 25 when they are fully grown, have a trade or profession, can “fend for themselves”.

      The “truth is often inconvenient”. Murder is murder, is murder, is murder.

      Can anybody suggest an age, after birth when a foetus is considered viable, namely the child is capable of feeding, clothing, housing, educating, itself, paying for its own health care?

      Then we can, “decriminalise” murder of an unviable foetus, below that age.

      That is the only logical conclusion or end point of the abortion debate.

    • Helen says:

      10:27am | 25/05/10

      I like your solution, DG.
      The problem with rushing into legislation in cases like this is that “hard cases make bad law”, as the saying goes.
      The minute the ink was dry on a law like that the forced-birthers would be all over it, and Tracy, when you mention laws in the US you forget the fact that forced birth and onerous laws governing abortion in the US are much more prevalent than here.
      Forced-birthers like Margaret Tighe would use such a law as a lever to ban late term abortions, which as sensible people are aware, are a rare and last-ditch event, not something that selfish women are doing so they’re free for a party Friday night. That being the case, we would maybe bring Brodie a little happiness (maybe - and not guaranteed) at the price of the anguish of other women for years to come - to give one example,  women who are forced to carry a catastrophically deformed or diseased foetus to term to die painfully rather than more mercifully dealing with the situation once the situation becomes clear.

      I feel very sorry for this woman but I do not think it ethical to impose pain on future women to make her, perhaps, feel a little better. Unfortunately only time will do that.

    • MenarefromMars says:

      10:45am | 25/05/10

      Lets draw a line at the completion of the First Trimester. And it can be made legally binding by the ruling of a doctor at the 16-18 week scan via some sort of registration process, ie registering an official pregnancy.

      It can’t be much earlier due to timing of genetic testing like Nuchal translucency tests.

      The point is whether the pregnancy is wanted or not.

    • DG says:

      10:51am | 25/05/10

      “Full term 9 month babies are just as unviable outside the womb as they are inside it.”

      I think that you’ll find that’s why I defined “viable”. There can be no doubt about whether a biological process is viable under the definition that I have provided above. It’s simply a matter of expert evidence.

      Do you acknowledge that there is a period at which a foetus can be removed from the womb and be kept alive by the wonders of modern medicine and that, before that time, the entity cannot be kept alive even with the wonders of modern medicine?

      I should point out that this is a matter of fact, not one of opinion. I seek only to confirm whether you accept this fact. If you do not accept this fact then it is clear that you are not basing your “logic” on observable reality but on some feeling of entitlement to life.

      If you accept that such a point exists, then you must also accept that a line could be drawn at that point and that such a line is not completely arbitrary as you alledge, but is an acknowledgment of at the point at which an entity can be removed from it’s present environment and, with the assistance of those who are willing to keep the entity going, can do so. I simply acknowledge that point and propose that it should have rights against the world at large at that point, and that the rights of the host take priority over those of any biological process occurring within that entity (whether or not it is viable according to the above definition). The right of one biological process to control any and all biological processes that are being carried on inside the that first process should be absolute. 

      To follow your logic: If you propose that, so long as it is possible to keep a biological process continuing at all thae we should do so as an exercise in the right of that biological process, then we should never turn off a life support system because, so long as the life support system is operating, the person remains alive. Turning off the system is murder!

    • DG says:

      10:56am | 25/05/10

      I should also point out that the above prevents a child, after birth, from taking legal action against the mother for anything that the mother injects, inhales or consumes during the term of pregnancy, or before pregnancy for things such as a folate deficiency causing genetic abnormality, or even for “wrongful life” or other conditions that are passed from mother to child.

    • Luke says:

      11:04am | 25/05/10

      Interesting term “biological process”...
      It a kid inside you is just a “biological process” and someone killing it by punching you is just saying “YOU HAVE INVADED MY BIOLOGICAL PROCESS!!”...
      i think the pregnant women in this case wants alittle stiffer charge than that!!

    • DG says:

      11:34am | 25/05/10

      Luke:

      I appreciate that other terms may be more politically expedient, but my intention was not to draft the law, but to establish a hierarchy of competing rights.

      You can call it “Mother and Child” if you like, or “host and parasite”, “woman and foetus”, whatever you want - it can even be Person A and Person B, if that’s what it takes to make the pregnant woman concerned feel a little better - after all it’s just a word.

      However I would say “If the biological process in person A is, or has the potential to become, a person in its own right”.

    • Paul Horn says:

      11:06am | 26/05/10

      My previous post was not published unfortunately .

      But DG your argument is specious. The point at which a foetus can be removed from the womb and kept alive by the marvels of modern technology is arbitrary my friend. Medical Technology is advancing all the time. The ability to keep unborn foetuses alive at earlier and earlier periods of gestation is reality now. So at what point do you change the datum? If hospital A has the most advanced medical care and hospital B does not then is Hospital B liable if a pregnant woman suffers trauma and aborts her foetus that Hospital A was capable of saving?  You are assigning God like responsibilities to the Medical Profession!   

      And while we are on the subject of abortion would agree with the right of parents to selectively abort the foetus of an unwanted baby due to their gender as in the case of Chinas one child policy?  I wonder how the [this hate-filled word removed - mods] tackle this conundrum. The pro abortionists are a hypocritical bunch!

    • DG says:

      01:48pm | 26/05/10

      “And while we are on the subject of abortion would agree with the right of parents to selectively abort the foetus of an unwanted baby due to their gender as in the case of Chinas one child policy?”

      Yes. As I stated above. A person should have the absolute right to terminate any and all biological processes occurring within that person. On whatever grounds they so choose - wrong gender, genetic “abnormality’, wrong father. There is no conundrum.

      Whether I would choose is irrelevant - after all I have testicles rather than ovaries. The choice is not, nor should it ever be, mine. It should be the choice of the person who owns the uterus - I certainly wouldn’t force someone to have a baby that they didn’t want. After it is born however….

    • DG says:

      01:52pm | 26/05/10

      “If hospital A has the most advanced medical care and hospital B does not then is Hospital B liable if a pregnant woman suffers trauma and aborts her foetus that Hospital A was capable of saving?”

      No, not at all. A medical professional who does their best given the circumstances is not guilty of an offence currently, nor should they be in the future. If the medical practitioner is negligent (as is the current law) then yes, they should be responsible for the negligent death of the child.

      And one does not “change the datum”, one relies on the datum as relevant at the date of the incident causing the end of that foetus.

    • Eric says:

      07:07am | 25/05/10

      If killing a foetus is a crime, then abortion is murder. If abortion isn’t murder, then killing a foetus is not a crime.

      Feminists want to have their cake and eat it too. They want a foetus to be defined as a person when it suits them, and an unperson when it doesn’t.

      This is the lowest of double standards.

      Reply

    • Adele says:

      08:36am | 25/05/10

      Eric, do you actually have an opinion on the matter? Or are you just taking the chance to have a dig at feminists?

      I think there should be a legal stage when the foetus becomes a “person” and its death is dealt with as such. Perhaps the stage at which it’s illegal to have an abortion.

    • MenarefromMars says:

      08:40am | 25/05/10

      Eric: Thats a big call. How about we define it by trimesters.
      First trimester OK - 2nd and beyond not OK.

      This isn’t really a feminist issue.

    • shabangabang says:

      08:44am | 25/05/10

      Shit, I agree with Eric on this one. +1 here.

    • Anon says:

      08:55am | 25/05/10

      Exactly Eric, It is the height of hypocricy to want laws that protect unborn children from drunk/drugged drivers but not from their own mothers.

    • DG says:

      09:15am | 25/05/10

      That, Eric, is called a false dichotomy. As above, one can, without any inconsistency, preserve the right to an abortion and the rights of a foetus - by establishing a hierarchy of rights.

      Competing rights are constantly balanced against each other. Most commonly in for for of “lining up” to enter a building or lift, the zipper effect for merging traffic and so on. Anywhere that people have competing interests the rights of one person supersede those of another person, while that other person retains their rights against the rest of the world at large.

    • Sam says:

      09:18am | 25/05/10

      Plenty of women who are not feminists and plenty of men are in favour of abortion not being illegal so I’m not really sure what the point of mentioning feminists is here.  Other than that I agree with what you have said and that seems to be what the issue is here you can’t revise these laws without looking at the abortion debate.

    • Sean says:

      09:44am | 25/05/10

      Agreed Eric, you can’t have it both ways, don’t know if it is a feminist only issue though.

    • BTS says:

      09:49am | 25/05/10

      Seems pretty straightforward argument to me, rather than ‘a big call’.  I can’t see how it’s not a feminist issue.  Surely, it’s one of the foundations of feminism, since only females bring babies into the world.

    • An Idle Dad says:

      09:53am | 25/05/10

      Maybe in the world of extremely simple people, Eric.

      Why can the law draw a line between murder and manslaughter if killing a person is killing a person? Because circumstances matter.

      No one performs a late term abortion for shits and giggles. There is a vast difference between a late-term abortion for genetic defects or where the mother’s life is threatened and the article’s scenario - a mother with the intention of carrying a normal baby to full term having that taken away during a crime (drink driving).

    • Elphaba says:

      10:06am | 25/05/10

      You’re right Eric.  It has to be one way or the other.

      Whilst it is a terrible thing for this family to endure, if something like this ultimately interfered with the rights of women to receive abortions, I couldn’t support it.

      GBH seems to be the right charge to me.

    • Emma says:

      10:14am | 25/05/10

      Point is baby Zoe was a feotus. Aborted embryo’s are in the embryonic stage. Why is it always feminists why can’t it be regular women?

    • James1 says:

      10:18am | 25/05/10

      Wow.  I also agree with Eric.  Amazing.

    • Elphaba says:

      11:25am | 25/05/10

      Looks like my previous comment didn’t get published.

      Eric, I completely agree.  A review of these laws is going to cast the spotlight on abortion.  Pro-lifers (preferable to ‘feminists’) do not see any difference between an almost full-term baby and 8 cells - regardless of what the law says.  For them, it’s a baby and it’s murder.

      Whilst it is terrible for this family, you can’t have it both ways.  And even if the law makes the distinction, the pro-lifers will still feel the same way.

      GBH was the right criminal charge in this case.

    • Kate says:

      12:11pm | 25/05/10

      How is the abortion debate only relevant to ‘feminists’, Eric?

      My boyfriend believes in the right of women to have an abortion. If I got pregnant now I’d have an abortion and he strongly supports that. I wouldn’t consider myself a feminist and nor is he. Abortion is not about feminism or women trying to screw men over, it’s about both the woman and the man involved in the child’s conception having a say over whether or not they are ready to bring a child into the world.

    • TracyS says:

      12:38pm | 25/05/10

      Bringing feminism into it serves absolutely no purpose.

      However, the first statement “If killing a foetus is a crime, then abortion is murder. If abortion isn’t murder, then killing a foetus is not a crime” has logical validity. If legislation identifies a foetus as an entity with rights, then this could potentially bring the legality of abortions into question.

      It is a much clearer position to define the loss of a foetus as a harm to the mother, without giving additional rights to the foetus - ie assault causing loss of a foetus being an additional charge on top of assault causing direct physical harm to the mother. This would give the courts latitude to impose additional heavier sentences on the perpertrators without needing to legally alter the recognition of the foetus at all.

    • MenarefromMars says:

      12:43pm | 25/05/10

      BTS: I think you are confusing feminist with feminine.

    • Jamie says:

      10:55am | 26/05/10

      Because all men are against abortion right? I am extremely tired of the assumption that abortion is a purely feminist issue. Let me just say that there are plenty of males out there who would be horrified if abortion was illegal and plenty of women who are NOT feminists who are pro-choice as well.

      Eric, seriously, it’s obvious feminism is a sore point with you. But just because a woman is involved, doesn’t mean feminism is the main point or the most relevant point being discussed.

    • Leigh says:

      11:35am | 26/05/10

      Eric, this is solved by the definition of Embryo and Foetus. Embryo’s can be aborted before 22 weeks because they are not considered Foetus’s in this stage.

      BTW, you cannot seriously believe that it’s only feminists who are pro-choice. A lot of men are pro-choice as well. Come on, don’t tell me you’ve never heard of a couple accidently getting pregnant and the man being relieved when it was aborted. puh-lease.

    • Eric says:

      06:21pm | 26/05/10

      Jamie and Leigh:

      Please note that “feminist” is not the same thing as “woman”. A woman is a human of the female sex. A feminist is a human of any sex, who believes in feminist ideology.

      Feminism is a political standpoint, not a gender.

    • KH says:

      08:13am | 25/05/10

      How do you know it would have lived?  I knew someone who went the entire 9 months of their pregnancy and the baby was stillborn. It happens.  “Medical advances” blur the line as to when a foetus is viable and when it isn’t - up until recent times, even 6 or 7 months was too soon.  So where exactly would such a law draw the line?  How does this go against abortion laws?  Would it allow the anti-choice lobby to push for their pathetic point of view to be law, thus removing my rights as an independant, sentiate human to choose what happens to my body?  Or worse, allow such a group to push for charges against doctors? Or even worse than that, against a woman who has a termination?  There are a lot of issues here that aren’t as simple as they might seem on the surface.
      Perhaps the charges should be in relation to the woman who was injured, only the degree of injury could be higher if she was pregnant and her foetus did not survive contrary to what the parents wanted.  The judge should be using discretion to impose a harsher sentence in this kind of case, taking into consideration the impact on the victim, instead of making up laws that could potentially cause other problems.

      Reply

    • R says:

      09:08am | 25/05/10

      Admittedly, America isn’t really the poster child for sensibility in the law system, but if the feoticide laws work over there and also allow for abortions in states where abortions are legal, then why can’t they work here?

      I was horrified to hear that a child doesn’t even technically exist until it draws a breath. If abortions after 24 weeks are illegal without the referall of 2 doctors, then how can killing a child in utero not be recognised as crime?

      It always takes so many tragedies for something to be done. It’s even more devastating that the victims involved are unborn infants, who won’t even be recognised as such.

      Reply

    • Third party says:

      09:10am | 25/05/10

      It’s a slippery slope when you start claming that non-life is life.

      The woman who performs an abortion because she is poor and afraid suddenly becomes a murderer for taking action over her own body and life. That is wrong.

      Murder requires mens rea and actus reus. Without the intent to kill it’s not murder. If you intended to assault someone then adding further to that crime for something they didn’t know (a 2 month old foetus) seems harsh and unrealistic. If there was never the intent to assault but recklessness then it seems doubly harsh to punish them for the unfortunate circumstances of random probability.

      While it is horrific and unfortunate this legislation merely seems reactionary.

      Reply

    • BobM says:

      09:26pm | 25/05/10

      You sound like a lawyer, and what the world needs is a lot less lawyers.

    • Paul Horn says:

      10:44am | 26/05/10

      Third Party sounds like a lot of progressive lawyer gobbldygook. If some idiot gets behind the wheel completely paralytic and kills someone then that is intent to kill no questions asked, blue murder!!! In fact it is worse than someone who schemes to murder another simply because the drunken driver shows complete disregard for anyone and everyone. They may as well be standing in the middle of a busy shopping mall with a loaded weapon taking pot shots at random folk.

      Lawyers have a lot to answer for!! They are nothing but a scourge on decent society!

    • Dan says:

      08:29pm | 26/05/10

      Right Paul Horn. And I suppose should you ever get in trouble with the law, you will represent yourself? Afterall, they are ‘nothing but a scourge on decent society.’ I also assume that you don’t seek legal help in regards to property or taxes or any other number of things? We wouldn’t want to be hypcritical would we?

      Oh, and it’s not ‘blue murder’. The fetus is not a human life.

    • sam says:

      09:13am | 25/05/10

      Cmon Tracey

      Dont try and blend two different issues.

      the fact is this couple made a choice to have a baby - someone else (against their will) denied them this choice.  Surely there has to be some justice for a family who have lost an unborn child because of the crime of another.

      This topic should not be about abortion - it should be about the crime committed against this family.

      this issue is not about sexual politics its about justice - and frankly Tracey you havent answered that question.

      Reply

    • Jane says:

      09:25am | 25/05/10

      But Sam, abortion does come into this. Once you declare that a foetus (at whatever stage) becomes a living being for the purposes of the law, this does muddy the waters. If the law proscribes a foetus as a person with rights, what’s to stop anti abortion campaigners from trying to get abortion made illegal right across the country.

      What happened to this family is a terrible tragedy. But legislators need to think long and hard about any proposed changes to the beginning of life and what implications that will have in other areas of law.

    • Vicki PS says:

      10:11am | 25/05/10

      @Sam:  A bit stiff to expect Tracey to solve a question that has vexed courts and lawmakers for centuries.  And this is one issue, not two.  There is one fundamental question—does a foetus have legal existence as a human being?  It then becomes a matter of defining offences against the foetus, and defences to these (one of which might be lawful medical termination).

    • An Idle Dad says:

      10:15am | 25/05/10

      Of course, Tracey is incorrect in saying that abortion is legal in most places. It certainly isn’t in NSW. While legal precedent has been set to allow in the cases of harm to the mother, the conflict Tracey suggests can be resolved by making abortion legal.

      After than, everything you say is true.

    • Tim says:

      10:31am | 25/05/10

      You’re Wrong,
      this issue is very much intertwined with the abortion debate.
      How can you claim this to be a crime when abortion is not? it is not logical.
      In your example, what happens if a pregnant woman gets drunk and crashes her car losing her baby?
      Does she get charged with manslaughter or can she just claim that she actually didn’t want the baby in the first place and get off?
      You can’t have it both ways.

    • Muttley says:

      11:17am | 25/05/10

      No Tim, you’re wrong. They are two seperate issues, regardless of how the Pro Lifers wish to hitch their caravan to this discussion. First of all, if a mother gets drunk and crashes her car then that is straight forward. DUI and a charge for killing the baby. If you cant see the difference between a medical procedure and some drunk/druggie driving his car into an random victim then nothing anyone says here will make any difference.

    • Tim says:

      12:23pm | 25/05/10

      Muttley,
      i’m not a pro-lifer in any way, I just can’t go past the logical inconsistencies in trying to argue that one is murder and the other isn’t.
      Are you seriously trying to say that what would otherwise be murder is legitimised by a medical procedure?
      You are on some very murky water if that is the case.
      Some other hypotheticals:
      What about if a mother takes illegal drugs which cause her to have a miscarriage? Is that murder?
      What if a doctor prescribes medication that accidentally causes her to have a miscarriage. Manslaughter?

      Where do you draw the line over what is criminal and what is not?

    • Vicki PS says:

      04:42pm | 25/05/10

      @Tim:  “Are you seriously trying to say that what would otherwise be murder is legitimised by a medical procedure?  You are on some very murky water if that is the case.”

      Hardly without precedent, Tim, is it?  It doesn’t take much thinking to come up with plenty of examples of the law legitimising what would otherwise be murder, especially in the medical field.  After all, murder itself is defined by law, and definitions can be changed.

    • Bubba Ray says:

      07:11pm | 25/05/10

      Hey Tim, a surgeon once cut me open and then took my appendix. Yet he wasn’t charged with either assault or theft.  The anesthetist who knocked me out wasn’t charged with administering a stupefying drug either.

      So it would seem some acts which would normally be illegal can be ok if it is part of a medical procedure.

    • Tim says:

      09:22am | 26/05/10

      Bubba Ray,
      sorry you gave the surgeon your appendix so its’ not theft and assault involves violence with intent so your example is wrong.
      Murder involves an intent to kill and as the law stands you cannot permit someone to murder you or someone else.
      Although I do agree with Vicki, in that the law can always be changed to define it differently. I just don’t think that would be logically consistent.

    • Mandi says:

      07:32pm | 26/05/10

      Yes Bubba Ray, but if the surgeon had taken your appendix without your consent he could be charged with assault and battery

    • Austin 3:16 says:

      07:07am | 27/05/10

      Hey Tim, intention wins no prize - want to try again.

      Hey Mandy, yep consent in that instance was the key. How about if I was unable to giver consent though, would that always prevent a surgeon legally operating on me?

    • ABC says:

      09:14am | 25/05/10

      Births, Deaths and Marriages Acts are very explicitly clear on the issuing of death certificates for still-born children - they must be either a certain weeks gestation or weight in order for a death certificate to be issued.  Death certificates are not automatically issued for still-born children - they must meet the certificate eligibility criteria set out in the respective legisation.

      To extend the definition of murder or manslaughter to a child who is not yet born irrespective of the period of gestation is contrary to every facet of the long standing principles of common law which clearly define life and death for the circumstances in order to sustain charges of murder and manslaughter.

      The definition of death in terms of the issuing of a death certificate is vastly different from the causation and intention necessary to sustain a charge of murder of manslaughter, as it should be.  Simply because an external element contributed to the death in vitro of her unborn child should not be treated as a greater tragedy warranting the involvement of the courts than a mother who loses her child at the same age simply because her own body essentially fails to sustain the life of a child.  A woman in the latter categry has to bear the grief on her own, she does not have the option of railing against the law.

      Further, why should the death of an unborn child as a result of a car accident be treated as murder or manslaughter when the deaths of those who die on the roads at the hands of someone elses driving who have been living and breathing and loving for decades are treated as causing death by dangerous driving?  Tracey - why aren’t you writing about that? Why is the death of an unborn child more tragic and thus warranting a greater degree of legal sanctions than the death of someone who has actually lived and contributed to life?

      Reply

    • ABC says:

      12:23pm | 25/05/10

      I also want to add - that a birth certificate is not issued to a still-born baby under any circumstances.  A birth certificate can only be issued if a baby has drawn breath.  A birth certificate can be issued if a baby dies soon or immediately after delivery but only if a breath is drawn.  Therefore, a “life certificate” if you want to look at a birth certificate in that way - adheres to the view that life exists officially (whether people have an individual view of when life commences) only after a breath outside the womb occurs.

      Very red-tapeish I know - but it is so to avoid any difficulties associated with when life commences - the common-law view holds here.

    • The _Idlers_Wife says:

      01:18pm | 25/05/10

      HI ABC,
        A Birth Cerificate is issued in NSW to babies that are stillborn after 20 weeks gestation.
      My son was stillborn at 35 weeks. I have a birth certificate and a death certificate.

    • dancan says:

      09:17am | 25/05/10

      I say that once a foetus has reached the point where legal termination is no longer an option then it should be considered a person.  I mean what’s the use of having a cut of period if this can happen anyway?

      Reply

    • David Havyatt says:

      09:19am | 25/05/10

      Folks, it is really really simple.  Life does begin when the first breath is taken.  Without that definition we suffer real risks in future of the status of “artificial” life.

      The law has been appropriately changed to reflect the severity of the grievous bodily harm when it damages a foetus.  I could argue that damage to the reproductive organs is more sever than damage to an individual foetus.

      We also need to try to keep our discussion of moral issues focussed on the question not current emotive cases.

      Reply

    • Penguin says:

      03:17pm | 25/05/10

      I am sorry but that is bull.  A child is alive in the womb.  It had brainwaves and a heartbeat and it moves and responds to stimulus.  It has life.  If that is not the case, how can a foetus die within the womb if it is not alive.

    • DM says:

      10:01am | 25/05/10

      There is a massive difference between the unlawful killing of a foetus and a lawful one - it goes to the intention to commit an act of violence against the mother which, either intentionally or unintentionally, results in the death of her unborn child, without her permission. I think we are clever enough and subtle enough as a society to know when a person is committing a violent, criminal act of stupidity and aggression (eg drunk driving, assault) against someone, and when a highly trained and skilled person (eg a doctor) is performing a medically supervised pregnancy termination with the permission of the mother, who is in full understanding of the consequences of her actions, and who, for whatever reason, has decided she cannot go through with the pregnancy.

      Reply

    • Jonno M says:

      11:18am | 25/05/10

      results the same .

      foetus = dead

    • Tim says:

      11:19am | 25/05/10

      As I mentioned above,
      What if the mother is the one drink driving and kills the foetus in an accident?

    • elc says:

      04:32pm | 25/05/10

      What if the mother is NOT drink driving but just simply has an accident, she up for manslaughter if she loses her baby?

      What about someone who rear ends accidentally into someone’s car at the lights, no one is hurt, say a very minor accident, but what if one of the passengers in that car who is in the early days of pregnancy later miscarries while say 6 weeks pregnant and blames the accident as the reason why. Although still a sad loss, keeping in mind the rate of miscarriage in the first trimester should someone spend years in prison for manslaughter in a case like that?

      So many new possibilities, of course most of us regular human beings can see the shades of gray, a medical termination vs being beaten in the stomach, but sometimes laws can be manipulated.

    • DM says:

      06:20pm | 25/05/10

      Jonno M: I agree - what is your point therefore?

      Tim: What if the mother goes for a walk in the mountains and falls off a cliff? What if, what if, what if…...a woman’s pregnancy is filled with risks.  I don’t disagree that a mother who deliberately takes risks that result in the death of her unborn child is acting heinously - maybe that is an area of law that needs revising. However, your point in no way refutes my argument, which is that laws are designed to redress behaviour which the wider community finds unacceptable, and legal, early-term abortions do not fall into this category. I realise that families who lose unborn children in violent circumstances must feel outrage that under law their children are not considered ‘persons’, however, is changing legal definitions really the answer? Or is it that we need a more subtle recognition of the impact on the parents of a pregnancy lost under violent circumstances ?

    • Simon Ingram says:

      10:07am | 25/05/10

      John Anderson, former Deputy Prime Minister, famously pointed out: “If we claim that life does not begin at conception, then any other point is arbitrary.”
      If a baby isn’t a baby even in the womb, then how come it can survive being born at 22 weeks, 26 weeks, 30 weeks etc etc. To deny this reality is illogical, ludicrous, and unjust.

      Reply

    • TracyS says:

      12:43pm | 25/05/10

      There are 2 points in the process that can be clearly defined - conception and birth/delivery. Currently the definition of personhood relies on birth, irrespective of where in the developmental process birth occurs. Birth is a definite event - hardly arbitrary.

    • claire says:

      10:10am | 25/05/10

      i totally agree with eric here, the government is just doing what suits them best. A baby is breathing as soon as it starts growing so the law that came in last year about a baby isnt a human being till it breaths that is bull. This poor mother deserves justice for her baby and how would the government feel if this happened to there wife?

      Reply

    • Francis says:

      10:32am | 25/05/10

      Sounds to me that its not about right to life but about right to a possession. If you dont want a puppy dog and some one kills it you dotn care. But if you wanted that puppy dog you will feel that some one has done you an injustice. 

      Im going out on alimb here and saying that it isnt that simple. That why we cant seperate legal abortion with a assult to a foetus via a violent act to the mother. Its not about womens rights it about human rights. Weather you support or object to termination of foetus’, both parties would agree that we need to reduce abortions in this country. There is a massive untold price done to women who suffer the grief, phyical, mental and spirtual pain form going thru and abortion. It not well documented but it is very common. These women often suffer in silence. There also the untold loss of life by the foetus’ who have no say, who speaks up for the unborn?

      Reply

    • Luke says:

      10:32am | 25/05/10

      Killing a foetus against a women’s will vs “i choose to have an abortion” are two completly different things…
      The first is sure as heck is a allittle more than just “assault”, (and should be defined as something more than that in law) as it hurts a female a heck of alot more… perhaps it can be defined as “torture”, for taking that “future life” away from a family/female, particularly if its intentional,  is just cruel…
      The second isn’t “murder” nor “assualt” because we as a society have chosen for it not to be…

      Reply

    • dw says:

      12:53pm | 25/05/10

      it would appear that ‘we as a society have chosen’ that the unborn child in this case is not a person - because that is currently what the law states.

    • Luke says:

      04:46pm | 25/05/10

      Yeah,
      The current law is flawed given it doesnt take this kind of situation into account…
      Future law will have to…
      1. Keep abortion legal
      2. Take this case, and other simular involving killing a feotus against the women’s will, situations into account and punish it more…
      Democratically i think this is what the people want…
      Because it is a “sensitive issue” i dont think it will happen though, politicians/law makers shy away from this stuff as it can cost them their X thousand a year job…

    • Lee from WA says:

      10:41am | 25/05/10

      What about women who drink and take drugs while pregnant? I doubt anyone would disagree its a dumb idea but if we legislate to say that a foetus is a person for the purpose of manslaughter/murder charges, why not assault charges too?

      Reply

    • Luke says:

      10:56am | 25/05/10

      Good point hey!
      Women have a responsibility to thier children… but the state can’t enforce “exceptional care” guess
      if it renders a child disabled, maybe the child does have a case against the mother?

    • TheRealDave says:

      12:09pm | 25/05/10

      I wholeheartedly approve of people’s ‘right to decide’ when it comes to abortion. Early stage abortion that is. When the foetus is still small enough to be ‘just a bunch of cells’. But once the child is ‘viable’, to use the word probably innappropriately, then it is manslaughter/murder if you kill the child. Regardless of wether or not it drew a breath or other legalese nonsense.*

      Get a panel of Doctors together and surely betwwenthem they can come up with a specific date range or term of reference where a foetus becomes a child and put it into law. Shouldn’t take very long or cost any large amounts of cash - just grow a set and bloody do it!

      *Excluding medically recommended later term abortions…..not vanity ones or deciding late that you don’t want a child.

      Reply

    • AlsoDave says:

      11:47pm | 14/10/10

      The problem with the idea of ‘viability’ is this line in the sand is constantly changing. 30 years ago, a foetus was viable in the mid to late 20s (weeks). A decade ago it was 24-25 weeks. Now there are babies being saved at 22 weeks. While it’s a nice idea to set a line in the sand and say ‘this is the point at which it goes from non-human and killable, to human and protected under law’, it’s just not practical or scientific.

      You’re right about the ‘drawing a breath’ being legalese nonsense. The trouble is, any attempt to define a point other than conception is similarly arbitrary. But going along your plan, we could set a date well before our current limits of foetal viability (say, 12 weeks), and run with that.

      In my opinion, the major difference between 1 week and 10 weeks and 22 weeks etc. is that it looks more like a person so people feel more morally challenged by killing it. From when it is very very tiny and unrecognisable, it still has all the potential and all the unique genetic code to produce a new human, provided we let it grow.

      And someone will argue that potential is not the same as the results, so we should go with when it’s ACTUALLY a working human not when it has the potential to become one given appropriate parental care. But unfortunately that point is at about 21 when they get their act together and move out, and start feeding themselves and washing their own clothes.

    • Phil says:

      12:13pm | 25/05/10

      Personally I do not agree with abortion, but respect the privacy and wishes of those who desire to have one but only to a point. However following tests to determine the normality or not, which usually occur around 12-16 weeks, I feel it should be wrong to terminate. I do not have an opinion on the timing of this but around 20 weeks is more than enough time to decide that a child is wanted. .

      As for DG’s opinion on the unborn child not having a case against its mother, I can understand from certain things, that a mother who injects say heroine, why should they be any less capable for death/birth abnormalities than someone who on drugs runs over an innocent person killing the unborn child, or by a violent person punching. I know its a fine line, but murder is murder. Assault is assault, whether by force, drugs, drink etc.

      With the above, I see a father who knowingly allows their partner to consume drugs to be equally culpable of the crime.

      Unfortunately none in our current political system have a spine to sort this out.

      Reply

    • interloper says:

      12:25pm | 25/05/10

      This is a fascinating discussion. There seem to be two different arguments, though. There is the ‘legal’ question - how do we frame laws which recognise the violent death of a near-birth child as a death, while allowing abortion on demand. There is also the moral question - if we consider the near-birth child to be a baby (and virtually everyone does) then what does that say about our attitude to abortion.
      My own view is that the law should follow community attitudes, and therefore a solution like DG’s is probably appropriate. I would also hope that pro-life advocates use the inherent contradictions to help change community attitudes, ‘cos that’s the only way we’ll ever reduce safely the abortion rate.

      Reply

    • Erik says:

      12:36pm | 25/05/10

      My Condolences to the young couple, i have read that any feotus past 26 weeks of gestation has a viable claim to life. Even if there was a medical condition and a cesarian was preformed, Little Zoe would be alive and well. But just because of a scum bag, this little life was wasted, so that makes it murder / manslaughter in my books.

      Reply

    • Matthew says:

      12:42pm | 25/05/10

      Life begins at conception - end of story.

      Reply

    • Elphaba says:

      01:31pm | 25/05/10

      According to you.  And that’s fine.  Not according to the law.  And when it comes to prosecuting individuals, we go by the law - not opinons.

    • Whatever says:

      02:09pm | 25/05/10

      I agree Matthew, to pronounce a person dead, the person won’t have a heartbeat or brain activity, a feotus has both!

    • DG says:

      03:02pm | 25/05/10

      A foetus doesn’t have a heart beat until after it has a heart. Similarly it does not have neural activity until it has a brain.

      The heart beat starts around week 9-10, if I recall correctly.
      Lungs develop much later (and are kind of important too).

      The brain cannot function in any meaningful way until around week 20, if I recall correctly, the brain function prior to that point is almost identical to that of a brain dead person.

    • Hallie says:

      05:15pm | 25/05/10

      A ball of cells with no consciousness, while containing human DNA, is no more a human being than a dead body is.

    • Bitten says:

      06:32pm | 25/05/10

      “Life begins at conception - end of story.”

      Is it one of your favourite stories Matthew? Mine’s The Little Engine That Could.

    • Andrew says:

      12:44pm | 25/05/10

      There is nothing wrong with the current law. It creates legal certainty in a realm of moral ambiguity. Much like the decision of Roe v Wade, there are always going to be people who disagree with it.

      There are two points at which life can be said to ‘certainly’ begin - at conception, or at birth. These are nice milestone events, easily identified. Everything in between is uncertain, and based on either morality, or determined on a case by case basis, determined most likely by the abstract term ‘viability’.

      Any change to the current law is going to breed uncertainty in law - never a good thing - and infringe on individual rights.

      Reply

    • Greek Snake says:

      01:41pm | 25/05/10

      You are spot on Andrew. But how does one define “life”. Conception is but the beginning of the manufacturing phase if you like. It’s a work in progress. Birth is the actual milestone where self-sustaining life can be proclaimed. Thus it is at this point where life begins, legally and physically.

      The problem here the penalty for such a drink driving offence. The action is always punished on it’s outcome NOT on its potential to cause harm.

      In this case, a drunk driver struck a pedestrian. Forget the fact that he hit a pedestrian, he got in the car and drove while drunk. The potential of that action to cause harm to human life is huge. Punish accordingly! It is irrelevant whether he hit a bird, a pole, a human being or nothing at all, he was caught driving while drunk, punish him heavily. The law needs to be changed to allow large punishments to be dished out for dangerous actions regardless of their outcomes. Sure you can tack on a murder, manslaughter or grievous bodily harm charge after the fact, but the initial point stands: He did something potentially life threatening and had he not hit anyone and been caught, he would get a pesky fine and nothing more.

      The law needs to be changed to deter people from even thinking about doing something stupid. Only then there will be some justice. Stop relying on luck to have people’s lives spared on the road.

    • TheRealDave says:

      01:59pm | 25/05/10

      I disagree about ‘everything inbetween being uncertain’.

      All human babies go through the same stages of gestation. It shouldn’t be too hard for a panel of Doctors to get together and determine when life is, on the balance of probabilities, viable. In essence when the ‘bunch of rapidly reproducing cells’ becomes an unborn child or from embryo to feotus if you will.

      Make this the ‘cutoff’ date for legal abortions* and any harm dealt to the child by a third party. I am willing to listen to thoughts about harm comitted to the child by the mother but as a subject for a later debate.

      Laws need to be brought up to date, due to the changes in technology and society. When laws about the ‘first breath’ etc were brought in we didn’t have the technology to see and monitor the child in the womb. We do now and we regard the unborn diferrently now.

      Once we do that we can separate the emotive argument of Abortion from the Manslaughter/Murder/Assault of an unborn child. Its a pity that anti-abortioners use cases like this to push their own bandwagon rather than addressing the actual topic at hand. This is why we’ll never get any movement on sad cases like the article.


      * Except in cases of medical emergency or gross deformaties that would cause major life issues as in only being able to be alive for a very short period outsiode the womb etc not for the ‘regular’ disabilites we see in people that can and do lead productive lives.

    • Tim says:

      02:40pm | 25/05/10

      The Real Dave,
      what happens when medical science advances to the point where we can create an artificial womb and a foetus or embryo can be sustained pretty much from conception?
      Would that then make abortion illegal?

      Choosing a date based on medical probabilities would create a very uncertain and fluid definition.

    • Hallie says:

      06:04pm | 25/05/10

      Andrew, I 100% agree! Yours is about the only opinion I see here that encompasses an actual understanding of the law.

    • Andrew says:

      11:37pm | 25/05/10

      @ therealdave:

      You stated, “It shouldn’t be too hard for a panel of Doctors to get together and determine when life is, on the balance of probabilities.”

      This is problematic for two reasons. Firstly, evolution of medical and biotechnology would render an arbitration of an exact time (assuming you could accuately pinpoint how long a child has been in the womb - 20 weeks? 20 weeks and 5 days? 21 weeks and 3?) a problem, because the legislation would remain the same, and yet technology may provide that viability of life is made earlier. This creates uncertainty, which as stated before, is not a good thing.

      Secondly, you mentioned ‘on the balance of probabilities’. This is a nice standard to use when you’re working out who gets a car, or a pet, or a house, but it’s not the way it works in criminal trials. That requires a standard of proof beyond reasonable doubt, which is a much more arduous burden to prove.

      I strongly disagree that you could in any way create a standard as to the beginning of life that could be feasible as a matter or law that differs to that which is currently established.  To begin to apply such an uncertain test upon the populace would run a very real risk of violating the Rule of Law, which to me is unacceptable.

    • Ben says:

      01:29pm | 25/05/10

      The law should remain as is because otherwise, we will have a similar scenario like with the child sexual stuff. 10-12 year old’s are now suddenly listed on pedophile sex offender registers (UK and also charged for produicing child pornography. In this case, doctors or whoever will end up being charged for murder every time something goes wrong during the delivery of a baby. Mothers to be will be charged with same if they fell down the stairs and so forth.

      Reply

    • Jane says:

      02:27pm | 25/05/10

      GBH is in the most serious category of crimes- those that can put you in prison for 25 years. I think the state of the law is perfectly fine here and the sentence is more than capable of reflecting the loss. Honestly, I think a lot of you people need to actually read the judge’s rationale behind ‘Byron’s Law’. There are a lot of good policy considerations for categorising a foetus as part of its mother, and relaxing the GBH rule to allow hefty sentences for people who destroy foetuses through criminal harm to the mother is a good solution.

      In the end, the perpetrator here gets a serious category conviction and jail time, as the GBH rules have been twisted to allow this. The mother gets the satisfaction of seeing him convicted and can even sue in tort if she wants. All that people are crying over is the name of the offence.

      Reply

    • DM says:

      11:14pm | 25/05/10

      I agree - I think a lot of people are hung up on wanting the offence to be labelled as murder or manslaughter, rather than being concerned that justice is done (in the form of an appropriate penalty).

    • TracyS says:

      11:12am | 26/05/10

      Fully agree - there are options that will provide for penalties that are in line with the seriousness of the offence whilst still maintaining the current definitions (and therefore not adding ambiguity to the system).

    • Jamie says:

      12:02pm | 26/05/10

      I absolutely agree with this. When I read that the jail term was up to 25 years, I thought that this was good because it is more than some drunk drivers get when they kill an adult.

    • Chris says:

      02:30pm | 25/05/10

      Foetus is the preferred term for an un-born child used by those that seek to justify the murder of said un-born child. To call the child a child would make this much more unpalatable to ‘civilised’ people.

      Reply

    • DG says:

      03:28pm | 25/05/10

      Your ad hominem attacks are duly noted. In lieu of logical debate you follow Sentor Conroy’s “If you oppose the filter, you support child pornography” precedent, and accuse those who disagree with your opinion of being something other than “civilised people”.

      Under your plan a pregnant woman who kills herself is committing a murder/suicide, even if she didn’t know that she was pregnant. Or is knowledge of the pregnancy a prerequisite in which case this driver should not be charged with the death of the baby.

      How about a woman who participates in any activity that causes the termination of that “baby” during the first trimester (where the death of the baby is reasonably common)  is she guilty of murder - Whether she knew she was pregnant or not. At the very least she must, under your ruling, be guilty of manslaughter.

      I have no problem with people choosing to terminate any or all biological processes occurring in their body. I certainly reject the notion that a person should be bound to sustain another person against their own will - especially if that other person is living within the first person. But you clearly reject this notion.

      Finally, you would force a woman who has been raped to carry that baby to full term - regardless of the psychological damage that she would suffer as a result, the consequences for her relationships and the other risks to her health.

      The alternative is to support the murder of an innocent baby for the crimes of its father, or (where the mothers life is in danger) for actions over which is has no control and for which it cannot be held responsible (such as the risks to the health of the mother).

      Are you saying that this “murder”, as you put it, is OK in some cases but not in others?

      You would permit the murder of an innocent baby to save an mother who put herself in harms way (by having sex - after all we know there are inherent risks for a mother in pregnancy)?

    • Chris2 says:

      04:07pm | 25/05/10

      Really, Chris. You should take a look over at mamamia.com.au today - a total refutation of your argument.

    • DG says:

      04:41pm | 25/05/10

      I wrote a nice little reply to this that seems to have gone missing. If It hasn’t appeared in another hour or so I’ll try again.

    • Bernadette says:

      02:55pm | 25/05/10

      Where are the pro abortion people?????  They claim abortions at a very early pregnancy is murder, why not this?  Of course this is manslaughter.  If there is a birth certificate and a funeral, then the child existed and as for drawing breath, was it not a living being in the mothers womb????

      Reply

    • Jess says:

      08:18am | 26/05/10

      You’re doing quite well on your own wink

    • Jane says:

      02:58pm | 25/05/10

      To call something without consciousness a child is a way of transforming it into something it is not. ‘Child’ is a much more loaded word than ‘foetus’. The same people who object to the use of the more morally neutral word are often the ones who think a ball of cells in the first trimester should be called a ‘child’ and try to justify this by saying that they are ‘civilised’ and that everybody else is not.

      Grow up, Chris!

      Reply

    • Jess says:

      11:30pm | 25/05/10

      Of course its much more loaded Jane. For centuries a pregnant woman has been “with child”. Now we invent a word to try to neutralise our guilt. This debate just goes to prove that the debate just hasnt gone away!

    • Max says:

      04:01pm | 25/05/10

      Unfortunately I think that any result of this review will be pointless anyway. If you can cause the death of 5 people with a car and get 12 months suspended sentence, 1 person would warrant - maybe 3 months?

      Reply

    • Ray says:

      04:03pm | 25/05/10

      John Anderson was spot on by claiming that life begins at conception. It is monstrous and a denial of human rights to take an unborn baby’s life at any time after conceptioin.

      Reply

    • Karyn says:

      04:35pm | 25/05/10

      If it had been the mother at fault in the car accident, would she then agree to be charged herself for the manslaughter of her own child and do jail time?

      I dont think so.

      Reply

    • Helen says:

      06:52pm | 25/05/10

      The courts looked at this issue in Lynch v Lynch where a mothers negligent driving damaged the unborn child. Judge discussed at length the rights of a foetus. The parents in this current case need an ace barrister to dig up these past rulings.

      Reply

    • Andrew says:

      11:21pm | 25/05/10

      Said Barister would probably do a bit of research, discover how negatively that case has been treated in subsequent cases heard, and look for a better option.

      Futher, the child was only able to claim because it was still alive. Had it died, there would be no civil case to answer, and as the law stood, no criminal case either.

    • Mark says:

      09:19am | 26/05/10

      Be warned, whatever the outcome of this it will be applied to mothers who wish to terminate pregnancies and it should be to. If a foetus is to be given rights before birth they cannot be taken away by a mother choosing to abort.

      Reply

    • Helen says:

      09:12am | 27/05/10

      That’s why I’m expecting the forced-birthers to go in hard on this story and I hope family planning / pro choice organisations will go in just as hard to prevent any kneejerk legislation (which I fully expect to be brought by Fred Nile, Tony Abbott or someone similar, if it hasn’t already) being passed.

 
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