Exploring Zoe’s Law: Implications of New Offences for Foetal Death

Co-authored by Isabel Strahan

KEY TAKE OUTS

• NSW Parliament is the first state in Australia to pass a law increasing the punishment for people that cause the loss of a foetus.
• The law seeks to protect pregnant women who lose their child at the hands of a criminal offence.
• Previously, if a mother lost her child whilst still in-utero the death of the unborn child would be regarded as an injury sustained by the mother.
• The new law came into effect on 29 March 2022 after a 12-year-long campaign.

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Are there laws governing crimes causing the loss of a foetus?

New South Wales has become the first state in Australia to pass a stand-alone offence imposing harsher punishments for criminals that are convicted of injuring a pregnant woman which resulted in the loss of the unborn child.

The ‘causing the loss of foetus’ law came into effect on 29 March 2022 after a 12-year-long campaign in State Parliament. The legislative reforms are also known as “Zoe’s Law”.

What sparked “Zoe’s Law” recognising loss of unborn children?

The campaign was headed by Brodie Donegan who lost her unborn daughter, Zoe, after being run down by a drug-affected driver on Christmas Day in 2009. Ms Donegan, who was 32 weeks pregnant at the time, was shocked that the loss of her daughter was listed as an injury sustained to her and was unable to bring about legal proceedings on behalf of Zoe.

Attorney General Mark Speakman exclaimed that “no law can ever repair the harm and distress caused in these circumstances, but these reforms better acknowledge the heartbreak suffered by families and hold offenders more appropriately to account through stronger sentences”.

Offences encompassed under Zoe’s Law

What is Zoe’s law? The reform has seen the creation of two offences in relation to causing the loss of an unborn child.

The first is a broad offence which includes where an individual has caused grievous bodily harm to a pregnant person resulting in the loss, dangerous driving which caused the death of the foetus, or circumstances where grievous bodily harm was inflicted with the intent to injure the pregnant woman. A person who is charged under this offence will be sentenced is liable for a maximum penalty that equals the total of the maximum penalty for the relevant Grievous Bodily Harm offence, plus 3 years’ imprisonment.

The second offence sits alongside the offence of homicide with an additional 3-year imprisonment to be added to the concurrent sentence.

In order for a charge to be bought under this offence, there must be a criminal act committed that caused the loss of the foetus. Additionally, the unborn child must be 20 weeks old or if gestation can’t be established, the foetus must weigh more than 400 grams.

The creation of this law not only seeks to hold criminals more accountable for the loss of an unborn child but also allows for the family to seek monetary compensation. Affected families will be eligible to apply for a one-off bereavement payment of $3000.

The new law also allows for family members to have their victim impact statements heard before the Court and for these statements to be considered in sentencing.

Why is Zoe’s Law controversial?

Previously, conversations surrounding the enactment of legislation recognising the death of an unborn child has been controversial. The potential implications a law like this could have on a woman seeking safe access to an abortion has been the focus of debate.

However, the Abortion Law Reform Act 2019 (NSW) made abortions legal in the state of NSW and given the requirement of a criminal act to have resulted in the loss of the foetus, the law seeks to protect women and not infringe on their right to seek an abortion. The new offences also expressly state that they do not apply to the termination of a pregnancy via abortion or an act or omission of a pregnant woman those results in the loss of the woman’s foetus.

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