Why losing my daughter means I don't support Zoe's law
24/11/2013 21:42
17 November 2013, 8.26pm GMT
Why losing my daughter means I don’t
support Zoe’s law
Hannah Robert
Law Lecturer at La Trobe University
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?
Mothers are best placed to make decisions about what to do
As a feminist legal academic,
with the life within them. Flickr/Peej's photos
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.
http://theconversation.com/why-losing-my-daughter-means-i-dont-support-zoes-law-19985
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Why losing my daughter means I don't support Zoe's law
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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 nonhumans, 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
http://theconversation.com/why-losing-my-daughter-means-i-dont-support-zoes-law-19985
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Why losing my daughter means I don't support Zoe's law
24/11/2013 21:42
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.
http://theconversation.com/why-losing-my-daughter-means-i-dont-support-zoes-law-19985
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