Comment: Busting the myths around Zoe's law

The mother behind Zoe’s law (2) gives her perspective on the emotional debate sparked by the law that is currently before NSW Parliament.

The Donegan Family (Photo: Honey and Ash)

The Donegan family. (Photo courtesy Honey and Ash)

There's been a storm of debate over Zoe’s law and what it means for reproductive rights.

But much of the debate has centered on a number of myths and misunderstandings about what this law will actually do, writes Brodie Donegan, Zoe's mum.

Many of the hypothetical scenarios floating around are simply not true.

As the mother of Zoe, whom Zoe’s law is named for, I feel it's necessary to explain why I'm proposing the law be introduced and what it will and won’t do. But first let me explain how the events of 2009 became the catalyst for my role in advocating for legal reform.

Who is Zoe?

Zoe was my daughter. My daughter who did not survive when a minivan driven by a drug affected driver on Christmas day 2009 left the road and hit me.

I was 32 weeks pregnant, and it took three hours to extract me from the scene of the accident; I was pinned by trees and partially under the front of the car.

I was then airlifted to Royal North Shore Hospital. My daughter had a heartbeat upon arrival. Two hours later when they began to have trouble locating it, I was given an emergency caesarean, but Zoe didn’t make it.

My partner Nick, Zoe’s dad, had to break it to me. She was perfect except for a mark on her lip from the resuscitation attempts. She was warm and looked and smelt like any other newborn.

We were heartbroken - losing my daughter was harder to recover from than any of my many injuries.

When the driver was finally charged six months after the accident, she was only charged with Dangerous Driving Causing Grievous Bodily Harm to ME. She did not even lose her licence until sentencing some nine months after being charged (15months in total after the accident). Zoe was listed in amongst my injuries. I couldn’t reconcile that my daughter which I’d held, cried over and willed to breathe was placed in a list of broken bones and soft tissue injuries. 

Why the current legislation isn’t enough

The current law allows the foetus/baby to be listed in the mother’s injuries. But the offence is against the mother. The baby’s existence is not recognised separately to the mother until he/she takes a breath.

I couldn’t reconcile 2 things after my accident. Firstly, had Zoe taken a breath (just one), there would have been a charge of manslaughter brought against the driver. The act of the breath recognises the offence which happened prior to the birth. It recognises the baby independently to the mother. If there is not breath, then the baby is not recognised separately to the mother and is then listed in the injuries to the mother.

Zoe did not take a breath. She was not delivered until 5 hours after I was struck by a car, when her heartbeat began to fade. The doctors tried valiantly to resuscitate her but were unsuccessful.

My problem with this law is that she was alive after the accident, she tried to hold on. It just took so long to extract me from the scene, transport me to hospital and stabilise me. Had she been delivered earlier we may have had a different outcome.

Secondly, she was not my injury. She was my baby. I felt her move; I’d had been to check ups, ultrasounds, and had pictures of her. I had bought clothes for her, set up a room for her, and carried her for 8 months.

We held her after she was born. We willed her to wake up. Her loss was harder to recover from than my other injuries. It did not heal as my other injuries. Her loss was felt by the entire family – Zoe was a daughter, sister, niece, cousin, granddaughter, great granddaughter. She deserved her own charge.

I am not arguing the adequacy of the penalties surrounding the current law. Indeed we would be replicating these penalties. I am arguing for the need of a separate law. It is a separate loss.

What’s the difference between Zoe’s law 1 and Zoe’s law 2?

Zoe’s law 1 was introduced by Reverend Fred Nile earlier this year, without any consultation to me or my family and without even informing me. Nile’s law is broad; it includes negligence, covers the entire pregnancy and had a blanket sentencing of 10 years. As my partner and I are pro-choice, we were wary of the direction this law was heading.

We decided if our daughter’s name was going to be on a law, we wanted some input. I approached Chris Spence, my local MP to help me draft a law, one where mothers and medical professional/procedures/treatment were completely exempt, a law, which was only applicable in certain serious offences and one which used the current sliding scale in approach to sentencing.

It is not an amendment to the original law by R. Fred Nile. It is a new law. It is very different. Yes, they have the same name, my daughter’s name but one is being used with my permission and one is not.

What will Zoe’s law (2) actually do?

I urge you to have a read of the NSW Bill to understand exactly what we are campaigning for. to the speech introducing it into parliament.

The object of Zoe’s law (2) is to enable a separate grevious bodily harm charge to be introduced for the foetus in very limited, specific circumstances. That is, for certain serious offences relating to grievous bodily harm where an offender (other than the mother or medical professionals during the course of a procedure, treatment or assisting a pregnant woman), who causes the death of or harm to a foetus, receives a charge of grievous bodily harm to the foetus, where that foetus is 20 weeks gestation or when age can’t be reliably determined, at least 400grams.

IT IS ONLY applicable to a few serious crimes.  These are dangerous and aggravated dangerous driving or navigation of a boat, predatory driving, assault, offences with firearms and gunpowder (explosives), robbery and breaking and entering (and then inflicting grievous bodily harm). 

The penalty remains the same as the current law. It is a sliding scale determined to suit each case. The maximum of 25 years applies to intent only, meaning intent to specifically harm the foetus.

What won’t Zoe’s law do?

Zoe’s law (2) cannot in any shape or form charge the mother. It EXEMPTS ANYTHING done by the mother or with her consent. Even if a mother committed a crime which as a result harmed her baby she would still not be charged. It is something she has done with her consent. Even if that action is criminal it’s a choice she has made. She would be charged with any other relevant charges but she can’t be charged with the destruction or harming of her own baby.

It EXEMPTS medical procedures and medical professionals assisting a pregnant woman. The words “medical treatments’ are also being added to provide further surety. It would NOT affect a women’s right to choose to end her pregnancy. It would NOT affect any actions by a disabled mother or underage mother. It would NOT affect the sale NOR use of the abortion pill RU486. It would NOT affect late term terminations.

It ONLY applies to foetuses at least 20 weeks or at least 400 grams (when age can’t be reliably determined) as defined in the

It CANNOT be used when charging for any negligent crimes. As grievous bodily harm can only be applied to a person for those specific crimes ONLY, a foetus at least 20 weeks is given personhood status. But it only remains WITHIN those acts.

The mother does NOT lose her rights. She only GAINS the right to have her baby recognised separately if the baby is harmed or loses its life due to a violent or criminal act

It is not to be a first step to abortion law. It is not to be used to charge the mother and it is not to be used to charge any in the medical fraternity assisting a pregnant woman. The bill clearly says this. The second reading speech clearly says this. I clearly say this.

Why 20 weeks?

There is already existing legislation in place surrounding 20 weeks. This was originally created in the late 1990’s to help with the grieving process. This means that if you have a stillborn baby after 20 weeks, you need to apply for a birth/death certificate.  You are required to bury or cremate your baby, you can name your baby (and if no name is chosen, it is given the name of Baby + Surname of mother). You can apply for the baby bonus paid as the bereavement bonus and - in many work places - you can apply for paid parental leave.

This legislation is in place to already recognise the existence of babies at least 20 weeks or 400 grams (where age can’t be reliably determined). Zoe’s law 2 would tie in with this legislation.

We feel legislating prior to 20 weeks would be difficult. Abortions are typically carried out between 3-20 weeks in NSW. A large number of pregnancies result in miscarriage up until 14 weeks.

We also feel ‘capable of being born alive’, as a definition, would be difficult to legislate, determine and prove. It is easier to pick a gestational point.

At 20 weeks the baby/foetus is almost viable. There are a handful of cases worldwide where babies under 23 weeks have survived. At 20 weeks there is existing legislation to tie into, which would then cover the entire second half of a pregnancy.

Why do we feel Zoe’s Law 2 is so important?

From a victim’s perspective, we wanted to have our loss acknowledged. We held Zoe. She was real and existed. She was our daughter. We had hope and dreams for her. She was not an injury that healed. Her loss caused me more pain than my injuries. Had she been born in any other circumstances she most likely would have survived without any complications. She was a good weight and size.

We believe that we should be able to support a woman regardless of the path her pregnancy takes.

We believe there’s a gap in the law. That it’s inconsistent that certain government agencies recognise the existence of the baby whilst the Crimes Act does not.

We believe having a separate law in place acknowledges what happened, it forces the offender to take responsibility for their actions, it reminds the police there was a second victim and it gives the family some closure.

This is not about an eye for an eye. It’s not about murder or manslaughter. It’s not about the penalty. It’s just about recognising the life that was taken.

11 min read
Published 22 September 2013 at 10:58am
Source: SBS