When is an unborn baby entitled to protection?

A review of NSW laws surrounding criminal actions which result in the death of an unborn child has been looking at this.

However, the review failed to recommend any specific offence of ‘killing an unborn child’ or to extend the definition of manslaughter to cover this situation.

But it did suggest amending the Victims Support and Rehabilitation Act 1995 to include the loss of a foetus - so as to provide compensation to victims who lose an unborn child. It also recommends the Government establish a scheme to cover the funeral costs of a stillborn child lost as a result of a criminal act.

Earlier this year the NSW Government appointed retired Supreme Court Justice Michael Campbell to conduct the review following the tragic death of baby ‘Zoe’ at seven months gestation after her mother Brodie Donegan was hit on the footpath by an allegedly drug-affected driver on the Central Coast on Christmas Day.

Central to the Campbell Review was the assessment of existing NSW legislation, known as Byron's Law, that enables police to charge an alleged offender with grievous bodily harm even if a woman suffers no other long term injury other than the death of her foetus.

ACL made a submission to the review in July and recommended the addition of the offence of ‘killing an unborn child’ to “operate alongside, and in addition to, the offence of grievous bodily harm as it presently relates to the death of an unborn child.”

Other pro-life groups such as the ‘Life Marriage and Family Centre’ also made submissions to the review, as did pro-abortion groups such as the ‘Women’s Abortion Action Campaign’.

Disappointingly the Review decided not to take an important step forward in better recognising the death of an unborn child in NSW criminal law as being more than just an injury to the mother. This is all the more ironic given that the Review is apparently willing to see compensation provided in this situation for the loss of the child – and even the funding of funeral costs. One has to ask why the life of an unborn child can be recognised in some NSW laws but not others?

Obviously the contradiction arises because the Review and the Government are seeking to avoid any controversy about abortion laws. As ACL stated in our submission:

“ACL understands that this review is framed in such a way as to avoid the controversies of the debate about abortion, but the parliament, and the people it represents, must inevitably face the contradictions in the treatment of the unborn by the law, which is entirely dependent on the subjective perception and feelings of the relevant parties towards each individual child. Until such contradictions are resolved, it will be difficult to answer satisfactorily the question of how to protect unborn children for the purposes of criminal law.”

Please click here to read the Campbell Report and here to read a news article on the review.