Legal personhood would be granted to a foetus in NSW for grievous bodily harm offences and may threaten a woman’s legal right to terminate her pregnancy, under a bill tabled to State Parliament.
The Crimes Amendment Bill, tabled by Liberal MP Chris Spence, seeks to recognise the separate existence of a foetus of a pregnant woman of at least 20 weeks’ gestation or with a body mass of 400 grams.
Critics of the bill warn it could have major consequences for a woman seeking abortion and that current laws covering the death of a foetus are satisfactory.
“[The bill] would make the loss of a foetus into a distinct crime separated entirely from any injury to the woman,” said NSW Greens MLC Mehreen Faruqi.
“It gives a foetus legal and independent ‘personhood’ status – this has major implications for the lawfulness and accessibility of safe reproductive health and abortion services.
“The bill is completely unnecessary – the present law under the Crimes Act automatically classifies this crime as an assault occasioning grievous bodily harm with a severe maximum penalty of 25 years jail.”
The Reverend Fred Nile, who originally tabled a bill of the same name, claimed the amendment was designed to deal with violent attacks and accidents against a pregnant woman, and was not aimed at abortion.
“It’s a pro-female bill, it’s not an abortion bill,” said Rev Nile. “The bill specifically exempts abortions or any medical procedure – it’s dealing with accidents and violent attacks against a pregnant woman.
“It’s got nothing to do with abortions or any medical aspect of what a doctor does, even if he did it accidentally,” he said.
“Nothing can happen unless the mother wants to initiate action, it’s not automatic, it’s only if the mother raises a complaint against the person who causes the death of her baby.”
However, Ms Faruqi claimed Rev Nile’s comments were misleading and the bill was at odds with a woman’s right to care for her own reproductive health.
“Let’s be crystal clear about one thing – the intent and content of this bill is completely incompatible with a woman’s right to choose and make decisions about her own reproductive health,” she said. “To say anything different is either naïve or deliberately misleading.”
A number of bodies support the Greens’ opposition to the Foetal Personhood Law, including the NSW Bar Association. In a letter to Chris Spence last month, the president of the association, Phillip Boulten SC, outlined the body’s opposition to the bill.
“The Bar Association has consistently taken the position that the current NSW criminal law in this area is satisfactory,” he said.
“Adoption of the principle in this bill would have obvious implications for late term abortions, notwithstanding the explicit limitations in the bill relating to medical procedures.
“Acceptance of the principle that some foetuses which satisfy the definition of an ‘unborn child’ are to be treated as ‘persons’ would necessarily call into question the ‘medical procedure’ exception.”
Mr Boulten questioned whether a mother would have the right to seek an abortion under the bill if it meant she would be agreeing to the destruction of a living person.
“When can a medical procedure designed in the interests of the mother be permitted to harm, let alone result in the destruction of another ‘person’?” he asked. “Equally, can a mother consent to the destruction of the foetus where what is occurring involves the destruction of another ‘person’?”
Ms Faruqi warned the bill would add another layer of criminality to abortion and would have legal ramifications to women seeking a termination, and for the doctors performing it.
“It’s only a matter of time before there is another abortion-related prosecution in NSW,” she said. “In court, the judge will be required to look at the current state of criminal law in which case the parliament’s intention to recognise a foetus as a person will have an inevitable impact on the legal outcome.”
The office of Mr Spence was contacted for comment but did not respond.