NSW law is being moved closer to giving the fetus legal rights independent of the woman who is carrying it, following the release of a review into the state's manslaughter legislation.
In his report, released on June 25, retired Supreme Court judge Mervyn Finlay recommended the creation of a new offence of "killing an unborn child".
The review was called following the contentious Harrigan case. In a November 2001 "road rage" incident, Michael Harrigan rammed into Renee Shields' car in Milperra, forcing it into a power pole. Shields was seven months' pregnant.
Badly injured, she was rushed to hospital for an emergency caesarian, which resulted in a stillbirth. Doctors also performed a hysterectomy.
On February 27, Harrigan was sentenced to four years and nine months' imprisonment for dangerous driving occasioning grievous bodily harm, which carries a maximum penalty of seven years' imprisonment. Combined with a sentence for perverting justice, he is likely to spend about five years in jail.
Judge Robyn Tupman commented in her summary of the case that the law did not allow Harrigan to be charged with dangerous driving causing death. In response, the NSW government called for the review.
Finlay has rejected the option of extending the definition of personhood, for the purposes of homicide law, to include fetuses. In explaining his reasons, he quoted ANU academic John Seymour, who said that this could lead to "the presumption that the [medical] practitioner [terminating a pregnancy] is guilty of murder or manslaughter".
Instead, Finlay wants to create a separate offence altogether, "killing an unborn child", and claims that it will not affect abortion law. His proposed wording contains two "protections" — the offence will be restricted to persons other than the pregnant woman, and the final clause reads: "A person is not guilty of an offence under this section in procuring a lawful miscarriage".
There is an immediate flaw in the final point — what is, and isn't, a "lawful miscarriage" is under constant challenge. In NSW, abortion is not legal unless it is necessary, as determined by doctors, to preserve a woman's mental or physical health. This is interpreted very liberally now, but such interpretations are subject to change.
Finlay has argued that the new offence should be restricted to the termination of "viable" fetuses — arbitrarily set at fetuses which are at least 26 weeks old.
Women's and children's rights groups giving submissions to the inquiry put forward a different approach. For example, the Commission for Children and Young People pointed out that it is already illegal to assault, batter or poison women into miscarriage. The commission suggested that, to make sentencing reflective of the gravity of the crime, involuntary forced miscarriage at a late stage of pregnancy be dealt with "as an aggravating factor in an offence against the mother".
Aggravating factors are listed in the sentencing provisions of the NSW Crimes Act and can be taken into account when sentencing.
Finlay, however, rejected this proposal, arguing that a fetus has legal rights independent of the person whose body it is part of. In explaining his view, he cited a 1998 British House of Lords ruling: "The relationship [between the pregnant woman and her fetus] was one of bond not of identity. The mother and her foetus are two distinct organisms living symbiotically, not a single organism with two aspects. The mother's leg was part of the mother, the foetus was not."
The crime in a forced miscarriage is in the trauma it inflicts, trauma caused by the denial of the birth of a wanted child. The fact that this grief can be as intense as that caused by the loss of an infant highlights that it is a crime committed against the woman who had the sole right to decide to carry the pregnancy to birth.
This is why Finlay's report, and such changes to the law as he proposes, must be opposed outright. The main purpose of the proposed legal change is not to give greater redress to women whose choice to give birth to a child has been taken away from them — it is to take reproductive rights away from women by granting the fetus independent legal rights.
When, if and how to have a child should be solely the legal right of the woman whose body nurtures the fetus. An assault on a woman which aims to stop her from having a child is as heinous a crime as forcing her to have a child she does not want. This has not always been recognised by the law.
For decades, while white women were denied access to, or information about, contraception and abortion, Indigenous women were legally subjected to forced sterilisation and had their children stolen from them by government and church authorities. Compensation has been totally inadequate.
Finlay's proposed new law may appear to give added protection to a woman, and her doctors, from prosecution for choosing to abort a fetus. But by according a part of a woman's body legal rights independent of the woman it provides a legal opening to undermine that protection.
BY ALISON DELLIT
From Green Left Weekly, August 6, 2003.
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