December 14, 2013

Horse 1581 - Zoe's Law, Abortion and Legal Personhood

So what have we learned from this evening's programme? That some ducks have bells and some don't; that murder isn't morally wrong and, most importantly, we've learned how to tell a goblin from a hobgoblin.
- Tom Baker

I draw your attention to the following article which appeared in the Sydney Morning Herald, late last month:
Zoe's law has always been personal for Brodie Donegan and her husband Nick Ball.
The controversial foetal rights bill was put to a conscience vote and passed in the lower house of the NSW Parliament this week, but it still needs to pass through the upper house before it is made law.
''We are happy it went through, but it's only half the battle,'' Mr Ball said.
The legislation was prompted by the stillbirth of Brodie Donegan's daughter, Zoe, after Ms Donegan was hit by a car when she was 36 weeks pregnant.
The bill for the first time recognises a crime of grievous bodily harm against an unborn child as a person.
- Sydney Morning Herald, 23rd Nov 2013.

It is worth reviewing the known facts of the case here.

Brodie Donegan was 32 weeks pregnant when she was hit by a car on the NSW Central Coast. The driver of the car was at the time on a combination of drugs including methadone.
The problem is that as the law currently stands, the driver of the car could be charged with counts of grievous bodily harm inflicted on Brodie but as unborn Zoe doesn't constitute a separate legal person because the law sees them as one and the same, the driver couldn't then be charged with a separate offence of injuring and killing Zoe.

Of course changing the law to include unborn children as separate legal persons, would meet with much controversy; especially those people who like to continue to like to call themselves "pro-choice". Legal personhood itself has all sorts of other implications (including companies which are non-living persons to begin with) because legal personhood implies and confers at law, rights upon persons.

Zoe's Law which passed the NSW Legislative Assembly on November 21 makes several provisions. It suggests that "medical procedures" are exempt from prosecution; that the mother is exempt from prosecution even if she occasions the child's death through deliberate, negligent or reckless actions and among other things that Grievous Bodily Harm against the child instead could be a charge, rather than manslaughter.

Even this has sparked off a giant wave of invective. The Sydney Morning Herald's article of 3rd Dec had this to say:
Today, NSW is largely pro-choice in its practices but not in its law. Under the latter, women are not given the right to choose an abortion but can avoid breaching the law if it can be shown that their termination fits within a recognised judicial exception.
If Zoe's law is passed by the NSW upper house next year, it may upset the accommodation that allows NSW women to seek an abortion. That law seeks to amend the NSW Crimes Act to enable a person to be prosecuted for grievous bodily harm done to a foetus.
To achieve this, Zoe's law would give legal recognition to the ''unborn child''. It would define such a child as ''the foetus of a pregnant woman'' that ''is of at least 20 weeks' gestation'' or, if the period of gestation cannot be established reliably, ''has a body mass of at least 400 grams''.
Clauses have been inserted into Zoe's law to limit its impact. However, a real prospect remains that it will also change the law on abortion, especially for a pregnancy that has progressed beyond 20 weeks.
The current position on terminations is fragile in that it rests upon a judicial interpretation of a statute that criminalises abortion. This judicial approach could be overridden where Parliament changes legislation such as the NSW Crimes Act.
- Sydney Morning Herald, 3rd Dec 2013.

I don't claim to understand all the legal implications with regards this because the further I look into it, the more questions there are. I do know however, that the argument surrounding this is far far far from compassionate:

No to Abortion, it's not murder because the person in question (the foetus) is not a legal person, nor are they alive. They cannot sustain life without the body of the mother, they cannot exist independently or even with medical assistance. Until such time as 24 (at the very earliest) weeks, they are nothing more than a parasite. If a woman does not want to be saddled with carrying a child to term, they should not be. Child carriage and birth carries numerous physical and mental health risks, and we must value the life of the person who already exists above the potential life of another. What so many anti-abortionists forget in the rabid quest to save lives is they can be ruining or destroying a life already in existence.
- comment from MissNomer, 3rd Dec 2013

I find a lot of this argument galling and inhuman. A lot of the debate which has been stirred up around this, seems to be an incredibly lazy cut and paste job from the existing argument in the United States. Some of this extends from the 'landmark' decision of Roe vs Wade (1973):
The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.
- US Supreme Court, Roe v. Wade, decided 22 Jan 1973

I must admit I find the decision in Roe vs Wade to be a tremendous miscarriage of justice. If a judge openly admits that they do not know and can not know the answer to something and yet is still required to make a judgement, then it is morally incumbent on that judge to provide an answer based upon either equity or the least amount of harm which will be inflicted.
I ask you, in a case of abortion, where is there more harm inflicted? Upon a mother or upon a child who as a result of action, is given a death penalty?
Here I find something quite duplicitous. On one hand if you asked people if they happened to agree with child sacrifice to the god of the harvest, they would most likely find it repugnant but if you were to suggest that a child be sacrifice to the god of convenience, people would think that you're crazy. Yet isn't this exactly what happens across the United States on a daily basis? More unborn children are killed per day than the events of Sandy Hook of one year ago. Interestingly though in the United States, the net result of both is nil. However, this is not about the United States but about the state of New South Wales, which is a very very different jurisdiction.

I find it incredibly strange that this debate itself isn't being framed within the context of human rights. Australia was right at the forefront of championing human rights with both the Universal Declaration of Human Rights in 1948 and the Convention on the Rights of the Child in 1990.
The CRC in particular gained entry into force for Australia on 16 January 1991. It has this to say:
BEARING in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth",
- Preamble,  Convention on the Rights of the Child, 1990

If the CRC didn't mean that a child should have appropriate legal protection before birth, then why even bring it up? Furthermore to this, Article 6 states that "States Parties recognize that every child has the inherent right to life".
Now there's a thing, if a child has an inherent right to life and they need should have appropriate legal protection before birth, then where does that leave the "pro-choice" argument?

Again I've found all sorts of arguments on this:
If you seek to restrict access to abortion, then what you are is a forced birth advocate. You value the embryo more than the mother, and reduce her to the level of livestock and/or an incubator without bodily autonomy or the right to decide whether or not she reproduces. Now that is what's truly cruel and horrific.
- comment from Red Pony in the Sydney Morning Herald, 3rd Dec 2013

The "bodily autonomy" argument assumes that given that a fetus is a human with the right to life, that right does not include the right to the pregnant person's body if the pregnant person doesn't want them there. The problem with this is that except in the cases of rape, tacit permission by the mother was already given to the child for its being there. As far as I am aware, it is logically impossible for a child to spontaneously come into existence and I'm also pretty sure that said child also did not have a say at all about where it was put. As for the right of the mother to decide whether or not she reproduces, I'm kind of sure that that decision was already made; along with a father.
I'd attach a caveat to this, suggesting that fathers should not be able to get off scot-free as they so often do and that morally, they should take responsibility for children they've created; I would really like to see more garnishee orders made upon the wages of father; including and even if it puts them into a bad financial position (they should have thought of that before they chose to create a child).

If this was a criminal case of trespass, then there would first have to be proven a degree of mens rea, that is "a guilty mind". I think that it would be really difficult (in fact impossible) prove that a child knowingly, either through direct intention, recklessness or negligence caused it to stray inside a mother's womb; especially when before the supposed act of trespass, it did not even exist.

I personally find the words "pro-choice" to be grossly inaccurate. What choice if any does the child whose life is to be destroyed have? I know why those words were chosen and it's because a more accurate "anti-life" or "pro-death" isn't easy to sell to the public. The language of a debate is often used to swing opinion; the entire of politics itself lives in such a domain. George Orwell had this to say on the subject:
Political language is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.
- George Orwell, "Politics and the English Language" (1946)

In NSW, the Crimes Act (1900), already has provsions which make abortion illegal in sections 82, 83, and 84; admittedly there are perfectly reasonably reasons why an abortion should be procured such as in cases of medical import where there are serious complications which might result in death, but generally, the law as it currently stands seems to fulfill its function reasonably well.

Unlike the Sydney Morning Herald, I don't see why quotation marks should be put around the words "unborn child". If Zoe's law grants legal recognition to unborn children, then it puts the law in line with conventions which Australia is already a party to.
It is right, fitting and proper that the law should recognise a crime of grievous bodily harm against an unborn child as a person because children need special safeguards and care, including appropriate legal protection, before as well as after birth.

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