Page 2421 - Week 08 - Wednesday, 29 June 2005
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was presented last year, but there would need to be more changes before I, as a woman concerned about women’s reproductive and other human rights, could support it.
Let me explain my concerns. I understand the bill excludes abortion, medical procedures and any act by the woman herself from being considered a criminal act, and that Mr Pratt believes the bill has adequate safeguards against being used as a tool to restrict abortion. However, I am aware that similar legislation in the United States has been used as a back door to revoking abortion rights, and that some of the mechanisms by which this has been done include identifying a foetus as an unborn child, thereby strengthening the argument that it is a separate entity with rights and deserves the protections that we might give to any other child.
Despite Mr Pratt’s attempts to separate the issue of abortion and crime against a pregnant woman, the way this bill is currently crafted sets up a series of offences against unborn children. In practice, this would assign legal status and rights to an unborn child as a separate entity from the mother. In my opinion this is extremely problematic. This could lead to arguments that the law assigns legal status to the unborn, and therefore the rights of the foetus can be set up in opposition to the rights of the woman. In addition, the bill, if passed, could lead to a situation where someone is charged with manslaughter, for instance, for a road accident that leads to a woman in the very early stages of pregnancy suffering stress that is then linked to the loss of the pregnancy. There appears to be some risk that we would be creating a very complex area of law.
I want to make it perfectly clear that I am not altogether opposed to legislation that introduces penalties for harm to the foetus when a woman who is pregnant is deliberately assaulted or harmed through the careless act of another. But I believe the law should recognise that the loss of a foetus, particularly in the later stages of pregnancy when there can be a strong bond between the woman and the foetus, and the loss of a pregnancy is likely to be a very traumatic experience.
I believe that applying penalties that recognise the loss of the woman and condemn any act of deliberate violence against a pregnant woman is an appropriate reflection of community values. I also have no objection to strengthening the penalties that might be applied to a case of domestic violence against a pregnant woman. The ABS women’s safety survey in 1996 found that of all the women who reported domestic violence occurring at some time in their lives 42 per cent were pregnant at the time. Twenty per cent reported that violence occurred for the first time during the pregnancy. So it is clear that pregnant women have a special vulnerability.
The approach I would prefer is one that recognises that the harm is caused to the woman, rather than to the unborn child. This would be in line with other jurisdictions, which recognise the loss of a pregnancy as causing serious harm to the woman. For example, the NSW parliament recently passed the Crimes Amendment (Grievous Bodily Harm) Act 2005, put forward by the Labor government in response to the findings of the NSW Court of Criminal Appeal in R v King, where the court found that the loss of the unborn child may amount to grievous bodily harm to a pregnant woman, even where that woman suffers no other injury, because of the close physical connection between a pregnant woman and her unborn child.
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