Foetal Personhood Laws - Community Forum (Part 1)

On September 26th 2013, Dr Mehreen Faruqi and the Greens NSW Women's Groups hosted a community forum on the legal and health implications on a foetal personhood before the NSW Parliament, the controversial Crimes Amendment (Zoe's Law)(No. 2). This clip features the first of three speakers, health law expert Julie Hamblin.

It is a repackaged version of a Bill introduced by Reverend the Hon Fred Nile in the NSW Legislative Council earlier this year, seeking to grant legal personhood to a foetus.

Zoe's Law proposes to amend the Crimes Act 1900 to recognise the separate existence of the foetus of a pregnant woman that is of at least 20 weeks' gestation, thereby seeking to redefine what it is to be a "person" in NSW for grievous bodily harm (GBH) offences. This conceptual change to the law is both dangerous and unnecessary.

There is already adequate provision in the justice system to respond appropriately to criminal incidents involving the death of an unborn child. An offence of this nature causing destruction of a foetus already carries a maximum prison sentence of 25 years. The same conclusion was reached by The Honourable Michael Campbell QC when he was asked by the then NSW Government to review the Crimes Act 1900 to assess current provisions.

On 6 September 2013, the NSW Bar Association, in response to the proposed legislation argues that there are "legitimate concerns" about the broader implications of the Bill. Once a definition of a foetus as a living person for the purpose of this Bill is adopted, "it would be difficult to resist its adoption in respect of other New South Wales criminal laws".

On 10 September 2013, the AMA wrote to NSW Health Minister Jillian Skinner with their concerns that the Bill could have unintended impacts on doctors in areas from genetics to obstetrics with unintended consequences and flow-on effects in other areas of medicine.

The unfortunate truth is that this Bill is just the latest in a sustained attack on women's rights.

For more information, have a look at Dr Faruqi's SBS article: www.sbs.com.au/news/article/2013/09/27/comment-legislating-foetal-personhood-misguided-public-policy or visit her website: www.mehreenfaruqi.org.au.

Good evening and welcome everyone.

I'm Mehreen Faruqi and I'm a Greens MP in State Parliament.

I have the carriage of the Portfolio for

the Status of Women for the Greens

and I also have the privilege tonight of being your MC.

I'll start by acknowledging

the traditional owners of the land we're meeting on

the Gadigal people and pay my respect to the elders past and present.

This land always has been and always will be

Aboriginal land.

I'd also like to acknowledge a couple of my colleagues

from NSW Parliament:

Greg Piper, who's an Independent in the lower house

and Dr John Kay, who's a Greens in the upper house.

Thank you both for coming.

And thank you all of you for making time tonight

to come and participate in this community forum

which really is about helping us unpack some of the implications

of this fetal personhood law

which is also known as "Zoe's Law"

that we have in front of Parliament at the moment.

This law is being debated in NSW Parliament at the moment

so I think it's really timely that we talk about it

discuss it and get enough information about it

to see why it is actually inappropriate

and dangerous for women's rights.

The media has given quite a bit of coverage

the last couple of months

also NSW Bar Association and

the Australian Medical Association

Family Planning NSW and the Greens

have come out and clearly stated their position

in opposition to this Bill.

There's also a coalition, a group formed by a coalition,

of women's groups called Our Bodies Our Choice

who are running the campaign

also to provide information to the community

to lobby the MPs, to provide information to them

about the implications of the bill.

And tonight we're really fortunate

to have three excellent speakers with us

who will take us through the legal, health and medical implications

as well as the consequences for women's rights of this particular bill.

Each of our guests is going to speak for about 10 to 15 minutes

and then we'll open up for about 30 minutes to 40 minutes

to have a discussion

and also to ask questions of our speakers.

We will be recording tonight's session

and we'll make a Youtube and put it up on our website

so if you have any issues being recorded

it will mainly be the speakers

but we might record you when you're asking your question

if you have any issues with that just let us know

and we'll edit you out.

OK, so our first speaker for tonight is Julie Hamblin.

Julie is a lawyer with more than 20 years experience

advising the public and private health sectors

on health law, medical negligence, clinical risk,

bioethics and public health.

She has held a number of government appointments in the health sector

including the Australian Research Integrity Committee,

the Australian National Council on HIV/AIDS and Related Diseases,

and the board of the former Central Sydney Area Health Service.

In December 2012, Julie was appointed to

the NSW Clinical Ethics Advisory Panel.

Julie has a long standing interest in sexual and reproductive health,

and has undertaken consultancy work with

HIV and related sexual health issues

in more than 20 countries, in Asia, the Pacific, Africa and Eastern Europe.

So please warmly welcome Julie Hamblin.

[applause]

Thank you Mehreen, thank you everyone for coming along tonight

to talk about this really important issue

it's something that's very close to my heart

and I, um, think it's so important that

we all understand exactly what is at stake

with the bill that is before NSW Parliament at the moment.

What I wanted to do in my comments is

to talk first of all very briefly about

how the law currently regards fetuses

and why a legal person—, a fetal personhood law would be such a significant change

to the existing law.

And then I want to spend a little bit more time

talking particularly about the legal status

of abortion in NSW because this is one of the things

that I am particularly concerned about in relation to Zoe's Law

because we have a really uniquely precarious position

with abortion law in NSW.

And i think we all need to understand the fragility

of lawful abortion in this state

in order to realise just how risky it would be

if this bill goes through.

So just to give a little bit of a background

about how the law has traditionally regarded fetuses.

In short, the law in NSW has always adopted

what is known as the 'born alive' rule.

And what that says is that until

a child is born and takes a breath

the child is not to be regarded as a legal person.

And so there are some situations around the edges

where the law has had to look at

should there be changes made to the born alive rule?

Let's say for example, there have been cases where

a pregnant woman has been involved in a car accident

and has had, has sustained injuries

which has included an injury to her fetus.

And the courts have held that if that fetus

goes on to be born alive, hence the born alive rule,

goes on to be born alive, the fetus as a person,

as a legal person after birth,

will have the right to claim damages,

to be compensated for the injuries sustained while in his or her mother's womb.

But that legal right only crystallises,

and this is a really important point,

that legal right only crystallises once the child is born alive.

And so although there is a recognition of

injuries sustained while a fetus,

the principle of the born alive rule is maintained.

And there are numerous examples of that.

There was one I was reading about just a couple of weeks ago

in relation to the coroner's jurisdiction.

Because under the coronial legislation

certainly in NSW and I think in most states in Australia

the coroner has jurisdiction only to investigate deaths.

So if it's a stillbirth,

under the Coroner's Act, the coroner doesn't have jurisdiction,

because you haven't had a person who has been born alive.

And there has been some debate about whether it would be appropriate

for the coroner's jurisdiction to be expanded

so that the coroner could investigate circumstances

surrounding stillbirths as well as

circumstances surrounding the deaths of children who have been born alive.

But that hasn't happened, and even in the literature about

a possible extension of the coronial jurisdiction to stillbirths

which would be much less concerning than

a full recognition of fetuses as a person

there has been opposition to that on the basis that

that would encroach upon the born alive rule

which is considered to be a very important dividing line

as to why—, when and in what circumstances

the law should recognise someone as an individual person.

So that's a starting point.

We have in NSW the born alive rule,

it is a very strong and very well established legal principle.

And I am certainly not aware of any other case,

and an example of a court decision or of legislation,

which has departed from the born alive rule.

[cough]

So that's the background that we have

when we look at Zoe's Law.

Because Zoe's Law would be a radical departure from the born alive rule.

And all those who support it say

but it's only limited to the particular circumstances of

grevous bodily harm offenses that it would relate to

but none the less, in legal terms,

it would be a very significant development

because it would be the first time that NSW law

has recognised a fetus as a legal person.

And that is a very significant change to the law.

Why does it matter?

As I've said all those people who are supporting Zoe's Law

say but it's limited to the circumstances of

these particular grevious bodily harm offences,

it won't affect other areas of the law

such as abortion.

I beleve that is simply an incorrect legal analysis.

I just wanted to spend the second part of my time

um, going over a little bit of the background

what is the legal position of abortion in NSW.

And why given that background

having a provision that recognises a fetus as a person

even if it's only in the context of these particular sections of the criminal code

why that would a threat to lawful abortion in this state.

Now, what do I have to do?

I've got to press Escape?

So, what is the current abortion law in NSW?

Um, I can guarantee you, because I've done this a million times,

if you take a straw poll against your friends and colleagues,

and you say "Is abortion legal in NSW?"

The overwhelming majority of people will say

"of course it's lawful in NSW."

People simply don't realise that abortion is still a crime in NSW.

One of the major problems that we have doing abortion advocacy

is to convey to people that there is a problem.

Because the majority of people think that it's all been sorted

that we have abortion on demand in NSW.

Sadly, the truth is a long way from that.

Abortion is still a criminal offence in NSW.

It always has been for as long as the Crimes Act has been in place,

which is now well over 100 years

and the offence has not changed over that time.

Ah, it's imported from the original British criminal code provisions.

And it's an offence, I put up the wording of the offence on the slide there,

it's an offence both for a woman who does something to herself

to procure her own miscarriage

which is the wording that they use

and it's also a criminal offence for another person

to administer something, to perform a procedure

that brings about a woman's miscarriage.

[cough]

But the critical word, which you can see there in both those offences

is "unlawfully".

Because it says

"whosoever unlawfully administers to herself"

or if you're a doctor or someone else

"whosoever unlawfully administers to a woman".

And so the interpretation of a lawful abortion in NSW

hinges on this one small word, "unlawfully".

And it's quite an unusual provision

in the context of the Crimes Act

because the Crimes Act doesn't define what "unlawfully" is.

In most of the other offences in the Crimes Act

it says "well, these are the elements of the offences,

and these are the things that might be a defence to a particular criminal offence."

It doesn't say that in relation to the abortion offences.

So that's a really significant problem to start with

in terms of getting clarity as to what the legal position is.

So what the law says is

"if you do something unlawfully it's a criminal offence."

Particularly unhelpful.

And so in terms of deciding and determining

what really is lawful and what is not lawful

we have to look to how the courts have interpreted

that one word "unlawfully".

Um, there have not been many court decisions

but the ones that there have been

— now why is that not turning on?

I've got to play that, don't I?

What's wrong?

No it's not working.

Oh yes it is!

So the definition of unlawfully and

the way unlawfully has been interpreted by our courts

goes back to two very old decisions

one in 1969 in Victoria

and one in 1971 in NSW.

And what they've said in short,

I've put up the precise wording there,

what they have said in short is that

it will be lawful if the abortion is considered to be

is reasonably considered to be

necessary to preserve the woman from

a serious danger to her life or her physical or mental health

and in the circumstances is not out of proportion to the danger.

So in short what you need to show in order to

establish that an abortion is lawful

is that it's necessary to prevent

a serious risk to the life or health of the woman.

It's known as the Menhennitt rules, the test.

And in NSW we had a case in 1971, R v Wald,

where that test was adopted.

Actually a very interesting background to that case.

It was, it was, quite a shocking set of circumstances

that gave rise to it.

Dr Wald was a doctor who ran a termination clinic

in Clovelly I think, somewhere in the eastern suburbs,

and there was a police raid on that clinic,

without notice one day,

with women on the operating table

in the middle of having terminations.

And Dr Wald was charged with unlawfully performing an abortion.

And the main statement that we have of the law in NSW

comes from that case,

and it's not even from an actual decision by the judge.

It's from directions that the judge,

in the criminal trial of Dr Wald, gave to the jury.

But what the judge did was to adopt the test

of serious risk to the life or health of the woman.

Since then we've only had a very very small number of cases.

And that I guess is a good thing,

it shows there isn't a lot of appetite

to bring criminal prosecutions to court.

And the cases that we have had by and large

have upheld the test in Wald,

which says that an abortion is lawful

if it is necessary to prevent a serious health to—

er, serious risk to the life or health of the woman.

And it's been expanded to acknowledge that there might be

economic and social grounds on which

the continuation of the pregnancy might pose

a serious risk to the woman's health or life.

And so everything seemed to have a sort of uneasy equilibrium

until 2010 where in Queensland as you may have read

there was a prosecution brought against a young woman

who had a medical abortion at home

using RU486, that she administered to herself.

And she was criminally charged under the Queensland criminal code

which was very similiar at that time to our code.

It's since been amended to make it a little bit better,

not much but a little bit.

And so she was charged with unlawfully procuring her own termination.

She was acquitted by the jury

we don't have reasons

so we don't know exactly what the thinking was

of the jury.

We have some hints

from the directions that the judge gave to the jury.

And I can talk more about that later

I don't really have time to go into that now.

So she was acquitted and

that's a good thing.

But it certainly was a very stark reminder

of just how precarious a position we have

in NSW and Queensland

where we still have these outdated offences

in our criminal code

that can be brought into life at any time

if the circumstances come together

such that uh, either a woman

or a medical practitioner,

could be criminally charged.

[cough]

So just briefly, and to sum up,

why is the existing abortion law so unsatisfactory?

Well, you know, where do you begin?

There are so many reasons.

First of all, it remains a criminal offence,

and as I've said that's obviously a problem.

Because this, the lawfulness depends upon

how the courts interpret this word "unlawfully"

on the facts of a particular case.

It's a very unstable foundation

for lawful abortion in this state.

It's subject to particular facts of the case

it's subject to the personal inclinations

and beliefs of particular judges

and we have had a case that was overturned

in appeal in NSW

the Superclinics case

where the particular personal beliefs of a judge

clearly intervened in his decision

in declaring a particular abortion had been unlawful.

And as I've said, we know from the case in Queensland

that while prosecutions are rare,

they're certainly a very real possibility.

In practice what it means of course

is that abortion is in a grey zone.

It is not fully legal like other mainstream medical procedures.

In NSW terminations are performed

overwhelming in the private sector,

not in the public sector,

and there are really concerning issues about cost and access

as a result of that.

Fetal anomaly is not a relevant consideration

to the test of unlawful abortion

except to the extent that a child, if born disabled,

might have an impact upon the psychological health of the mother.

And that's just ridiculous.

You know, we know that the overwhelming majority of public opinion

supports access to abortion at least in that—

in those circumstances.

Indeed the majority supports it

in an even broader set of circumstances.

But certainly to have a law that doesn't recognise

serious fetal anomaly as grounds in itself

for a lawful abortion is quite concerning.

And so we're left with a disconnect between what the law says

what most people think it says

and what is actually happening in practice.

Because we have clinics who— that are operating

where terminations are performed

but where it's done with a concern constantly

to be able satisfy this very limited test

of serious risk to the life or health of the woman

that doesn't really accord with the motives

and with the reality of what's happening

with a lot of terminations.

And so finally just to bring it back to

the concern about Zoe's Law:

because we have this fundamental instability

and a lack of a secure foundation

a secure legal foundation for abortion in NSW

any law that recognises a fetus as a living person

which is what Zoe's Law will do

however limited it is

to the particular section of the Crimes Act that the amendment relates to

however limited it is

it provides ammunition for someone

who wishes to challenge the lawfulness of an abortion

the next time a case comes to court.

And that's an issue that I think should be of serious concern to all of us.

Thanks very much.

[applause]