Human rights lawyers deeply concerned that reintroduction of Fred Nile’s Foetal Personhood Bill will violate women and girls’ rights

Australian Lawyers for Human Rights (ALHR) is deeply concerned by the reintroduction of Fred Nile’s Crimes Amendment (Zoe’s Law) Bill 2017, which seeks to criminalise harm to, or the destruction of, a “child in utero. The Bill was initially reintroduced in March 2017 and is anticipated to again return to the Legislative Council on 15 November, 2018.

ALHR NSW Convenor Sarah Schwartz said, “These provisions seek to accord both foetuses and embryos a separate legal identity to that of a pregnant person. The Bill has been reintroduced in the same terms as Reverend Nile’s previous 2013 Bill, which was allowed to lapse amid controversy.”

“While ALHR condemns any harm to pregnant people in the strongest possible terms, the Bill does not add any legal protections for pregnant people and, in fact, would only serve to undermine reproductive rights in NSW. If passed, these measures will heighten the existing legal uncertainty regarding reproductive rights and the legality of abortion in NSW. While the Bill contains exceptions for ‘medical procedures’ or ‘anything done by or with the consent of the mother’, neither of these terms are defined. This is particularly concerning when we consider the situation of pregnant people under the age of 18 or others not technically in a position to provide informed consent.”

“ALHR is also concerned the law could be used to impose restrictions on the behaviour of people who are pregnant. This is something which has played out in some American states where, recently, the appointed legal guardian of a foetus took a mother to court for endangering it. If a foetus is considered to be a ‘legal person’ under some criminal laws, there is a risk that this principle may spread to other aspects of the law. ALHR is deeply concerned by the potential of the Bill to restrict the bodily autonomy of pregnant women and people in a manner that is inconsistent with Australia’s international human rights law obligations.”

Ms Schwartz continued, “The Bill’s proposed changes to the Crimes Act are completely unnecessary since there are already provisions to prosecute dangerous drivers or assailants whose actions tragically result in a woman suffering a miscarriage. Indeed, the Bill would remove current sections of the NSW Crimes Act which establish that the destruction of a foetus (outside of a medical procedure) constitutes grievous bodily harm to the pregnant person. If committed with intent, that offence carries a maximum penalty of 25 years imprisonment, whereas Fred Nile’s Bill only includes an offence of recklessness, punishable by up to 10 years imprisonment. Rather than protecting victims of crime, the Bill removes provisions which recognise that the destruction of a foetus constitutes grievous bodily harm to a pregnant person.”

ALHR is calling on members of the NSW Legislative Council to reject the bill in its entirety. ALHR understands that there have been proposed amendments to the Bill circulated to members of the NSW Parliament, which include measures to limit the operation of the Bill to foetuses over 24 weeks gestation. Ms Schwartz stated, “Amendments to gestational limits would not adequately address the threat of laws creating foetal personhood resulting in restrictive, punitive and criminal consequences for pregnant persons and for people providing them with medical and other services.”

“ALHR supports the views expressed by the NSW Bar Association and Law Society of NSW that the current provisions of the Crimes Act are sufficient and appropriate. We further note the conclusions of the Review of laws surrounding criminal incidents involving the death of an unborn child[1] undertaken by the Honourable Michael Campbell QC in 2010 which, after extensively considering these issues, found that the current law in NSW allows for an appropriate response to such incidents and that no amendments were required.”

“Just a few weeks ago, the Queensland Parliament finally moved to decriminalise abortion and reform its laws surrounding termination of pregnancy. NSW is the last state in Australia where administering an abortion remains a crime punishable by up to 10 years imprisonment. NSW should be taking urgent action to remove criminal offences relating to abortion from its statute books, not regressing to create more legal uncertainty for people seeking terminations and health practitioners providing reproductive health services.”

 Contact: Matt Mitchell, ALHR media manager 0431 980 365.

[1]Review of laws surrounding criminal incidents involving the death of an unborn child’, Honourable Michael Campbell QC, October 2010 at