Manslaughter may count for unborn babies

Brodie Donegan with her son, Lachlan, 2, and daughter, Ashlee, 5. Photo: Jacky Ghossein
Brodie Donegan with her son, Lachlan, 2, and daughter, Ashlee, 5. Photo: Jacky Ghossein 

People could be charged with killing or hurting unborn children under a controversial new law set to be considered in Parliament.

The proposed legislation has been named Zoe's Law in honour of the unborn child of Brodie Donegan, a Central Coast woman who was eight months pregnant when a driver on drugs ran over her on Christmas Day in 2009.

Zoe was stillborn as a result of the injuries suffered by her mother, which included a shattered pelvis, thigh, spine and foot. 

But the driver, who was uninjured, wasn't charged for Zoe's death because the law didn't recognise the unborn baby as a person. The driver was instead jailed for nine months for causing Donegan grievous bodily harm.

"I find it hard to reconcile that if a baby has not yet taken a breath, then a situation like mine is considered grievous bodily harm to the mother, but if one breath is taken then it is manslaughter of a child," Donegan said.

"It's important for the victims to feel like their baby mattered and counted."

One version of the law is being proposed by the Christian Democratic MLC Fred Nile, who claims the problematic bill has been the subject of close consultation with the Attorney-General's office for two years.  If the Crimes Amendment (Zoe's Law) Bill 2012 is adopted, it would create the potential for someone to be charged with manslaughter if they caused a woman to lose her baby.

The existing law defines harm against a foetus as an aggravated assault against the mother, and the shadow attorney-general, Paul Lynch, said Rev Nile's proposed bill was unnecessary. He said that an amendment to the NSW Crimes Act was introduced in 2005 to extend the definition of "grievous bodily harm" to cover the destruction of a foetus (other than in a medical procedure), whether or not the woman suffers any other harm.

Rev Nile said he wanted to take the legal protection for unborn children "one step further", saying it would help in cases when a pregnant woman was kicked in the stomach or hurt in a car accident when someone else was at fault. But the passage of the law has become associated with his well-known anti-abortion views. 


Donegan said she had never been consulted by Rev Nile and that she was wary of his bill. Her understanding was that the bill would seek to recognise unborn babies from the point of conception, and said this risked throwing abortion laws into chaos, as well as igniting debate about when a foetus should be considered a baby.

"I was quite shocked by what Fred Nile has proposed," she said. "What we want has nothing to do with abortion.  We lost our baby unwillingly in a completely different context.

"We just want Zoe's Law to be as practical and logical as possible without religion at all coming into it."

She supports the efforts of Liberal member for The Entrance, Chris Spence, who said he had approached the government with the suggestions. Spence said he was concerned Rev Nile had not consulted Donegan, adding, "I will be looking at all of the options available, including the potential drafting of an entirely new bill."