Parents who lose an unborn baby due to another person’s criminal act will have more support under the law in NSW from Tuesday.
The state became the only jurisdiction in Australia to have a stand-alone offence for “causing the loss of a foetus”.
It has been dubbed Zoe’s Law, after the unborn child of Brodie Donegan, killed by a drug-affected driver on Christmas Day in 2009.
“Nothing will replace Zoe, nor will it replace the grief experienced by families in the future impacted by tragedies such as this,” Ms Donegan said.
“However, this law will go a long way in terms of recognition that anyone who commits a criminal act causing the loss of an unborn child will be held accountable; the loss will count and be recognised at law.”
The woman who hit Ms Donegan, despite admitting to being on a cocktail of drugs at the time, received just nine months’ jail and faced no charges in relation to Zoe’s death.
New punishments for killing an unborn child will range from a maximum of five to 28 years in jail, depending on the criminal act, such as an accident resulting from dangerous driving or those acting with intent to injure a pregnant woman.
In the event an unborn baby is killed as well as the mother, such as in a murder or manslaughter case, a maximum of three years’ jail can apply in addition to the maximum penalty for killing the pregnant woman.
The charges can only be laid when a foetus is at least 20 weeks’ gestation or 400 grams in weight.
Lawmakers were careful not to include any act by the pregnant mother that could be charged under the new laws, and not to contravene the which removed abortion as a crime.
Attorney-General Mark Speakman thanked Zoe’s mother, Ms Donegan, and other victim-survivors for sharing their experiences.
“No law can ever repair the harm and distress caused in these circumstances, but these reforms better acknowledge the heartbreak suffered by families and hold offenders more appropriately to account through stronger sentences,” Mr Speakman said.
Jacqueline Sparks lost her full-term unborn child after being involved in a head-on collision with a drug-affected driver in 2014.
The incident ruptured her uterus, leaving her unable to bear children.
“This law is about our loss and allxjmtzyw the other families that have lost their babies, not by choice or illness or fate,” Ms Sparks said.
“Our daughters were everything to our lives. At the very least, their loss of having a life can be accounted for.”
Accompanying the new laws is additional victim support, aimed at giving them the most amount of recompense in the eyes of the law as possible.
Families may also be eligible for a one-off $3,000 payment to assist with counselling and other support services.
They will also be able to make victim impact statements in court which may be taken into account when sentencing offenders, and the name of an unborn child lost as a result of a criminal offence can be included in the formal wording of charges against an accused.
The reforms do not replace the centuries-old “born alive rule”, which states that a crime of violence, such as homicide, can only be committed on a legally recognised person, being someone who is born and takes their first breath.
“For many years, there has been discussion in the NSW parliament about possible reform in this area of the criminal law, but strong disagreement as to how that should occur,” Mr Speakman said.
“This reform delivers on a commitment by the NSW Government to seek expert advice and community feedback on how the loss of a foetus as a result of a third party criminal act might be better recognised in NSW law.”
